Ashcroft Unbound

New at Reason: Apologists for the USA PATRIOT act say anybody who makes a fuss is a chicken little, and want to know what's so bad about increased search, seizure and surveillence powers by the government. Julian Sanchez takes up the challenge, and puts the burden of proof back on the government.

Comments

[Shannon Love]

The primary flaw of most of those who argue against the PATRIOT act is that they seek to address a military problem using the standards and methods of the civil criminal system. Terrorist are not civil criminals, rather they are covert military teams. Their goals and methods are military in nature and it will take methods borrowed from military intelligence to prevent their attacks.

In legal theory, the criminal justice system is wholly reactive. It does not act until after a crime has been committed. The standards for actions such as wire taps all rely on the idea that a crime has already been committed and now the state must gather enough evidence to prove who actual did it. "Fishing expeditions" that proactively try to find evidence of the intent to commit a crime are expressly disallowed.

Waiting until after terrorist attack has occurred is unacceptable. We must proactively try to stop them before they occur. This means we must explicitly go on "fishing expeditions" by parsing large amounts of seemingly trivial information about large numbers of people seeking diffuse patterns that added together point to specific individuals.

PATRIOT act critics will fail as long as they concentrate on decrying how the intelligence work intended to catch terrorist differs from the criminal justice systems response to individual crimes. Instead, they should concentrate on severing anti-terrorist powers from the criminal justice system and on building checks and balances into the covert intelligence powers to prevent their misuse.

[The Kosmik Kid]

I just want to thank Julian for an excellent piece. I can't think of an important point he failed to make. Rich Lowry is in over his head if he dares to challenge this.

[Ray]

Meanwhile, the Dwarfs are campaigning on the administration not doing enough for domestic security.

It'll be interesting to watch as Bush's opponents take both sides of the coin.

Kind of a shotgun approach I suppose; see which argument works best with the public and run with it.

[The Kosmik Kid]

Shannon seems to have missed one of the Sanchez's main criticisms of the Act, i.e. that it is not being used by just our military against terrorism, which might well be a justified use of extraordinary war powers, but also by the drug warriors and the tax collectors. The flimsiest allegation of connection to terrorism is all federal agents of need to use the Act to enhance their chances of successs and advancement within their won agencies. In reality, the rights of Americans that the government expects to be engaged in criminal activities that have no connection with the terrorists are routinely abridged. The PATRIOT Act is therefore a fitting addition to the RICO statutes for those bent on maximizing government power, for good or for evil.

[Arnold Kling]

I think that criticisms of domestic security policy vary in terms of their validity.

1. I think that criticism of the Administration's secrecy is well placed. Any policy such as secret detentions should have many layers of checks and balances. Lots of judicial oversight, independent audits, congressional review, etc. I can see living in a transparent society. What I cannot see is living in a society where information is closely held within narrow government agencies, without oversight and auditying.

2. I think that "mission creep" on the part of the Homeland security department, particularly using new powers against non-terrorist threats, is unacceptable. Every time I read about an instance of this--and I have read several--it really serves to discredit the Administration.

However, I think that some of the emotional attacks on Ashcroft have backfired. His opponents often leave the impression that they won't accept any innovative policies for dealing with terrorism.

There is room to stake out a useful position somewhere in between knee-jerk opposition to better security and knee-jerk support of the Administration.

[Jean Bart]

"Julian Sanchez takes up the challenge, and puts the burden of proof back on the government."

Excuse me, but why do the posts about articles in Reason often sound like WWF smackdowns? Why not simply write that the "Stadium is already shaking!" as well when you write these things?

[Plutarck]

Hit him with the chair! The chair! Hit him with the chair! And I'll take a large popcorn and some Cracker Jacks! A large popcorn and some Cracker Jacks! And a giant foam finger!

[Richard Swan]

Julian Sanchez does make one mistake in the article. He says the fact that the FISA courts have only rejected one federal wiretap or subpoena makes them a rubber stamp. That is not necessarily true. Another possible explanation (and based on the Mossaui (Sp?) case, even a likely one) is most of the cases brought up to the FISA courts are strong ones. Since we don't know the circumstances behind the FISA cases, to make a claim the court is a "rubber stamp" for law enforcment agents is misleading. Julian is in effect hiding behind the same secrecy he claims the government is using.

There are probably good reasons not to like the PATRIOT act. But this information seems worthless. Without knowing more about the cases, we can't speculate on their value. To paraphrase Mr. Sanchez, in truth the court may be a tricycle-sized speed bump in the path of an Abrams Tank, but the speed bump may be on top of Mount Everest.

[Kevin Carson]

I assume, by "checks and balances," Shannon Love includes some form of outside oversight and auditing after the fact--if nothing else, a complete set of records that a "truth commission" can examine years later, so that we don't have the potential for enemies of the state being "disappeared" without any accounting.

[Kevin Carson]

Ray,

You're spot-on about the Seven Dwarfs. I saw Gep Dickheart (aka "Dick Gephart before he dicks you!") yesterday responding to a question about the PATRIOT Act by saying "If we sacrifice our freedom in a war for our freedom, what's the point?" That's all well and good, but didn't the Eyebrowless Wonder vote FOR the Act two years ago? But that was back when we actually needed an opposition party to ask tough questions (also known as the time when there was "no daylight between the Democrats and Bush on fighting terrorism"). What a filthy whore Gephart is!

[Gilbert]

I'm not going to worry about it until Volokh sounds the alarm.

You Reasoners are often as bad as the ACLU.

[Anonymous]

Until more than two American citizens are held without lawyers under PATRIOT, I'm afraid I'm going with option two, "Chicken Little". Two years into the law, and just two people (both of whom are obviously deeply involved with terrorism, by the way). Sorry, this proves the powers granted under the Act are being wielded with utmost restraint. All Julian's theories are just that - theoretical.

But it's "Chicken Licken", dammit.

[Kevin Carson]

Anon 0320,

The government's POWERS, on paper, to do something, matter a lot more to me than the extent to which it has actually used them (so far). I'd like to tear down the entire apparatus of extraconstitutional presidential war and emergency powers, created by executive order, over the last fifty years. They amount to a power to suspend the Constitution at one man's word--a man who may have a vested interest in doing so if he's falling in popularity and people are asking too many pointed questions.

A Constitutional restraint on government, to be genuine, must be something imposed on the government from outside, that the government is forced to follow whether it wants to or not. Once the government has the uncontested power, on paper, to suspend our liberties, we no longer possess them as constitutional rights. They are only concessions of sovereign grace, and depend entirely on the government's good will.

[Anonymous]

And speaking of daylight ... they once asked Ashcroft, "If personal freedom were a child in your wife's womb, would it detect any daylight?"

He replied, "Only during election season ballet practice."

[joe]

Anon 320, how do you know how many there are? The feds are under no obligation to even tell the public when they've disappeared someone.

[Handbag]

on Australian Idol!) Fantasia ionic breeze is obviously the person one massage chair wants to win (she has charisma replica handbag to match the technique, and contact lens how superb would it be to have designer handbag a pop star called Fantasia!), coach handbag although I do have to give props purse

[Kalina Shari]

EMAIL: [e-mail]
IP: 210.18.158.254
URL: http://preteen-sex.info
DATE: 05/20/2004 06:01:25
Interesting site, is all true ?