| |
|
This page contains all of the posts and discussion on MemeStreams referencing the following web page: Patriot Act provision struck. You can find discussions on MemeStreams as you surf the web, even if you aren't a MemeStreams member, using the Threads Bookmarklet.
|
Patriot Act provision struck
by Decius at 8:50 am EDT, Sep 27, 2007 |
The practical result of this amendment, objected to by plaintiffs, is that in criminal investigations, the government can now avoid the Fourth Amendment's probable cause requirement when conducting surveillance or searches of a criminal suspect's home or office merely by asserting a desire to also gather foreign intelligence information... In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant here is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.
This is complicated. On the one hand this is one of those provisions of the Patriot Act which I don't like, because it allows for anti-terrorism powers to be applied in cases which aren't primarily related to anti-terrorism. This passage, and others like it, are, in my view, the core problem with the Patriot Act: that it was a set of anti-terrorism powers obtained in the wake of a dramatic terrorist attack and yet many of them are designed to be used in contexts that have absolutely nothing to do with terrorism. However, I'm not sure thats whats going on in this case. This guy was implicated (albeit incorrectly) in an international terrorism attack. It seems to me that the primary purpose of searching such a person would be national security related. I don't have time to read it... Eagerly awaiting Orin Kerr's analysis... |
| |
RE: Patriot Act provision struck
by Mike the Usurper at 6:53 pm EDT, Sep 27, 2007 |
Decius wrote:
However, I'm not sure thats whats going on in this case. This guy was implicated (albeit incorrectly) in an international terrorism attack. It seems to me that the primary purpose of searching such a person would be national security related. I don't have time to read it... Eagerly awaiting Orin Kerr's analysis...
How? How is this national security related? Is he planning to invade the US? Is he smuggling state secrets? Is he... what? I think we need to fix one misunderstanding right now. 9/11 was a terrorist act. It was not an action by a foreign power, foreign agent or any other such thing, it was a criminal act by a bunch of people that represent no government or other power. Hell, they're not even Coca-Cola. It was a not so simple crime, and the information to maybe prevent it was out there, but because of a combination of inattention and turf fights, it wasn't. bin Laden and company are no different from the mafia dons or Columbian drug lords before them. Their motivation is different, and their means of measuring success is different, but they are nothing more than criminals, just the same as those who came before them. The fact that they are not US citizens means there are some niceties of the law which can be glossed over, but inflating Al Qaeda to the level of a nation is giving them more credit than they should ever be given. 9/11 was not a national security event. It was a crime. The fact that it was the biggest crime in the history of the United States does not make it stop being a crime, and does not make magically change it into an invasion. If Al Qaeda were another country, that might be a different situation. They aren't and it isn't. |
|
| | |
RE: Patriot Act provision struck
by Decius at 9:35 am EDT, Sep 28, 2007 |
Mike the Usurper wrote:
How? How is this national security related? Is he planning to invade the US? Is he smuggling state secrets? Is he... what?
He was suspected of blowing up trains in Madrid. It was not an action by a foreign power, foreign agent or any other such thing, it was a criminal act by a bunch of people that represent no government or other power.
I think the reason its "foreign power" and not "foreign government" is so that it is inclusive of non-state actors and entities that aren't recognized by the United States. Your perspective is not completely meritless but I don't that there is any real controversy in the legal community about whether or not Al'Queda counts as a foreign power in terms of how it is defined by FISA and how the 4th amendment applies to it. Furthermore, its not entirely clear that the 4th amendment would apply to a violent domestic terrorist group as it is currently interpreted. The matter hasn't been litigated AFAIK. Mind you, I think there is some obsurdity in the notion that we have this text in the Constitution that says "no warrants shall issue unless" but we've decided that when warrants are and are not required is basically up to the judiciary, and we've also decided that we've uncomfortable with what the judiciary has decided, and so we've created extra constitutional warrants (FISA) that apply in a context where the 4th amendment doesn't, and so now we have warrants that issue without meeting the requirements the Constitution specifically says warrants require, and no one in the legal community seems to be troubled by this. Whatever. |
|
|
|
