Wednesday, August 24, 2005

Open Forum

There are a lot of relieved people in New London County right now: Rep. Rob Simmons foremost among them!

What else is happening around the state?

20 comments:

Aldon Hynes said...

In today's New York Times is an article about the F.B.I.'s use of the Patriot Act in Bridgeport, CT and the ACLU suit that has been filed.

http://www.nytimes.com/2005/08/26/politics/26patriot.html

WASHINGTON, Aug. 25 - Using its expanded power under the antiterrorism law known as the USA Patriot Act, the F.B.I. is demanding library records from a Connecticut institution as part of an intelligence investigation, the American Civil Liberties Union said Thursday.

The demand is the first confirmed instance in which the Federal Bureau of Investigation has used the law in this way, federal officials and the A.C.L.U. said. The government's power to demand access to library borrowing records and other material showing reading habits has been the single most divisive issue in the debate over whether Congress should extend key elements of the act after this year.

Genghis Conn said...

This is frightening stuff. I, as most of you know, am a librarian's assistant and am currently enrolled in a Masters of Library Science grad program, so this is an important issue for me. We believe very strongly that patron records should be kept private.

Anonymous said...

OK, so let me be a rabble-rouser.

What's the big deal about library records? Seems to me there is very little private about it-- who cares if people know what you are taking out from the library? This is not like financial records or something sensitive.

Freedom and security are often a trade-off, and as a society we need to determine what the right trade-off is for us. To me, the ability to watch if suspected terrorists are checking out books on explosives, etc. more than outweighs the government knowing if I took out a book on travelling to Rome.

The ACLU is obviously on one extreme of this, and that is a good role to play. I, however, am comfortable with this trade-off.

Genghis Conn said...

Anonymous,

There are two problems with this aspect of the Patriot Act. The first is that it's open to a lot of abuse. The connection between reading habits and actions taken later is tenuous at best, and there's no guarantee that the FBI and others won't expand this sort of thing to cases not related to terrorism. I've done a lot of research on the Patriot Act, and the use of the Act for non-terrorism-related crimes is, if not common, not unheard of.

The second is that it is ineffective at stopping terrorism. You could, for example, find detailed plans of explosives, etc., simply by doing a Google search.

I don't like the idea of making trade-offs where freedom is concerned, not even for security. In many cases, the security gained is temporary at best, but the freedom lost is permanent. There are certainly better ways to keep the population safe.

Aldon Hynes said...

I have a lot of concerns about the Patriot Act, particularly as it relates to use of public libraries.

Let me come up with a few hypothetical examples. If a teenager is struggling with many of those teen issues, drugs, sexuality, etc. and wants to get information I would much rather have the teenager feel that they could get information that they need from a neutral sources like a public library without fear of their searches being disclosed than to have them feel that they need to find information surreptitiously. Now it may seem a stretch to think that the FBI would be interested in such information.

Likewise, a politician might want to bone up on certain issues, perhaps related to something going on personally. They should be able to do research without fearing that their research would become part of an FBI investigation without due cause being presented.

Why am I concerned about this? I think the Plame affair provides a good example of the damage that can happen when people within the government misuse information.

Our legal system, like so much of our Government is based checks and balances. The idea of requiring due process before the Government starts investigating people and the idea that these investigations should not be hidden is an important part of what makes our democracy work.

If I believed that the Patriot Act really made us more secure, I might have a different opinion, but as far as I can tell the Patriot Act actually makes us less secure by damaging the democracy that makes our country strong.

Anonymous said...

So a couple of comments--

1) Isn't the sense of privacy lost exagerated here? If the FBI knows what books you check out, is this really something that can be used against you?

2) I think the better argument against this is that it is ineffective....Genghis has a good point that this probably won't stop any privacy.

3) I disagree that any freedom lost is dangerous. In the overused example, we have no right to cry "fire" in a crowded theater if there is no fire. To take a more judicial view, no where in the constitution is the right to privacy stated. It is an implied right under the "unreasonable search and seizure" clause of the Fourth Amendment, which was interpreted as a "pneumbra" (which means shadow) of the amendment.

So what? So there is no consitutional basis for absolute privacy. We as a society need to determine the right trade-off. I take issue with the "absolute privacy at the expense of the community" argument. I don't want to government snooping around my life any more than the next guy, but I am willing to give a little for more security.

Whether the library provision of the Patriot Act actually accomplishes this is a more concerning question....

Genghis Conn said...

Anonymous,

If we are to exchange freedom (or privacy) for security, then the security gained must be tangible. Metal detectors and perfunctory searches at airports are common sense, and, when done properly, actually do make us safer in that it's much harder to smuggle weapons, etc., aboard a plane. A bit of privacy is lost, but the security gained is real.

However, the ability of the FBI to comb through library records doesn't meet this standard. Carrying a bomb onto a plane is cause for suspicion. Checking out a book about bombs is something entirely different. What kind of evidence is that? It's far from conclusive.

The connection between checking out a book related to explosives and actually carrying out that act is minimal, at best. Besides, as I said, there are plenty of ways to get this kind of information without actually checking a book out. Basically, the FBI would be wasting its time going through someone's library records.

Therefore, it isn't the kind of privacy that should be sacrificed. We need to be careful when making that sort of tradeoff that the security gained is real. In this case, it's entirely illusory.

Thomas Jefferson said...

Anonymous said:
"What's the big deal about library records? Seems to me there is very little private about it-- who cares if people know what you are taking out from the library? This is not like financial records or something sensitive."

The Patriot Act actually covers financial records, too. And cable TV access, and Internet usage and other information from communications providers. Actually, section 215 covers every kind of document.

Anonymous said:
"Freedom and security are often a trade-off, and as a society we need to determine what the right trade-off is for us. To me, the ability to watch if suspected terrorists are checking out books on explosives, etc. more than outweighs the government knowing if I took out a book on travelling to Rome."

You can have whatever opinion you want. Go for it. However, the process for making a Constitutional amendment is in article V. Unreasonable search and seizure or search and seizure without a warrant are specifically disallowed by the Fourth Amendment. The Patriot Act violates these provisions. So again, back to Article V. The only way you and others like you are allowed to change this is through a Constitutional amendment. You need 2/3 of the Senate, 2/3 of the House, and 3/4 of the States to all agree on that change. If you have the numbers, go for it. Until that time, though, this law is Unconstitutional.

Anonymous said:
"The ACLU is obviously on one extreme of this, and that is a good role to play. I, however, am comfortable with this trade-off."

The ACLU is not extreme. Extreme would be dancing in the street naked or calling for a revolution. The ACLU is moderately and legally challenging the legitimacy of this Unconstitional law. Now, the law itself is extreme, on the other hand.

I encourage you to read the Patriot Act for yourself. I did already and this is how I came to these conclusions.

Library records are just the tip of the iceberg...

Great Santini said...

The Patriot Act is a band aid - something that is applied in a time of duress to help the situation somewhat. And like all band aids, it has a limited lifetime and usefulness. The real question is with all the tens of billions of dollars spent on intelligence in the US, how did we miss Iraq's invasion of Kuwait in 1990, the first World Trade Center bombing, the attacks on the US Embassys, the attack on the USS Cole, the recent attacks on Naval vessels in Jordan, etc, etc. And now for another question - who in Washington got fired? I say revoke the Patriot Act and fix the intelligence problem.

Anonymous said...

So someone give the logic FOR the Patriot Act. I find it hard to believe that Congress granted all these new powers to the FBI, CIA, etc. on a lark.

The logic that the Library provision will not work is compelling to me...so why did they put it in there? Again, I have to believe there was a logic to it.

Finally, I don't believe that the Patriot Act is unconstitutional. Mr. Jefferson seems to think that the Fourth Amendment gives blanket privacy without any limits...that is not my reading of the amendment. All it says is there can be "no unreasonable search and seizure". Thus, the proper debate to be had (and we are having it here!) is what "unreasonable" is.

I, for one, agree with the person who said they are willing to give up a little freedom for some security...but the security better be real, and the Patriot Act does not appear to be giving the security necessary. But what would then? "Better intelligence" makes sense, but what does that mean? I am not a law enforcement person, so I have no real idea how the gvt would do this. Does anyone here?

Thomas Jefferson said...

Anonymous said:
"So someone give the logic FOR the Patriot Act. I find it hard to believe that Congress granted all these new powers to the FBI, CIA, etc. on a lark."

Actually, the interesting thing about this Act is that the Department of Justice, i.e. John Ashcroft and his workers wrote it. Congress was given a copy and then voted it in because of the scare of 9-11. They did not understand all of its provisions and frankly it is extremely difficult to understand. Read it and you will see...here is an example, amend some 1934 law, subsection b, paragraph 2, line 3, change the word "and" to the phrase, "and; " Very hard to understand for the layperson, or even lawyer...This is not a partisan issue either. Many civil rights groups on both the left and the right are all over this Act; this includes the John Birch Society, ACLU, American Conservative Union, Libertarian Party, and Green Party. Former Congressman Bob Barr (a Republican from Georgia) has admitted that they did not know what they signed and is now totally against it.

Anonymous said:
"The logic that the Library provision will not work is compelling to me...so why did they put it in there? Again, I have to believe there was a logic to it."

Blind faith in the crazy wing of the Republican Party is not logical at all. The so-called library provision, again, is section 215 which gives agents the right to seize all documents. Everything. The wording of the section includes, ""any tangible things."

Anonymous said:
"All...[the] Fourth Amendment says is there can be 'no unreasonable search and seizure'...."

No. The Fourth Amendment also says that any search and seizure must be done with a warrant. And the amendment goes on to say that the warrant can only be issued upon probable cause.

Anonymous said:
"I, for one, agree with the person who said they are willing to give up a little freedom for some security...but the security better be real, and the Patriot Act does not appear to be giving the security necessary. But what would then? 'Better intelligence' makes sense, but what does that mean? I am not a law enforcement person, so I have no real idea how the gvt would do this. Does anyone here?"

We seemed to already have the intelligence to stop 9/11, if that is what you mean. The reports were all there. There were documents entitled, 'Bin Laden Determined to Strike in US.' The question is not how can we remove citizens' rights more effectively, but instead how can we elect more effective leaders? The current bunch seems to have no idea what it did by enacting the Unconstitutional Patriot Act and they seem to all play 'Simon Says' with the crazy wing of the Republican Party.

But, now additionally, I find that I must repeat myself. The Patriot Act is Unconstitutional. It violates the Fourth Amendment. It is an illegal law. So far, 7 states have banned the law. More states are in the process of doing so. Washington, D.C. also declared itself a free zone from the Patriot Act, by the way...

conn-tiki said...

Here's an interview with the author of the Patriot Act

Thomas Jefferson said...

conn-tiki said...
"Here's an interview with the author of the Patriot Act "

Thank you. I just read the article.

This part is interesting. The author of the Patriot Act and I both interpret Section 215 in nearly the same way. He stated in that interview:
"Section 215 only follows the long-standing practice of (allowing) criminal investigators to be able to seek business records that are relevant to criminal investigations. Section 215 gives the same power to national security investigators in order to seek the same records with very important safeguards. First, a judge has to approve such orders, not simply a clerk of the court, as in ordinary criminal investigations. Second, the Department of Justice is under a statutory obligation in section 215 to report to Congress once every six months on the manner and the number of times it has used that section. And third, it calls for special protection by requiring that the FBI not target an investigation based solely on First Amendment activities."

Note some things here. (1) Under this provision, any kind of document can be obtained...not just business and library records. (2) The FBI or other law enforcement agents can get the documents without probable cause. They merely need to present a hypothetical case not based on free speech in order to justify this search and seziure. This fact is much, much weaker than probable cause. The secion is therefore in violation of the Fourth Amendment. (3) If such a hypothetical case is presented, then the judge is required to give the warrant. Again, this is in violation of the Fourth Amendment as warrants may only be issued based on probable cause. (4) Section 213 of the Patriot Act states that delayed search warrants may be given. That means search and seizure before a warrant. That violates the Fourth Amendment, too. (5) There are other sections of the Patriot Act in which agents are allowed to "sneak and peek" without seizing anything without a warrant. That violates the search without a warrant provision of the Fourth Amendment, too. (6) Section 216 allows agents to declare to a communications provider an emergency situation and so again--no warrant. Another violation...

Getting back to the legality of the Patriot Act. Because it is Unconstitutional, it is invalid. Congress did not understand this when it passed it. The legislature did not even write the law, which is unheard of. The only process allowed for in the Constitution to override the Constitution is a Constitutional amendment. Congress cannot merely pass an Unconstitutional law. Recall that the Constitution and Bill of Rights themselves were passed by a previous Congress by 2/3 of the Senate, 2/3 of the House, and additionally 3/4 of the states. How can a single Congress of only 60% voting yea override that power?? That is the whole point of Article V of the Constitution...

Finally, the author of the Patriot Act admits that it was only a temporary measure and never meant to be permanent. He stated in the interview:
"I do think we still need it."

Anonymous said...

OK, the Patriot Act might have it's flaws, but I think good ol' Tom Jefferson is over-reaching big time.

First, the provision disucssed here has so many checks and balances as to make abuse difficult. Getting approval by a judge after making a strong case for obtaining the records is a high bar to get through.

Second, Tom keeps saying the Patriot Act is unconstitutional, when it clearly is constitutional. Not only has the Supreme Court refused to review to law (which is tantamount to upholding its constitutionality), but it in no way interferes with the Fourth Amendment.

Mr. Jefferson does not like the Patriot Act's interpretation of the Fourth Amendment. This is, of course, his right and a very good debate to have.

However, I think that with all the checks and balances in the Patriot Act, we will see much more good work stopping terrorists than the FBI checking out political opponents of the President (or whatever abuse you could imagine).

IMHO, the Patriot Act ain't perfect, but it is constitutional and better than nothing.

And remember, that would be President Gore's response to 9/11...nothing.

Thomas Jefferson said...

Anonymous said:
"OK, the Patriot Act might have it's flaws, but I think good ol' Tom Jefferson is over-reaching big time."

Here is the Fourth Amendment:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I have described 5 counts (items (2) thru (6)) in detail in which this Amendment is violated. The Patriot Act is Unconstitutional. Any claim to the contrary is completely baseless in reality, unless the specific points are addressed. And this is true, regardless of how much Mr. Anonymous will jump up and down, waving his hands about it.

Thomas Jefferson said...

Another point of contention. Mr. Anonymous claims the following:
"Not only has the Supreme Court refused to review to law (which is tantamount to upholding its constitutionality), but it in no way interferes with the Fourth Amendment."

However, the truth is that the Supreme Court has not ruled on the Constitutionality of the Patriot Act yet. It may choose to do so in the future. In fact, because lesser courts have made such rulings, it may be forced to soon...

This is from the article originally posted on this topic:
"The bureau's power to use national security letters to demand records without a judge's approval was expanded under the antiterrorism law. Last year, a federal judge in Manhattan struck down part of the subpoena provision as unconstitutional, in part because it allowed for no judicial oversight, but the Justice Department is appealing the ruling."

In other words, ruled Unconstitutional...

But everyone on both the left and right who has actually read the Act, already knows it is Unconstitutional and opposes it. Like I said before: ACLU, American Conservative Union, Green Party, Libertarian Party, John Birch Society...7 states have declared themselves free zones from it...10 towns in Connecticut have declared themselves free zones, including Hartford, our capital...Washington, D.C. declared itself a free zone, our nation's capital.

Anonymous said...

Senor Jefferson,

Counteracting your "Point by point" (and I am no lawyer, so bear with me):

2)The definition of "probable cause" is up for interpretation. Courts have ruled that police may search the cars of someone driving erratically for alocohol. Seems like a strong hypothesis, but no real proof. Similarly, someone receiving payments from Saudi Arabia and purchasing chemicals should be investigated. Probable cause? I think a strong hypothesis meets this constitutional test. The Courts seem to agree so far.

3) You have an incorrect reading of the law. The judge is by no means required to give a warrant. He has full authority to grant or not grant such a request...although the burden falls upon him/her to detail why such a request is denied.

4) Afraid I don't fully understand your point here.

5) Not quite sure what the "sneak and peek" standard is here. You may have a point-- you definitely need permission before a search.

6) Again, not sure what you mean here. Are you referring to wire tapping? This defnitely requires a warrant.

So in my interpretation, this Act is constitutional. Now, neither Mr. Jefferson nor I sit on the Supreme Court, which no doubt will have the final say about constitutionality.

However, I stand by my statement that I will trade-off some of these "freedoms" (like the right not to have someone get a warrant and look at my bank records) if it leads to more security.

What I am interested in is discussion about the EFFICACY of the Patriot Act. If it is not working, then let's figure out something that does. If it is, then the ACLU and Mr. Jefferson can make their absolutist stand in front of the Courts...and I am confident they will lose.

Thomas Jefferson said...

anonymous said:
"2)The definition of 'probable cause' is up for interpretation."

The definition of 'probable cause' is not up for interpretation. 'Probable' means likely. It means a probability of greater than 50 percent.

"Similarly, someone receiving payments from Saudi Arabia and purchasing chemicals should be investigated."

Congratulations. You just wasted $10 trillion in taxpayer money investigating 1 out of every 3 gas stations in the US.

anonymous said:
"3) You have an incorrect reading of the law. The judge is by no means required to give a warrant. He has full authority to grant or not grant such a request...although the burden falls upon him/her to detail why such a request is denied."

It is amazing how you could have a correct reading of Section 215 and I not, while I am the one who has read Section 215 and you clearly have not. The truth is that Section 215 states clearly that the judge must issue a warrant, if the requirement of the hypothetical case is met. It does not need to be a 'probable' case, merely hypothetical and not based solely on one's free speech.

anonymous said:
"4) Afraid I don't fully understand your point here."

Okay. This is part a problem and not a solution. The Patriot Act and its provisions are extremely difficult for ordinary people to understand. Recently, a LA judge ruled a section Unconstitutional exactly because no law enforcement agent would be able to discern the scope of its meaning.

anonymous said:
"5) Not quite sure what the 'sneak and peek' standard is here. You may have a point-- you definitely need permission before a search."

Not according to the Patriot Act. Here is an example:
"Abuse in the Brandon Mayfield case: The FBI used Section 218 to secretly break into his house, download the contents of four computer drives, take DNA evidence and take 355 digital photographs. Though the FBI admits Mr. Mayfield is innocent, they still will not divulge the secret court order to him, or allow him to defend himself in court. It is unclear how the search was for any reason but to find evidence incriminating Mr. Mayfield."
http://www.bordc.org/resources/abuses.php

Here are some statistics on 'sneak and peak' provisions of the Patriot Act:
"Abuse of delays for 'unspecified times': Delays may be sought for an unspecified duration, including until the end of the investigation. In one such case, the delay lasted 406 DAYS."

anonymous said:
"6) Again, not sure what you mean here. Are you referring to wire tapping? This defnitely requires a warrant."

The Patriot Act allows an agent or a communications provider to arbitrarily declare an emergency situation in which your information can be shared with the agent. Section 216...you can look it up.

anonymous said:
"So in my interpretation, this Act is constitutional. Now, neither Mr. Jefferson nor I sit on the Supreme Court, which no doubt will have the final say about constitutionality."

Lesser courts have ruled portions of the Act Unconstitutional. There is no presumption of constitutionality merely because the highest court has not ruled upon it. The lesser court rulings stand. Furthermore, I have demonstrated that the Act is Unconstitutional several times now.

anonymous said:
"However, I stand by my statement that I will trade-off some of these 'freedoms' (like the right not to have someone get a warrant and look at my bank records) if it leads to more security."

If you would like that trade-off, then you should move to a different country. Pakistan would be a good example. Because in America, we believe in liberty. And if you do not want to move, then seek out a Constitutional amendment. As for now, the Patriot Act is invalid.

anonymous said:
"What I am interested in is discussion about the EFFICACY of the Patriot Act. If it is not working, then let's figure out something that does. If it is, then the ACLU and Mr. Jefferson can make their absolutist stand in front of the Courts...and I am confident they will lose."

Again, the ACLU is not the only organization to call the Patriot Act an eggregious assault on the Constitution. This statement seems an attempt at painting opposition to the Act as liberal or left. However, I have pointed out in the past national civil rights groups on the right who also oppose this law. Read previous posts.

Efficacy might be important, but how important is it? Clearly, there are national-security states that have more security and less freedom. So, is that what you want? Prioritizing security over liberty brings us to a very Unamerican place.

Nate said...

An editorial in the Courant today shows that this is not an academic or theoretical issue... the goverment IS using the library provision.

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