Patriot Act - This should make for a good fight

[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.

Don't assume, Counsel.

Nice try though.

TR

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

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

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.

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.

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

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/mediarela...otactmedia.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.