The film Unconstitutional addresses the dangers (and failures) of the USA Patriot Act. I felt a little disappointed by the film because it only presented one side of the USA Patriot Act. What they showed--prisoners' rights compromised at Guantanomo Bay; an Arab-American wrongly arrested and detained; librarians asked to give out information about books people are reading; police breaking up peaceful protests, etc.--are all terrible things. I was particularly disturbed by the use of USA Patriot Act to engage in activities that had nothing to do with combating terrorism. The fact that the Act has provisions that do not deal with terrorism was something I had not known, and I was glad to find out.
Still, there's another side of the issue: namely, how do law enforcement and those responsible for the security of the country ensure the security of the country? In order to prevent terrorism, they need information. Given the laws and procedures that exist can they effectively prevent terrorist acts in this country?
I wanted start a dialogue on the competing values in this issue and the move toward a point where we can find the right balance between individual liberties and security. To me, the key is finding that balance. How do we do that?
Obviously, there is a danger of compromising our civil liberties in the work to prevent terrorism, but there is an equal danger of jeopardizing the lives of citizens if we do not explore ways to improve security while slightly compromising our civil liberties at the same time. To me, the tension between security and individual liberties is crucial when discussing something like the USA Patriot Act. It's a really challenging issue; something we need to seriously discuss. For the most part the film only presents one side and therefore does not provide a complete picture to the issue. (One notable exception came from a former CIA(?) official that talked about how the Patriot Act did not make the country safer because it alienated Arab-Americans. With their assistance, the speaker suggested, we could get crucial information to stop terrorism. I would have liked to have heard more of these arguments, arguments that address the security issue.) Of course, the filmmaker has every right to do this. I just feel a little disappointed. I wish there another film that showed the other side of the issue.
Posted by Reid at October 7, 2004 11:00 AMMy views on individual liberty are pretty well-known here, so it won't surprise anyone that if measures to PREVENT terrorism intrude upon my personal liberty, I'm for the most part against them.
However, I haven't read the USA PATRIOT act. I was going to do a quick read and then post some responses, but the thing is 342 PDF pages long, which only delays my response. I think what I'll do is read it a section or two at a time and comment where appropriate.
For those who wish to play along, the full text of the act is easily found in many places on the web, but here is one pro-PATRIOT website that provides the full text.
Posted by: Mitchell at October 11, 2004 07:07 PMQuick responses to early sections. Feel free to comment or question.
Section 1 is just the title. Section 2 is about something called "construction and severability," which I didn't really get.
Section 101 establishes the Counter-Terrorism fund and sets some rules about what gets reimbursed by the fund.
Section 102: Congress condemns persecutions of Americans of Muslim, Arab, and South-Asia origins.
Man. Of course one expects some amount of political feel-good crap whenever politicians open their mouths, but this is way more than I expected. I can't believe this stuff is permitted in a document of this sort:
Many Arab Americans and Muslim Americans have acted heroically during the attacks on the United States, including Mohammed Salman Hamdani, a 23-year-old New Yorker of Pakistani descent, who is believed to have gone to the World Trade Center to offer rescue assistance and is now missing. [sec. 102 (a)(6)]
Section 103 adds two hundred million bucks to a previously-passed (1996) anti-terrorism law for the purpose of funding the technical support center at the FBI.
Section 104: What the heck?
I'm quoting the whole section here, because I don't get this.
SEC. 104. REQUESTS FOR MILITARY ASSISTANCE TO ENFORCE PROHIBITION IN CERTAIN EMERGENCIES.Section 2332e of title 18, United States Code, is amended --
- by striking "2332c" and inserting "2332a"; and
- by striking "chemical".
Perhaps when I've got a moment or two, I'll try to track down the United States Code and the alluded-to section. I'm curious, though, as to why there's no explanation. There's space in this document to talk about one Arab American who did something heroic but no space to explain what the heck is being amended here?
Section 105: This is a huge part of what most people know about the act. It basically mandates that the director of the Secret Service shall develop a national network of electronic-crime task-forces "for the purpose of preventing, detecting, and investigating various forms of electronic crimes, including potential terrorist attacks against critical infrastructure and financial payment systems."
So far, so good, I think. This all by itself doesn't surprise me or offend me.
Section 106
Okay. This looks significant, but again, I don't understand it all because I don't know what the alluded-to document says. The first subsections are more of that amendment stuff, changing some punctuation and a few words, but then it adds a huge chunk of stuff, granting the President the authority, "when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals" to :
I guess it's sorta standard-type stuff, but why does the President get so much personal authority to determine this kind of thing? That's a lot of power for one man.
Also, I'm offended by the use of the third-person masculine pronoun "he." In something like this, non-gender-specific language should be REQUIRED, damn it.
That's it for Title I of this thing.
Posted by: Mitchell at October 11, 2004 07:42 PMMitchell,
Would it be fair to say that you feel that there is no tension between the values of security and individual liberty?
Posted by: Reid at October 11, 2004 09:42 PMNo, absolutely not. There is all kinds of tension. But if you're going to err one way, I say err on the side of liberty. If you could have stopped Adam and Eve in the garden, would you have? I wouldn't, even knowing the consequences.
Posted by: Mitchell at October 11, 2004 09:48 PMFirst of all, kudos to Mitchell for slogging through the Patriot Act. You probably have read more of it than some of our Congresspeople.
Here are a couple of interesting quotes--
Dwight Eisenhower: "If you want total security, go to prison. There you're fed, clothed, given medical care and so on. The only thing lacking...is freedom."
Earl Warren: "It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties which make the defense of our nation worthwhile."
I agree with Mitchell that if we are going to err on one side, it should be on individual liberty, because it is such a slippery slope. One of the keys to finding the "right" balance is to have strong advocates on both sides in open dialog. One of the things about the Patriot Act is that it was pushed through so quickly. I do believe the current Administration uses fear to get what it wants...whether it be legislation, influence over public opinion, or congressional buy-in to policies.
I liked what NBC did after the last debate. They did a quickie "fact check" of some points the candidates made. For example, they had the video clip of GWB saying in the debate that Kerry's assertion that he (Bush) wasn't really worried about bin Laden was another of Kerry's "exaggerations." Then they showed the video clip of GWB saying just that he wasn't really worried about Osama to reporters.
I don't like when representatives from both camps are interviewed after the debate. They don't have anything critical to say about their candidate (of course) and just serve to be a cheerleader and reiterate their candidate's positions (or criticize the opponent). I don't want to hear what Edwards or Rove thought of the debate.
The debates did seem to be more substantive than their counterparts four years ago, but the true test for these debates is: did it help an undecided voter confidently choose one candidate over the other?
Posted by: pen at October 15, 2004 02:55 PMClearly, you would stop a nuclear explosion if you could, but how do we go about doing that without severely compromising our liberties.
This statement doesn't make sense to me. Yes, I think we should do what we can to prevent American citizens from detonating nuclear devices, but we already have laws against that. If through some LEGAL means, the government discovers that my neighbors have possesssion of a nuclear weapon, then there's PROBABLE CAUSE to do something like bug their phone or search their property. However, unless they give the government probable cause strong enough that a judge agrees, I don't want the government looking through their library records or listening in on their conversations.
That's the thing: there are checks and balances in place and if in the name of safety we bypass these checks and balances, we cease to be America.
I have often told my students that I will do just about anything for a million bucks--I'll eat a crap sandwich and smile if they will just come up with the cash. However, I make it clear that I wouldn't punch my mom in the face or take a sledgehammer to the head of a fettered horse, because while my dignity can be bought for as cheaply as a million bucks, my principals can not.
We cannot, just because there are people out there who don't like us, stop being us. The principals that America has always stood for must not be so easily compromised. Those checks and balances are there because history is fillled with powerful people who did whatever they wanted in the absence of those checks and balances, and we don't want that to be us. Or at least, we didn't. Maybe now we do.
Sure, I wish we had done something to stop the attacks on September 11, 2001, and I wish we had done something to stop the Oklahoma City bombing. Do I wish the government had done whatever it took, if "whatever it took" meant breaking its own laws? No, I'm afraid I don't. The same system that allows a man to do a terrible thing also keeps an innocent man from being unjustly imprisoned, and that's a fair tradeoff.
I'd like to say that I'd err on the side of over-protecting our liberties. But that's easy to say when we haven't had another terrorist attack, especially of the WMD type. Say we get credible intelligence that there will be a nuclear attack inside the U.S. I don't know if I can say that I "err" on the side of protecting individual liberty.
If the evidence is so credible, then it can be delivered to a third party, such as a judge or a body of judges, and America can follow its own laws--the laws it designed so that its citizens' liberty would not be compromised. Once the government has reason to believe that my neighbors have a nuclear weapon, then yeah, go in there with guns drawn and find out--but get permission first!
We can't just shoot someone because he looks threatening, and we can't search a home because its owner doesn't like the President.
Posted by: Mitchell at October 18, 2004 01:16 AMI'm not talking about the government breaking its own laws. I'm talking about adjusting the law (i.e. the USA Patriot Act) to increase the chances of preventing terrorism. Do laws need to be changed? How do we change the laws so that we increase the chances of preventing while not infringing on individual liberties?
Btw, you don't think this endeavor is not a black-and-white kind of thing, do you? We have mechanisms to protect liberty, but some times individual liberties are infringed upon, even when laws are followed.
In addition, the mechanisms that provide "checks and balances" on security and individual liberty are NOT* set in stone. We make adjustments to these mechanisms. For example, in the last State Legislative secession, the Legislature considered implementing a "walk and talk" law. From my limited understanding, the law would allow officers to approach some suspicious and ask them questions. Opponents felt like this was too intrusive and would lead to harassment. Law enforcement felt they could more effectively catch drug-dealers with this law.
Does the law infringe upon someone's liberties? Well, technically yes, but I don't think it's clear cut. We try to balance those out with other concerns, such as security.
When we go to the airport, we allow security workers to search our bags and persons without any probable cause. Is that an infringment on our individual liberties and rights? Yes, it is. But we allow this for security reasons. The key is finding the right balance.
If the government learns that there is a imminent nuclear attack withthin the U.S., would we allow the government to use more invasive means to prevent this from happening? I think we would because the stakes are so much higher in that situation. The question is to what extent do we allow them to do so.
(* Edit: I initially intended to write "not set in stone," but I didn't write "not" I made the correction on 10/19/2004)
Btw, you don't think this endeavor is not a black-and-white kind of thing, do you?
What would make you think I wouldn't think that? Of course I think it's not a black-and-white thing. There's nothing in politics, government, economics, religion, society, literature, or just about anything else that's a black-and-white thing. Okay? I'm issuing this as a blanket statement for every opinion that will ever again issue forth from either my mouth, my pen, or my keyboard. NOTHING is a black-and-white issue, so you can stop asking me that. I pretty much promise you that any opinion I have about any issue of consequence or controversy is neither black nor white.
I'm not talking about the government breaking its own laws. I'm talking about adjusting the law (i.e. the USA Patriot Act) to increase the chances of preventing terrorism. Do laws need to be changed? How do we change the laws so that we increase the chances of preventing while not infringing on individual liberties?
If the government is free to change its own laws at will, it effectively breaks its own laws. I expect Congress to frequently allow such a travesty of the system, because it is a body made up of elected officials, but someone needs to challenge these laws or the Supreme Court will never get a chance to rule on their constitutionality, and that's what I'm asking for: someone to take these laws to the Court so we can see what the Judicial branch has to say.
Yes, laws need to be changed, amended, stricken, expanded, re-interpreted, and beefed-up. But when a country says it stands for THIS and creates laws to support THIS and then, in a time of crisis, allows its administration to change the laws so that it can do stuff that violates THIS in order to further its agenda, it is cause for alarm.
It's like the pigs in Animal Farm. "Yes, we know we said Four Legs Good, Two Legs Bad, but we need to trade with the Men if we're going to survive, and how can we trade with the Men if we don't get up on our hind legs?" What happens next, especially when the rest of the animals are so trusting, is the next time they look up at the barn wall, they see "Four Legs Good, Two Legs Better."
I know the Patiot Act is well-intentioned. Safety is a noble and important cause, but safety at any price is going too far. The State needs to capture and bring to justice those who commit crimes against it, but its power to do so must be limited so as to protect the rights that all American citizens are guaranteed under the Constitution. That's why the evidence-gathering laws are so strict.
In addition, the mechanisms that provide "checks and balances" on security and individual liberty are set in stone. We make adjustments to these mechanisms. For example, in the last State Legislative secession, the Legislature considered implementing a "walk and talk" law. From my limited understanding, the law would allow officers to approach some suspicious and ask them questions. Opponents felt like this was too intrusive and would lead to harassment. Law enforcement felt they could more effectively catch drug-dealers with this law.
This is an interesting case and I'd like to discuss it, but could you clarify? Are you saying the mechanisms that provide checks and balances are set in stone, or are you saying that they're not? And do you think the the police should be allowed to approach and question suspicious-loooking people? I don't have a problem with anyone being approached and questioned, to be honest. I would like to know about the admissiblity of evidence gathered in this way, however. I don't see how a police officer approaching someone he or she considers suspicious compromises anyone's liberties.
When we go to the airport and have our bags checked, we are paying a commercial enterprise to provide a service at agreed-upon terms, and one of these terms is the search of our bags and our bodies. This is in no way a violation or our liberties. If I pay you to do something for me, and you say you'll do it under this condition and this condition, and I say okay here's my ten bucks, what we have is a contract, not an oppression.
If the government learns that there is a imminent nuclear attack withthin the U.S., would we allow the government to use more invasive means to prevent this from happening? I think we would because the stakes are so much higher in that situation. The question is to what extent do we allow them to do so.
It depends on what you mean by "more invasive." If it means that military police will scour my neighborhood, house by house, room by room, without reasonable cause, then I don't just say NO, I say HELL NO. If the government suspects you're carrying Anthrax in a plastic baggie crammed up your butt, I say sure, let's do the cavity-search. However, it had better be DANG sure and it had better be able to provide evidence to a judge first--evidence that is clear and meaningful, not just evidence that you are unhappy with the government.
You speak of high stakes, but what do you mean? If you're talking about something on the scale of the World Trade Center, well, those stakes aren't high enough for me, because the eroding of the freedom and liberty our country has always stood for is not worth a few thousand lives. Some things are worth risking our lives for, and freedom is at the top of the list.
I know what you're thinking. You're thinking I say that too easily, as if I haven't spent a long, long time considering this, but I have, and I do not offer this opinion to you as either black or white. All right? The fact that my feelings are strong and with fewer reservations than you have does not mean that I haven't considered both sides. I respect your opinion and wouldn't bother reading it if I didn't, and if something I write makes you think I don't respect either the opinion or the thinking that leads to it, I apologize.
If the government is free to change its own laws at will, it effectively breaks its own laws.
I'm not talking about breaking the law or even changing it willy-nilly. Is that how you would characterize the USA Patriot Act? The main point is as a society we make adjustments to the laws to find the right balance between maintaining security and protecting individual liberties. Furthermore, the way to account for both values is NOT clear cut or set in stone. (sorry about the typo).
Yes, laws need to be changed, amended, stricken, expanded, re-interpreted, and beefed-up. But when a country says it stands for THIS and creates laws to support THIS and then, in a time of crisis, allows its administration to change the laws so that it can do stuff that violates THIS in order to further its agenda, it is cause for alarm.
What are you talking about specifically? What does "THIS" refer to? The USA Patriot Act is an act of Congress, not simply a policy set by the administration, right?
Now, you why I asked you if you saw this as a black and white issue. Well, take a look at the sentence from the same post:
Safety is a noble and important cause, but safety at any price is going too far. The State needs to capture and bring to justice those who commit crimes against it, but its power to do so must be limited so as to protect the rights that all American citizens are guaranteed under the Constitution. That's why the evidence-gathering laws are so strict.
Did I ever say "saftey any any price?" Did I ever suggestthat we shouldn't limit the powers of the state? By my previous posts, you should know that I don't feel that way, so why even say it? Your saying these things makes me wonder if you're treating this issue in a black-and-white way. I've repeated said the key issue is to find the right balance--NOT let the state do whatever it must to ensure safety.
As for the airport security, do you know if those policies are determined by airports/government or private airlines. My guess would be that the inspections are imposed by the FCC (or some other government agency), and would therefore not make this a contract between two private parties.
Re: High Stakes
I mean the use of a WMD. Or how about poisoning of our water supply. As for something on the scale of the World Trade Center, I would seriously look into modifying laws to give more latitude to law enforcement (which means weakening protections of civil liberities) to prevent this from happening again. 3,000 lives is not a small number, nor the economic and social consequences of a terrorist act like 9/11.
And what would you do if those kinds of acts occurred at a rate of once per year? Nothing? What about smaller attacks like suicide bombings at a movie theater? What if those happened at a rate of once a month in our country?
Is that still too small a price to pay to look into modifying our laws in a way that boosts security, but takes away from civil liberties?
Posted by: Reid at October 18, 2004 08:51 PMYou and the Law, Hawaii on Olelo will be featuring a program that is relevant to this discussion. Here is the information:
ARE OUR CIVIL LIBERTIES IN PERIL?
LIVE BROADCAST: FRIDAY, 10/22/04, 6:30-8:00 P.M.
REBROADCAST: SATURDAY, 10/23/04 and SUNDAY, 10/24/04, 7:30-9:00 P.M.
Coverage: A panel of experts will discuss whether traditional civil liberties are currently under “attack.” Included in the discussion will be the form and sources of challenges, whether society really cares if civil liberties are eroded, what difference do civil liberties make in our lives, and predictions for the future. Specific areas for discussion include the impact of the war on terror, the war on drugs, abortion issues, gay marriage, separation of church and state, and the balance between “victims’ rights” and the rights of the defendant.
Guest Host: Roger Fonseca, Esq., Torkildson Katz Fonseca Moore & Hetherington
Panelists:
Pat McManaman, Esq., Executive Director, Na Loio
Earle Partington, Esq., Law Offices of Earle A. Partington
Lois Perrin, Legal Director, ACLU of Hawai‘i
Jon Van Dyke, Professor, Richardson School of Law
I have not read the USA Patriot Act, so I don't know that if such an act had been in force before 9/11, if the attacks on the World Trade Center and the Pentagon could have been prevented, though I suspect not. When we talk about security vs. individual liberties, and if the price of security means a curtailment of our individual liberties is it not reasonable to first ascertain if the Patriot Act does indeed make us more secure? Had the Patriot Act been around before 9/11, would personnel at Logan and United been more diligent in their security duties? Had the administration received a report, as a result of the Patriot Act, stating that terrorists would attack the United States, could the administration have prevented such an attack? We will never know the answers to these questions, but recall, if you will, Rice's testimony before the 9/11 commission. The Administration had a report that bin Laden would attack the United States, and for whatever reason, they did not believe the report to be credible. We don't know what was in that report, but Rice was evasive and less than forthcoming when questioned about it.
In regard to "credible threats" concerning an immanent attack on the United States, has the Patriot Act produced any credible threats? It seems that all we get from the Department of Homeland Security are vague warnings that terrorists might attack during the Super Bowl, Memorial Day, Fourth of July, the DNC, the RNC, Mothers' Day, Arbor Day. Perhaps there are credible threats, but if you signal the threat alarm too often, doesn't there come a time when people disregard these warnings, and in the long run, doesn't this make us less secure and less safe.
...and if the price of security means a curtailment of our individual liberties is it not reasonable to first ascertain if the Patriot Act does indeed make us more secure?
I think this is a very important question. That's why we need to hear law enforcement make their case side-by-side with people who want to protect our individual liberties. We need to hear what the law enforcement needs to effectively protect the country, and then find away to give them those provisions while protecting our rights as best as possible.
The Administration had a report that bin Laden would attack the United States, and for whatever reason, they did not believe the report to be credible. We don't know what was in that report, but Rice was evasive and less than forthcoming when questioned about it.
And maybe that's because the President messed up. Big time. The recent Harper's (not the most unbiased source) has an article criticizing the 9/11 Commission Report because the author feels there was strong evidence to show that Bush did not take the threat of Sadaam Hussein seriously, despite having strong warnings that he should. That also seems to be Richard Clarke's view as well (whom the author cites a lot in the article).
Posted by: Reid at October 19, 2004 08:45 PM