From: Greg Burch (gregburch@gregburch.net)
Date: Sun Aug 31 2003 - 06:04:31 MDT
Barbara, I have a lot of respect for your opinion, but I'd like to raise a
few points in response.
In connection with the first case, two comments. First, presumably there
*was* a warrant issued by a court. Did the CPA take the warrant to the
lawyer he consulted? Did you see it? The second comment takes a little
explaining, but I can best illustrate it with a crack a federal judge made
in one of my cases. One party was complaining about the actions of the
equivalent of FBI agents in the country of which my client was a native in
questioning some of my opponent's witnesses about an unrelated matter
(claiming, with no evidence, that acts of the state security police had been
instigated by my client). Rejecting this, the judge said "That's what
police do -- they're always sticking their noses into places they don't
belong." My point? Liberty isn't self-executing and never will be. If he
felt it wasn't justified, how active was the CPA in challenging the
investigation? Police forces are *always* going to bump up against the
boundaries of their legal authority, even when they have only good motives.
It takes some push back *in individual cases* to keep them in line. No
amount of legislation can make up for that -- although doctrines like
Miranda and "fruit of the forbidden tree" can help.
My second point is to ask whether the specific items you mention at the end
of your post are from the current law or the so-called "Patriot Act II."
The latter is a dead letter politically, as far as I'm concerned. It'll
never get out of committee.
Finally, as I've said before and as you well know, Barbara, the machinery of
the legal system runs at its own pace, and people can become impatient while
that machinery does its work. Challenges to actions under the enacted
Patriot Act are working their way up through the courts (I note that the
ACLU only filed their first, tentative challenge to core elements of it this
summer, nearly two years after it was passed). But that's how law works --
it is only related to but isn't the same as politics, which works on a much
shorter time scale. It takes time. And I don't see any indication that the
courts won't enforce the Constitution when push comes to shove -- just look
at the recent shenanigans in Alabama (Nehemiah Scudder to the contrary,
Damien :-)
GB
> -----Original Message-----
> From: owner-extropians@extropy.org
> [mailto:owner-extropians@extropy.org]On Behalf Of Barbara Lamar
> Sent: Saturday, August 30, 2003 7:55 PM
> To: extropians@extropy.org
> Subject: RE: would you vote for this man?
>
>
> Greg Burch wrote:
>
> > What,
> > specifically counts as a "wholesale denial of fundamental rights"
> > under the
> > cited statutes? I'm particularly interested in ways in which
> > *citizens* are
> > subject to such a result upon mere application of the cited labels.
>
> I can't answer the question exactly as asked, because I don't know what is
> meant by "wholesale denial of fundamental rights." But I can tell you the
> aspects of the PA's that disturb me. I'll start with a specific incident
> that occurred around three months ago. A certain CPA was informed
> by the FBI
> that he must turn over all the papers he held relating to one of his
> clients, and that he would be in violation of the law if he informed his
> client that the papers had been taken. The CPA, shocked at being told he
> could not inform his client what had happened, called his own lawyer. The
> lawyer himself had never heard of any such law. I had read the PA and told
> the lawyer that, yes, amazingly enough, under this law the FBI
> could seize a
> person's papers without ever informing the owner of the papers and could
> even prevent the custodian of the papers from telling the owner. The owner
> of the papers bore no resemblance to a terrorist.
>
> In fact, Justice Department spokesman Bryan Sierra was quoted in the
> Washington Post as saying "We would use whatever tools are available to us
> to prosecute violations of any law," in the context of discussing the PA,
> and the wording of the PA is such that it could be used against just about
> anyone.
>
> The 4th Amendment of the U.S. Constitution says: "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."
>
> If you look at British common law from the 1600's on, and at U.S. case law
> since the 4th Amendment, it's clear that secret "fishing
> expeditions" of the
> sort that are being conducted under the PA are exactly the sort of
> government behavior the 4th Amendment was meant to protect people from.
>
> Here are some of the other provisions of the PA's that could be
> used to bad
> ends:
>
> --People can be detained in prison without charged with a crime
> and without
> being allowed access to a lawyer and obviously, with no trial.
>
> -- Bank accounts can be frozen without a court order.
>
> --Information can be obtained about subscribers from ISP's, libraries, and
> stores.
>
> --Phone conversations can be monitored without a court order.
>
> These broad powers invite fishing expeditions and invasion of privacy. I'm
> rather sensitive about this, since my own property was invaded by the
> police, without a warrant, under the direction of the BATF -- because BATF
> agents flying over my land in a helicopter saw a Vitex tree growing on my
> land and mistook it for marijuana. A very nervous young man held me at
> gunpoint and could easily have made a mistake and blown me or my daughter
> away. We did not even remotely fit the profile of "drug dealer"
> or "grower"
> or any other sort of criminal.
>
> As Lord Acton wrote in 1887, 'Power tends to corrupt, and absolute power
> corrupts absolutely.' When there are laws on the books that give
> tremendous
> power to one group of people over another, the power will surely be abused
> in at least some cases.
>
> Whether such abuses of power will be helpful enough in preventing
> terrorist
> attacks to be worth the price is another question. I think not,
> particularly
> when I see how laws that existed before the PA's were not and are not used
> effectively. Based on the history I've read, I would predict that the
> ordinary person will still be in about the same amount of danger of
> terrorist attacks as he or she was before the PA's but will now
> be in danger
> of acts by overzealous police as well.
>
> Barbara Lamar
>
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