The bottom line is clear: The privacy battalions oppose not just particular technologies, but technological innovation itself.

Declan McCullagh points out that Heather MacDonald has also written an essay arguing that racial profiling doesn't exist. (Our society clearly has no problems with racism whatsoever, and the fact that "DWB" is now a common American expression is obviously a liberal plot that has no relationship whatsoever to people's actual experiences.)

However, I'm memeing this anyway because its important to consider opposing views.

TIA is messy. I think that we SHOULD research the question of how effective these data mining programs can be. I'm not sure I agree that TIA was that program.

MacDonald claims that privacy advocates haven't raised specific, reasonable concerns, nor offered alternatives. Neither of these arguments is true.

The problem privacy advocates have with TIA and CAPPS is that everyone is held to scrutiny, and if you fit a specific profile you are targeted for further analysis. In a free society you should not be discouraged from living a particular lifestyle because it happens to peak the interest of an analyst who is observing you at all times. There is a fundamental philosophical problem with that approach to security.

From a tactical standpoint there are specific questions that remain unanswered about who you really catch with these scans. Especially over time as you can use increased scrutiny to tell whether or not you're tagged, and if so, abort, reconfigure, and retry. Furthermore, while whether TIA was an engineering or science project is hotly debated, but CAPPS certainly wasn't/isn't.

Whats even more problematic about CAPPS is the secret no-fly lists... Secret laws seem incompatible with democracy.

What most of the privacy advocates offer as an alternative are approaches that actually make the terrorist attacks hard logistically, rather then because of ubiquitous monitoring. Consistent explosives screening of all checked luggage, re-enforced, locked cabin doors. Remote control capability for airplanes. More air-marshalls.

Of course, this is just too expensive, its less visible, it doesn't offer the added benefit of getting to run warrant checks every time someone travels, etc...

The 'Privacy' Jihad

] So the value of the background check a "trusted traveler"
] goes through is unclear. Even if he has already turned
] his iris over to Sec. Ridge, any future 'anomaly' in his
] credit or phone records could conceivably put him into
] the special scrutiny category that entails more invasive
] searches. On the other hand, if TSA is being disingenuous
] and those who get the cards will undergo very little
] scrutiny, the system would be ripe for abuse,
] particularly by anyone with connections on the inside.

This is a good summary of the TSA's announcement of a voluntary background check program for travellers. Does the TSA really live in an environment with strained budget problems where a program to reduce security checking is something they have to do to control costs? I doubt it. This is the government we're talking about here. If they want more money they need only make noises about homeland security. No one is going to deny them they funds they need. (However, the we're saving money story sure helps them spin this program with Congress.)

I predict that this program will be rolled out with a slightly reduced burden for travellers who join it. Slowly the burden on people who are in the system will be increased once it is popular. The burden on those who are not in it will become ridiculously high so only a few nut cases like myself choose not to participate, at great personal cost when travelling. Eventually the program will cease to be optional. If everyone is doing it, whats the problem? If you don't like it, walk!

This will be the basis for a biometric national ID card. It will replace drivers licenses, passports, etc... It will be checked constantly. If you fit the profile of a terrorist you'll be scooped up. This is the future, and don't guile yourself into believing you can make a difference here by voting. The Democrats pursue stuff like this even more ferociously then the Republicans. Kerry is already promising to increase funding for these programs.

[Politech] TSA trials registered travelers

] In plaintiffs' case, he was not required to provide
] identification on pain of criminal or other governmental
] sanction. Identification requests unaccompanied by
] detention, arrest, or any other penalty, other than the
] significant inconvenience of being unable to fly, do not
] amount to a seizure within the meaning of the Fourth
] Amendment. Plaintiff has not suggested that he felt that
] he was not free to leave when he was asked to produce
] [*15] identification.

In other words, the government can require ID for any purpose unless you are completely prohibited from engaging in a constitutionally protected activity if you don't comply with the ID request. The judge goes on to say that a requirement for ID checks to fly doesn't impact your freedom to travel/associate because you could reach your destination by other means.

Cross country travel by airplane takes a day, whereas driving takes a week. One must presume that the court has no concern for convenience/practicality here. Therefore it follows that the government could require an ID check with warrant/database cross reference for every form of transportation/lodging based on the theory that you can still WALK between destinations and sleep outside.

Gilmore seems like a crackpot here only because he is thinking way into the future. If the 4th amendment really is this limited, then you can rest assured that over the course of the next 20 years the ID/database requirements will fill into every crack and crevase possible without totally preventing freedom of association.

Ultimately, this is not compatible with the common people's understanding of what the 4th Amendment means, and it will result in a Constituional Amendment.

Honestly, I think that this judge is wrong. Warrant checkpoints are random searches, even if you don't have to go through them. To argue otherwise is to completely miss the spirit of the 4th amendment. If the British had told the Warehouse operators in the Boston Harbor that they could avoid random searches of their storage areas so long as they didn't transport their goods by sea I think they would have been just as angry about it.

[Politech] Judge dismisses John Gilmore's ID-required lawsuit [priv]

] It's a groundbreaking court decision that legal experts
] say will affect everyone: Police officers in Louisiana no
] longer need a search or arrest warrant to conduct a brief
] search of your home or business.

This is a little hard to cipher through. The crimes the perp in question is accused of cloud the issue. Basically, these two officers show up at a residence looking to question someone. They have no warrants of any kind. Someone lets them into the residence, so they go back to the room the person they are looking for lives in. The person isn't there. So they go in and have a look around. They find evidence and submit it.

The police claim they felt at risk, and were worried that the individual might be hiding. Thing is, they weren't executing an arrest warrant, so basically the person in question had every right to hide, and if they felt they were at risk snooping around for him they should have left.

Typically the police are allowed to perform a "protective sweep" of a residence if they are there executing an arrest warrant. Now, in these states, they can execute a "protective sweep" at any time if they feel the situation poses a danger. In this case they were probably justified in feeling there was a danger. However, the fact is that the police consider any situation to be risky, and rightly so. You never know when you might end up in a dicey situation. That means they can perform a search any time they enter any residence for any reason. If they want to search your residence all they have to do is question you. Good by forth.

Whats really disturbing about this is that this is the 5th circuit to come to this conclusion. These rules might already apply to you.

TheNewOrleansChannel.com - News - Court Opens Door To Searches Without Warrants

So, I went digging for examples of commentators who support the enemy combatant designation. I don't really have time to read the DOJ's brief. In fact there is work I ought to be doing right now.

There is an essay reprinted in the articles section up at lifeandliberty.gov... The essay is interesting because the DOJ presents it as reflecting their opinions. However, it seems like the author does not really understand the basic facts of the issue very well. She says "Padilla still has the opportunity to make his case for liberty before a court, and the government still has to prove the validity of his detention."

No, the government does not have to prove the validity of his detention, and that is, in fact, the whole point of the discussion. Padilla is not making a case for liberty. A case is being made on his behalf (as cases must have standing to be heard) that he ought to be able to make a case for liberty.

She goes on to say "Should he prove incompetent to argue his petition, the judge could then appoint a special master to help find the facts, as legal journalist Stuart Taylor has recommended."

I figured I'd look up Stuart Taylor's column on the matter. He says: "The Bush preventive detention system has been implemented with little regard for the law, the rights of many detainees who turned out to be innocent, or international opinion."

So, I think I can safely say that the author in question is fundamentally confused. What is somewhat troubling here is that the DOJ trots her out as a spokes woman. I know the DOJ isn't similarly confused.

A commentator who at least does know what he is talking about is Andrew C. McCarthy. McCarthy prosecuted the mastermind of the 1993 WTC bombing. He has written a number of essays lately on the National Review site about civil liberties and the war on terror. He is opposed to the idea of a Jury trial for Bin Lauden (and seems a bit skeptical of the general concept of leaving things in the hands of Jurys). (Has he heard that we are planning to try Saddam in Iraq? I wonder what he thinks about that?) He offers a fairly strong defense of the Patriot Act. Unfortunately it is peppered with comments about dirty prosecutors being 1 in 5,000 and other forms of not too subtle disapproval of the general idea that there should be checks and balances. (I wonder what the ratio of innocent citizens to felons is overall in the population.)

He also offers up this essay on the enemy combatant issue. He argues that if the executive looses it's case terrorism defendants will be offered full rights to discovery and process. This is not at all what the question is here, and McCarthy knows it. The question isn't whether such detentions can occur. The question is whether the president can engage in such detentions without approval from Congress.

Viewed in that light most of his article reduces to nothing. He doesn't even touch the question of Congressional... [ Read More (0.3k in body) ]

Andrew C. McCarthy on Jose Padilla on National Review Online

] One balmy May evening back in 2000, Dudley was standing
] around minding his own business when all of a sudden, a
] policeman pulled-up and demanded that Dudley produce his
] ID.  Dudley, having done nothing wrong, declined.  He was
] arrested and charged with "failure to cooperate" for
] refusing to show ID on demand.  And it's all on video.

An entertaining site about a supreme court case that will decide whether Police can demand ID for people stopped under "reasonable suspicion."

papersplease.org :: Hiibel

] Facing growing public pressure from civil liberties
] advocates, federal prosecutors on Tuesday dropped
] subpoenas that they issued last week ordering antiwar
] protesters to appear before a grand jury and ordering a
] university to turn over information about the protesters.

Subpoenas on Antiwar Protest Are Dropped

] U.S. Attorney Stephen Patrick O'Meara said late Monday
] that the investigation focuses on unlawful entry onto
] military property at Camp Dodge on Nov. 16, and whether
] plans were laid for that at a conference the day before
] at Drake.
]
] Suggestions that the investigation is related to the
] Patriot Act "are not accurate," O'Meara said.

This was covered on MemeStreams.

FBI explains request for data about war protestors

] Congress is considering a good bipartisan compromise
] known as the SAFE Act (short for Safety and Freedom
] Ensured) that was introduced last fall by Sens. Richard
] Durbin (D-Ill.) and Larry E. Craig (R-Idaho). The
] measure, S1709, would add judicial oversight to rein in
] the FBI's overly free hand.
]
] The bill also extends the Patriot Act's sunset
] provisions, for example requiring periodic
] reconsideration of circumstances in which agents can read
] someone's e-mail or peruse their credit card purchases.
]
] In a letter last week, Ashcroft preposterously asserted
] that the SAFE Act would "make it more difficult" to stop
] terrorists "than before the Patriot Act," and said he'd
] recommend that Bush veto it. Lawmakers should ignore this
] bluster as they take modest steps to protect civil
] liberties while continuing to fight terror.

Ashcroft appears to be seriously opposed to even a moderate approach to the Patriot Act.

Safer Option for Civil Rights

] The Supreme Court yesterday declined to hear an appeal by
] civil liberties groups seeking access to basic data about
] hundreds of individuals detained by the federal
] government after the Sept. 11, 2001, terrorist attacks, a
] decision that allows officials to continue withholding
] the names of most detainees, as well as other information
] related to their arrests, indefinitely.

At least these ones were allowed a hearing. This capability combined with the ability to detain without hearing and deny access to counsel would be extremely dangerous.

Secrecy Allowed On 9/11 Detention (washingtonpost.com)