Bad Advice

A federal judge has overturned a provision of the PATRIOT Act that makes it a crime to give "expert advice or assistance" to a group identified by the government as a a terrorist organization. U.S. District Judge Audrey B. Collins concluded that the provision is unconstitutionally broad and vague: "It could be construed to include unequivocally pure speech and advocacy protected by the First Amendment."

Comments

[Umbriel]

Jesse and others -- I recommend laexaminer/laexaminer as the login/password for the LA Times. I have it stored via cookie to save myself the keystrokes.

[dtBy]

I'm running out of possible false identities

When in doubt, on any site, use cypherpunk/cypherpunk or cyberpunk/cyberpunk for a username/password.

If the account doesn't exist, create one with that combination.

[Jimmy Antley]

Good suggestions. Reminds me of myself at the grocery store. "Well, I can't remember what phone # I gave you when I applied for the savings card, and I left it in the car. Can I borrow yours, ma'am?"

But then I put down an old phone # that I won't forget.

[Walter Wallis]

While I would not deny the authority of the judiciary to pronounce a law unconstitutional, I believe it should require a panel of judges to so decide. California has seen too much judicial veto of the people's right to rule.

Further, I would allow a joint act of 2/3rds of the legislature and the executive over ruling the judges.

While we are at it, any judge who is overturned 3 times should be out.

[Julian Becker]

What people don't realize is how narrow the ruling really was. The court found that the law was unconstitutionally vague as it applied to the activities of most of the Plaintiffs who feared prosecution under the law for actions they intended to take.

If you look at the decision, you see that the court only ruled for the Plaintiffs on the argument that the law was impermissibly vague as it dealt with their activities. The court declined to find the section substantially overbroad. The court's order, therefore, is only an "as applied" ruling of unconstiututionality of the section. That is, the court found that the law was unconstitutional insofar as it could apply to Plaintiffs' intended actions, such as helping Kurdish nationalist groups appeal to the sympathies of United Nations and American public.

The court's order prevents the law from being enforced against most of the Plaintiffs, but does not prevent the Government from enforcing it against anyone else.

If you want to be protected against this section of the law, then you'll have to file your own lawsuit and obtain a finding that it is unconstitutionally vague as applied to your intended actions. You will have to meet some strict requirements to establish that the section is likely to apply to your intended actions and is unpermissibly vague as in that regard. Furthermore, this ruling only sets a precedent in the United States District Court for the Central District of California.

In short, this ruling means that those who live in Los Angeles may be allowed to receive protection from the statute if they can establish that they want to provide expert non-violent assistance to a group designated as terrorist and that the law is so vague that a person of reasonable intelligence in their situation could not tell whether or not their actions were consistent with the law.

http://news.findlaw.com/cnn/docs/terrorism/hlpash12304ord.pdf

[notJoe]

Further, I would allow a joint act of 2/3rds of the legislature and the executive over ruling the judges.

While we are at it, any judge who is overturned 3 times should be out.

Walter,
With all due respect, these are not good ideas. Suppose the legislature & presidency are stocked by statists who pass a bill mandating stop-and-search at every streetlight. Under our current system, we're protected (supposedly) from this violation of the 4th ammendment by the judiciary, who of course (?) will overturn the law. Under your system, we're only protected until the statists get a 2/3 majority. Mob rules!

Also, notice the wisdom of our current system: the statists cannot arbitrarily dismiss judges appointed by earlier, less insane presidents/legislatures. You want to replace that protection too?

Anyway, I'm sure I'm missing something, but I dunno what...

[thoreau]

As I look around the world, I have to conclude that I'll take the dangers inherent in an overly active judiciary instead of the dangers inherent in a restrained judiciary.

Don't get me wrong, I'm not advocating a system where activist judges show zero restraint. We should strive against that, we should make maximum use of checks and balances, and we should strive to appoint judges who will exercise restraint. However, any system, whether it's designed to produce judicial restraint or judicial independence, will fail from time to time. It isn't pleasant, and the failures should be minimized. But since there will always be a few failures, I'd rather that those failures be an excess of judicial independence rather than an excess of judicial restraint.

It's interesting to me that the Founders specified in the Constitution that judicial pay can never be diminished. They made no such guarantees for any other public official. The clearly cared about judicial independence. And even though Thomas Jefferson railed against judicial activists (it's our oldest national pastime), I'm sure that even he would say that, given a choice of problems, he'll take an overly independent judiciary instead of a meek judiciary.

Yes, I know, the ideal is balance. But if deviations must occur, I know which ones I'll take every time: overly independent judges. And I'm sure the people of Zimbabwe will back me up on this.

[Andrew]

Walter

That'a an interesting idea. I've been in favor of merit elections for SCOTUS: after eight or sixteen years on the bench, each member of the SCOTUS has to face popular "re-confirmation" by the electorate in a presidential year.

[Pete Guither]

Just wondering...

If an expert in the food service industry advised a carload of terrorists that they should supersize their fries, would that be a violation of the PATRIOT ACT?

[thoreau]

Andrew-

I don't favor Supreme Court elections. I don't want them to have to face an election on the subject of whether an unpopular act of free speech should have been protected, or whether an unpopular corporation's due process and property rights should be protected in civil suits. (See, I just spoke out on behalf of corporations. Can I keep my libertarian credentials even though I opposed the war? 😉

I do, however, favor eighteen years terms for Supreme Court Justices. For any other court I don't mind life tenure. Lower courts are subject to review. But the Supreme Court, being the court of last resort, should have slow but regular turnover. So space out their terms. Make them eighteen years, expiring at intervals of 2 years. Reappointment should be impossible (so their votes aren't compromised by a desire to be reappointed), and the most senior Justice should be Chief Justice.

[Andrew]

Thoreau

You're at it again!-- trying to get policy outcomes you desire, without shaping a popular consensus for them. I am pro-choice...and anti-Roe v Wade-- I don't like bad law.

[thoreau]

I'm not trying to engineer anything on Roe vs. Wade. I'm the only person in the US who is completely neutral on abortion.

I just like judicial independence, and I also like slow, steady, and regular turnover as opposed to sporadic turnover. I don't want the Supreme Court to go through periods of stasis followed by spurts of turnover. We've had no retirements for 9 years. The odds are good that this summer none of them will retire either, if they don't want their replacements chosen in the circus of a Presidential election year. They'll probably wait until 2005, and then based on the demographics I'd predict 3 successive resignations in 2005, 2006, and 2007. And after that? Well, a few more will be getting up in years by then, so who knows?

I'd prefer nice, slow, steady turnover. Every 2 years, in odd-numbered years (i.e. no elections that year) the President appoints a new one. A process that involves a compromise between the President (who, although indirectly elected, often represents a popular choice) and the Senate (apportioned to represent our federal nature) seems like a good way to find consensus.

Where in any of this did I advocate a particular policy outcome? Indeed, how would any of this produce a bias?

[Walter Wallis]

Were it not for the California law, we might still have Rose Bird in there screwing things up. Total judicial independence presumes intelligence, a flawed presumption judging from recent experience.
Half the murders in California are committed by people who formerly would have been executed, but were released after conviction for 1st degree murder to continue their depredation.
Judges allowing stupid actions to go forward have sky rocketed insurance costs and driven lots of useful products and services off the market.
Perhaps we should allow a maximum of 1000 cases, then make them come back in the real world to enjoy the fruits of their labor.
If legislators had been forced to do their job on civil rights instead of letting judges take them off the hook, all blacks today wold be voting republican.

[notJoe]

thoreau,

Was all set to rip you a new one re: the 18 year term. Then I sat back & shut up for a momement. Good thing, 'cause turns out I like the idea. Now I'm wondering: did you come up with this idea (perhaps sitting by a pond?) or are there others advocating the same approach?

[thoreau]

notJoe-

I'm not sure where I got it. Once or twice surfing the web I ran across it, but I seem to recall having the idea in my head before. I think a few years ago I saw it on cnn.com actually in some opinion piece.

The idea has been in my head for the past couple years, as each June speculation builds on which Justices (if any) will retire. One thing is clear: Given the demographics of the court, at some point there will be a torrent of retirements. Either 2 or more in one year, or 3 in consecutive years. One President, of either party, may get to have substantial impact on the court.

Whatever you may think of the President who picks the new Justices and the Justices whom he picks, in the grand scheme of things I think slow, steady turnover is better than turnover in fits and starts. Particularly if that turnover is influenced by Justices who, for reasons noble or ignoble, time their retirements based on the political climate. It may mean that some bad Presidents will get to pick 2 Justices in a term instead of 0 or 1, and that some good Presidents get to pick 2 Justices in a term instead of 3 or 4, but overall it will ensure stable turnover, and stability is a virtue in a judiciary.

[Andrew]

Thoreau

I think you just compound the real problems-- which are a court bent (in the majority) on cultural change, and a Democratic party willing to shamlessly traduce the confirmation process (whether they are in the majority or the minority).

The American polity has improved on the design supplied by the (great, but less-than-Godlike) Founding Fathers, by mandqating the direct election of the Executive (therby removing the incentives of the legislature to confound its independent function), and by mandating the direct election of Senators, thereby removing the incentive for state governments to confound the federal governments function.

The activist judiciary is a clear case of the failure of checks and balances, and in line with previous reforms to correct such failures, the American people should be given SOME (not very much, but enough) direct input into the process...it will be a reckless president or senator (or the parties of the same) who wants to get athwart the popular will on this.

[thoreau]

Andrew-

We'll have to agree to disagree on whether Supreme Court retention elections will have a negative effect on the judiciary. However, how would my proposal make things worse? Regular turnover can't possibly make Justices any more activist than they currently are. And the process won't become even more of a circus if it happens at regular intervals instead of in fits and spurts. Indeed, there may be reasons for optimism, if stability and regularity are regarded as desirable.

Finally, as to your claim that the Democrats are the ones responsible for politicizing the process: Democrats insist that Republicans are nominating extremists. Republicans insist that Democrats have litmus tests. Republicans accused Clinton of picking far-left extremists. Democrats accused Republicans of having litmus tests.

You can accuse me of making false equivalences (obviously their side is wrong and our side is right!) but this has been going on since the first days of the Republic. One of the early Presidents made a bunch of last-minute appointments the night before he left office. Thomas Jefferson complained about judicial activists. People always like to claim that it's worse than ever before, but I'm always suspicious of claims that things are worse than "the good old days."

I guess that makes me a leftist. Or something.

[Andrew]

Thoreau

Don't tell me you are claiming to be confused by all the conflicting assertions out there?

Which of these propositions would you care to contest?

A) Senate liberals wish the court to mandate policy outcomes they find agreeable.

B) Senate moderates wish to keep the courts neutral regarding policy decisions that properly belong to the legislature.

Yes, judicial activism has been an internicine problem-- pro-slavery activism nearly destroyed our republic. All the more reason to place a conspicuous check on the incentive to pollute the confirmation process.

[thoreau]

I like Senate moderates. But I'm equally skeptical of Senate liberals and Senate conservatives. In the end, both sides believe it's only judicial activism when their side loses.

Where do you stand on filibusters of judicial nominees? I've gone back and forth. I reluctantly oppose them, just as I reluctantly oppose all filibusters. I figure our process already has enough checks and balances. However, it is a very reluctant opposition, and I oppose Democrats filibustering Republican nominees as much as I would oppose Republicans filibustering Democratic nominees.

[Kevin Carson]

The root of the problem is the executive's unaccountable and uncontrollable authority to classify groups as "terrorist organizations." That authority comes, not from USA Patriot, but from the 1996 Counter-Terrorism legislation railroaded through by the Clinton-Reno-Schumer axis of evil.

The 1996 legislation, though, only gave the executive to apply RICO to the "terrorist" organizations themselves. Ass-crap's new wave of post-911 jackbootism expanded the principle to allow similar action by administrative fiat to those who were accused by the executive of contributing to such organizations. Given the unaccountable power of the president to define "contributions" or "aid," it meant a broad and virtually undefined authority to seize the assets of any group El Supremo didn't like, with no due process of law.

Good for the Supreme Court!

[Rick Barton]

This is good news. It's hard to believe that that such a broad stipulation was put into the act in the first place.

" In a written statement, he (Mark Corallo, the Justice Department's public affairs director) defended the Patriot Act as "an essential tool in the war on terror."

There shouldn't even be a war on terror. Terror is not an enemy; it's a tactic. A war on a tactic is by nature, an open ended war and one with out cessation. The war on terror is nebulous enough to give the government a sort of carte blanche excuse for infringing on all manner of individual rights.

[Walter Wallis]

Give every president two appointments per term, and divide 9 salaries between however many justices there are. Senior justices might be willing then to accept a munificent retirement earlier. We have paid a heavy price for some senile SOB's the past few years.
Ultimately, any policy that is not the will of the people is doomed to failure [the war on drugs, for ex] so long term popular support is not just vital, it is the core of the system.

[Julian Becker]

Enough of this silliness! While I could type my defense of substantive due process here, I am not going to bother and instead simply emphasize the absurdity of trying to make the Suprme Court answerable to the legislature and/or executive.

We absolutely do not need to strengthen the role of the legislature. The Federalist Papers already indicate that the legislative branch is government is inherently most powerful. I see no reason to make the entire government the puppet of majority will. Let us not forget that the Constitution is written to create a balance between majority will and the will of various minorities.

Requiring a more frequent turnover on the Supreme Court would only make the decisions of the Court subject to the current will of the Senate (because the greater number of new Justices would always represent the current political mood). For every case where the Supreme Court has arguably overstepped its bounds, there are several cases where Congress has overstepped its own.

Who will protect us against Congress if the views on the Supreme Court always tend to mimic those of the Senate?

[thoreau]

Julian-

I'm not talking about more frequent turnover, I'm talking about steady turnover. Sure, if the court goes for a while without any retirements then it will be more independent of the Senate. But if there's a spurt of retirements, say one per year for a few years, then it will actually be less independent-minded for a while.

Steady turnover assures that the court will never go through a stage where every year the Senate gets to confirm another judge. (OK, deaths and early retirements would, but any political body runs the risk that unexpected departures will alter its composition in an unscheduled manner.) Over 200 years the average tenure has been in the ballpark of 18 years anyway.

Finally, although the Federalist Papers argue that the legislative branch is most powerful, the Federalist Papers are not infallible. Some here argue that the Executive is most powerful, and they point to the bureaucratic state as proof. Others are convinced that we are in the grip of judicial tyranny (I want to emphasize that I am not one of them). In any case, a balance of power concern might suggest that slow, steady turnover assures more stability than sudden spurts of turnover where a single President might get to nominate a Justice every year for 2 to 3 years. That would also mean the Senate would confirm 2 Justices in a row before any of its members face another election.

Stability and slow change is good. Change in spurts is often less good.

[Trey]

and yet, before an election I can't give "expert" advice on how my fellow citizens should vote.

Somehow, this is not "construed to include unequivocally pure speech and advocacy protected by the First Amendment".

What a country!

[Jesse]

Somewhat related rant:

Won't someone -- anyone -- please stop linking to LA Times stories other than in times of absolute necessity? They have what has to be the most intrusive registration requirements I can think of-- next to my gym, bank, landlord, grocer, dry cleaner, DMV, airline, etc...
I'm running out of possible false identities, and can never remember the passwords anyway.

[Walter Wallis]

Our government's just powers are derived from the consent of the governed. While it is beneficial to smooth over the momentary bumps of passion, an aristocracy distant from the people is a dictator. Ultimately the people rule, or lse.

[Andrew]

Julian

I don't think the merit (or retention) elections would make the senate more powerful, or the president. They would (slightly) make the people more powerful. I don't believe that power would be abused, or applied in an uninformed way.

[Mark Fox]

To debate the imbalance of power between the branches of government leads one to overlook the imbalance of power between the state and its citizens.

The Legislative enacts the laws which give the Judicial opportunites for activism. The Executive not only gets to apply those laws, it holds the power of selective enforcement. If the AG or Justice Department made no prosecutions, how would the Legislative or Judicial see their wishes granted?

Ultimately we are still at risk of tyranny by majority. Amending the Constitution requires only a supermajority, not an absolute.