Patriot Act - This should make for a good fight

[NousDefionsDoc]

Liberty Beat
by Nat Hentoff
Patriot Act Besieged
A Justice Department honcho confesses: 'We are losing the fight for the Patriot Act'
May 28th, 2004 1:00 PM


The objective of the Patriot Act [is to make] the population visible and the Justice Department invisible. The Act inverts the constitutional requirement that people's lives be private and the work of government officials be public; it instead crafts a set of conditions that make our inner lives transparent and the workings of government opaque. - Elaine Scarry, "Acts of Resistance," Harper's Magazine, May 2004

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The Patriot Act makes it able for those of us in positions of responsibility to defend the liberty of the American people. - George W. Bush, quoted by the National Committee Against Repressive Legislation, May 2004



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In March, at the Washington University School of Law in St. Louis, I debated Chuck Rosenberg, chief of staff to James Comey, John Ashcroft's second-in-command at the Justice Department. A former counsel to FBI director Robert Mueller, Rosenberg, a former prosecutor, has specialized in counterintelligence and counterterrorism.

The next day, the headline in the St. Louis Post-Dispatch story on the debate (March 22) was "Ashcroft Staffer Admits Patriot Act Is Unpopular." And Chuck Rosenberg was quoted in the story: "We're losing this fight."

The reporter, Doug Moore, told me Rosenberg had made that admission during the intermission in our debate. It wasn't my eloquence that deflated Rosenberg, but rather my focus that afternoon on the insistent resistance to the Patriot Act around the country—and in Congress.

By May, 311 towns and cities—and four state legislatures (Alaska, Hawaii, Vermont, and Maine)—had passed Bill of Rights resolutions instructing the members of Congress from those areas to roll back the most egregiously repressive sections of the Patriot Act, subsequent executive orders, and other extensions of the act.

According to Nancy Talanian, director of the Bill of Rights Defense Committee in Northampton, Massachusetts, and the primary organizer and coordinator of this campaign to preserve the Constitution, "Hundreds more communities and states are considering resolutions. Last December, the National League of Cities approved a resolution calling for amending the Patriot Act."

And on May 12, The Hill, a Washington publication that gets inside congressional maneuvers, ran a report by Alexander Bolton ("Presidential Push Fails to Quell GOP Fear of Patriot Act"): "A group of libertarian-minded Republicans in Congress is blocking President Bush's effort to strengthen domestic counterterrorism laws and reauthorize the USA Patriot Act, which the president has made one of his top domestic priorities this year."

Not the whole Patriot Act, but sections of it, come up for congressional renewal by December 2005. Bush is pressing hard for Congress to renew those parts now. Standing in his way, however, is Republican conservative James Sensenbrenner, chairman of the House Judiciary Committee. According to The Hill: "Sensenbrenner has made it clear to colleagues that he will not consider reauthorization of the bill until next year."

On April 20, Wired News (wired.com) quoted constitutional law professor David Cole, of the Georgetown University Law Center, on the resistance to the Patriot Act. Since 9-11, Cole has been the Samuel Adams of our time, a one-man version of the pre-Revolution committees of correspondence. Said Cole:

"One year after 9/11, National Public Radio did a poll and found that only 7 percent of Americans felt they had given up important liberties in the war on terrorism. Two years after 9/11, NBC or CBS did a very similar poll and they found that now 52 percent of Americans report being concerned that their civil liberties are being infringed by the Bush administration's war on terrorism. That's a huge shift."

And on April 14, in Salt Lake City, when the Senate Judiciary Committee chairman, Senator Orrin Hatch of Utah, came home to harvest support for the Patriot Act, among his fiercest critics was Scott Bradley of the Utah Branch of the ultra-conservative EagleForum. Bradley reminded Hatch—Ashcroft's premier cheerleader in Congress—of a prediction by Osama bin Laden in a BBC interview after 9-11. The arch-terrorist said:

"The battle has moved to inside America. . . . Freedom and human rights in America are doomed. The U.S. government will lead the American people and the West in general into an unbearable hell and choking fire."

Scott Bradley went on to tell Hatch: "The United States is stronger and braver than that," but "we must make absolutely certain that the rush for security does not . . . destroy what we really cherish about this great nation."

Then, this libertarian conservative confronted Orrin Hatch with a grave warning by James Madison in 1788:

"I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations."

The next day, as if to confirm Madison's prophecy, the Associated Press reported, "The number of secret surveillance warrants sought by the FBI has increased by 85 percent in the last three years, a pace that has outstripped the Justice Department's ability to quickly process them."

They'll process these warrants, which are authorized by the secret Foreign Intelligence Surveillance Act, the AP notes, for "wiretaps, video surveillance, property search and other spying on people believed to be terrorists or spies."

Whtachayall got Lawyers?

[Roguish Lawyer]

I recently spoke with a friend of mine who I'll call a senior Justice Department lawyer. Believe me, he is in a position to know what he is talking about. He said that the sections of the Patriot Act that civil libertarians whine about most loudly have NEVER been used. Of course, that doesn't stop them from whining about the existence of these sections. :rolleyes:

[Roguish Lawyer]

Oh, and I am in favor of expedited warrant procedures for suspected terrorists. I believe that preventing apartment buildings from being blown up with natural gas, for example, is a sufficiently important governmental interest to justify reduced procedural requirements.

[NousDefionsDoc]

Well, I think the governemnt was already too invasive before they did the PAs.:munchin

[Roguish Lawyer]

Originally posted by NousDefionsDoc
Well, I think the governemnt was already too invasive before that did the PAs.:munchin

You want to be the monkey today? LOL

OK, how?

[claymores out, stacking mags, anticipating the unexpected -- something really sneaky LOL]

[NousDefionsDoc]

Well, having been a victim of the un-justice system several times:

Probable cause is a joke. No one is clean enough to not have probable cause, especially when driving.

The FBI can't even keep track of their own guns and computers, and we're going to trust them?

Most people aren't terrorists - I'd like to see how many have been a "person of interest" and more importantly - why?

I think they are using it for a crutch to make crappy cases stand up a little stiffer.

I want a referendum, not votes by the elected representatives (aka agenda holders).

What's the criteria for being designated a terrorist?

Short step to more gun control.

They can't even get the airports right and we're going to trust them to search homes and workplaces?

[Air.177]

HERE HERE!! NDD for Director Homeland Security!!!

[Roguish Lawyer]

Dayem, dat be one fasssst lil monkey. Cain't stomp 'im if ye cain't ketch i'm, eh? LOL

Originally posted by NousDefionsDoc
Well, having been a victim of the un-justice system several times:

Probable cause is a joke. No one is clean enough to not have probable cause, especially when driving.

. . .

The FBI can't even keep track of their own guns and computers, and we're going to trust them?

. . .

They can't even get the airports right and we're going to trust them to search homes and workplaces?

I get that you don't like cops, the FBI or the Feds in general, but what does this have to do with the Patriot Act? Surely you agree that searches are proper under some circumstances, right? You have a problem with the Feds searching Osama bin Laden if he walks across the border? How about Jose Padilla?


Originally posted by NousDefionsDoc
Most people aren't terrorists - I'd like to see how many have been a "person of interest" and more importantly - why?

Fair point, but this is just speculation. I don't see evidence of abuse, just your suspicion driven by your colored view of law enforcement.


Originally posted by NousDefionsDoc
I think they are using it for a crutch to make crappy cases stand up a little stiffer.

That's the whole point! Well, a big part of it anyway . . .


Originally posted by NousDefionsDoc
I want a referendum, not votes by the elected representatives (aka agenda holders).

Move to California. You can see what a pristine process that is -- no "agenda holders" involved in referenda at all. :rolleyes:


Originally posted by NousDefionsDoc
What's the criteria for being designated a terrorist?

I don't know. Let's do a thread in the terror forum. What's the relevance here?


Originally posted by NousDefionsDoc
Short step to more gun control.

Which you always oppose, right? LOL

[Sacamuelas]

atta' boy RL... get that closet gun grabber.. that pic he posted earlier in the gear forum LOOKED like he was TRAININ' people for makin' martyrs!! I am calling for a referendum on highly trained gringos entering this country from Latin America. LOL :munchin

[ROTCNY]

Expanding on what RL said, most of the controversial sections have never been used by the Attorney General.

For example, Section 412 of the USAPATRIOT Act, regarding indefinite detention of any alien suspected of terrorist links, is often cited by liberals as having disregarded the rights of immigrants after 9/11.

In fact, all 1000 aliens detained since 9/11 were held under pre-PATACT Naturalization & Deportation Laws. These laws allow the Govt. to detain aliens, with expired/invalid visas, until they can be deported to their native country. All detained aliens have the right to a deportation hearing and those that did request it were given one. Really the only thing we saw different after 9/11 was the government enforcing laws they already had available to them.

If sec.412 is ever used, the Attorney General has to certify the detention with probable cause of espionage and/or terrorist activity within 7 days. The detention lasts until the alien is removed from the US through deportation proceedings.

Just the other day Al Gore cited abuse of sec 412 in his Bush bashing speech for moveon.org, obviously facts aren't important to the former VP.

[Roguish Lawyer]

Knackered already, NDD? :p

[The Reaper]

Looks to me like he is letting you guys continue to dig.

TR

[Roguish Lawyer]

Originally posted by The Reaper
Looks to me like he is letting you guys continue to dig.

TR

I took three shots and moved. He is in for a big surprise. LOL

[brownapple]

Originally posted by NousDefionsDoc
Well, having been a victim of the un-justice system several times:

Probable cause is a joke. No one is clean enough to not have probable cause, especially when driving.

The FBI can't even keep track of their own guns and computers, and we're going to trust them?

Most people aren't terrorists - I'd like to see how many have been a "person of interest" and more importantly - why?

I think they are using it for a crutch to make crappy cases stand up a little stiffer.

I want a referendum, not votes by the elected representatives (aka agenda holders).

What's the criteria for being designated a terrorist?

Short step to more gun control.

They can't even get the airports right and we're going to trust them to search homes and workplaces?

Anybody who wants to can learn about the erosion of individual freedoms in the United States by reading Lost Liberties. It was written during Clinton's administration. It seems to me that all the Patriot Act did (in terms of real impact on individual rights) was place into law things that were already being done through regulation or executive order. Does that make these things right? Nope, and the IRS and their screwed up way of dealing with problems is a perfect example (IRS says you owe taxes, you disagree. They freeze/sieze your assets, bank accounts, etc. Now, you can't afford to fight them in court because your assets are frozen, even if they are dead wrong).

[DanUCSB]

Don't have time to get into the whole of it, but one of the things that irks the shit out of me is this whole 'bad laws are okay because they haven't used them' argument. What the hell is that?

There's only two ways it can go. If they were good laws, people wouldn't have to use that argument. If they're bad laws, then the argument is a shoddy excuse... it's like a cop sticking a gun to your head, and then saying, 'Trust me. I know you didn't do anything, but this is just in case you do. I haven't done anything wrong, because I haven't used this pistol yet, so don't complain!'

[NousDefionsDoc]

It seems to me that all the Patriot Act did (in terms of real impact on individual rights) was place into law things that were already being done through regulation or executive order. Does that make these things right? Nope, and the IRS and their screwed up way of dealing with problems is a perfect example (IRS says you owe taxes, you disagree. They freeze/sieze your assets, bank accounts, etc. Now, you can't afford to fight them in court because your assets are frozen, even if they are dead wrong).

Right



Don't have time to get into the whole of it, but one of the things that irks the shit out of me is this whole 'bad laws are okay because they haven't used them' argument. What the hell is that?

Right

[Roguish Lawyer]

Originally posted by DanUCSB
Don't have time to get into the whole of it, but one of the things that irks the shit out of me is this whole 'bad laws are okay because they haven't used them' argument. What the hell is that?

There's only two ways it can go. If they were good laws, people wouldn't have to use that argument. If they're bad laws, then the argument is a shoddy excuse... it's like a cop sticking a gun to your head, and then saying, 'Trust me. I know you didn't do anything, but this is just in case you do. I haven't done anything wrong, because I haven't used this pistol yet, so don't complain!'

Do you want to throw out the baby with the bathwater? The issue is reauthorization of the Patriot Act. Should none of it be reauthorized because certain provisions -- which never have been used -- arguably are objectionable?

Plus, I'm not seeing anyone establishing that any provision of the Act is objectionable in any respect. When the country is at war, civil liberties have to take a back seat to some degree.

[NousDefionsDoc]

When the country is at war, civil liberties have to take a back seat to some degree.

Mmmm, do you have any idea how long this war has been going on and how much longer it will last?

By my reckoning, we've got 21 years hard in it already. Beruit Barracks bombing is my official start date.

Better be ready to put your civil liberties in the backseat for at least the rest of your lifetime.

[The Reaper]

Originally posted by Roguish Lawyer
When the country is at war, civil liberties have to take a back seat to some degree.

Ooh, what is next, suspension of the writ of habeus corpus? Repeal of Posse Comitatus? Martial law?

Sounds like Lincoln politics to me.

Whatever happened to Franklin's "Those who would trade their liberties for a little safety deserve neither liberty nor safety"?

You turning in your Federalist Society card?

TR

[DanUCSB]

Originally posted by Roguish Lawyer
Do you want to throw out the baby with the bathwater?

There is no baby in the bathwater. Your compadre-in-arms ROTCNY himself said it: all the so-called 'successes' of the PATRIOT Act are things that could have been done under pre-existing law, had it been adequately enforced. Where's the baby?

Originally posted by Roguish Lawyer
When the country is at war, civil liberties have to take a back seat to some degree.

That's the problem. I fully support our actions around the globe, but they should not be termed a 'war.' Why? Because by doing so, you're getting the best of both worlds... which our Founding Fathers sought to restrict. It's like the War on Drugs, or War on Poverty, or whatever. Calling it a war allows you to do all sorts of things you wouldn't normally get to (like, ahem, putting the back seat to civil liberties, as you promote) with none of the responsibilities (understandable end-states, conditions at which this curtailment of civil liberties will end). Saying that you will curtail civil liberties temporarily because we're at war on terror is nothing short of saying that we're curtailing those libertiers forever, because no matter -what- we do, there will always be a lone nutjob out there that will commit a 'terroristic' act that someone will twist into being a so-called threat to national security.

This is not to say that I disparage anything we're doing overseas right now; I don't. I'm just saying, don't let the words 'war' and 'terror' confuse us into losing our own liberties at home while our soldiers are fighting for those same liberties overseas.

[NousDefionsDoc]

Well Dan, you have become my favorite new college boy. You seem to have this well in hand.

'Night



LOL - "How do those SF guys always win hearts and minds and get other people to fight for them? Doesn't seem fair."


KICK THEIR ASS Dan!

[NousDefionsDoc]

Here's another can of ammo for you Dan.

I need a little help here because I'm not very bright. Who has to authorize search warrants and such and determine wether the probable cause was probable? Oh that's right, judges isn't it?

Tuesday, June 1, 2004 11:04 p.m. EDT
Same Judge OK'ed Muslim Prayer


The same San Francisco federal judge who just overturned a federal law banning partial-birth abortions also approved of Muslim prayer in schools when federal rulings ban all other denominational prayers and activities.


In a December 2003 decision, U.S. District Judge Phyllis Hamilton decided that it was lawful for a California middle school teacher to require students to recite Muslim prayers, get down on their knees and role-play as Muslim adherents.

As part of the class students were told to recite: "In the name of Allah, the Compassionate, the Merciful. Praise be to Allah, Lord of Creation, The Compassionate, the Merciful, King of Judgment-day! You alone we worship, and to You alone we pray for help, Guide us to the straight path."


The Byron County 7th-grade world history teacher was sued by the parents of one of the students, who claimed that their child had been coerced to engage in a religious practice.

Hamilton, in a summary judgment, ruled that the teacher's actions were legal.

The teacher prepared a student guide which said that as part of the study of Islam "you and your classmates will become Muslims."

According to court documents, the teacher also read the Koran and Muslim prayers out loud in class and required students to recite lines of Muslim prayers in class as well.

Students also were told to recite Islamic prayers as they exited the class, including the Muslim refrain "In the name of God, most merciful, most gracious."

The teacher also assigned students to fast or give up something like TV for a day to experience Islam's month of Ramadan and one of its pillars of faith.

At the end of their Islamic studies, students also were required to write an essay on Islam. But, but the teacher instructed her students, "BE CAREFUL HERE – If you don't have something positive to say, don't say anything!!!"

In her ruling, Judge Hamilton threw out the parents' case, saying the religious role-playing was not tantamount to the exercise of religion and the school activities were not of a devotional or religious nature.
:munchin

[NousDefionsDoc]

http://www.blessedcause.org/Indoctrination/ByronCountyShocker.htm

Judge Phyllis is a Clinton appointee.

[NousDefionsDoc]

http://www.truthorfiction.com/rumors/b/byronislam.htm

In the interest of fair play.

[ROTCNY]

There is no baby in the bathwater. Your compadre-in-arms ROTCNY himself said it: all the so-called 'successes' of the PATRIOT Act are things that could have been done under pre-existing law, had it been adequately enforced. Where's the baby?

That's a mischaracterization of what I said. All the successes of the PATACT could NOT have been done under existing law.

One example...PATACT allows intelligence sharing and law enforcement cooperation that was previously denied. For the first time ever, the CIA/NSA/FBI/Other Govt. Agencies are sharing 80% of the intelligence they have as opposed to how they used to withold that same amount before 9/11.

What i'm saying about sec. 412 is that the fury surrounding it and many other controversial provisions is unwarranted because they have never been utilized nor have their been any reports of Govt. abuse.

Every law in this country is open to government abuse. Even eavesdropping laws before 9/11 could've been used to infringe on the rights of citizens. However, there is an inherent trust in the government to do the right thing and protect the interests of the people. We ensure that this trust is kept by making records public, congressional oversight and by voting out of office those represenatives/presidents/senators/etc that we feel have betrayed the public trust.

An executive branch of government less inclined to observe the privacy of citizens could in fact abuse certain provisions of PATACT or another law, but there will be consequences for those actions.

We don't have to fear the loss of liberty and freedom until the majority of average citizens do as well by becoming complacent. The first test of whether or not the American people agree with this administration's record concerning preservation of privacy/liberty/freedom will be at the polls in November.

^Or so my College Professors say.... :rolleyes:

Summary of my thoughts so I don't have to post again:

The detractors of the PATACT are mainly complaining about the POTENTIAL for abuse as opposed to any single example of ACTUAL abuse committed by the US Govt. since it was passed.

In all laws, there are ALWAYS potential ways to abuse them. What matters most is the intent of those executing the law.

[Airbornelawyer]

Originally posted by DanUCSB
Don't have time to get into the whole of it, but one of the things that irks the shit out of me is this whole 'bad laws are okay because they haven't used them' argument. What the hell is that? I agree with your statement. However, it does not reflect the argument made.

Certain provisions of the USA PATRIOT Act may be "controversial," as ROTCNY said, but that is not the same as saying it is a bad law. Noting that they have not been applied is intended to expose the hypocrisy of people like Gore and the ALA who claim the darkness has descended already. This is a separate issue from whether, if applied, these provisions are "good" or "bad" laws.

Section 215 of the Act is notorious, for example, because it supposedly will allow the government to snoop on your library records or porn movie rentals. Worse, they don't even need probable cause.

Guess what? Before the USA PATRIOT Act, the government didn't need probable cause to subpoena business records. Federal Rule of Criminal Procedure 17(c): "A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive."

No mention of probable cause.

For a subpoena in the trial context, the Government must establish the relevancy, admissibility, and specificity of the information sought (U.S. v. Nixon, 418 U.S. 683 (1974)).

For a grand jury subpoena, the requirement is far less stringent. Probable cause is specifically ruled out as a standard. The Supreme Court held unanimously in US v. R. Enterprises, Inc., 498 U.S. 292 (1991), that "the Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists." The Fourth Amendment exclusionary rule and the hearsay rule in the Federal Rules of Evidence also don't apply in grand juries.

Section 215 of the Act extended this power to subpoena records to the FISA Court. It requires the FBI to make an application to the court for an order to produce records.

Although I say "extended this power," prior to the PATRIOT Act it was not clear what the requirements were for such a request. As noted, in contexts such as a grand jury, the warrant/probable cause requirement under the Fourth Amendment doesn't apply. In trials, the Nixon test did require a demonstration of relevance and admissibility (and given the exclusionary rule, this would imply probable cause in most cases), but this doesn't apply to grand juries.

The previous "standard", if any, was Executive Order 12333 (1981), which delegated to the Attorney General "the power to approve the use for intelligence purposes,..., of any technique for which a warrant would be required if undertaken for law enforcement purposes." This extended to intelligence investigations the tools of criminal investigations, with the same restrictions. The main thing this provision of EO 12333 did was allow search warrants to be issued for intelligence surveillance. But EO 12333 is silent on whether intelligence investigations could use the techniques of law enforcement not subject to the warrant requirement. The provision could be read either way. Section 215 in substance does little more than clear up this issue in favor of giving the FISA court roughly the latitude a grand jury has.

Another "notorious" aspect of Section 215 is its secrecy requirement: "No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section." Besides being perhaps a prudent measure in a terrorism investigation, the secrecy rule also mirrors grand jury rules - Federal Rule of Criminal Procedure 6(e) imposes secrecy requirements on grand juries.

[Airbornelawyer]

Regarding Section 412, this is what Gore said: "Under the Patriot Act, Muslims, innocent of any crime, were picked up, often physically abused, and held incommunicado indefinitely. What happened in Abu Ghraib was difference not of kind, but of degree."

1. As noted, no one has been detained under 412.

2. Even under 412, no one can be held incommunicado indefinitely.

3. I know there are some controversial provisions of the PATRIOT Act, but I don't recall any permitting physical abuse.

4. Pre- and post-Act, detention was permitted of deportable aliens. "Innocen[ce] of any crime" is not the legal standard.

[Airbornelawyer]

Originally posted by NousDefionsDoc
What's the criteria for being designated a terrorist?A "terrorist" is one who commits or conspires to commit an act of terrorism.

Under federal law, an "act of terrorism" (1) is an act that is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, and (2) is a violation of one of the following laws: 18 USC 32 (destruction of aircraft or aircraft facilities)
18 USC 37 (violence at international airports),
18 USC 81 (arson within special maritime and territorial jurisdiction)
18 USC 175 or 175b (biological weapons)
18 USC 229 (chemical weapons)
18 USC 351 (a), (b), (c), or (d) (congressional, cabinet, and Supreme Court assassination and kidnaping)
18 USC 831 (nuclear materials)
18 USC 842(m) or (n) (certain acts involving plastic explosives that do not contain a detection agent)
18 USC 844(f)(2) or (3) (arson and bombing of Government property risking or causing death)
18 USC 844(i) (arson and bombing of property used in interstate commerce)
18 USC 930(c) (killing or attempted killing during an attack on a Federal facility with a dangerous weapon)
18 USC 956(a)(1) (conspiracy to murder, kidnap, or maim persons abroad)
18 USC 1030(a)(1) (espionage by computer)
18 USC 1030(a)(5)(A)(i) (hacking or using computer viruses), resulting in damage as defined in 18 USC 1030(a)(5)(B)(ii)-(v) (death, injuries, threats to public health, violations of national security)
18 USC 1114 (killing or attempted killing of officers and employees of the United States)
18 USC 1116 (murder or manslaughter of foreign officials, official guests, or internationally protected persons)
18 USC 1203 (hostage taking)
18 USC 1362 (destruction of communication lines, stations, or systems)
18 USC 1363 (injury to buildings or property within special maritime and territorial jurisdiction of the United States)
18 USC 1366(a) (destruction of an energy facility)
18 USC 1751(a), (b), (c), or (d) (Presidential and Presidential staff assassination and kidnaping)
18 USC 1992 (wrecking trains)
18 USC 1993 (terrorist attacks and other acts of violence against mass transportation systems)
18 USC 2155 (destruction of national defense materials, premises, or utilities)
18 USC 2280 (violence against maritime navigation)
18 USC 2281 (violence against maritime fixed platforms)
18 USC 2332 (certain homicides and other violence against U.S. nationals occurring outside of the U.S.)
18 USC 2332a (use of weapons of mass destruction)
18 USC 2332b (acts of terrorism transcending national boundaries)
18 USC 2339 (harboring terrorists)
18 USC 2339A (providing material support to terrorists)
18 USC 2339B (providing material support to terrorist organizations)
18 USC 2340A (torture)
42 USC 2284 (sabotage of nuclear facilities or fuel)
49 USC 46502 (aircraft piracy)
2nd sentence of 49 USC 46504 (assault on a flight crew with a dangerous weapon)
49 USC 46505(b)(3) or (c) (explosive or incendiary devices, or endangerment of human life by means of weapons, on aircraft)
49 USC 46506 (application of certain criminal laws to acts on aircraft) if homicide or attempted homicide is involved
49 USC 60123(b) (destruction of interstate gas or hazardous liquid pipeline facility)This is a long list of offenses, but it is important to remember that both elements of intent must be satisfied. The crimes covered on the list each have their own intent requirements, and you also have to have committed them with the intent to intimidate or coerce the government (this the main terrorist crimes statute; there are other statutes that govern other acts of international or domestic terrorism where the definition is generally the same, but cover acts to intimidate or coerce the civilian population, and not just the government).

Two other relevant crimes are "Harboring or concealing terrorists" and "Providing material support to terrorists." Not all of the crimes on the above list are covered in these offenses (for example, the computer crimes are not covered by the providing material support statute). Both of these require that you act knowing the person you are helping is doing, will do or has done the crime.

Another relevant crime is "providing material support or resources to designated foreign terrorist organizations." The definition of foreign terrorist organization applicable here is found in the Immigration and Nationality Act, at 8 USC 1189.

Under that law, a "foreign terrorist organization" is one so designated by the Secretary of State using the following criteria: the organization is a foreign organization that engages in terrorist activity or terrorism (or retains the capability and intent to engage in terrorist activity or terrorism) which threatens the security of US nationals or the national security of the US. That just takes you to two more definitions - "terrorist activity" and "terrorism" - in other sections of the US Code.
"Terrorist activity" (8 USC 1182(a)(3)(B)) - any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following: (1) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle), (2) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained, (3) A violent attack upon an internationally protected person or upon the liberty of such a person, (4) an assassination, (5) the use of any (a) biological agent, chemical agent, or nuclear weapon or device, or (b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property, (6) a threat, attempt, or conspiracy to do any of the foregoing.

"Terrorism" (22 USC 2656f(d)(2)) - premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.

[Sigi]

Originally posted by NousDefionsDoc
Well, having been a victim of the un-justice system several times:

Probable cause is a joke. No one is clean enough to not have probable cause, especially when driving.

The FBI can't even keep track of their own guns and computers, and we're going to trust them?


Following AL is suicide. LOL

I have to agree with NDD here.

Not only do I NOT trust lawyers, I don't trust people who explain what lawyers say. (Ok, RL and AL aside.)

[Sigi]

In her ruling, Judge Hamilton threw out the parents' case, saying the religious role-playing was not tantamount to the exercise of religion and the school activities were not of a devotional or religious nature
Funny, but I wonder what the traditional Jewish/Christian/Catholic role playing activities would have "exercised" in the courts mind.

Most likely the court would have said that religion stifles school activities if it is the Christian variety. Just another "Bench Legislation" I see every day, in every State.

[DanUCSB]

Originally posted by ROTCNY
One example...PATACT allows intelligence sharing and law enforcement cooperation that was previously denied. For the first time ever, the CIA/NSA/FBI/Other Govt. Agencies are sharing 80% of the intelligence they have as opposed to how they used to withold that same amount before 9/11.

This is what I'm getting at. Are you telling me that these agencies, rivals since time immemorial (or, rather, their founding, primarily with the National Security Act of 1947) for money, prestige, and power, suddenly decided 'hey, let's hold hands and work things out!' just because PATRIOT was passed? I don't think so. In this regard, PATRIOT is irrelevent: the reason there is increased cooperation now, rather than before, is because before 9/11, the various agencies could count coup on each other by witholding evidence, since the public didn't care. Post-9/11, the public is paying a lot more attention, and the agencies can no longer get away with their little fuckee-fuckee games now; they have to cooperate.

Every law in this country is open to government abuse. Even eavesdropping laws before 9/11 could've been used to infringe on the rights of citizens.

Absolutely true. However, while such a statement is true, it is also misleading. Yes, the most innocent law can be twisted into an oppressive edict; however, you argument implies that all laws are equally open to abuse, and they are not. If you follow your argument to its conclusion, and any law can be used to infringe on the rights of citizens, then what does it matter what laws we pass? Let's go hog-wild, civil liberties be damned.

We ensure that this trust is kept by making records public

Which doesn't happen under PATRIOT, as a newfound emphasis on secrecy is a cardinal feature.

We don't have to fear the loss of liberty and freedom until the majority of average citizens do as well by becoming complacent.

I disagree completely. There's a reason we're a republic and not a pure democracy. It is not the 'majority of average citizens' that our laws need to protect; in a pure democracy, they'd have no need of protection because they would be in charge all the time. It is the -least- popular citizens, the outcasts, the pariahs, that need the -most- protection under our laws, because it is they who are most affected by the whims of the populace.

[Sigi]

Originally posted by DanUCSB
the reason there is increased cooperation now, rather than before, is because before 9/11, the various agencies could count coup on each other by witholding evidence, since the public didn't care. Post-9/11, the public is paying a lot more attention, and the agencies can no longer get away with their little fuckee-fuckee games now; they have to cooperate.



I disagree. Maybe they work better together, but I doubt they have better intelligence sharing. They should, and they better, but I kinda fuc***g doubt it.

[Roguish Lawyer]

Originally posted by DanUCSB
This is not to say that I disparage anything we're doing overseas right now; I don't. I'm just saying, don't let the words 'war' and 'terror' confuse us into losing our own liberties at home while our soldiers are fighting for those same liberties overseas.

I think you are incredibly naive about what is going on right now within our own borders, and what restrictions are in place to prevent law enforcement officers from preventing another September 11th from occurring.

Not one of you has identified a specific provision of the Act that is objectionable. You're just complaining about a slippery slope without demonstrating that a slide has begun.

I must say that I am disappointed. I'll keep reading, though -- many posts since I left last night.

[Roguish Lawyer]

Originally posted by NousDefionsDoc
Here's another can of ammo for you Dan.

I need a little help here because I'm not very bright. Who has to authorize search warrants and such and determine wether the probable cause was probable? Oh that's right, judges isn't it?

Tuesday, June 1, 2004 11:04 p.m. EDT
Same Judge OK'ed Muslim Prayer


The same San Francisco federal judge who just overturned a federal law banning partial-birth abortions also approved of Muslim prayer in schools when federal rulings ban all other denominational prayers and activities.


In a December 2003 decision, U.S. District Judge Phyllis Hamilton decided that it was lawful for a California middle school teacher to require students to recite Muslim prayers, get down on their knees and role-play as Muslim adherents.

As part of the class students were told to recite: "In the name of Allah, the Compassionate, the Merciful. Praise be to Allah, Lord of Creation, The Compassionate, the Merciful, King of Judgment-day! You alone we worship, and to You alone we pray for help, Guide us to the straight path."


The Byron County 7th-grade world history teacher was sued by the parents of one of the students, who claimed that their child had been coerced to engage in a religious practice.

Hamilton, in a summary judgment, ruled that the teacher's actions were legal.

The teacher prepared a student guide which said that as part of the study of Islam "you and your classmates will become Muslims."

According to court documents, the teacher also read the Koran and Muslim prayers out loud in class and required students to recite lines of Muslim prayers in class as well.

Students also were told to recite Islamic prayers as they exited the class, including the Muslim refrain "In the name of God, most merciful, most gracious."

The teacher also assigned students to fast or give up something like TV for a day to experience Islam's month of Ramadan and one of its pillars of faith.

At the end of their Islamic studies, students also were required to write an essay on Islam. But, but the teacher instructed her students, "BE CAREFUL HERE – If you don't have something positive to say, don't say anything!!!"

In her ruling, Judge Hamilton threw out the parents' case, saying the religious role-playing was not tantamount to the exercise of religion and the school activities were not of a devotional or religious nature.
:munchin

She ought to be impeached.

[Roguish Lawyer]

Originally posted by DanUCSB
Let's go hog-wild, civil liberties be damned.

Provide examples.

[Roguish Lawyer]

OK, so I've now caught up on the thread, and not one person has identified a single objectionable provision of the Patriot Act, let alone demonstrated an actual abuse of the Act.

Sheep get slaughtered, and I am surprised to see so many sheep here.

[The Reaper]

Originally posted by Roguish Lawyer
When the country is at war, civil liberties have to take a back seat to some degree.

Wasn't this your statement?

Trying to be the Devil's Advocate and argue both sides, Counsel?

TR

[Roguish Lawyer]

Originally posted by The Reaper
Wasn't this your statement?

Trying to be the Devil's Advocate and argue both sides, Counsel?

TR

Yes and no.

I don't understand your point, and I am surprised that you do not seem to agree with the statement.

[Roguish Lawyer]

Read this and then tell me we should not relax search and seizure requirements when there is a threat of a serious terrorist attack:

http://www.cnn.com/2004/LAW/06/01/comey.padilla.transcript/index.html

Also, note the term "relax." It is not identical to "eliminate," as many are incorrectly assuming.

[NousDefionsDoc]

Show me one law in US history that has not been:
1. Abused for some reason by the gov.
2. Had an innocent person convicted of.

18 USC 37 (violence at international airports)

I love this one. I'll bet this is one they tried to get that NG guy from West Virginia on.

Martyr Makin' on a surely gate attendent from an airline is not an act of terrorism. It is justice.

[Roguish Lawyer]

Originally posted by NousDefionsDoc
Martyr Makin' on a surely gate attendent from an airline is not an act of terrorism. It is justice.

LOL

[Airbornelawyer]

Originally posted by NousDefionsDoc
18 USC 37 (violence at international airports) I love this one. I'll bet this is one they tried to get that NG guy from West Virginia on.

Martyr Makin' on a surely gate attendent from an airline is not an act of terrorism. It is justice. I don't know who "that guy" is or who "they" are, but if they tried to get him under 18 USC 37, they would have to prove the following:
He performed, or attempted or conspired to perform, an act of violence.

The act was at an airport serving international civil aviation.

The act was unlawful and intentional.

The act was committed using a device, substance, or weapon.

The act was against a person and causes or is likely to cause death or serious bodily injury (bodily injury which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty) or the act destroys or seriously damages the facilities of an airport serving international civil aviation or a civil aircraft not in service located thereon or disrupts the services of the airport

The act endangers or is likely to endanger safety at that airport

The act took place in the US, the offender is found in the US, or the offender or victim is a US national.If the act took place in the US, but was during or in relation to a labor dispute and there is already a state criminal law making the act a felony (aggravated assault, murder, etc.), then state law takes precedence and there can be no federal prosecution under this statute.

This is a felony statute, providing for imprisonment of up to 20 years. If the death of any person results from the offender's conduct , it may be a death penalty offense.

This is also treaty law. The statute implements the "Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal on 23 September 1971." The Protocol was developed in response to the December 18, 1985 simultaneous suicide attacks at US and Israeli airline check-in desks in the international airports in Rome and Vienna. There, four suicide bombers killed 16 other people.

This is not the "I was drunk at the airport and got into an argument with the minimum wage flunky at the metal detector" statute. This statute requires intent, a weapon and serious injury or damage.

And conviction would not mean you are a terrorist. A terrorist act has to have both the specific offense and the separate intent requirement to intimidate or coerce.

[Roguish Lawyer]

Originally posted by Airbornelawyer
This is not the "I was drunk at the airport and got into an argument with the minimum wage flunky at the metal detector" statute. This statute requires intent, a weapon and serious injury or damage.

[NousDefionsDoc]

I couldn't find the article, but basically a family, head of which was a Virginia or WV NG Lt., was on its way to Disney World for vacation. The baby, about two, went running down the jetway. Mom starts after baby, Continental employee pushes Mom, who trips backwards over baby two. Dad body slams Continental employee on head. Continental takes employees side. Family gets no vacation, Dad goes to jail. No alcohol involved. Simply a man defending his family from unwarranted agreesion by a union liberal ass clown that was unable to find employment with 7-11.

If I remember right, they got him for air rage or something similar to your law here, it wasn't simple assault and battery.

All of your intent is the intent, not the reality. We all know you can't really show intent unless their is a confession or you use a mind reader.

RL - I will never be owned. As you have seen, if I lose, I will bow out gracefully and Martyr Make the winner later.

[Roguish Lawyer]

Originally posted by NousDefionsDoc
I couldn't find the article, but basically a family, head of which was a Virginia or WV NG Lt., was on its way to Disney World for vacation. The baby, about two, went running down the jetway. Mom starts after baby, Continental employee pushes Mom, who trips backwards over baby two. Dad body slams Continental employee on head. Continental takes employees side. Family gets no vacation, Dad goes to jail. No alcohol involved. Simply a man defending his family from unwarranted agreesion by a union liberal ass clown that was unable to find employment with 7-11.

If I remember right, they got him for air rage or something similar to your law here, it wasn't simple assault and battery.

All of your intent is the intent, not the reality. We all know you can't really show intent unless their is a confession or you use a mind reader.

What does this have to do with the Patriot Act?

Let's just have an "I hate LEOs and airport screeners" thread . . . :)

[Roguish Lawyer]

Originally posted by NousDefionsDoc
RL - I will never be owned. As you have seen, if I lose, I will bow out gracefully and Martyr Make the winner later.

Turnabout is fair play, my friend. LMAO :lifter

[The Reaper]

Originally posted by Roguish Lawyer
Yes and no.

I don't understand your point, and I am surprised that you do not seem to agree with the statement.

Not agreeing or disagreeing.

Merely observing that you are simultaneously arguing points for, and against the PA.

Trolling, or merely trying to incite a spirited discussion?

TR

[Roguish Lawyer]

Originally posted by The Reaper
Not agreeing or disagreeing.

Merely observing that you are simultaneously arguing points for, and against the PA.

Trolling, or merely trying to incite a spirited discussion?

TR

No, I really don't understand why you think I am taking inconsistent positions. I said that I think civil liberties can and should be limited to some degree to prevent terrorist attacks. Not eliminated, just limited. It seems to me that you would agree with that, although there remains the question of where to draw the line.

I don't think I have argued against the Patriot Act at all, although I keep saying that someone needs to raise a particular provision they don't like before claiming that it should not be reauthorized. Once we have a provision in front of us, we can all talk about it. Until that happens, I think the trolling actually is being done by others.

Respectfully,

RL

[NousDefionsDoc]

I don't hate cops

[Airbornelawyer]

Originally posted by NousDefionsDoc
All of your intent is the intent, not the reality. We all know you can't really show intent unless their is a confession or you use a mind reader.As a rule, general intent may be inferred from conduct. Specific intent requires proof. Originally posted by NousDefionsDoc
I couldn't find the article, but basically a family, head of which was a Virginia or WV NG Lt., was on its way to Disney World for vacation. The baby, about two, went running down the jetway. Mom starts after baby, Continental employee pushes Mom, who trips backwards over baby two. Dad body slams Continental employee on head. Continental takes employees side. Family gets no vacation, Dad goes to jail. No alcohol involved. Simply a man defending his family from unwarranted agreesion by a union liberal ass clown that was unable to find employment with 7-11.

If I remember right, they got him for air rage or something similar to your law here, it wasn't simple assault and battery. You have to be in the "air" to commit "air rage" (most of the time; the law actually kicks in once the door of the plane is sealed).

The Federal "air rage" statute isn't 18 USC 37, it is 49 USC 46504, "Interference with flight crew members and attendants." This requires that you (1) be on an aircraft, and (2) assault or intimidate a flight crew member or flight attendant of the aircraft, (3) which interferes with the performance of that person's duties or lessens his/her ability to perform those duties. This is a general intent crime. It does not require a specific intent either to intimidate or to interfere with the performance of duties. I.e., you have to have intended the assault, but not the outcome.
Assault itself, though, is normally a specific intent crime. The specific intent is to cause battery.

If the plane's doors are still open, or if it is somewhere else in the airport, this statute doesn't apply. Generally, state assault, battery, disorderly conduct and similar statutes apply.

There is another related Federal statute, but if this was an airline employee, it could not be applied here. That would be 18 US Code 111, "Assaulting, resisting, or impeding certain officers or employees": Whoever (1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or (2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person's term of service, shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other cases, be fined under this title or imprisoned not more than three years, or both.
A "person designated in section 1114 of this title" is an "officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services)." Now that the "minimum wage flunky at the metal detector" is a Federal employee, this rather broad misdemeanor statute covers him or her.

[The Reaper]

Originally posted by Roguish Lawyer
No, I really don't understand why you think I am taking inconsistent positions. I said that I think civil liberties can and should be limited to some degree to prevent terrorist attacks. Not eliminated, just limited. It seems to me that you would agree with that, although there remains the question of where to draw the line.

I don't think I have argued against the Patriot Act at all, although I keep saying that someone needs to raise a particular provision they don't like before claiming that it should not be reauthorized. Once we have a provision in front of us, we can all talk about it. Until that happens, I think the trolling actually is being done by others.

Respectfully,

RL

I am sorry, I thought you were the moral absolutist here. No limits and no infringement of rights.

Slippery slope when you say "limited to some degree to prevent terrorist attacks". Your idea of "limited" may be more, or less than I think is required.

Who makes that call, executive, legislative, or judicial branches?

I can cite egregious errors in judgement by each, just trying to figure out what "reasonable measures" you support.

Would it be reasonable to intern citizens of the U.S. who were recent immigrants from an enemy combatant state, and may be saboteurs?

How about suspects or illegal immigrants from those countries? Would they be criminals, spies, or what? What rights do they have, if any?

TR

[Airbornelawyer]

The statute (18 USC § 111) itself is broad enough to cover a lot of employees and a lot of situations involving the "performance of official duties". For example, DECA is a government agency. Assuming DECA employees are employees of an "agency in any branch of the United States Government", if a dependent got into an altercation in the commissary over having more than 10 items in the express line, he or she could theoretically be charged here (of course, if you are military, even broader disorderly conduct and conduct unbecoming statutes under the UCMJ could apply).

But as a matter of policy, protection of 18 USC § 111 is limited to persons performing law enforcement-related duties. The US Attorney's Manual says: "The primary focus of the Department [of Justice]'s enforcement program is on those employees who have law enforcement duties which regularly expose them to the public (e.g., agents of the FBI, DEA, ATF, Secret Service, IRS, Customs, Postal Inspectors, etc.) and on staff members of Federal correctional institutions. Forcible acts against these categories Federal employees should be prosecuted vigorously. By contrast, offenses against other categories of Federal employees should be referred to the local prosecutor unless the offense is particularly aggravated or there are other unusual factors present justifying Federal action." I am not sure whether TSA employees would be considered law enforcement in this context, but I suspect the answer is yes.

BTW, there are apparently a lot of other statutes governing interference with or assaults on Federal officers. There is, for example, 21 USC § 461(c) - assaulting, resisting or impeding a poultry inspector.

[NousDefionsDoc]

if a dependent got into an altercation in the commissary over having more than 10 items in the express line, he or she could theoretically be charged here

Right, we're agreed. I'm right and you're wrong. Have a very SF day and see you later.





(See RL, its all about timing.):lifter

[Roguish Lawyer]

Originally posted by The Reaper
I am sorry, I thought you were the moral absolutist here. No limits and no infringement of rights.

Incorrect.


Originally posted by The Reaper
Slippery slope when you say "limited to some degree to prevent terrorist attacks". Your idea of "limited" may be more, or less than I think is required.

True. My views depend on the situation, although I have general views which I have expressed.


Originally posted by The Reaper
Who makes that call, executive, legislative, or judicial branches?

I can cite egregious errors in judgement by each, just trying to figure out what "reasonable measures" you support.

This is a case-by-case analysis.


Originally posted by The Reaper
Would it be reasonable to intern citizens of the U.S. who were recent immigrants from an enemy combatant state, and may be saboteurs?

How about suspects or illegal immigrants from those countries? Would they be criminals, spies, or what? What rights do they have, if any?

These are difficult questions, as you know. In the first example you cite, I think it is acceptable to investigate suspected terrorists provided that there are procedures in place to check abuse. U.S. citizens have much greater rights than non-citizens, and there need to be substantial due process protections in place for them. I have no problem with interning Padilla, but I think you need to make a showing before you can do it. One limit on rights I would support is having special courts in place where such showings can be made without compromising sensitive intelligence information. Another is allowing surveillance and wiretaps approved by special courts.

The answer to the second example is similar, but with fewer procedural protections. I don't have a problem allowing surveillance of Saudi nationals, for example. There have to be limits, and I have not thought through what those limits should be.

How would you answer these very difficult questions? Anyone else want to chime in?

[Roguish Lawyer]

BTW, I am reading an interesting book that colors my views on this subject to some degree. Terrorist Hunter, by an anonymous author. I don't want to summarize it until I am finished reading it, but it illustrates the extent to which terrorist organizations have been conducting substantial fundraising and other operations within our borders without us paying much attention.

[Airbornelawyer]

Originally posted by NousDefionsDoc
Right, we're agreed. I'm right and you're wrong. Have a very SF day and see you later.





(See RL, its all about timing.):lifter

Actually, my commissary scenario would be unlikely in all but the most extreme circumstances. The US Attorney's Manual is very clear that 18 USC § 111 prosecutions should only be undertaken where the assault, interference etc. is clearly "forcible." Yelling won't do it, you've got to fling that can of peas at her.

[brownapple]

Originally posted by NousDefionsDoc
Mmmm, do you have any idea how long this war has been going on and how much longer it will last?

By my reckoning, we've got 21 years hard in it already. Beruit Barracks bombing is my official start date.

Better be ready to put your civil liberties in the backseat for at least the rest of your lifetime.

My start date (war against terrorism) is October, 1968 and the assassination of Captain Chandler by VPR.

For the mideast, my start date is 29 August, 1969 and the hijacking of a TWA flight.

[Airbornelawyer]

My start date is September 18, 1931.

[Roguish Lawyer]

Originally posted by Greenhat
My start date (war against terrorism) is October, 1968 and the assassination of Captain Chandler by VPR.

So we've been at war my entire life? Damn! :)

[Roguish Lawyer]

I take everyone's failure to respond to what I said to be an admission of defeat.

It's been nice playing with you gentlemen. :lifter

[The Reaper]

Originally posted by Roguish Lawyer
I take everyone's failure to respond to what I said to be an admission of defeat.

It's been nice playing with you gentlemen. :lifter

Don't assume, Counsel.

Nice try though.

TR

[brownapple]

Originally posted by Airbornelawyer
My start date is September 18, 1931.

I assume that you consider the start of WWII as December 7, 1941?

[brownapple]

Originally posted by Roguish Lawyer
So we've been at war my entire life? Damn! :)

Yep, a war in the shadows, but war never the less.

Tell me this, RL. If this act is necessary to the defeat of terrorists such as Al Queda, how is it that it was not necessary to the defeat of Bader-Meinhof? Of the Red Brigades?

[Airbornelawyer]

Originally posted by Greenhat
I assume that you consider the start of WWII as December 7, 1941? Actually, I consider September 18, 1931 the start of WWII.*

The point is, after we are all dust and distant memories, when historians speak of the Hundred Years' War, they may not be talking Agincourt and Joan of Arc. They will speak of a Great War for Civilization against the atavistic and nihilistic forces resisting modernity. Though each claims a different root ideal - race, class, religion - there is a common thread among fascism, communism and Islamism. What we call World War II, the Cold War and the Global War on Terror will be just phases.

I picked September 18, 1931 as the beginning of the shooting war, though I suppose you could go back to the Bolshevik Revolution and Russian Civil War. But while the Russian Civil War ended in 1922 (and the internal terror began), since the Mukden Incident there hasn't been a year that has not seen fighting somewhere in this greater conflict.

I suppose you could argue that Japanese fascism was of a different sort than Nazism and Bolshevism, but I tend to include it. If not, I suppose that pushes the start date back to the start of the Italo-Abyssinian War or the Spanish Civil War.

[Airbornelawyer]

Originally posted by Greenhat
Yep, a war in the shadows, but war never the less.

Tell me this, RL. If this act is necessary to the defeat of terrorists such as Al Queda, how is it that it was not necessary to the defeat of Bader-Meinhof? Of the Red Brigades? Setting aside the fact that we didn't have laws dealing with Baader-Meinhof or the Red Brigades because they didn't operate in the US, your premise is in error.

In response to terrorist acts in Germany in the 1970s, both domestic (e.g., Baader-Meinhof/RAF) and international (e.g., Black September and the Munich Olympics), Germany enacted a series of antiterrorism laws*, many of which are far more restrictive of individual liberty that anything in the US.

In 1971, terrorism-focused laws against hijacking and attacks on aircraft, manslaughter, kidnapping, and taking hostages were introduced. In 1974, the Law of Criminal Procedure was amended to widen the powers of prosecutors and restrict the rights of the defense. In 1976, the various procedural codes were further amended and a new crime, Bildung terroristischer Vereinigungen ("Formation of Terrorist Organizations") was added to the Criminal Code (StGB § 129a). This criminalized not just forming, but supporting such an organization.

Under the Kontaktsperregesetz of 1977, an order of confinement incommunicado can be made. This prevents a detainee from contacting another detainee or anyone else. The law provides that "where a real danger exists regarding the life, person or freedom of a person, and where grounds exist which justify a suspicion that a terrorist organization poses such a danger and if it is necessary to prevent this danger, the discontinuation of all contact between detainees themselves and by them to the outside world, including written and oral contact with their defending legal representatives, may be ordered." ("Besteht eine gegenwärtige Gefahr für Leben, Leib oder Freiheit einer Person, begründen bestimmte Tatsachen den Verdacht, daß die Gefahr von einer terroristischen Vereinigung ausgeht, und ist es zur Abwehr dieser Gefahr geboten, jedwede Verbindung von Gefangenen untereinander und mit der Außenwelt einschließlich des schriftlichen und mündlichen Verkehrs mit dem Verteidiger zu unterbrechen, so kann eine entsprechende Feststellung getroffen werden." EGGVG § 31).

And German courts have had the power since 1888 to close off trials to the public to avoid "endangerment of state security" (Gefährdung der Staatssicherheit).

_________________________________________________

* Gesetz zur Ergänzung des Ersten Gesetzes zur Reform des Strafverfahrensrechts vom 20. Dezember 1974, Bundesgesetzblatt (BGBl.) 1974 I, 3686; Gesetz zur Änderung des Strafgesetzbuches, der Strafprozessordnung, des Gerichtsverfassungsgesetzes, der Bundesrechtsanwaltsordnung und des Strafvollzugsgesetzes vom 18. August 1976, BGBl. 1976 I, 2181; Gesetz zur Änderung der Strafprozessordnung vom 14. April 1978, BGBl. 1978 I, 497; Gesetz zur Änderung des Einführungsgesetzes zum Gerichtsverfassungsgesetz vom 30. September 1977, BGBl. 1977 I, 1877.

[brownapple]

Originally posted by Airbornelawyer
Actually, I consider September 18, 1931 the start of WWII.*

The point is, after we are all dust and distant memories, when historians speak of the Hundred Years' War, they may not be talking Agincourt and Joan of Arc. They will speak of a Great War for Civilization against the atavistic and nihilistic forces resisting modernity. Though each claims a different root ideal - race, class, religion - there is a common thread among fascism, communism and Islamism. What we call World War II, the Cold War and the Global War on Terror will be just phases.

I picked September 18, 1931 as the beginning of the shooting war, though I suppose you could go back to the Bolshevik Revolution and Russian Civil War. But while the Russian Civil War ended in 1922 (and the internal terror began), since the Mukden Incident there hasn't been a year that has not seen fighting somewhere in this greater conflict.

I suppose you could argue that Japanese fascism was of a different sort than Nazism and Bolshevism, but I tend to include it. If not, I suppose that pushes the start date back to the start of the Italo-Abyssinian War or the Spanish Civil War.

You are inconsistent in your choosing of dates in regards to various wars. You choose an early date (which I agree with) for WWII that avoids the normal Euro-centric or American-centric points of view... and then choose a very late date for the war on terrorism, a date that is very American-centric.

[brownapple]

Originally posted by Airbornelawyer
Setting aside the fact that we didn't have laws dealing with Baader-Meinhof or the Red Brigades because they didn't operate in the US, your premise is in error.

All of that fails to deal with The Red Brigades. And there were terrorist organizations operating in the United States at the time. Each was dealt with, none required the additional efforts of a "Patriot Act".

If you are going to argue that it is necessary, you need to clearly show to those of us who are trained to deal with unconventional warfare and terrorism, why. I don't think you can.

[Airbornelawyer]

Originally posted by Greenhat
You are inconsistent in your choosing of dates in regards to various wars. You choose an early date (which I agree with) for WWII that avoids the normal Euro-centric or American-centric points of view... and then choose a very late date for the war on terrorism, a date that is very American-centric. I didn't choose a date at all for the war on terrorism because I don't consider there to be a such a thing. This is no more a "war on terrorism" than World War Two was a war on blitzkrieg or the U.S. Civil War was a war on rifled muskets.

Some would disagree with my argument that the current war can be directly linked to the long struggle against totalitarianism. I think we can all agree that this current war, or the current phase of my larger war, though, is not against terrorism. It is primarily against a particular movement - call it Islamism, Islamist fundamentalism, political Islam, Islamofascism or jihadism - that uses terrorism as its main weapon. The war is secondarily against the states and groups that may not share the Islamists' vision, but provide support for their actions.

We don't call this a war on the Islamists for two reasons. First, we don't want the war on Islamism to become a war on Islam (for reasons we have discussed elsewhere). Second, we don't want our hands tied regarding the supporters simply because some, like the Ba'athists or the North Koreans, aren't Islamist.

But if there is a start date for this particular conflict, NDD's 1983 is a little too late but close.

This war (or phase of the Great War) probably began in 1979 with the Iranian Islamic Revolution and the rise of Egypt's Islamist terrorist organizations. Prior to then, and in many cases after then, most international terrorism was conducted by Marxist and anarchist groups supported directly or indirectly by the Soviet Union, other Communist states, and their clients.

For Iran we have 1979. Egypt's Islamic Jihad, al-Gama'a al-Islamiyya and other Islamist groups were organized in the late 1970s, with their first attacks occuring by 1980. They grew for the most part out of the Muslim Brotherhood. The Brotherhood traces its roots as a political movement back to the late 1930s and committed terrorist acts in the 1940s, but it never became an international terrorist movement. While most Palestinian terrorist groups were still Marxist, Palestinian Islamic Jihad was also formed in this period, in 1979-80.

With the stunning success of the 1981 assassination of Sadat and with the base of support Iran now provided to Shi'ite Islamists, Islamist terrorist groups grew. The April 1983 Beirut embassy bombing and the October 1983 simultaneous bombings of the U.S. Marine and French airborne compounds in Beirut became their first big attacks on the West.

This April-October 1983 timeframe when the "shooting" war began is perhaps when we should have recognized we were in this war, but to be fair we did still have the Soviets and their minions to deal with. In this Great War, fighting the Soviets was still our Western Front, while dealing with the minions of Khomeini and Qutb was our Dardanelles campaign.

[Roguish Lawyer]

Originally posted by Greenhat
Yep, a war in the shadows, but war never the less.

Tell me this, RL. If this act is necessary to the defeat of terrorists such as Al Queda, how is it that it was not necessary to the defeat of Bader-Meinhof? Of the Red Brigades?

Seeing this a bit late, but I concur in my colleague's response.

[Airbornelawyer]

Originally posted by Greenhat
All of that fails to deal with The Red Brigades. And there were terrorist organizations operating in the United States at the time. Each was dealt with, none required the additional efforts of a "Patriot Act".

If you are going to argue that it is necessary, you need to clearly show to those of us who are trained to deal with unconventional warfare and terrorism, why. I don't think you can.I didn't mention the Red Brigades because, unlike the StGB, EGGVG and the StPO, at the time I didn't have access to an annotated Italian Penal Code or procedural codes that discussed when and why particular changes were made to anti-terrorism laws.

But since you brought it up...
___________________________________

Political terrorism in Italy didn't begin, of course, with the Red Brigades. The roots of modern terrorism are in part in anarchist movements in Italy in the late 19th Century. In the modern era, the fascist Nuovo Ordine began a low level bombing campaign in 1969, while on the left the not especially successful Armed Proletarian Nuclei was formed in Naples in 1973-4 and all but destroyed by 1975. Between 1976 to 1980, a leftist group known as Prima Linea killed 16 and wounded 23. Of course, political violence was not the only concern. A major fight with the Mafia took place starting in the early 1980s. A number of laws on organized crime, money laundering and the like were introduced between 1978 and 1992.

The Red Brigades were formed in 1969. In the early days, their actions included vandalizing the cars of the bourgeoisie. They then moved to kidnapping. The April 1974 kidnapping of Marco Sossi, the chief prosecutor of Genoa, was their first major political act. In June 1976, they assassinated prosecutor Francesco Coco. In 1978, they kidnapped and murdered former Prime Minister Aldo Moro. This led to the first major crackdown on the group. In January 1981 they assassinated Carabinieri Gen. Enrico Calvaligi and kidnapped Judge Giovanni D'Urso, director of Italy's maximum security prisons. Later in 1981, they kidnapped BG Dozier. After the raid that freed the general, Italy again cracked down on the group, and it soon was reduced to a shadow of its former self.

After the Moro murder, among other measures police were given the right to stop and demand ID from people on the street without anything approaching what we in the US know of as reasonable suspicion, let alone probable cause.

To lure terrorists into betraying their groups, Italy introduced the Penitence Law in 1982 and the Dissociation Law in 1987. The Penitence Law reduced sentences for those confessing to their crimes, renouncing political violence and denouncing their former associates, as well as for providing information. The Dissociation Law expanded the earlier law. More focused on ordinary criminals, but also used for terrorism was a form of plea bargaining called patteggiamento introduced in 1981 (Modifiche al sistema penale, Le Leggi, Nov. 24, 1981, n.689). In essence, in return for an alternative sentence (sanzione sostitutiva), the accused waived the constitutional right to be presumed innocent, to present a defense and to be tried by a judge.
___________________________________

Before we go elsewhere, I should note that in 1984 Her Majesty the Queen signed the Prevention of Terrorism (Temporary Provisions) Act 1984 pushed through Parliament by Margaret Thatcher. Earlier, there was the Prevention of Terrorism (Temporary Provisions) Act 1974, renewed in 1976 (the Anti-terrorist Squad was also formed that year from the Metropolitan Police Bomb Squad). Even earlier, there was the Prevention of Terrorism (Temporary Provisions) Act of 1939, which was enacted to deal with the IRA and lasted temporarily until 1954. And before that was the Civil Authorities (Special Powers) Acts in effect from 1922 to 1940. The Immigration Act 1971 expanded the Crown's powers to prohibit the entry of suspected terrorists into the United Kingdom. Also IRA-focused was the Northern Ireland (Emergency Provisions) Act 1973. Ireland had also addressed the IRA with the Offences Against the State Acts dating from 1939.

In France, the Code Penale, dating back to Napoleon, was amended with specific anti-terrorism legislation in 1986 and 1996, in response to two waves of terrorist attacks in France. Australia had its Security Intelligence Organisation Act 1979 and New Zealand the 1977 Amendment to the Security Intelligence Service Act 1969.

Since the US was mentioned too, add the Foreign Intelligence Surveillance Act of 1978, the Antiterrorism and Effective Death Penalty Act of 1996 and any number of laws and executive orders in between.
___________________________________

We can get into these laws, and those of other countries, but that's not a productive exercise.

Anti-terror legislation is almost always enacted in response to a wave of terror attacks or a major attack. Enforcement becomes lax, loopholes are found, and terrorists adapt. There are new attacks, and new laws. Sometimes the laws prove unnecessary or redundant.

Laws enacted quickly in response to public pressure after a major event often overreach. In my current profession, the Sarbanes-Oxley Act of 2002 is a particularly annoying and costly piece of legislation to address problems that could have been addressed with existing legislation. And as the NRA often points out, gun violence is usually better addressed by enforcing existing laws against criminals than by passing new ones against guns (and as Ronald Reagan once observed, "A liberal's idea of getting tough on crime is to give out longer suspended sentences.").
___________________________________

But since this thread is PATRIOT Act renewal-oriented:

There may be provisions in the Act, as in similar pieces of reactive legislation, that are either (i) unnecessary because of the adequacy of existing laws or (ii) undesirable because whatever their merits, they are too restrictive of individual civil liberties, constitutional or otherwise or (iii) both unnecessary and undesireable. However, the burden is on critics to identify these provisions and state why they are unnecessary or undesireable, rather than merely paint the Act as Ashcroft's bogeyman or raise straw-man arguments based on things not even in the Act.

Cheers,
Dave

[brownapple]

Originally posted by Airbornelawyer
I didn't choose a date at all for the war on terrorism because I don't consider there to be a such a thing. This is no more a "war on terrorism" than World War Two was a war on blitzkrieg or the U.S. Civil War was a war on rifled muskets.

I strongly disagree. The war is on terrorism (which is more than just a tactic - it is a mindset), just as the World War II was on fascism or the Cold War a war on Communism, or the Geneva and Hague accords a war (via legislation and agreement) on the use of brutal and uncivilized methods.

Some would disagree with my argument that the current war can be directly linked to the long struggle against totalitarianism. I think we can all agree that this current war, or the current phase of my larger war, though, is not against terrorism. It is primarily against a particular movement - call it Islamism, Islamist fundamentalism, political Islam, Islamofascism or jihadism - that uses terrorism as its main weapon. The war is secondarily against the states and groups that may not share the Islamists' vision, but provide support for their actions.

Such as FARC? ETA? RIRA?

But if there is a start date for this particular conflict, NDD's 1983 is a little too late but close.

This war (or phase of the Great War) probably began in 1979 with the Iranian Islamic Revolution and the rise of Egypt's Islamist terrorist organizations. Prior to then, and in many cases after then, most international terrorism was conducted by Marxist and anarchist groups supported directly or indirectly by the Soviet Union, other Communist states, and their clients.

The IRA must love that comment.

For Iran we have 1979. Egypt's Islamic Jihad, al-Gama'a al-Islamiyya and other Islamist groups were organized in the late 1970s, with their first attacks occuring by 1980. They grew for the most part out of the Muslim Brotherhood. The Brotherhood traces its roots as a political movement back to the late 1930s and committed terrorist acts in the 1940s, but it never became an international terrorist movement. While most Palestinian terrorist groups were still Marxist, Palestinian Islamic Jihad was also formed in this period, in 1979-80.

With the stunning success of the 1981 assassination of Sadat and with the base of support Iran now provided to Shi'ite Islamists, Islamist terrorist groups grew. The April 1983 Beirut embassy bombing and the October 1983 simultaneous bombings of the U.S. Marine and French airborne compounds in Beirut became their first big attacks on the West.

I recommend you research the hijacking of 4 airliners at the same time, all blown up on the tarmac. I think you might find that the "Islamists" (a label I find completely ridiculous, as Islam is an excuse for these people, not a reason) consider that event as more of a benchmark than the bombings in Beirut. Avoid the American-centic and Euro-centric focus. You aren't generally discussing Americans or Europeans.

This April-October 1983 timeframe when the "shooting" war began is perhaps when we should have recognized we were in this war, but to be fair we did still have the Soviets and their minions to deal with. In this Great War, fighting the Soviets was still our Western Front, while dealing with the minions of Khomeini and Qutb was our Dardanelles campaign.

Since the campaigns against Communism and Terrorism are unrelated, that isn't exactly a valid analogy, is it (the Dardanelles and the Western Front are related by a common enemy and goal)? A better one if you wish to compare the Cold War to WWI era would be to compare the war against terrorism as the equivilant to the use of troops in an attempt to stabilize Russia, or the use of troops in China during the rebellions... events which were a half-hearted attempt to deal with what would grow into far larger problems.

[myclearcreek]

Originally posted by Roguish Lawyer
BTW, I am reading an interesting book that colors my views on this subject to some degree. Terrorist Hunter, by an anonymous author. I don't want to summarize it until I am finished reading it, but it illustrates the extent to which terrorist organizations have been conducting substantial fundraising and other operations within our borders without us paying much attention.

I may add this to my reading list. Fundraising was in the Dallas news almost daily for months after the war began, citing months- and years- long investigations.

[myclearcreek]

The ALA (American Library Association) has been incensed about the PA since its inception and recommend implementing privacy features (no data gathering or site tracking) in libraries to prevent becoming involved in policing. While I differ in opinion with the ALA on many matters, this is one matter on which I can sympathize.
http://www.ala.org/ala/pio/mediarelations/patriotactmedia.htm

[Roguish Lawyer]

http://abcnews.go.com/wire/Politics/ap20040713_819.html

Justice Dept. Details Patriot Act Cases
Justice Department Provides Congress With Details of Cases in Which Patriot Act Used

The Associated Press

WASHINGTON July 13, 2004 — Seeking to bolster support for the Patriot Act, the Justice Department provided Congress on Tuesday with details of numerous cases in which the anti-terrorism law has been used.

The 29-page report is part of the Bush administration effort to prevent Congress from weakening the law, which critics say threatens civil liberties by giving law enforcement authorities more latitude to spy on people.

Release of the document comes less than a week after House Republican leaders barely turned back an amendment that would have prevented the FBI from using Patriot Act authority to obtain library and bookstore records.

The report says that in the period starting with the Sept. 11 attacks and ending May 5, Justice Department terrorism investigations have resulted in charges against 310 people, with 179 convictions or guilty pleas. The Patriot Act, it says, was instrumental in these cases.

"Since the act was passed over two years ago, the Department of Justice has deployed its new authorities urgently in an effort to incapacitate terrorists before they can launch another attack ... the act's successes are already evident," the report says.

Among the specific examples:

It allowed intelligence agents to share with FBI criminal investigators evidence that an anonymous letter sent to the FBI had come from an individual with al-Qaida ties. That letter began the investigation into an alleged terror cell in Lackawanna, N.Y., that has resulted in six guilty pleas.

That same information-sharing authority was used against members of an alleged terror cell in Portland, Ore., that an undercover informant said was preparing for possible attacks against Jewish schools or synagogues. Continued surveillance under the Patriot Act of one suspect led to six others, who likely would have scattered or fled had the first suspect been arrested right away.

Terror financing provisions of the law were used in numerous cases, including charges against a member of the Revolutionary Armed Forces of Colombia, or FARC, on charges of being an unlicensed money transmitter. The same authority has been used to prosecute people illegally sending money to Iraq, Yemen, the United Arab Emirates and India.

Powers permitted under the Patriot Act have also been used in investigations involving potential school bomb attacks, computer hackers, child pornography, violent fugitives and illegal weapons sales. In one case, Patriot Act electronic communications authorities allowed law enforcement agencies to identify a person who had sent 200 threatening letters laced with white powder in Lafayette, La., the department said.

The report did not say whether the FBI had used its authority to obtain library or bookstore records. That information is classified, but Attorney General John Ashcroft last year issued a declassified statement saying that, up to that point, the power had not been used.

Rep. John Conyers of Michigan, ranking Democrat on the Judiciary Committee, accused the department of selectively releasing information about the Patriot Act and refusing to address civil liberties concerns.

"Coupled with the department's consistent record of exaggerating their record about terrorism, this entire report is suspect," Conyers said.