Congress Should Fix the Patriot Act -- Again

Mostly absent from today's stories about the USA Patriot Act -- at least I didn't see much about it -- is congressional reaction to the news that U.S. District Judge Victor Marrero had again voided part of the terror law over concerns that it violates not just the First Amendment but also important separation-of-powers principles. The lawmakers, remember, could step in today and change the law to satisfy Judge Marrero's concerns.

Are they going to take a look at the ruling and talk about fixing the Patriot Act to allow the feds the power to search through corporate records with appropriate safeguards? Or are they going to wait for the courts to hash it out?

This, not Sen. Larry Craig, should be the main focus on Capitol Hill today. But don't hold your breath.

Nothing in today's papers changes my initial impression of a federal trial judge's strongly worded ruling yesterday that the revised USA Patriot Act still falls short of the Constitution. At issue is the government's use of "National Security Letters" to search for data from private companies. Yesterday, I suggested that it was too early for civil libertarians to celebrate. Today, I predict we'll all be talking about this issue years from now -- or at least until Jan. 20, 2009.

From the Los Angeles Times: "The Bush administration's war on terrorism suffered another legal setback Thursday when a federal judge struck down part of the revised USA Patriot Act. U.S. District Judge Victor Marrero ruled that investigators eventually must get a court's approval when ordering Internet providers and phone companies to turn over records without telling customers. ruling suggests that despite Congress' attempts to put the Patriot Act on firmer constitutional ground, it still faces significant legal challenges. If upheld on appeal, Marrero's decision could mean major new oversight of the FBI's use of a controversial investigative technique."

From the New York Times: "The judge said the F.B.I. might be entitled to prohibit disclosures for a limited time but afterward 'must bear the burden of going to court to suppress the speech.' Putting that burden on recipients of the letters, he said, violates the First Amendment. The decision found that the secrecy requirement was so intertwined with the rest of the provision concerning national security letters that the entire provision was unconstitutional."

From Dan Eggen at the Washington Post: "The secrecy provisions are 'the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values,' Marrero wrote. His strongly worded 103-page opinion amounted to a rebuke of both the administration and Congress, which had revised the act in 2005 to take into account an earlier ruling by the judge on the same topic.

"Although a government appeal is likely, the decision could eliminate or sharply curtail the FBI's issuance of tens of thousands of national security letters (NSLs) each year to telephone companies, Internet providers and other communications firms. The FBI says it typically orders that such letters be kept confidential to make sure that suspects do not learn they are being investigated, as well as to protect "sources and methods" used in terrorism and counterintelligence probes."

From the Boston Globe: "The government has used National Security Letters since a 1986 law created them, but they were rare. The Patriot Act, which Congress passed weeks after the terrorist attacks of Sept. 11, 2001, made it much easier for the government to issue such subpoenas. Since then, National Security Letters have become one of the FBI's most widely used investigative tools. In 2005, the FBI issued more than 19,000 letters seeking roughly 47,000 pieces of information. As the government's use of National Security Letters has undergone exponential growth, the device has also generated controversy. Last March, the Justice Department's inspector general reported widespread problems with the FBI's use of the letters - including several instances in which FBI agents obtained information illegally."

By Andrew Cohen |  September 7, 2007; 7:01 AM ET
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just do us a favor andrew..the next time a major weapon goes off and thousands of Americans die. don't blame the government. just thank your lucky stars, if you survive, that you are ware at all times of who might be looking at your e-mail.

btw, internally at the Post, is there a banner or some such posted at log-in notifiing users that all uses of Post infrastructure are subject to monitoring?

Posted by: | September 7, 2007 09:58 AM

Andrew, I second the motion to fix the:

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56).

I can't underline the letter here, but take the 1st letter in each capitalized word before "Act" and put them together.

Pathetic Freedom Fries mentality!

At a minimum, change the full name of the Act.

Posted by: DC | September 7, 2007 10:32 AM

Dear Anonymous Poster -

There's a big difference between a private entity (the WashPost) monitoring email submissions that might be printed/posted by it on its website for others to read (think actions for libel), and the government reading email that is intended by the sender and recipient to be private communications between individuals. Your utter failure to appreciate the difference between government and private action is absolutely breathtaking . . . .

Posted by: Buster | September 7, 2007 10:36 AM

More comments by the hard-core 28%-ers. Why don't you guys just curl up in your duct-taped and plastic-sheeted terrorism shelters and let the rest of us get on with our lives without the obsessive prying into our private affairs by an overzealous, paranoid and secretive governmental Big Brother.

The best fix for the Patriot Act would be a total repeal.

Posted by: Nellie | September 7, 2007 10:40 AM

buster...catch your breath...I'm more than aware of the difference. and, if you took the time to understand the post, I was referring to Post employees and their e-mail. the point being made...and you have only reinforced it....is that privacy is not really the issue here....it is who/what is actually doing the monitoring. organizations routinely post banners stating that the use of company owned infrastructure is subject to random monitoring. and, as we all know, these systems are very often used by employees for private, non-business related, communcations.

even more interesting would be a book analyzing how the war on terrorism has really evolved into a two front war....but I digress.

Posted by: | September 7, 2007 10:52 AM

nellie...you're such a good, principled person!

Posted by: | September 7, 2007 10:54 AM

You hit the nail on the head once again, Mr.Cohen!

But with the coming of the bin laden tape, you know the dems are gonna run for political cover, because it is axiomatic that this ruling, along with the bin laden tape, is going to be used to cower the dems into refraining from wanting any repeal or amending of the patriot act.

This is my realpolitik outlook on the situation as it looks right now. It remains to be seen, if the dems can go against the coming political tide and not acquiesce to the fearmongers.

Posted by: gil-roc | September 7, 2007 10:58 AM

sorry, am not going to mince my words, f.. off, first commenter.

Your first insinuation on repetition as if this "policy" is a necessity and foregone conclusion with unquestionable benefits and no downside for anyone, when in fact it is a shamlesslessly naked, direct violation, is getting to be infuriating. Cheating to go through private emails, mine or someone else's, without consent doesn't have one iota to do with security, looking for the needle in the haystack confirmation of one's suspicious fantasies on guesses. Let's drop this idiocy of preemption, shall we, esp. as it is a pretty recent infiltrated "doctrine", not some tablet from Moses. Rove is out, unfortunately his residue doesn't seem to be dead yet.

Posted by: Wes | September 7, 2007 11:03 AM

buster..addendum...this isn't even about privacy in my book...it's about notification that monitoring/solicitation of Internet/phone records has ocurred. and a requirement for court approval to sustain the suppression of notification about these actions.

mark the divide wherever you please. the security/private rights dilemma will always be there - regardless of what some judge who is not accountable decides. it's inherent in the problem.

Posted by: | September 7, 2007 11:05 AM

Anonymous Poster -
Again, you completely miss the point. A person who works for a private company that monitors and reviews its employees' emails acknowledges that s/he is AWARE OF and CONSENTS TO such monitoring (yes, even those that they send for personal business).

That pesky document called the U.S. Constitution guarantees in its Bill of Rights that citizens will be free from unreasonable searches and seizures by its government - which has been interpreted over the last 200+ years to mean that the government must have probable cause to eavesdrop/tap phones/collect emails before it can do so.

Comparing governmental wiretapping of citizens to internal company monitoring of employees (as you do) exhibits a basic misunderstanding of the difference between the relationship U.S. Citizens have with our government and that which employees have with their private employers.

Posted by: Buster | September 7, 2007 11:12 AM

dear Wes...please control your adolescent instincts....it's so...unbecoming!

are you that dense? the simple point is that monitoring occurs all the time. secuiry policies routinely state this all the time - it's being done NOW. how else, for instance, do you think corporate web servers used to stash porno is discovered? policies are established about what can and cannot be done with infrastructure NOT OWNED BY THE USER. the infrastructure is auditted as part of enforcement. privacy is violated all the time...it's inherent in the technology and competing policy requirements. the issue in play is who is doing the monitoring and whether notification is required.

Posted by: | September 7, 2007 11:12 AM

I actually like Nellie's idea: why not allow these petrified, paranoid people who wish to impose on the rest of us who don't share their pathology (perhaps thereby legitimizing their own personal problems and nuttiness by getting others to share in it--sort of like some drug addicts) , to abide THEMSELVES by the restrictions they so crave, and the rest of us will deal with our own business, dealing with risk that has always been there (want to talk about the police statistics of crime in the overwhelming majority of American cities, and not just large ones, esp. compared to many other countries?).

Thanks anyway for your concern, and have fun. Why not?

Posted by: Ed | September 7, 2007 11:13 AM

buster....interesting twist. so by clicking through the banner you are saying that the user knowingly obviates his rights to privacy. that's not the way it works. the company establishes a policy the user either accepts - or he/she does not enjoy access rights. there is no negotiation/consent here. there is acknowledgement that the policy exists and will be followed. now, you can dig into some arcane legalisms on 'consent'...but the practical outcome is that the company conrols what happens with its infrastructure....and can monitor your exchanges.

I'm not at all confused about the other issues in play. my focus has simply been on the notion of privacy itself. what don't you get about that?

this isn't about wiretapping. there is established law for that and the FBI hs been through the ringer before on certain monitoring systems that you can research with a few Google searches. the language in Arkin's quotes is about Internet/phone company "records".

Posted by: | September 7, 2007 11:24 AM

Anon at 11:12 and initially (and to use an epithet is in practice now, anything but the sole privilege of adolescents): That's not the point the post was addressing-obviously on the computer at someone else's site etc.. one is told that they may be monitored, or that isn't secure etc..

It was the implication stated as irrevocable fact in the first para in your initial comment that, being able to look through anyone's correspondence without their knowledge is a SUREFIRE, FAILPROOF NECESSITY REQUIRED to protect against a bomb going off and people dying, and that the lack of such a practice would enable, or indeed you strongly seem to indicate, will virtually MANDATE a bomb attack as an inevitable fait accompli that is extremely annoying and dangerous.

Posted by: Wes | September 7, 2007 11:26 AM

Ed...good point! and those of us who feel that folks like Nellie aren't part of the solution during times of threat are free to adopt a similar point of view...right? let's set up some social/political firewalls so that those who don't particpate in whatever causes we favor can be cordonned off so they can't impact our cherished causes! I like it! we all get to protect and defend as our value systems lead us to believe is best suited to the circumstances. cool!

Posted by: | September 7, 2007 11:28 AM

Exactly right, gil-roc. You hit a nail on the head also.

Posted by: Norm | September 7, 2007 11:28 AM

of course, 11:28, some of us can still see the possibility of discussion on common ground (lacking the anxiety to protect oh-so-vulnerable "cherished causes" at all costs for the sake of the label alone, detached from what foundation gives them whatever content they possess), but if that kind of balkanization is what you want, sounds fair to me . What kind of infrastructure could be made in a national context to effectively quarantine either side?

Posted by: Ed | September 7, 2007 11:38 AM

What is the point of living in a country with no constitutional rights? Isn't that what makes the U.S. great? Isn't it our American "freedoms" that we want to bestow on other countries around the world? "Give me liberty or give me death!" Wait...who said that???????
Face it, the neocon dream of a fascist American is dead. It won't be long before the rest of their supporters are run out of town as with the likes of Rove, Rumsfeld, and Wolfowits (sp). The house of cards has fallen. Its time we made up lost ground. Here's to freedom in America!!!

Posted by: Ben Brown | September 7, 2007 11:38 AM

Wes...huh?

I have been laboring to make a small point: privacy is violated all the time. buster has intelligently inserted into the conversation that this reaches beyond privacy and into the relationship between government and citizen. my goal all along has been to establish that privacy is not the core issue here.

my only qualification to buster's legitimate point is that the matter is more complicated since the Constitution does provide for national security intrusions into the "rights" of citizens. I ahve been careful, you have obviously missed, not to assert where I fall on this continuum...but even a boor like me understands that these sorts of trade-offs are made al lthe time and have been a permanent part of our historical fabric since time immemorial.

btw...I have been on the...errrr....other side of this...and take offense to the notion in play that everyone on the government side is a rights trampling Neanderthal oblivious to rights, process and obligations.

sorry...but the right answer doesn't fall at either extreme. the conversation is underway now, and has been for a while, in mapping this terroritory out to fit the new, asymmetric kinds of threats we are dealing with. it's my profoundest hope that while this is being worked out...you don't happen upon the wrong flight reservation, drinking establishment or bridge.

Posted by: | September 7, 2007 11:40 AM

Anon, one more time, I didn't address the point that when one goes on someone else's site, uses someone else's facilities they are notified it isn't secure etc.. That's self-evident, one gets that message that others may be able to notice one in a "nonsecure" domain all the time.

It was your first statement in your first post, maybe incidental to your main intention as far as the point about privacy , that was offensive, nonetheless.

Posted by: Wes | September 7, 2007 11:46 AM

What seems to be lost on some of the supporters of The Patriot Act is:

A lot of Americans do not doubt the need to conduct necessary actions. It is the intent and the wide latitude which the administration believes it has to usurp Congress, as well as the People with NO Accountability.

How would many of you supporters of this Act would be happy if a Secret NSL was placed on you, and you suddenly went to an airport and were placed on a No-Fly list.

How would you feel if the FBI suddenly thought you were a terrorist supporter because you picked up a particular book in the library, or happened to go to a site to learn more about the peoples that our government has chosen to war with?


If this act was for the true good of the country, why is the Administration so against truthfully sharing the information with the American public? We already know we are at war, but do we really know why??

Lastly, I asked the Republican supporters this question? If Bill Clinton had these very same powers, operated in the very same passion? Would you all be singing a different tune? Yes, he was nearly impeached for what? lack of your family values? How many of your neighbors sons and daughters died because of that? whereas Bush has yet to be brought to question for anything that he has done, no matter how many people around the world know the facts as they stand. He failed at every business that he has ever run... Fact not fiction. How is faring running this country? If his goal was to set it back to a time that I only read about in history books, He has done that successfully. It will be interesting to see though how the supporters of these over-reaching policies will feel when the power is in the hands of the other party??? Think about it.

Posted by: JustAnObserver | September 7, 2007 11:53 AM

And to confirm, this unsavory implication you repeat in this last sentence (maybe incidental to your main point but you seem to believe it), linking these oh-so-new "asymmetric" threats to someone on the wrong flight etc.. with the claim that having the freedom to look through someone's correspondence has some failproof connection to preventing that.

It isn't a relativized "continuum" requiring trade-offs- some things are NONNEGOTIABLE.

Posted by: Ws | September 7, 2007 11:56 AM

Wes...I didn't say that...you inferred that. if you really want to explore the matter...what do you believe happens? do you think the monitoring is done in a random, ad hoc fashion? or do you think that, and I realize this is a heavy caveat to pass by for some, folks in the government (the ones doing the actual work) are so stupid that they haven't looked at the math of the problem? that they operate in a void without prior intelligence that leads them in a somewhat structured way to scope the search?

on a separate topic...I personally find the notion laughable, after 60-70 years of "progressive" interpretation of the Constitution, that many are suddenly discovering a renewed faith in bedrock, inviolable Constitutional principles. that bridge was crossed long ago.

Posted by: | September 7, 2007 11:59 AM

wes..once again...you are wrong. everything is negotiable these days. that is the legacy of progressive thinking and utilitarian philosophies! my guess would be that you want to pick and chose where strict constructionism is in play: "No one in the government will look at my e-mail"...vice..."It was just a BJ"...or..."They're here. It isn't practical to send them back across the border". the law, it would seem, is very pliant depending upon one's preferred set of anvils and hammers.

Posted by: | September 7, 2007 12:05 PM

The law professor who taught my con crim procedure class once described it as "a history course." But the Fourth Amendment lives and provides you with some protection against unreasonable government (the Washington Post is not the government) search and seizure, as in no warrantless intrusions on private conversations in which you have a legitimate expectation of privacy. The fellow above who talks about how there is "no privacy" seems to assume that we have no legitimate expectation of privacy in any of our electronic communications, simply because in some selected contexts we are told they will be monitored. Not so.

That said, we should understand that Judge Marrero's ruling was aimed not so much at warrantless monitoring but at the use of secret "national security letters." This Article III federal judge concluded that the statutory scheme of gagging the ISPs and phone companies through the use of these letters, and of shielding the FBI's use of the letters from judicial review, violated the Constitution. He held that the separation of powers doctrine doesn't allow the statutory scheme to vest quite that much trust in the FBI. It's a well-reasoned opinion.

A lot of us who believed that our national security apparatus was lacking before 9/11, and who believe that the Patriot Act contains some helpful measures for the war on terror, are nonetheless unwilling to give up everything about who we are as Americans and what we are as a country simply because we're under a threat of attack. We're grown-ups. We're willing to accept a lot of risk in exchange for not tossing our national identity into the garbage. So if a major bomb goes off and "thousands die," we will mourn, but I would prefer not to mourn the loss of our national soul, which we don't need to sell to hunt the terrorists as the organized criminal groups that they truly are.

Posted by: ExAUSA | September 7, 2007 12:12 PM

Well said, ExAUSA.

As a liberal Democrat who has worked deep within various agencies within DHS (including ICE and TSA), I have developed a fuller perspective on more than just the why of what the government collects, but the who and the how.

And contrary to what the Anonymous poster has said throughout the comments above, I can say from personal experience, that data collection efforts within the government tend to be overly broad and often performed incorrectly (at least the first time through). This leads to identifying and ensnaring law-abiding, unknowing citizens. Not only that, as we've seen with the FBI and DOD in the last few years, such data isn't disposed of in a proper and timely fashion.

On the other hand, many of the provisions of the Patriot Act have been useful, lawful tools that law enforcement needed to execute their duties in a nation now cognizant of the treat terrorism poses.

At the end of the day, we can not, we must not, lose sight of what this nation stands for. The judge's decision was the correct one. Why?

Because the Constitution is still the ultimate law of the land; not the Patriot Act.

Posted by: GovContractor | September 7, 2007 12:35 PM

ExAUSA...well said..though I would chime in that the reference to absolutes such as "chuck it all in" has never been part of the discussion. it simply hasn't been like that for the last 60 years. many believe, and can argue convincingly, that judges have been wedging legislative perogatives into judicial decisions for decades; many can argue that the Constitution has been bent in directions that the framers never intended; many can argue that social philosophies and "evolving moral philosphies" have shaped recent judicial thinking more so than any reference to the framers intentions.

as for your qualification on "expectations"....well....yes....I can hold a personal notion of what the fourth amendment means...but as this blog demonstrates....there are substantive differences on that understanding and I would aver that - especially recently - the content of the fourth amendment and others (say...the second amendment) has been subject to widespread differences in "interpretation". none of this is cut and dried any longer. it's all become a "negotiation", in court rooms, among the various ideological groups in society (including the gazillion unelected judges and their support staffs).

Posted by: | September 7, 2007 12:43 PM

OK so a couple of malcontents in a cave in Pakistan are such a threat that we should all wrap our heads in plastic bags and hold our breaths.

Yeah that sounds like a keen, measured response to the threat.

I guess it's just a coincidence that Bush and Cheney don't really believe in democracy in the first place.

Posted by: Chris Fox | September 7, 2007 01:13 PM

GovContractor:

1) The Constitution is not the law of the land in any real sense. It is a parchment that interest groups seek to change to suit their particular ideological, philosophical bent.

2) Vis your data collection experience, how does "overly broad", correlate to actual statistical evidence? Sounds like a pretty subjective statement to me. Others have experience in this area. Realizing full well that incompetence and/or over-zealousness can lead to mistakes, where is your evidence not only of the actual imbalance...but of the deterimental consequences? where is the empirical data?

3) You speak grandly of the Constitution. Too bad that..for liberals...that fealty to principle only weighs in when it suits political aims and value systems. That much is painfully obvious...even were I to agree that fourth admendment considerations outweigh supposed security threats.

It's the dishonesty of the debate that waxes heavily on some of us. The Constitution becomes a bedrock, it is often the case to return to theme, only when it suits immediate political/philosophical agendas. I reject out of hand the idea that there is some noble return of native sons thinking by large numbers of people voicing contempt for the Patriot Act based on Constitutional principles - it is my observation that these same folks are often the first to queue in the "it needs to be changed line" when the spotlight shifts to abortion, euthanasia, gay marriage, gun control....or any number of other combustible touchpoints.

I am not arguiing that you are wrong in principle. I am arguiing that you are wrong in fact - judicial activism and privately funded interest groups have abused the judicial process to achieve political aims. a case can be made that while the Constitution still stands as a remarkable testament to the framers intelligence in establishing a system (a structure) of checks & balances that diffuses power..it has nonetheless been subjected to stresses ("interpretations") that reasonably draw into question just how settled any of its particular stipulations are. the heat between strict constructionists and "progressives" when it comes to the Constitution is very real. just as one should, when not trying to be provocative, consider the merit in fourth amendment arguments....one should also recognize the reality that the Constitution has been captive to political causes the founders did not necessarily intend. better expressed...the idea that the Constitution in many instances has a clear-cut, undebatable meaning is simply inaccurate. It changes all the time and has through the course of our history - hence all the energy expended on influencing who gets nominated and approved to join the Supremes.

the Constitution is a wonderful document. that said....the processes and people who execute its charge are often flawed and conflicted. the powers of the state that ultimately enforce it have been remarkably restrained/contained in our short history. the society of contending interests it serves to balance and moderate - is itself hugely divided right now..and has been for quite a while. it should no surprise to anyone that the Constitution has become just another battleground among these contending groups. I contend that the Constitution isn't the end state - it is us and where we want to go. and right now...there is no common, unifiing "American" theme (as some have put it).

you can agree or disagree. I know what I see in front of me. I know what I have seen in various district courts and law firms. I know what I have experienced when I have tried to do my job correctly. I know what I have experienced when my values clash with others working to effect change. One lives with the outcomes...but don't tell me there are absolutes. the facts indicate otherwise.

taxation anyone?

Posted by: | September 7, 2007 01:26 PM

Either officially declare war against some identifiable entity (so that the attainable end-point of a war backed by our citizens can be described in a concise way), and as a consequence of that declaration justify curtailment of domestic civil liberties, and completely put a description and analysis of these curtailments in plain language and in public view -- OR, scrap all these games and shortcuts coming from Chicken Hawks and authoritarians and timid legislators, and go back to an unsullied Constitution with a society that has a truly felt assurance that the law, police, and military will protect individuals pursuing their lives freely and privately within reasonable law.

I thought those elected their oath was to uphold the Constitution. But what we find, is like the behavior of an immature young person, their belief appears to be that, if they want something bad enough, it's OK. And that's the most innocent interpretation one can put on recent history of this nation, which is probably far short of sizing up the true undemocratic realities in assessing political motivations of those in power now.

If we are ultimately to win any war of beliefs, we must represent a model political society that is worth protecting and emulating. We are failing in the eyes of the majority of the world, and even of our own citizens.

Posted by: On the plantation | September 7, 2007 01:53 PM

At the present moment in world history nearly every nation must choose between alternative ways of life. The choice is too often not a free one. One way of life is based upon the will of the majority, and is distinguished by free institutions, representative government, free elections, guarantees of individual liberty, freedom of speech and religion, and freedom from political oppression. The second way of life is based upon the will of a minority forcibly imposed upon the majority. It relies upon terror and oppression, a controlled press and radio, fixed elections, and the suppression of personal freedoms
....Words of H.S. Truman

Posted by: Ak | September 7, 2007 02:01 PM

Anon 1:26

What a sad, sad statement that was. I am sorry that you have become so disillusioned. I hope that something happens to resore your faith in the rule of law and our Constitutional principles. But I am sure it won't happen until after January 20, 2009.

Posted by: John Q. Public | September 7, 2007 02:07 PM

on the plantation...so you've signed up to protect our society in order to make it worth emulating?

or, as so often is the case, is this just another eloquent plea for some convenient abstraction (i.e., the "Government) to actually do the dirty work? (hey...I pay taxes and am entitled..*amn it!). kinda like Nicauraguan maids - be honest, be good at what you do...and I'll pay you well while myself not getting down on my own hands and knees?

Posted by: uh huh | September 7, 2007 02:08 PM

To Anon: I think YOU are completely missing the point: The courts have ruled that there is NO expectation of privacy in emails or other types of records in the workplace-that's pretty much a given. However, your posts indicate a leap in logic and extrapolate from that, that the FBI can go digging in clandestinely and indiscriminately (without any sort of contractual relationship with the citizen in question, i.e., employer/employee), and sift through records where there clearly IS an expectation of privacy, unless probable cause to search such records through a warrant, or other judically mandated action, indicates otherwise.

Get a grip! I mean, what IS wrong with good old, probable cause, and a warrant, huh? The US Constitution not good enough? Gotta tinker with it until the exceptions gut the law?

And may I point out, that in this ever-expanding terrorist investigation in Germany, such domestic surveillance as authorized by our DEAR Sec. of Homeland Security Chertoff (the author of said Patriot Act, along with his Geo. Law bud, Viet Dinh) is illegal and unconstitutional under German law. Yet they managed to crack a VERY big terrorist act in the making. Kudos to the BKA (a very professional outfit-the equivalent of the FBI in Germany). It was good policing, interrogation of criminal databasing, international cooperation, and infiltration of the cells-i.e., good, old-fashioned police work- that cracked this plot-not this indiscriminate snooping around (and remember, Cohen, your dearly beloved James Comey signed off on this wiretapping statute, or have you forgotten that?) to find some shred of evidence that might arguably be terrorist-related-and then bring a case based on such gossamer threads of evidence-that's your FBI and DOJ at work on the terrorist front, these days, even though this country is not facing ANY sort of al-Qaeda threat internally!

(but we won't mention Sec. Chertoff-aka Sec. Flip-Flop's position from his July "I have a gut feeling about a terrorist attack by al-Qaeda against the US happening this summer," to several weeks later, i.e., a couple of days ago: "the US is more secure now than ever." Sheesh! If ever one needed additional proof that he is NOT the man for the job, besides his total disinterest in matters involving Homeland Security-(as exemplified by his disastrous mishandling of Katrina) then this is it!

Posted by: | September 7, 2007 02:19 PM

John Q Public...nice sentiments.....how does that equate to action?

as for post 2009...you know...those inside the system can operate within legal bounds to undermine things...just like others outside and inside the system are doing now. when the new, presuambly deomcratic electee, mounts the Capitol steps and intones solemnly that "we must put the divisiveness behind us and work together", do you honestky beleive that some magic pixie dust is going to fall from the sky make it happen? that somehow the anger and conflict engendered by the actions we have seen these past few years isn't going to inspire an equal and oppsoite reaction? that "what's sauce for the goose" thinking isn't going to linger on into a new administration? if so...you are nuts. much of what has transpired in the last year or so is...in the end...more reactionary than anything else and it will have costs. it won't just disappear wih a new figurehead - especially if the figurelesshead happens to be someone as controversial as hillary. some of us can see where the excesses have fallen with the current administration and its minions - and they can also see where the forces of goodness have overreached and caused systemic problems that have also contributed to deaths on the battlefield and escalated collective risk. you have no idea how much pent up anger there is over this - think of it as the equivalent to punctured voting cards. this is an easy one to predict.

there is an ebb and flow to everything....

Posted by: | September 7, 2007 02:25 PM

uh huh,

I would like to reply to you if there is something you would to say without putting words in my mouth. But I honestly cannot make any sense of your post.

Posted by: On the plantation | September 7, 2007 02:49 PM

ExAUSA has it right.

But I would have difficulty weeping if the anon poster were to have his email searched, his library reads reviewed, no one told of of it, and based on the government's assessment of that data he/she be taken away and held with access to any counsel, no right of habeas corpus, and perchance waterboarded until there was a confession of wrong doing.

When the executive can act, with congressional approval, and the courts be barred from any meaningful review... anon poster, good luck!

Posted by: Pogo | September 7, 2007 03:47 PM

It seems that the lessons of history are still lost on the terrorized spirit.
America has more to fear from unfetterred secrecy and surveillance than from any bomb.
We like to believe that the abuses we've witnessed in the USSR and Nazi Germany and China cannot happen here and now. But the abuse of the National Security Letters already prove that this is not true. The crimes of Watergate prove this untrue.
The only way the terrorists actually win is if we give up our freedoms because of our fears.

Posted by: DemoChristian | September 7, 2007 03:56 PM

How sad that a bunch of cowards will trade the hard fought liberties of our forefathers for hollow promises of safety from men who have proven there is no depth to thier incompetency and impotency to deal with terrorism.
Just remember my dear neocon friends that the powers you grant to this administration will be posessed by the Democrats next swing of the pendulum and they'll be secretly deciding if your actions rate you combatant status and subsequent imprissonment. And no one will hear your screams.You do not realize the abuse men in power and wanting to remain in power will wield when not being watched.No side is immune..

Posted by: brollens | September 7, 2007 08:52 PM

The Patriot Act is unpatriotic. It was given that name to intimidate opposition to Bush. In other words, he didn't like the idea of free speech.

It should be canned because it is inherently indecent.

Posted by: Robert James | September 7, 2007 11:45 PM

It's so hard to respond to people who are so cowardly that they do not leave even a screen name to make their comments discernable. But perhaps that's because they're so chicken-hawk (I was going to use another four-letter word that follows "chicken" but that would be censored) that they're afraid that would get them arrested.

Here's one difference between the Washington Post tracking e-mails of its employees and the federal government sucking up all sorts of information on anyone it chooses to -- THE WASHINGTON POST CANNOT THROW PEOPLE IN PRISON AND TORTURE THEM! The federal government can, and has, like with the Canadian Maher Arar, who was arrested at JFK based on bogus information and sent to Syria for torture.

But I waste my time trying to point things out to you. Were you the one who called the Constitution "a piece of parchment"? People who think like that are not worth the time it takes to type this.

Posted by: Bukko in Australia | September 8, 2007 05:25 AM

"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."

Apparently they don't teach this part of Constitutional Law at Yale.

Posted by: Roy | September 8, 2007 08:57 AM

A citizen who owns intellectual property that a Bush Pioneer covets and a patriot who criticizes The Decider has been subjected to over 200 burglaries, torture, obstruction of business, obstruction of justice, and much more.

The US Intelligence Community is a vast, unlimited force trained to commit crime and to hijack the rule of law. US citizens have no protection from wrongdoing or evil committed by or through this community.

A domestic set of agencies must be created to protect Americans. It must be equal to or greater than the size, power and funding of the US Intelligence Community. It can be called the Office for the Restoration of the Constitution or perhaps the US Counterintelligence Community.

Posted by: Crime Victim | September 8, 2007 11:23 AM

I honestly cannot remember when this all started. All I know is that I would rather die in a tower with my freedoms intact than live in this country without them. You may call that naive, but I doubt the founders of our country would. that is the company I would prefer to keep. Thanks

Posted by: Schuylar | September 8, 2007 12:32 PM

Schuylar, you're right on, and rest assured that they would agree with you 100% and then some. Guaranteed.

Posted by: Chapin | September 8, 2007 01:08 PM

Well, the wall of "respectable" authorities who acclaim the Patriot Act is daunting, and yet it's flaws and official justifications for hideous attitudes so evident, I'll just begin by saying it should begin by having a new name. To continue justifying it and accepting the name itself says a lot unacceptable.

Posted by: Brad | September 8, 2007 01:12 PM

I think the problem began with Harvard esp. and Yale , and Stanford to a less extent, becoming such flaky sellouts from the 70's on; and that their administrations' self-absorbed superior policy assumptions aren't immutable truths for the rest of society to follow is shown by the fact that some of their own prominent faculties have drastically opposed beliefs. Whatever, they teach, publish, do their own business anyway.

Posted by: Don | September 8, 2007 01:17 PM

What is "wrong" with Constitution and law , is simply that it is an obstacle in the way of unscrupulous interests. What "they" really believe despite the sophistry, isn't any interest in what the Constitution says, or what is true, or fair, but WHAT BENEFITS THEM IS WHAT IS "TRUE". Seems a cliche , but is the mindset. Put together the "philosophy" of their whole package of statements and one should see this.After allowing relativism and progressivism to destroy the past, it's anything goes for oneself. It's all post-relativism often approaching fascism and authoritarianism, usually with a huge dose of particular self-importance reserved for oneself or one's chosen coterie.

Anything but the American tradition with it's secondary flaws as I understand it.

Posted by: Hank | September 8, 2007 01:28 PM

To anyone who thinks Chiara-man is a COMPLETE wingnut (yes does have his issues and unmanneredness), note he is the likely poster @9/7 2:19 pm.

Posted by: Jack | September 8, 2007 01:31 PM

Anon @ 12:05 your presumption about my supposed selective "pliancy" regarding the Constitution's principles is COMPLETELY unfounded and false. I don't like many of the results from the "progressivism" you say for some decades, and know what you are saying as far as "the bridge being crossed" but you seem just as ,or more "progressive" in assuming that after seeing the consequences and slippery slope to which that can lead, one is forever stuck with it? Why can't one at one time just admit some tendencies of the past, even if possibly well-intentioned, were mistaken in their insitutionalizing? Otherwise let's just throw away the Constitution and its principles, and just drop the pretense.

@1:26 your repeated emphasis on anecdotal incidents you observe and experience as facts doesn't make them some behaviorist reality superseding agreed principles. As in any "group" guided by an agreement of rules, no one should need to claimthe rules are natural, universal truths/absolutes, but rather if one doesn't want to follow them, they can find another group, no hard feelings. They don't get both to stay and get the benefits, while at the same time observing the group's habits and weaknesses and working to undermine it. That's sort of also what I understand speaking of " America" as an entity, an agreement and fidelity in practice and intention to shared principles; of course for that to make sense, the "principles" should be explicit, not some system silently made up as one goes along, and for desires that come along.

I do think your point about America's variety is better addressed to EXAUSa 's mention of "who we are as Americans" and "national soul"; many in practice, used to be to my surprise, do not seem to understand some such consensus, framing as merely a trade of self-congratulatory "national identity" in exchange for "risk" (ah, lawyers of a certain kind, sorry, don't like half of his equivocations frequently, but am not going to get personal), not to mention the wording of "hunting" terrorists, and the assuring us common folk of the "organized criminal groups" they are. Sure some individuals, or small groups of individuals elsewhere make bombs against their percieved enemies.

@11:40 as to your offense that not everyone in the administration is a rights-trampling Neanderthal (they actually were quite intelligent, someone before them would be more accurate), glad to hear that, only I have seen little evidence for that. You're welcome to provide evidence of such considered, balanced fair rationale in black and white.

@11:59 (From the sentences you wrote initially and then repeated later, the inference seems to me to hold) (I wasn't clear in my response that I understood you were talking about, for example, a company's ability to look at an employeee's correspondence using ITS facilities)

I would certainly hope/believe that "monitoring" isn't totally random (although who knows) and has some semblance of rationale, but even assuming/hoping that those in charge have looked at "the math" and have removed some possibilities, they still have more variables than they know, and are still guessing from the outside, giving interpretations of their own devising and parochial consensus of circumstantial, associative signs--a conceptual paradigm shift that I know for a fact has been explicitly pushed for. Sure, if one guesses, especially removing some of the possibilities, one may be correct sometimes; those aren't validations of such procedure that should be triumphantly proclaimed though, nor SUCH GUESSING FROM THE OUTSIDE WITHOUT SURE CAUSE ANY ACCEPTABLE BASIS IN MY BOOK FOR ACTION.


Seems almost a retaliation at resenting suspected people walking free because of short-cuts or improper procedure. If one gets the end result (and some of the time), that's all that counts, right?

Posted by: Wes | September 8, 2007 02:44 PM

This has been one pattern of getting ridiculous, revolutionary change in recent history--the past has a few blemishes, so will use as an excuse for anything goes, LET'S START HAVING A "DISCUSSION" (the affitrmative action people among others also did this, so why not the con and religious nuts, they not entirely unreasonably say), at which point at the end the leader/cavalry come in to put the final touches of assigning a label/decision.

YEAAAAAH RRRRIGHT.

(Discussion is all good, but there needs to be an umpire and agreed rules- just look at controversies in a world cup game for instance)

Posted by: | September 8, 2007 02:52 PM

So, anon, you're giving the green light to those who find ways to undermine out of some nameless pentup resentment in the last year (not sure what you mean), in your notion of a free for all "battleground"?

Posted by: Roy | September 8, 2007 03:00 PM

Anon you also fall back repeatedly when not answering a different viewpoint by saying something of the sort that if someone hasn't " got their hands dirty" what they say is automatically invalid. One still takes one's mind into the actual event, and is conscious at some level about what choice to make (otherwise responsibility would never exist)however visceral an actuality might be, and is still choosing an approach to a considered situation.

Posted by: Uno mas | September 8, 2007 03:04 PM

I'm just going to say that nothing indicating any significant change on the leading Democrats' part (including Reid's response today) or encouraging sign of addressing the realities is emerging.

What to do, live in publicly cheery, secret enclaves? Move?

Posted by: Herb | September 8, 2007 03:28 PM

The previous was especially prompted by Mr. Ben Brown's post

Posted by: | September 8, 2007 03:30 PM

I see so many people who do not understand what America is, including the present administration. We have great military power, but our moral force is driven by our values. When we surrender those values, because we are afraid, we weaken ourselves.

Lots of examples come to mind. The adoption of torture as a legitimate method of persuasion, police state actions violating laws limiting government interference in our lives, jailing and detaining citizens unconstitutionally, and perhaps worse of all, ignoring and suborning international treaties that bind us to norms of civilized behaviour.

It is astonishing to me that so many see our ideological struggle strictly in military terms. We are struggling against forces opposed to our entire civilization by discarding our civilized values and adopting the values of our enemies.

This is madness! We are aiding and abetting the very powers that seek to destroy us!

Posted by: reussere | September 9, 2007 12:28 AM

Sort of seconded, reaussere, would say there is even more alarming madness in that at least a large part of what the "enemies " react to is a predetermined, contrived platform/agenda which isn't even indicative of what many think (as far as many are able to think for themselves in a place that gives marketing the green light to claim and define social norms, and what is "supposed to be") and perhaps not even indicative of frightened/deceitful people if they would think straight (well maybe indicative of the deceitful ones).

Would say that these civilized values aren't such news to the rest of the world or special to the US or "Western Civ" (not even to go into the influence of Moslems on "Western Civ", or Greece, Spain, Persia, Turkey etc..), and fact is, many people in the US, the claimed bastion of civilization, today seem for various reasons to oppose or have rejected such values.

As has been mentioned elsewhere, the military and often law-enforcement class are a special group with certain cultures,procedures, and convenience and the special power to ENFORCE things, and thereare numerous instances where they aren't reflective of what much of the population believe and want, yet have a grossly disproportionate power to determine policy, enforce what they like, and even get laws in practice to accord with their interests/convenience (as they have a close working relationship with it as lawyers and enforcers).

Of course they get more prominence and employment,have an incentive to manufacture a conflict that uses them; the military can, and has, pushed countries into armed confrontations when it was far from necessary or desirable. They like that! It gives them social importance and prominence, and employment (sometimes for, shall we say, no offense, less than optimally skilled people), among other things(I like what the person at 9/7 @2:19 said about how solid, justifiable policing SHOULD be done). It is evident to me that they certainly now have a greatly disproportionate influence on policy, and when you ally that with the opinion-making of religious forces, and then add commercial and marketing forces(another self-interested "opinion"-creating powerful force, not to mention when the entities that give us information about events are also commercial/ marketing forces , it gives one pause) given the green light to advance what they like, by almost any means, it can be a rather daunting thing...

Posted by: Jake | September 10, 2007 11:56 AM

Regarding such guessing in "intelligence" mentioned above, maybe one can get C-'s for doing this, but one sure shouldn't be able to get A's- so what happens to the 30-40%+ individuals/mistakes when such poor scholastic methods are applied to people?

Posted by: J | September 10, 2007 12:42 PM

Just one important manifestation of the above mentioned madness occurs when a group the administration doesn't like does something contradictory to the demonized image it presents to us, the masses, and then the representatives and "experts" of a group uninterested in truth GETS TO INTERPRET FOR US, given a fact, statement, or action that contradicts the image they work hard to project of the "enemy", the ploy of informing the public of what the enemy really is THINKING and/or its PRIVATE INTENTIONS in the face of facts/statements/actions that contradict the image of the adversary they claim! Somehow while being directly contradicted, they somehow also know the inner private thoughts and intentions, and some (many?) STILL believe them, not to mention despite a track record of not being concerned if they lie or not, even explicitly admitting this unconcern with the facts.

Posted by: J | September 10, 2007 01:57 PM

I wanted to add on to an earlier poster's comments about the "war on terror". Terrorism is a tactic, not an actual enemy, and as such has been in existence far longer than the U.S. has. To declare war on a tactic is to declare a permanent state of war. So if we choose to give up our rights because of this "war on terror", we are choosing to give up our rights for the foreseeable future. This is not a situation that even the most hard-right Republicans admit to.

Far more people die each year from the flu, car accidents, and gunshot wounds (to name just a few examples) in the U.S. than died from the 9/11 terrorism attacks. Do we mandate that everyone has to get a flu vaccination every year? Do we ban the driving of cars or personal gun ownership? We do not. We accept that freedom in our country comes with certain risks. The threat from a terrorism attack is no different, except in people's minds. It is a "new" risk, and is therefore much more frightening than the risks we have been living with for decades. I think as people become more accustomed to this risk, they will be less likely to accept the loss of civil liberties that has occurred under the Bush administration.

Posted by: TEL | September 10, 2007 03:16 PM

That's right TEL, it's not very defined who the "enemy" is- saw that from the start.

THE MARTIANS ARE COMING!

Posted by: Hank | September 10, 2007 04:49 PM

Well said on all counts, Schuylar. Bravo.

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