Reason Magazine

Print|Email

Does This Justify a "Told You So" Yet?

| November 7, 2005

So, one of the earlier Web pieces I wrote for Reason argued against PATRIOT Act apologists who thought civil libertarian "Chicken Littles" should shut up unless they could point to some way the powers it grants had been abused. The nature of the PATRIOT Act, I argued, made this an unfair burden of proof:

Of course, that's roughly what one should expect from a law distinguished by the amount of secrecy it imposes. [National Review Editor Rich] Lowry's demand amounts to: "Show me just one classified, top-secret abuse of power!" As such, the request is disingenuous at the very least. The American Civil Liberties Union (ACLU) filed a Freedom of Information Act request for information on the uses of PATRIOT powers last August, and was rebuffed. "It is literally impossible," observes ACLU staff attorney Jameel Jaffer, "to know in what contexts the government has used these powers unless they tell us of their own accord, which they have so far refused to do."

Well, a story in The Washington Post tries to present at least a rough picture of how the authority to demand records via National Security Letters has been used:

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters -- one of which can be used to sweep up the records of many people -- are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans. [....]

The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined. [....]

Senior FBI officials acknowledged in interviews that the proliferation of national security letters results primarily from the bureau's new authority to collect intimate facts about people who are not suspected of any wrongdoing. Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net, using national security letters to generate leads as well as to pursue them. Casual or unwitting contact with a suspect -- a single telephone call, for example -- may attract the attention of investigators and subject a person to scrutiny about which he never learns.

A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it yields describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

Maybe that doesn't count as an "abuse," at least as far as PATRIOT apologists are concerned, in the sense that it all appears to be within the letter of the law. But what the article describes is a process by which law enforcement is just scooping up data, not just on their initial targets or suspects, but on the suspects' friends and friends-of-friends... or maybe just anyone who's been in any kind of contact with the suspect. And that sounds to me like the definition of a fishing expedition.

← News You Can't Use | Main | New at Reason →

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time.

|11.7.05 @ 6:28AM|

I was waiting for y'all to go after that story.

|11.7.05 @ 6:38AM|

Julian Sanchez,

Its the seeds of the leviathan-state that we all fear.

|11.7.05 @ 7:02AM|

It just goes to show that in this day and age in has become impossible to be truly invisible unless you want to live without the modern conveniences of digital technology.

This kind of reminds me of an old episode of "The Simpsons" where one of the characters mentions how the government has been using old, discarded pennies to collect every citizen's DNA.

And, of course most law and order types wouldn't have a problem with this. To them, only the ones doing anything wrong have anything to fear. That excuse is just an arrogant proclaimantion that their ideals and attitudes are somehow exempt from suspicion by law enforcement. Most people with this mindset don't really care about what law enforcement does until it effects them personally. Then, everything is a grand injustice. And, law and order types are misguided enough not to realize they are essentially in the same boat as suspected criminals when it comes to their right to privacy. Attitudes like that are what allow things like this to happen.

|11.7.05 @ 7:42AM|

None dare call it Stasi.

Warren|11.7.05 @ 8:03AM|

"Only the guilty need fear", and there's nothing here to suggest otherwise. So no, this doesn�t count. Law enforcement knowing everything about everyone is the whole point. It's not an abuse of power unless some innocent is punished. And of course if you oppose the president, have sex for pleasure, or refuse to accept Jesus into your heart, well then you aren't truly innocent are you?

|11.7.05 @ 8:04AM|

Since ordinary political action is clearly useless in the current climate of fear, it behooves all of us to gamble like mad, buy bizarre sex toys, and visit the weirdest possible pornographic websites, thus flooding the system with white noise and creeping out strait-laced FBI agents everywhere. (Not to mention giving us a noble reason to gamble, buy sex toys and look at porn - as if libertarians needed reasons beyond the obvious...)

|11.7.05 @ 8:18AM|

TalkLeft has a post that is even more damning

|11.7.05 @ 8:41AM|

Let me begin by saying I am 100% against the Patriot Act. But I think that defense of this would be: don't law enforcement agents do this when they might be suspicious of someone (maybe look at other public records, the old fashioned stake-out, etc.) anyway? I imagine they would say this is pretty much routine law enforcement.

|11.7.05 @ 8:46AM|

If it's so bad then why aren't we violently overthrowing the government? Will someone let me know when we get to that point, please?

|11.7.05 @ 8:56AM|

I suppose that one should be careful about what one types or says or does....or whatever, these days. You never know if Big Brother is watching. But I guess that is the whole point, isn't it?

It's sort of like telling a little kid that God sees everything so that he will behave even when an adult is not there to force him to behave. Except that in the case of the Government, well, we know that IT exists.

|11.7.05 @ 8:59AM|

Of course, jw. Maybe the reason writers need to add into their posts things like "wink wink nudge nudge" to notify us of the appropriate time.

|11.7.05 @ 9:10AM|

Ha! And I'm a regular at that Windsor, Connecticut, library mentioned in the article's first paragraph. So now when apologists ask me why I complain so much about the PATRIOT Act, I can honestly say that the FBI has likely used it to read MY private correspondence.

I hope it made their brains explode.

Oh, and in case you were wondering about the size of the huge Arab/Muslim community in Windsor--ain't hardly none to speak of. There are seasonal Mexican immigrants who harvest the tobacco fields (yes, there's a big tobacco crop in Connecticut, used mostly for cigar-wrapping), but this part of Connecticut isn't exactly a hotbed of immigrant activity. I don't know how the FBI reached the "conclusion" that Windsor was where the next big attack would be planned.

|11.7.05 @ 9:12AM|

I can't help but think there should be a judge involved in the process somehow. And maybe something pertaining to probable cause. That's just me, though.

|11.7.05 @ 9:33AM|

All right, I've had coffee and most of my synapses are firing and now I am furious. Windsor, Connecticut? What the hell? If this were about the FBI spying on people in some heavily-Arab area like Detroit--well, it would still be grossly un-Constitutional, but at least it would make a little sense. But boring-ass-white-enclave Wonderbread Windsor? They may as well go to Minnesota and infiltrate the Scandinavian-American club at Cornfed High School.

Let me guess--some FBI guy's promiscuous daughter was having sex with a boy from Windsor. Or maybe an agent with stalkerish tendencies was spying on his ex-wife. Whatever the hell it was, I'll bet it wasn't something which any reasonable person would say had a damned thing to do with national security.

Timothy|11.7.05 @ 9:39AM|

Law enforcement knowing everything about everyone is the whole point. It's not an abuse of power unless some innocent is punished.

Yeah, because that could never go horribly awry!

|11.7.05 @ 9:43AM|

Jennifer, it could be something even more insidious... like, say, an FBI agent reading Hit&Run, finding out that you were once an, ah, exotic dancer, and then using the long arm of the law to dig up pictures.

Any truth to the rumour that the much-missed "JenniCam" from Slashdot was actually in your house?

|11.7.05 @ 9:48AM|

The records it yields describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

On a semi-related note, THIS is partially why I cancelled my credit cards and pay cash for everything--to leave slightly less of a paper trail. No, it's probably not a big deal for the government to know exactly how much I spend on hair-care products or what kind of soap I use--but it's nobody else's business, either.

I don't know if I should be creeped out or flattered by the thought of some FBI schmuck pulling down a full-time salary to keep track of the stereoscope cards and View-Masters I buy and sell on eBay.

Is Mona ever going to post again? I want her to explain to me why real libertarians don't mind if the government knows more about them than their own lifetime boyfriends do.

|11.7.05 @ 9:52AM|

Any truth to the rumour that the much-missed "JenniCam" from Slashdot was actually in your house?

Lordy, no! I never used my real name!

|11.7.05 @ 9:56AM|

it's probably not a big deal for the government to know exactly how much I spend on hair-care products or what kind of soap I use

On the other hand, knowing these dumbass narrow-minded schmucks, they probably DO think my soap is a big deal. "She uses glycerine soap! And glycerine is one-half of nitroglycerin, which is an explosive! And she just bought four bars at The Body Shop--why, she must be planning to blow up the Charter Oak Bridge! AAAAAAAGH!"

Damned right, you nosey bastards. All praises to Allah the merciful and beneficent.

|11.7.05 @ 9:59AM|

Here's a good op/ed from today's Washington Times on the Patriot Act...

Our Liberties Under Siege

|11.7.05 @ 10:02AM|

Man, Nixon is looking pretty good riight now. At least when he did something like this, he gave it an appropriate name: CREEP. When Bush does it, he calls it PATRIOT. Ugh.

|11.7.05 @ 10:03AM|

If we're going to complain about this, we're going to need to show some actual harm beyond, "well, they're spying on me." The "If you're innocent" argument that we all sneer at does raise a valid question-just what is it that we fear. In concrete terms, what is the harm?

|11.7.05 @ 10:06AM|

If we're going to complain about this, we're going to need to show some actual harm beyond, "well, they're spying on me."

Does actual harm to the Fourth Amendment count?

|11.7.05 @ 10:19AM|

Steven Crane- No, unless you can demonstrate how that creates actual harm to cititzens.
To clarify-the question is whether government surveilance of individuals creates a tangible problem. To say those actions violate the 4th Amendment is sort of begging the question.

Jeff P.|11.7.05 @ 10:22AM|

Actually Jen, there are a LOT of Arabs in Windsor, as well as Suffield, Windsor Locks and East Windsor. Remember all the neighbors we had? WIth the women walking behind the men?
The Hartford Courant did a story about the rapidly growing Arab population, spurred on mostly by tech jobs in the Windsor/Bloomfield area. I'll look for it.
Secondly, within five miles of Windsor you have an international airport, an Air National Guard unit, a division of fighter planes, an AWAC unit, and one of the hubs for the NWS Doppler radar network for the eastern seaboard. There's also a lot of secure archiving done in Windsor by TRW and other companies.

|11.7.05 @ 10:25AM|

If we're going to complain about this, we're going to need to show some actual harm beyond, "well, they're spying on me."

No, we aren't going to need to show any such thing. The government is going to need to demonstrate the absolute necessity to perform their duties in this manner.

The state exists for my goddamned benefit, and it is accountable to me, not vice versa.

|11.7.05 @ 10:26AM|

Jeff--

Our neighbors were Indians. The kind from India. Forehead-dotted and everything.

|11.7.05 @ 10:27AM|

Well, counselor, I know you are merely performing a time honored Catholic tradition, but -

If there is no valid interest in keeping your identity and life story private, then you should be happy to post your name, phone number, address, social security number, children's names, ages, and sex, etc. Further, you have no right to require permission to use your image, name or likeness in advertising.

Either you own your identity and private details, or you don't. Furthermore, either there is a value in privacy, or there is none. If you advocate that there is some value in privacy, no matter how little, non-consensual violation of privacy is a harm to the person.

The fourth amendment explicitly endorses the value of being secure in papers, etc. So it is not begging the question, it is putting the burden in the right place - on the person claiming that the 4th amendment is worthless ink on a piece of paper.

|11.7.05 @ 10:28AM|

peachy,

Since ordinary political action is clearly useless in the current climate of fear, it behooves all of us to gamble like mad, buy bizarre sex toys, and visit the weirdest possible pornographic websites, thus flooding the system with white noise

This may be our only real way to fight back.

And now you know what stocks to invest in. :)


Attourney,

The "If you're innocent" argument that we all sneer at does raise a valid question-just what is it that we fear. In concrete terms, what is the harm?

How about law enforcement getting their intelligence on somebody horribly wrong? Or do you think the track record is clean enough that they can argue "we've never, ever done that before?"

But to try and be concrete, there is another aspect to this. Why does the idea of Big Brother creep everybody out so much?

Part of it is the fact that if Big Brother exists, then you are subject to the whims of whatever laws legislatures may pass. And those laws often are not rational.

Basically, Big Brother can make it impossible for people to engage in civil disobedience of stupid laws.

Which means, basically we are NOT FREE anymore. "The consent of the governed" is an empty phrase.

Which means, if they pass a law explicitly saying that all good Americans are some kind of Christian, you are at minimum suspect for not fitting the bill. Which now at least increases the odds that they'll get other "intelligence" on you wrong.

Unless you think they can argue -- successfully -- that nobody in law enforcement has ever been prejudiced?

Does that answer your question, attourney?

Jeff P.|11.7.05 @ 10:29AM|

Jen: Yes, and there were a lot of arabs as well.

|11.7.05 @ 10:33AM|

Jeff--

Our neighbors were Sikhs. But of course, there's already been cases of our dumbass government not knowing the difference between a Sikh and an Arab. Hell, I'm surprised I haven't been investigated--as a non-blonde, I apparently fit the goddamned profile, too.

|11.7.05 @ 10:34AM|

If it's so bad then why aren't we violently overthrowing the government?

Because, despite all of patriotic smack-talk, American's, like most humans on this planet, don't really give a damn about freedom. What they care about is safety. As long as the paychecks keep coming in and there is something to watch on TV, you could put the entire Bill Of Rights into a paper shredder and no one would care. As long as they're not the one's being sent off to the secret CIA gulags, then it's OK by them. After all, it's to fight terrorism. You DO remember 9-11... DON'T YOU???

We've truly gotten to the point that Ben Franklin warned us about. The American people deserve neither liberty nor safety. If that is so, then this country deserves to burn.

|11.7.05 @ 10:34AM|

JimL,

"don't law enforcement agents do this when they might be suspicious of someone (maybe look at other public records, the old fashioned stake-out, etc.) anyway?"

No. Mere suspicion on the part of law enforcement is only enough to allow them to look at things in plain sight - as you say, stakeouts and research on public records. The article describes actions that go well beyond that standard. In a more civilized time, such searches required a warrant.

|11.7.05 @ 10:35AM|

We've truly gotten to the point that Ben Franklin warned us about.

I'm afraid you're right, Akira.

|11.7.05 @ 10:36AM|

"Unless you think they can argue -- successfully -- that nobody in law enforcement has ever been prejudiced?"

If I can summarize - just because a human becomes part of the government does not instantly transform him into a deity. So, giving a human being these unlimited powers is wrong if that human being can use them for personal gain or, even worse, abuse them for mere spite.

Have I ever told you the story about the local police officer who had a crush on a local college student - she spurned his advances? The cover-up and "jurisdiction shifting" the police engaged in makes the Catholic clergy scandal look benign. And he's still an officer, while she lost a LOT of money (she had to pay for her own attornies, while we the people paid for the DA and township solicitors that worked for him).

|11.7.05 @ 10:36AM|

Quasibill- The danger in posting my name, social, etc is that a criminal could use that information to take on my identity. Since we're talking about the government here, I don't thing that's a concern.
Your comments about ownership of one's self and the concommitant right to privacy make sense, but I'd have to suggest that any rational values hierarchy will place avoidance of being killed by terrorists above an abstract ideal like priavacy. All values are meaningless if you're dead, after all.

|11.7.05 @ 10:37AM|

Akira,

This phrase caught my attention:

"the secret CIA gulags"

Now that we know that such places exist, and that some of them are actually located in facilities that used to be run by Soviet Bloc secret police, there are a whole lot of mofos who owe Amnesty International a big apology.

|11.7.05 @ 10:38AM|

you know, guys, I'm not exactly a libertarian, but I'm willing to come on board with this whole let's-confuse-the-gummint by buying sex toys and gambling thing. I think this could be a cross-party winner.

|11.7.05 @ 10:39AM|

Akira,

There is one slight difference between back then and now, and I think it's not irrelevant. Back then, if we won the fight, then we had our country, to fight over amongst ourselves.

Today, if we fought it would be a civil war. What we would "have" at the end? What do you get in the end, when it's a 50-50 split among the people, or something close enough to it?

One would have to wonder about that. Fighting for a good cause, with a reasonable prospect of happiness at the other end, is one thing. But people are much less likely to stand up for the cause, if the outcome of standing up isn't likely to be anything good anyway.

Doesn't change your point, it's just a motivating factor that I think is relevant.

|11.7.05 @ 10:39AM|

"...there are a whole lot of mofos who owe Amnesty International a big apology."

Indeed they do. I myself, don't remember ever bashing them, but if I ever did: I'm sorry.

|11.7.05 @ 10:41AM|

Councillor,

While "not being killed by terrorists" will certainly trump "privacy" on the heirarchy, those aren't the values here. They are allowing the collection of records of innocent people, and the retention and use of those records even after they've been proven innocent. This clearly has very little counterterror value.

"A tiny, insignificant chance of preventing terrorism" most certainly does not trump "the certainty of many people's privacy being violated."

And to pre-empt the most obvious rejoinder, if the situation is much more clear cut, and the counter-terror utility of the search significanty stonger than I describe, then there will be enough probably cause to get a judicial warrant as the founders intended, and it's all good.

|11.7.05 @ 10:42AM|

"If it's so bad then why aren't we violently overthrowing the government?"

It's one of the questions I ask libertarian hawks who claim that the collateral damage in Iraq would have gladly voluntarily sacrificed their lives in the effort to get rid of tyrrany. If you really think that our tax schemes, eminent domain, economic regulation, are so wrong, by that logic, you should be happy to sacrifice yourself. And in fact, I encourage them to.

It takes a special kind of person to be willing to die for a cause. And by that, I mean young, single, and usually male. Other people make do with the hand they've been dealt, and fight back in the small, less costly ways that they know.

Tyrranies, like empires, always subside eventually.

|11.7.05 @ 10:45AM|

"Since we're talking about the government here, I don't thing that's a concern."

Why not? Does being a government employee turn one immediately into Gabriel, or Michael? Furthermore, does it make any difference to the innocent person robbed or killed whether the aggressor had good intentions? Should we give Mao a pass, because he had the greater good in mind?

|11.7.05 @ 10:45AM|

. . . but I'd have to suggest that any rational values hierarchy will place avoidance of being killed by terrorists above an abstract ideal like priavacy.

That rests on several assumptions not proven by the facts, like, f'rinstance:

-- That the real chance of being killed by terrorists on U.S. soil is both nonzero and nontrivial, and

-- That these activities will actually have any effect whatsoever on what that number is, and

-- That there is not another effective way to accomplish the same ends that doesn't entail ignoring the Fourth Amendment away as an inconvenience.

|11.7.05 @ 10:45AM|

To amplify on joe's point, indiscriminate privacy violations not only fail to make us safer, they amount to misuse of scarce resources, diverting resources from more effective uses.

|11.7.05 @ 10:48AM|

Should we give Mao a pass, because he had the greater good in mind?

Good point. Fact is, even in a democracy you have an exceedingly limited power as an individual to choose who rules over you, and what laws get passed.

|11.7.05 @ 10:50AM|

BTW, I do respect the Devil's Advocate for raising questions. Certainly there are trade-offs, and he asks questions that are worth considering. I just think that even after considering his questions the civil liberties people are still right.

|11.7.05 @ 10:50AM|

"Your comments about ownership of one's self and the concommitant right to privacy make sense, but I'd have to suggest that any rational values hierarchy will place avoidance of being killed by terrorists above an abstract ideal like priavacy"

Any the likelihood of you being killed by a terrorist here in these united states is slightly below the likelihood of you being killed by a bee sting.

I've got it! A War on Bees! 7 Billion a month to defend ourselves from bees! Plus, random searches of every residence and person to make sure they don't have a bee on them! It's a rational hierarchy of values, after all, because you're just as dead after an allergic reaction to a bee sting as if you are killed by a terrorist...

|11.7.05 @ 10:58AM|

"A tiny, insignificant chance of preventing terrorism" most certainly does not trump "the certainty of many people's privacy being violated."

Which, on another topic, is also why people like me oppose the random-bag-searches on subways.

|11.7.05 @ 10:58AM|

I've got it! A War on Bees! 7 Billion a month to defend ourselves from bees! Plus, random searches of every residence and person to make sure they don't have a bee on them! It's a rational hierarchy of values, after all, because you're just as dead after an allergic reaction to a bee sting as if you are killed by a terrorist...

Perhaps it would be better if we learned not to go poking our figurative noses into hornets nests to begin with. That's one way to avoid being stung.

|11.7.05 @ 11:04AM|

The danger in posting my name, social, etc is that a criminal could use that information to take on my identity. Since we're talking about the government here, I don't thing that's a concern.

State of Ohio liquor license enforcement officers stole the identity of a woman in order to place an 'agent' in a strip club (can't seem to include a link here, Google on 'Ohio State Liquor Identity Theft'). I believe a single counterexample is adequate to refute your point.

Your comments about ownership of one's self and the concommitant right to privacy make sense, but I'd have to suggest that any rational values hierarchy will place avoidance of being killed by terrorists above an abstract ideal like priavacy.

You need to take into account the likelihood of the government violating your privacy vs. the likelihood of being killed be a terrorist. Furthermore, the decision you present is a subjective judgement; not everyone may make the same choice you do, just like some people go cliff diving or drive race cars, etc.

|11.7.05 @ 11:07AM|

but I'd have to suggest that any rational values hierarchy will place avoidance of being killed by terrorists above an abstract ideal like priavacy.

I heard the same basic argument from people who insisted there was nothing wrong with the New York cops making random bag searches a requirement for anyone who wants to ride the subway. Translated, it means: "You have to give up various freedoms because I am a fucking coward. The loss of your privacy will make me feel a little bit better, at least until the government scares me with the next bugaboo."

|11.7.05 @ 11:11AM|

Lost in the general complaining about random bag searches in NYC is the fact that the burden and nuisance falls mainly on women, who carry bags far more often than men.

|11.7.05 @ 11:12AM|

Holy shit. In other news, Bush is lecturing Venezuela on what it means to be a democracy. Here's a cut and paste which, in true Dave Barry fashion, I Am Not Making Up:

Eyeing three upcoming presidential elections in Latin America, Bush said citizens must choose "between two competing visions" for their future.

One, he said, pursues representative government, integration into the world community and freedom's transformative power for individuals.

"The other seeks to roll back the democratic progress of the past two decades by playing to fear, pitting neighbor against neighbor and blaming others for their own failures to provide for the people," he said. "We must make tough decisions today to ensure a better tomorrow."

Yeah, Bush-baby, tell me about it. God, I HATE it when people try to roll back democratic progress by pitting neighbors against each other and blaming their own failures on others.

|11.7.05 @ 11:13AM|

"Fact is, even in a democracy you have an exceedingly limited power as an individual to choose who rules over you, and what laws get passed."

the smaller the democracy, the better off you are in that respect. Which is one reason I'm a committed defender of federalism in the context of a democracy, and would take it even further to the municipal level, if possible. The fewer people voting, the more power each voter has, and the less it will cost the voter to escape to another jurisidiction if tyrrany of the majority ensues...

|11.7.05 @ 11:14AM|

I would have to start the argument on consistency grounds.

It seems inconsistent to me that a right to privacy establishes a right to an abortion free from government interference, but that a right to privacy does not establish protection from government investigation in the absence of proabable cause. To paraphrase Fessig (sp?), "Privacy - You keep using that word. I don't think it means what you think it means." The harm here is that there is a weakening almost to meaninglessness of a right to privacy that is used as the basis for a broad swath of assumed rights.

It seems inconsistent that law enforcement in every other case is required to demonstrate probable cause prior to stopping your car, tapping your phone, or even collecting your emails, but that the issuance of a Magic Letter disolves completely this requirement. I can't see how an exception of this breadth can be reconciled with constitutional protections as they have evolved to be understood. This is an area where libertarians don't need to pine for a more rational common understanding of the constitution, these provisions seem at odds with the current model.

It seems inconsistent that a government can pass banking laws that prohibit the disclosing of personal finanancial information on the grounds that such disclosures would not reasonably protect information every American rightfully assumes is private, then turn around and demand that same information in the absence of proable cause.

As for the values hierarchy, 'being killed by terrorists' does not have a probability of 1 in the absence of the Magic Letter of 4th Amendment Dissolution, but loss of assumed levels of privacy under current law, loss of the presumption of innocence, and loss of constitutional protection against unreasonable searches have a probability of 1 if such letters are permitted in current form. Even if you are going to be utilitarian in the most simplistic framing of the argument, you have a lot of guaranteed losses for every American and only a probability of effective denial of terrorist strikes that would only have a small probability of hurting each American if they actually came to fruition.

Viking Moose|11.7.05 @ 11:15AM|

This sentence in Julian's presentation is a good description of how those "in favor" react:

"Maybe that doesn't count as an "abuse," at least as far as PATRIOT apologists are concerned, in the sense that it all appears to be within the letter of the law"

Each stage of this operation has involved exposure of strecthes (direct threat to us soil has turned into "shot at our no fly zone planes", WMDs has turned to "programs" to "wanted" to "salt shakers filled with pepper" and "white shoes after labor day"), but those who have been in favor are so entrenched of their internet tough guy law enforcement, their kickin' towel head ass, and the like, it's gonna be interesting to see what changes their minds so they can see the threat THEIR OWN FUCKING policies are causing us.

President Hilary? maybe. but all of those militia idiots who were afraid of gov't power would probably be just as afraid if the DoJ were still focused on them.

Jennifer's translation works perfectly. And these fucking cowards sure are armchair tough guys. they probably go to UFC competitions and put on air moves to their friends to show what Kid Shaleen SHOULD have done instead.

|11.7.05 @ 11:24AM|

You have nothing to fear.

Timothy|11.7.05 @ 11:31AM|

Hell, I'm surprised I haven't been investigated--as a non-blonde, I apparently fit the goddamned profile, too.

That reminds me, on my most recent trip from Eugene, OR back to San Antonio after visiting my girlfriend for her birthday (and engaging in many pre-marital acts of coitus, take that FBI!), my bag was entirely searched by TSA. At the Eugene, OR airport. True, I am a single male travelling alone, but my ticket was purchased almost six months in advance. The folks at the gate desperately wanted to search my carry-on, but I didn't have one, and I fly often enough where I have the item-removal routine down pat.

The TSA bastards didn't even have the consideration to put the damn name tag back on my bag (I used it for holding the zippers closed), or to zip up my damn shaving kit. I opened my back when I got home to discover my toothpaste, shaving cream, and razor floating around amongst the clothing, they'd also left my ipod and digicam on the outside of the soft-sided duffel, when I'd wrapped them in clothing to protect them.

Had to be done though, because white guys with German last names who fly between Oregon and Texas (four times this year) could be terrorists!

|11.7.05 @ 11:33AM|

Not trying to start a mini-flame war here, but I have a serious question: some people posting here in opposition to this PATRIOT Act abuse nonetheless posted in favor of the New York cops' random bag searches on the subway. (I'm not listing names, but y'all know who you are.)

If you wouldn't mind answering this question, I am curious: do you still think the random bag searches are okay, or does this Internet surveillance thing make you more suspicious of government anti-privacy actions in the guise of "anti-terrorism?" Basically I'm wondering where exactly the line is drawn, to make someone switch from "Well, it's okay since it's For our Own Good" to "Oh, the hell with this!"

MP|11.7.05 @ 11:43AM|

Had to be done though, because white guys with German last names who fly between Oregon and Texas (four times this year) could be terrorists!

Not that this justifies the TSA, but never forget that the baddies got on a plane in Bangor, ME for 9/11.

|11.7.05 @ 11:44AM|

"Basically I'm wondering where exactly the line is drawn, to make someone switch from "Well, it's okay since it's For our Own Good" to "Oh, the hell with this!""

Well, to play J...er the anonymous advocate, there IS a distinction in principle, if not in practice. A person could always avoid the subway if they didn't want to get searched. So, if the subway (which should be privately owned) demanded the searches as a condition of entrance, then it is okay. But the privately owned part is important - the subway would have to pay the price for it's consumer unfriendly policies in the form of lower ridership and increased costs (especially personnel). As it is now, we subsidize the subway, not only in direct payments, but through the use of police to provide this function.

The internet stuff is another matter. If your ISP has a privacy policy, it should follow the privacy policy. That's part of the contract that you signed. And plus, you have no way of avoiding it - the government claims this power over all ISPs, etc.

So, there is a distinction in theory, even if in fact it is lost because the government owns the subway and provides the personnel for the searches at no cost to the subway.

|11.7.05 @ 11:46AM|

Jennifer, on the NYC bag searches:

At the time they began, there was an ongoing campaing of subway bombings in London. This increases the value of Variable #1, "chance of preventing terrorism," in our equation.

Now that such fears have not been realized, and there doesn't seem to be any specific, credible threat, that value is lower, and I would say the searches are wrong under the existing circumstances.

Timothy|11.7.05 @ 11:55AM|

And how many of them were native-born US citizens who don't even have a passport and have taken six round-trip flights this year alone? Not to mention my obvious whiteness and the frickin' German last name.

The point is that random serches are crap. Search everyone's bag if you feel like it (although I'm betting a private corporation could do it better for cheaper), but don't randomly select them, and at least have some goddamn courtesy. And as far as passengers go, I've had the metal in my glasses frames set off those damn detectors before, and they've x-rayed everything you carry for years now, so random searches of passengers are also crap.

|11.7.05 @ 11:57AM|

Joe--

So for you, opposition to random bag searches is more a matter of timing than a matter of either the idea itself, or possible consequences (like this thread-topic) thereof?

QB--
A person could always avoid the subway if they didn't want to get searched. So, if the subway (which should be privately owned) demanded the searches as a condition of entrance, then it is okay.

But in the case of the government/police doing such things, on the theory that it's for our own safety, then the voluntariness of the whole thing negated any value of it anyway. I mean, really: who among you supporters thought a guy carrying an actual bomb would hand his bag and bomb over to a cop?

So you're advocating police action that wouldn't even work. And in practice, to say "You're perfectly free to live in New York, we just won't let you take the subway without being harassed" is almost like saying "You're perfectly free to live in America, we just won't let you take the roads anywhere without being harassed."

Don't let semantics and hairsplitting cloud the issue of whether or not actual real-world freedoms and rights are vanishing.

|11.7.05 @ 12:00PM|

Jennifer,

Not "timing." Circumstances. But yes, actions by the government that are inappropriate in some situations are appropriate in others.

|11.7.05 @ 12:00PM|

Jason Ligon,

It seems inconsistent that law enforcement in every other case is required to demonstrate probable cause prior to stopping your car, tapping your phone, or even collecting your emails, but that the issuance of a Magic Letter disolves completely this requirement.

Well, there are exceptions to the above, and in this case the government would say that this differs because the information can't be used against you in court. Then of course there is the practical issue of what the hell are you going to do about an illegal search anyway? You can argue that its fruit of the poisoned tree of course, bu there are many exemptions to that concept. You can also try to bring a Bivens action if the case against you falls apart; but lord, good luck winning that case.

joe and a heck of lot of other people here have some funny ideas as to how evidence is actually used in American courts, for the most part illegally gathered evidenced enters the record much of the time, and even when it isn't, evidence that is gathered as a result of the illegal evidence gathering also generally comes in.

I can't see how an exception of this breadth can be reconciled with constitutional protections as they have evolved to be understood.

The government would say that as its not directly used in a case against you, they should be given more leeway, and the courts 99% of the time bow to their discretion.

This is an area where libertarians don't need to pine for a more rational common understanding of the constitution, these provisions seem at odds with the current model.

|11.7.05 @ 12:03PM|

Also Jennifer and Timothy, the effectiveness of random searches is not in their likelihood of foiling an attack, but in deterring one. After the Lockerbie Pan Am bombing, the FAA set up a system of random searches of checked baggage - not universal searches, but random searches. And there hasn't been an attempt to bomb a plane by putting a device in a checked bag since.

|11.7.05 @ 12:03PM|

Not to mention my obvious whiteness and the frickin' German last name.

Good thing there have never been any reply to this

|11.7.05 @ 12:06PM|

I don't know if we want to count that as a win, joe, given what tactics were adopted as a substitute. Even as a one-off.

|11.7.05 @ 12:14PM|

Also Jennifer and Timothy, the effectiveness of random searches is not in their likelihood of foiling an attack, but in deterring one. After the Lockerbie Pan Am bombing, the FAA set up a system of random searches of checked baggage - not universal searches, but random searches.

But we're not even talking about a system of randomly searching bags after they've passed beyond the control of any possible bomb-users; we're talking about randomly searching bags still under control of their owners, and their owners are perfectly free to leave the area and re-board the subway at another point along the route. This can cause real problems for innocent people just trying to get to work on time, but won't be more than the smallest of speedbumps for someone intending to be a suicide bomber.

I've seen a lot of sub rosa implication here that all this stuff would be OK if they would just restrict doing it to Those Brown People. This stuff is either wrong on the merits or it isn't.

I don't mean that, though I certainly see where I could be interpreted as such. But no, this is more a lesser-of-two-evils sort of thing, the lesser of two stupidities: randomly searching subway passengers in search of bombs is stupid and useless under ALL circumstances. Yet even in the land of Utter Stupidity, where such searches take place, searching something like White Infants would be even more stupid than searching Arab Male Twentysomethings, though even searching the AMTs is completely stupid, especially when anyone is free to walk away.

See?

MP|11.7.05 @ 12:15PM|

So you're advocating police action that wouldn't even work.

If I recall correctly, joe originally deferred to the NYPD as being the authority about what type of security measures are best.

Since they started this stupid policy, the only time I was stopped was during the Bloomberg "The Terrorists are Coming!" scare, and I take the subway daily from Grand Central to Wall Street.

dhex|11.7.05 @ 12:17PM|

hey guys, it's your friendly neighborhood "go to fucking hell and get your damn hands out of my bag, flatfoot" um, me.

1: the subways are not privately owned. the MTA is a semi-private, semi-public ball of bullshit.

1a: even if they were privately owned, the folks doing the searches are cops. not private security

2: i've been asked four times and refused four times. it's neither a big deal nor a small deal; but it makes me sad nonetheless. i've never been asked when going to and from my cma class, despite carrying a very large duffel bag with boxing gloves, etc, in them.

3: a bit more detail at http://dhex.org/htbr/?p=27

|11.7.05 @ 12:17PM|

Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net


Barn door... But hey, that's people for ya: overcompensating out of guilt, shame, and embarrassment over past lapses and inattention -- institutionally as well as individually.

|11.7.05 @ 12:18PM|

The entire nature of a subway or a bus system is so different from an airport that trying to draw paralells from one to the other is futile.

|11.7.05 @ 12:19PM|

Everybody here knows that I'm skeptical of searches. But I will say that if searches are done then racial profiling is fairly useless.

Why? Well, let's say that the profile is young Muslim men from the Middle East, North Africa, Central Asia, the Caucasus, or certain parts of Southeast Asia (all are regions where militant Muslim groups operate and recruit). Even if we only go by the stereotypes associated with those regions, that already covers a lot of young men.

Now factor in the diversity of skin tones, hair types, and facial features in those regions (especially the Mediterranean), and a huge fraction of all young men are on the list. Hell, one of my Italian relatives looks like a 9/11 hijacker (olive skin, dark hair, etc.). I've seen Latinos with strongly Mediterranean features (maybe even a few Moorish genes from old Spain?) who could be mistaken for Middle Eastern.

And age profiling? It is well known that criminals prey on the elderly. Con men have been known to talk lonely and semi-senile elderly people into handing over large portions of their savings. If we exempt the elderly, then some terrorist will persuade a somewhat senile old lady (probably a neighbor that he's befriended) to carry something in her purse for him.

I'm not here to defend random searches, but I am here to say that racial profiling makes no sense, since the profile is "Muslim men from the Middle East, North Africa, the Caucasus, Central Asia, or parts of Southeast Asia." Such a profile covers so many young men that it's almost useless.

|11.7.05 @ 12:23PM|

Jennifer,

"randomly searching subway passengers in search of bombs is stupid and useless under ALL circumstances."

And this is based on your years of experince studying security procedures with the FBI? Your training with the Israeli military? The doctoral dissertation you spent three semesters writing about effective and ineffective counter-terror measures? Throw me a frickin bone here - why should I be convinced by your declarations that the policies you dislike on moral grounds (torture and random searches) just happen to also be completely useless on practical grounds?

I mean, maybe if you were a French Marine turned software engineer turned lawyer, I'd be willing to take your word about what works and what doesn't over that of, say, the FBI and NYPD.

|11.7.05 @ 12:26PM|

Thoreau--

Yes. Racial profiling is useless and stupid. But our government is always the lesser of two evils sort of thing. Racial profiling is useless and stupid. Truly random searches of people and their bags and persons is also useless and stupid, especially when anyone can walk away (though I don't know how much longer that will be the case). We're not going to do things that will ACTUALLY make us safer, because those would be too expensive and require too much work. So we're left to debating useless stupid pieces of theatre.

It's like those little-kid insult fights: "You're stupid to infinity!" "Oh, yeah? Well, you're stupid to infinity plus one!" "Well, you're stupid to infinity plus infinity!" And so forth.

Yes, that's the level of government stupidity we're discussing here.

Joe--

No taunting, now, dear.

|11.7.05 @ 12:27PM|

To clarify, my relative's resemblance to one of the hijackers goes further than just olive skin and dark hair. But those are the most superficial aspects of the resemblance. Some of the facial structure is similar. The Mediterranean is the world's great genetic mixing bowl. In a lab class that I took several years ago I was in a group with 3 Turkish guys, none of whom bore even the faintest resemblance to each other in hair color, skin color, or facial features. One had light brown hair and looked Eastern European, one looked very Mediterranean, and one looked like he came from somewhere much farther to the East. I know that none of the 9/11 hijackers were Turkish, but my point is that there is such a diversity of facial features and skin tones in the Muslim world that racial profiling is all but useless.

|11.7.05 @ 12:29PM|

Well, the point is that there isn't really much one can do to make soft targets like subways, malls, etc. safer. That is if you want such places to function as they do today. Convenient, easily accessible to the public, etc.

Viking Moose|11.7.05 @ 12:31PM|

slightly OT: did anybody see family guy last night? the naked gun beginning with the terrorists was frickin hilarious. then the FCC song... wow. [jim rome] hilarious [/jim rome]

|11.7.05 @ 12:32PM|

Also, setting up a Panopticon system of cameras clearly isn't going to stop people either. Sure, they might work in a post-attack investigation, but the London bombings showed that they clearly aren't going to stop an attack.

|11.7.05 @ 12:32PM|

Well thoreau, after the McVeigh incident, I was waiting for white christian males to be profiled, but had no luck in that regard.

Timothy|11.7.05 @ 12:33PM|

Phil: That German Terrorists link doesn't work.

thoreau: Point taken about profiling. But at least that would make some logical sense if the government were doing it, because uselessness has never stopped them before and it has a certain qualitiative appeal (much as it shames me to admit that). I don't think searches are really all that effective to begin with except, maybe, searching all luggage, (but that just means the TSA is going to steal from you sometimes), but with modern scanning equipment I doubt even opening the bag is needed.

Really, they might as well just install the back-scatter x-ray and be done with it, or we should all fly naked.

|11.7.05 @ 12:33PM|

thoreau,

"Racial profiling" is too broad a term to be useful. Stopping people for DWB is, obviously, dumb. However, ethnicity/national origin can be a relevant factor to consider among others. In Israel, Arab airline passengers are subject to more intensive security procedures than, say, American Jews. Do you really think this is totally irrational?

|11.7.05 @ 12:33PM|

metalgrid-

At the risk of insulting half the forum, I thought McVeigh claimed to be an atheist.

|11.7.05 @ 12:36PM|

Thoreau--

Yes, McVeigh was atheist, but a lot of his--uh--friends were Christian. I think there's also some confusion between him and Eric Rudolph-types.

The beauty of our homegrown American terrorists is that no matter which shade of whitebread you are, you're covered.

|11.7.05 @ 12:36PM|

joe-

I can see the argument for giving extra scrutiny to people based on documented background (e.g. a passport from certain countries). What about a radicalized US citizen (native born or naturalized)? Or a foreign terrorist with fake US documents?

Profiling based on documented orgins may make sense, but profiling based on appearance is clearly useless.

|11.7.05 @ 12:39PM|

Profiling based on documented orgins may make sense, but profiling based on appearance is clearly useless

And yet in busy, fast-paced places like subway entrances, there's no possible way the cops can profile based on documented origins. So either the police have to profile based on appearance, or they don't profile at all.

And while profiling based on appearance in these cases is totally stupid, the fact remains that searching the white baby of Wonderbread parents is even more stupid than searching a young, angry-looking guy who "looks" like "a terrorist."

Timothy|11.7.05 @ 12:42PM|

I think that there's likely a diminishing return on this kind of stuff. Maybe profiling based on national origin or parent's national origin makes sense and does some good, but random searches likely do nothing, and racial profiling is next to useless at best.

That kind of profiling will also take a lot of resources to administer, and probably be wrong pretty often, but in the world of second best that would probably do the most for safety while harming the rights of the fewest.

|11.7.05 @ 12:43PM|

Jennifer-

I see the point you're making, but you're comparing one miniscule success rate (one in a million) to another miniscule success rate (one in a hundred million). If you compare the failure rates, it's above ninety nine percent, with a whole bunch of nines after the decimal point either way. Which means that both searches are equal in their failures.

|11.7.05 @ 12:45PM|

At Ben Gurion every person who walks through the airport door is questioned by screeners. The questioning continues throughout the entire process of getting on the airplane, and security randomly grabs people milling about the airport waiting for their plane (if you can call the controlled nature of such waiting "milling about"). Criminal bakground checks are done on each every passenger. Every El Al flight has armed undercover agents. The system is far more intrusive and extensive than just a bit of random profiling.

|11.7.05 @ 12:46PM|

Thoreau--

Yes, I know, it's one of those things where you point them out in the most straightforward manner possible and yet it still sounds like you're making a horrible joke. Searching a white infant of white parents from Greenwich, Connecticut, is (seriously) marginally more stupid than searching an Islamic-looking dude who looks pissed off. Which must mean that searching the Islamic-looing dude is marginally less stupid than searching that soccer-baby. And yet. . . it's less stupid in an "infinity minus one" sort of way.

|11.7.05 @ 12:48PM|

Like I wrote above, comparing airports to subways or bus systems is just not being to helpful. You simply cannot have a functioning subway system as set up what is done at Ben Gurion.

|11.7.05 @ 12:48PM|

thoreau, I agree, profiling based on physical appearance, without actual knowledge of country of origin, is useless. If you consider than well less than 1% of Saudi or Palestinian passengers are going to be terrorits, and then you multply that further by a fraction based on guessing ethnicity from appearance, you're not dealing with anything useful.

Jennifer, the "young, angry looking" part is the most relevant here. The Israelis have figured out that people on a terror mission, or a suicide mission, don't have the same mental state as normal people. They're a lot more likely to either behave furtively, or look like a man-on-a-mission, or have a dazed expression. But when you're looking at an individual and assessing likelihoods based on their actions and mannerisms, I'm not sure you can ever call it profiling anymore.

|11.7.05 @ 12:53PM|

The more I read about stuff like this, the more I can understand why Mark Penman opted out...

|11.7.05 @ 12:56PM|

joe-

I agree. Behavioral profiling, especially if conducted by people experienced working with people who are trying to scam them, may have its place. I'm not just talking about experienced cops, either. Social service case workers, emergency room workers, anybody who works the returns desk in a retail establishment, and no doubt lots of other professions would all be suitable. When I volunteered at a homeless shelter (one with very strict rules), the staff told me stories about the scams they've seen. My mother, an ER nurse, sees drug seekers every night ("My arm, the one that I just used to smack my kid and carry a heavy bag? Yeah, well it hurts so bad that I can't move it. Can I have some vicodin? And do you just give it out free here, so I don't have to pay at the pharmacy?"). And my wife, as the head cashier in a bookstore, gets all sorts of interesting stories when people want to return things with no receipt.

But identifying and compensating people with experience in weeding out BS is far trickier than hiring the rudest people you can find, giving them rent-a-cop training, and having them man the search stations at the airport.

|11.7.05 @ 12:57PM|

Joe--

All right, I slipped in saying "angry-looking," because what the Israelis are doing is quite different from what the cops in New York and the trains leading thereto are doing.

I'll admit I don't know how much of my animosity is based on personal stuff: the Israelis would most likely leave me alone. Which makes sense, since I have no intention of even blowing something up, or carrying out any other such attacks.

Yet I've been singled out, here in America, for so many fucking searches, between me, my bags, my cars. . . I ask only for the government to leave me alone, I am tired of being searched in various ways without any warrants or probable cause (between bag searches, seatbelt checkpoints, drunk checkpoints, and others), and none of the times my privacy's been violated have done a SINGLE DAMNED THING to make any of y'all a damned bit safer.

To hell with these cops. And to hell with the idea that what they are doing to me and thousands of other Americans benefits me or you or anybody else.

|11.7.05 @ 12:57PM|

Timothy,

"but random searches likely do nothing"

Really? Body searches are done randomly at the airport, and they deter me from bringing any "interstant commerce" on commercial flights. I doubt I'm the only one.

|11.7.05 @ 12:58PM|

Oh, yeah, and what Thoreau said, too.

|11.7.05 @ 1:00PM|

Body searches are done randomly at the airport, and they deter me from bringing any "interstant commerce" on commercial flights. I doubt I'm the only one.

Ah, mission creep! In order to --ahem--"prevent terrorism," we also have to fight the war on drugs and other little agendas.

|11.7.05 @ 1:01PM|

I can understand that, Jennifer. The fact that the NYPD is still doing random searches is absurd and offensive.

Unless they actually have credible information about a subway bombing campaign and aren't telling the public, which is also absurd and offensive.

|11.7.05 @ 1:03PM|

Jennifer,

Random searches for contraband were being done before 9/11.

|11.7.05 @ 1:03PM|

Jennifer,

If you entered an Israeli airport, you would be questioned, probably about three times. Everyone who enters an Israeli airport is grilled. Certainly there is some random profiling going on, but that is hardly the heart of their defense against terrorist attacks. It starts from the background check done on you when you buy a ticket and all the other stuff you have to do to just get it and goes from there.

Israel is a small country with not a heck of a lot of flights and its airport isn't remotely as busy as very busy U.S. airports. It would take many years to develop as effecient a system they have and I can't say whether Americans would go for it.

|11.7.05 @ 1:05PM|

Jennifer-

White enclave? WTF? I guess you haven't spent much time in Windsor outside of the library. Or perhaps you missed the turn for it one day, drove through my old prep school and drew your conclusion. Drive a mile south or so on Broad Street someday and tell me how much of a "white enclave" Windsor looks like, long before you're into Hartford. Actually, anywhere you go in the town is pretty diverse. I remember reading something in the Courant several years ago to the effect of Windsor was the only town in CT where minorities had a higher median income then whites. The white population can't be much over 50%. None of this to say that looking for terrorists at the Windsor Public Library isn't absurd--and its not that I really care one way or another, but for the record my hometown ain't no white enclave.


Also, I now feel much better about having destroyed my library card trying to pick a lock somewhere this summer. Given how much Rand and Heinlein I've probably checked out of WPL over the years, they might well be on to me.

Timothy|11.7.05 @ 1:06PM|

Body searches are done randomly at the airport, and they deter me from bringing any "interstant commerce" on commercial flights. I doubt I'm the only one.

Because keeping a dime bag of weed off a plane sure helps keep the rest of us safe!

|11.7.05 @ 1:07PM|

"But in the case of the government/police doing such things, on the theory that it's for our own safety, then the voluntariness of the whole thing negated any value of it anyway."

Well, maybe I didn't make it clear, but I didn't (and don't) support such searches. But I just wanted to make a distinction between the state imposing it on everyone and a private actor setting conditions for the use of his property.

When the state is involved, there is no accountability. When a private actor does it, there are several forms, not the least of which is criminal liability for the improper use of force, not to mention the need to encourage people to use your property if you wish to make a living off of it.

So the point is that in the absence of the state, such searches would be highly unlikely, because the private actor would have a lot of incentives to not be so obnoxious and rude to his paying customers. Doesn't mean that it couldn't happen, but it would be less likely.

|11.7.05 @ 1:11PM|

Timothy,

Ha ha ha. :)

quasibill,

There are also several potential torts involved, depending on the fact situation (e.g., false arrest). You are much more likely to win an award in a court against a private actor than a public one.

|11.7.05 @ 1:12PM|

"joe and a heck of lot of other people here have some funny ideas as to how evidence is actually used in American courts,"

You've noticed that too, have you?

"for the most part illegally gathered evidenced enters the record much of the time, and even when it isn't, evidence that is gathered as a result of the illegal evidence gathering also generally comes in.""

yep. Judges, generally ex-prosecutors, are often very sympathetic to DAs and give them the benefit of any doubt on evidentiary issues, if at all possible. For examples, see Alito and Roberts.

The one sure way to get in the papers in a negative light as a judge is to make a ruling against the DA. Noone will ever remember the innocent man who got sent to jail, or if they do, they'll never tie it to the completely off the wall legal reasoning you used to let in irrelevant evidence.

|11.7.05 @ 1:14PM|

Regarding interstate commerce on airplanes, I've heard that much of our allegedly counter-terrorism measures are actually wish list items from the drug war. Things that, prior to 9/11, they couldn't get through.

|11.7.05 @ 1:17PM|

quasibill,

You've noticed that too, have you?

When I took criminal procedure my first reaction was: "So, does the Fourth Amendment do anything anymore? Or is it superfluous?"

Yes, that institutional and political angle is an interesting way to look at it.

|11.7.05 @ 1:17PM|

"but I am here to say that racial profiling makes no sense"

for more reasons than that. First, searches create externalities. You impose a cost, in terms of time and convenience, on another person. As long as it is uniform, everyone pays the cost, and to some extent the externality is solved.

When you get into profiling, however, it's now a chance to avoid the cost yourself, while getting whatever feel-good benefit (because as you note, the actual value is dubious to subjective, at best) it is that you desire.

Had this conversation with a gung-ho military type Republican a while back. He quickly changed his tune about profiling when I suggested that since the unifying profile of pretty much every terrorist is a military background that all ex-military must submit to a body cavity search in order to board a plane. That would make ME feel safer, and the costs would be nil to me.

|11.7.05 @ 1:24PM|

MTC-

True, no one I knew actually lived in Windsor. I'm just furious to think in all seriousness there's a good chance those bastards were paying especial attention to what I was doing. I can't remember how many computers there are available at the library--is the chance that I was watched one in four or one in five? Something like that?

Seriously, people--I don't expect to be "disappeared" into one of our black sites or anything, nor am I particularly worried about one of happy Jack's cop-stalkers taking a shine to me, but still this entire thing is freaking me out. First I can't seem to go more than two or three months without a checkpoint or bag search or something required of me, and now THIS?

And consider one of the main arguments the government/intelligence community made after 9-11 to explain why they didn't stop it: sure, we had plenty of warnings about it, but we also had lots of other data containing possible warnings about other things that never happened! Why, we had more data than we could possibly process!

So by all means, let's dump a shitload more data into the FBI's lap, and especially about me, because everybody knows that the way to really break the goddamned spine of al-Qaeda is to focus on white female atheist ex-strippers, by God!

Sorry for screaming like that. This really has me furious, though.

|11.7.05 @ 1:29PM|

"First I can't seem to go more than two or three months without a checkpoint or bag search or something required of me, and now THIS?"

Have you heard about the family at the Hartford airport? Where mom was handcuffed in front of her child because a swiss army knife was in the box of baby wipes?

Even assuming that she intentionally placed it there, and that she intended to use it for nefarious purposes (a couple of big assumptions) - what do you think the possibility of her actually succeeding at this point would be?

And now, our fearless government is spending ridiculous sums of money to make sure this woman "pays the price" for running afoul of our security state. Hurray for the Land of the Free!

|11.7.05 @ 1:30PM|


metalgrid-
At the risk of insulting half the forum, I thought McVeigh claimed to be an atheist.
Comment by: thoreau at November 7, 2005 12:33 PM


I guess it depends on who you talk to. No one actually wants to claim him in their midst. Many reports seem to conflate him as a catholic with links to an anti-zionist group called Christian Identity.

Whatever the case may be, I can't help but see similarities between the hyping of terrorists du jour with the drug epidemic du jour. Must be the psychological handicap du jour of attention deficit disorder.

|11.7.05 @ 1:31PM|

Okay, I read these forums a lot and I've decided that some posters here have a bit more expertise with the Constitution than I do (though I hope to improve on this - admissions willing).

When classmates of mine argue (normally in PATRIOT conversations) that you have no rights to privacy because "it's not in the Constitution", instead of arguing only on 4th amendment grounds, I generally reference the 9th as well. It seems intuitive to me that the language of the 9th amendment could protect rights like privacy and is easier to understand than the 4th amendment.

Am I off base here? Am I providing a good base for a counterargument or am I looking like a clod. I'd really like to know because I never hear much about the 9th amendment when talking about rights like privacy, etc.

|11.7.05 @ 1:36PM|

Timothy,

"Because keeping a dime bag of weed off a plane sure helps keep the rest of us safe!"

That's cute.

So you're admitting the "random searches have a deterrent effect" point?

|11.7.05 @ 1:38PM|

downstater,

The 9th amendment is used in right of privacy cases of course. The problem is that our jurisprudence on the amendment is just very, very thin. Robert Bork thinks the language is superfluous. Barnett views the language as forgotten text which should be resurrected as a vital touchstone of liberty.

|11.7.05 @ 1:40PM|

downstater,

In coming to a conclusion about the Ninth Amendment, those are two places I'd start - such extremes tend to shake what the heck is really going on.

|11.7.05 @ 1:41PM|

Joe,
And this is based on your years of experince studying security procedures with the FBI? Your training with the Israeli military? The doctoral dissertation you spent three semesters writing about effective and ineffective counter-terror measures? Throw me a frickin bone here - why should I be convinced by your declarations that the policies you dislike on moral grounds (torture and random searches) just happen to also be completely useless on practical grounds?

You're underlining the problem with taking such a utilitarian approach to this issue, namely, that the guys with the power in question are also the ones who are generally considered to be the experts on the matter. If we're simply solving the question with an equation, but only the cops can specify one of the values in the equation (how useful an action is), then the solution to the equation is basically up to the cops.

So you're admitting the "random searches have a deterrent effect" point?
I think there's a bit of a difference between deterring someone from carrying a dime bag of pot and deterring someone from blowing themselves up.

|11.7.05 @ 1:42PM|

So you're admitting the "random searches have a deterrent effect" point?

If bombings and gas attacks were somehow the only things deterred, then I'd probably support the searches, because even I can put pragmatism before principle on occasion.
But you are basically giving the government the power and right to deter not only threats to public safety, but any damned thing the government wants.

|11.7.05 @ 1:44PM|

downstater:

It (the 9th) is an excellent argument for forums like this. However, in legal circles it's not going to get you anywhere. Judicial opinion of the 9th ranges from personal preference (living constitution types) to worthless inkblot (originalists).

Randy Barnett has some good books on it. Unfortunately, if you're waiting for Professor Barnett's jurisprudence to become law, you might as well give up now.

|11.7.05 @ 1:48PM|

*sigh*

If the Democrats can get a reasonably mainstream candidate in 2008 who at least swears up and down to stop torture, indefinite detentions, and the use of unConstitutional PATRIOT powers by executive departments, and the Republicans don't put up a guy who jumps up and down swearing it twice as convincingly (and maybe even if they do)...Well, they'll have my vote.

|11.7.05 @ 1:50PM|

...but note that I don't expect this in the least. I may end up voting for Clinton over McCain (if that's the match-up) or just not at all for president.

|11.7.05 @ 1:52PM|

Well, that's two references to Barnett. I'll give that a look. I appreciate the insight. Good to know that I'm not totally off base though.

In my current classes and arguments, I'll continue to use the 9th, but if I get into law school, I'll be sure to adopt the appropriate level of ambiguity toward it. ;-)

|11.7.05 @ 1:53PM|

quasibill,

I could see how his thinking could be used in a piecemeal way.

|11.7.05 @ 2:01PM|

downstater,

I suspect your friends or classmates are just repeating what they've heard other people say. What the Ninth Amendment stands for is far more complex than they can currently wrap their minds around.

|11.7.05 @ 2:13PM|

"I could see how his thinking could be used in a piecemeal way"

I don't mean to disparage the wonderful work he's done. And you may be right, it could work its way into the law in a piece-meal fashion. I just don't see it. It's not in any politician's interest to appoint a judge - anywhere - who follows Barnett's view. Regardless, if it slowly works its way in, I'll likely be geriatric before it's noticeable.

|11.7.05 @ 2:24PM|

quasibill,

Well, ideas have a surprising way of worming their way into complex systems. But you are right, Barnett could be completely forgotten in ten years.

MP|11.7.05 @ 2:32PM|

The 9th amendment is used in right of privacy cases of course.

(for downstater's benefit, because I know Hakluyt knows this...) Usually the Due Process clause of the 14th is used, due to some very twisted logic called Substantive Due Process. Why SCOTUS has always been too chickenshit to firmly rely on the 9th and thus relied on an obtuse usage of the 14th is beyond me.

|11.7.05 @ 2:38PM|

MP,

Yes, I should have stated that it is used as part of a catch-all or a kitchen sink approach, or rather, that's how it was used in cases like Griswold.

Of course, following the Slaguther House cases how the DP Clause has been read re: substantive rights is just pretty screwy by itself.

|11.7.05 @ 2:41PM|

Lost in the general complaining about random bag searches in NYC is the fact that the burden and nuisance falls mainly on women, who carry bags far more often than men.

Not in NYC. Almost EVERYONE carries a bag everywhere, 'cos we don't have cars to dump our stuff in.

With election day coming up, it's interesting to note that the only candidate for mayor to oppose bag searches is... the Green candidate.

Timothy|11.7.05 @ 2:47PM|

Eric .5b: My new policy is to always vote against the incumbent.

Joe: They deter you but you may or may not be the marginal case. You're, presumably, a generally law-abiding type. Folks who want to blow up, gas, or other wise cripple airplanes are, obviously, not generally law-abiding types. With such limited resources and such low probability of being caught in the mass of air travel (I've gotten a cork screw on just this year, and a small knife since 9/11), I seriously doubt it has much of a deterrent effect on the people it's meant ot deter.

Put another (admittedly less than completely apt) way, since when has the death penalty ever deterred a serial killer?

|11.7.05 @ 2:52PM|

Humor is important everyone. While this is a very serious topic, a number of people jumped all over a guy using the name "attorney for Lou C. Fear". Sound it out. And adding the fear part makes it even more humorous. This was a clearly tongue in cheek post.

MP|11.7.05 @ 2:59PM|

Sound it out.

thoreau pounced on this at 10:50 AM.

|11.7.05 @ 3:05PM|

And I acknowledged it at 10:17 -

the origin of the term "devil's advocate" can be found in the Catholic Church and a certain ceremony regarding papal succession.

Or so I've read in Dan Brown books.

|11.7.05 @ 3:16PM|

It wasn't "Lou C. Fear" anyway, just "Fer". Clever title notwithstanding, I don't think the entire posts were tongue in cheek.

|11.7.05 @ 3:20PM|

Warren's post was tongue in cheek.

I thought Attorney's post was too, at first. But his subsequent posts changed my mind. Either he's on the college debate team, or he actually believed what he was posting.

|11.7.05 @ 3:41PM|

Lou C. Fer's in need of some restraint? ;-)

|11.7.05 @ 3:49PM|

quasibill, I think he was just trying to move us along in our thought processes a bit. You don't need to be on the college debate team to argue a point you don't agree with at all.

|11.7.05 @ 4:01PM|

Rhywun - are you sure Audrey Silk, Libertarian candidate for mayor, isn't opposed to bag searches? She doesn't seem too concerned with anything that's happening in New York, aside from the fact she's pissed about the smoking ban. she might just not have gotten around to addressing it yet. she's a retired cop. vote no on prop 2. go rangers.

|11.7.05 @ 4:03PM|

zach, "If we're simply solving the question with an equation, but only the cops can specify one of the values in the equation (how useful an action is), then the solution to the equation is basically up to the cops."

A fair point, but we do have a judicial branch. I'd certainly like to see them a little more involved here.

Timothy, zach, on deterrence - the threat of discovery doesn't just endanger your ability to carry out your plans. It also holds the danger of arrest, interrogation, and implicating other people involved in the operation. Yes, the suicide bomber might not mind being caught, but the dozen higher ranking terrorists estimated to be involved in every suicide bombing would mind very much if their names, locations, and connections became known to the authorities. (And, actually, suicide bombers mind very much if they have to spend decades in the infidels' prisons instead of going to paradise).

|11.7.05 @ 4:29PM|

are you sure Audrey Silk, Libertarian candidate for mayor, isn't opposed to bag searches?

On the page I linked, she supports bomb-sniffing devices in place of bag searches. So I guess that qualifies as a "No", even though the summary page says "Yes" to bag searches for her. -Sigh- nobody ever seems to understand the libertarian...

And she wants to privatize the subway. Good luck with that... I wonder if she'll break 1%.

|11.7.05 @ 6:32PM|

Jeh. The point is that they blow up the device at the checkpoint. And that's especially likely to happen with checkpoints entering into a subway terminal. Which is why the main analogy here used by defenders of such practices, that is checked baggage, simply falls flat on its face.

Kevin Carson|11.8.05 @ 6:25PM|

Here's a guy who found out he was the subject of lots and lots of "national security letters," because all his "opinions contrary to the U.S. government" made him a "person of interest."

Doug Thompson. "Enemy of the State"

So Rich Lowry needs to go pound sand up his asshole.

Kevin Carson|11.8.05 @ 6:27PM|

Phil,

It also rests on another assumption not proven by the facts: that those exercising these invasive powers of surveillance mean well and can be trusted.

Leave a Comment

Most Popular Stories

Reason RUPE: Public Opinion Survey

advertisements

Get Reason E-mail Updates!

Manage your Reason e-mail list subscriptions

Site comments/questions:

Media Inquiries and Reprint Permissions:


(310) 367-6109

Editorial & Production Offices:

3415 S. Sepulveda Blvd.
Suite 400
Los Angeles, CA 90034
(310) 391-2245

Home|About|Advertise|Privacy|Contact
Copyright 2012, Reason Magazine