Posts tagged ‘patriot act’

Judge Rules National Security Letters Are Unconstitutional

This is good ... hope it withstands appeal

Ultra-secret national security letters that come with a gag order on the recipient are an unconstitutional impingement on free speech, a federal judge in California ruled in a decision released Friday.

U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration’s surveillance practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.

“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”

The telecommunications company received the ultra-secret demand letter in 2011 from the FBI seeking information about a customer or customers. The company took the extraordinary and rare step of challenging the underlying authority of the National Security Letter, as well as the legitimacy of the gag order that came with it.

Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients.

After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority.

Patriot Act Renewed

Per Julian Sanchez several days ago:

They'll let these provisions lapse right after they pass the Puppy Strangulation Act of 2011. Nobody wants to be accused of 'weakening' Patriot if another attack happens, even though there's little evidence added safeguards would seriously hamper intel gathering.

And, of course, they just did.  Increasingly the fourth amendment is joining the 2nd and the 10th in the "just kidding" category of Constitutional provisions not taken seriously.    From Al Franken to Barack Obama, Democrats who once opposed the most egregious portions of the Patriot Act now voted for its rushed renewal without even a floor debate or possibility of amendment.

Prior Restraint

National security letters strike me as one of the worst Constitutional abuses to come out of the last 10 years, which is saying a lot given the post-9/11 theories of executive authority from torture to indefinite detention to even ordering people killed.

The national security letters deserve particular scrutiny because they evade the Fourth Amendment while building in a prior restraint on speech that prevents recipients from challenging the letters or even complaining about them.  This is self-sustaining policy -- ie policy that prevents the dissemination of information that might prove it is a threat or a failure -- at its worst.

The Justice Department's inspector general revealed on March 9 that the FBI has been systematically abusing one of the most controversial provisions of the USA Patriot Act: the expanded power to issue "national security letters." It no doubt surprised most Americans to learn that between 2003 and 2005 the FBI issued more than 140,000 specific demands under this provision -- demands issued without a showing of probable cause or prior judicial approval -- to obtain potentially sensitive information about U.S. citizens and residents. It did not, however, come as any surprise to me.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Anyone want to bet how many of these things really are national security related, and how many are related to other investigations (particularly drugs)?

There are zillions of people involved in these major investigations.  There is no good argument against adding one more who is in on the secret - ie a judge - and a lot of reasons to do so.

Apparently, Jeff Flake is Not A Conservative Republican. Good.

Local Conservative blogger Greg Patterson is already testing campaign messages for 2012 and the election to fill Jon Kyle's vacating Senate seat.  Apparently Jeff Flake is  RINO, and, gasp, a libertarian and not a Republican.  Well, good.  I will observe that Flake has had far more backbone on issues Republicans care about (e.g. spending) than most "true" Republicans in Congress have had.

As an aside, I could get all litmus-testy as well and be disappointed that Flake voted for the Patriot Act reauthorization.  And I fear that Arizona politics will pull him further to the right on immigration.  But Flake still strikes me as a far better choice in terms of the energy and passion he brings to key issues than some establishment Republican.  He has stirred up far more trouble in the House than one might expect given his lack of seniority and plum committee assignments.

Never Waste a Crisis

If you had told me last week that half the media would be blaming Sarah Palin for the actions of a leftish nutcase, or that Keith Olberman would be accusing, well, anybody, of being too immoderate in their rhetoric, I would have said you were crazy.  Seldom have I found the tone and tenor of the media coverage of any event to be less satisfactory than with the Giffords shooting this weekend.  So of course, I have joined the fray with my own column on Forbes.

We libertarians cringe when presented with a “national tragedy” like the shooting of Gabriella Giffords.  Not because we are somehow more or less sensitive to vilence and loss of life, but because we begin bracing for the immediate, badly thought-out expansion of state power that nearly always follows any such tragedy, whether it be 9/11 or Columbine or Oklahoma City or even Pearl Harbor.  Those looking to expand the power of the state, and of state officials, make their greatest progress in the emotional aftermath of a such a tragedy.  These tragedies are the political equivilent of the power play in ice hockey, when defenders of liberty find themselves temporarily shorthanded, and those wishing to expand state power rush to take advantage.

Here is one example from later in the piece:

After 9/11, Republicans argued that it was time to put away political differences to rally around the President in a time of war.  They implied that criticizing the President in such a time was somehow unpatriotic and counter-productive.   Was this true?  I thought the opposite — that the momentous decisions to be made post-9/11 demanded more rather than less debate.  America would eventually wake up from this celebration of unity with a hangover in the form of the TSA, the Patriot Act, detention at Guantanamo Bay, and wars in Iraq and Afghanistan.

The fact is that politicians, particularly those in power, find every excuse to ask Americans to “moderate their public discourse,” in large part because this request translates in the real world to “reduce the criticisms of those in power.”    So it should not be surprising that many of those who represent our current ruling party blamed the Giffords shooting on the hate-filled rhetoric of the opposition party, even before we knew the name of the killer,.

From a larger historical perspective, I would argue that current political discourse is really rather tame.   Even the wackiest cable opinion show pales in comparison to the fire-breathing political attacks that could be found in nearly any 19th century newspaper.  In the 1960’s, political discourse became so heated that it spilled out into the streets in the form of urban riots.  In fact, what we should fear far more than our rhetoric is the current threats by politicians like Jim Clyburn of South Carolina to use this tragedy as an excuse to put new restrictions on speech.  A number of high-profile comentators have spent more time blaming this shooting on Sarah Palin than on the shooter himself.   Given the complete lack of evidence for any such connection, such efforts can only be viewed as an effort by those on power to silence a prominent opposition leader.

How Is This Different From Citizens United

The Washington Post writes, and Paul Cassell agrees, that the Administration screwed up by treating Umar Farouk Abdulmutallab (the underwear bomber) as a regular criminal, and should have considered some sort of administrative detention instead.

The analysis seems spot on to me.  I can't for the life of me figure out why as a society we would want to give Miranda warnings to such a high-value suspect like Abdulmutallab.  While there is debate about the extent to which Miranda warnings reduce the overall confession rate (I think it is significant, while others disagree), surely we can all agree that in the context of Abdulmutallab's interrogation such warning were not going to be helpful in obtaining information about, for example, where he trained and what other attacks might be planned.

Uh, OK, but the law of the land is to give arrested criminals on US soil Miranda warnings and an attorney.  What legislative authority (I think we are supposed to be a nation of laws) exists to do otherwise?  And if such a law did exist, what would the bright-line rule be that should be written in law so real human beings making arrests know when it is OK and when it is not to kidnap someone to Gitmo?  I have struggled to find anyone who can write such a rule -- it always comes out sounding like the old definition of pornography, "I know it when I see it."  Remember, the Patriot Act was used far more for drug and child porn cases than it ever has been for terrorism -- it is very, very hard to circumscribe new police powers, particularly when police so desperately want to keep and hold those powers.

I don't deny from a utilitarian point of view that being able to grab people off the street and lock them up without trial forever might prevent some terrorism, but wasn't it Conservatives, just the other day, that were arguing re: Citizens United that Constitutional protections can't be waived for utilitarian reasons?  I agreed with them then, what changed here?

GWB: Leftish Icon?

If it wasn't for his reactions (Patriot Act, Gitmo, Iraq, Afghanistan) to 9/11, shouldn't GWB be a leftish icon?  (source)

200912_blog_edwards291

Ironically, the current Congress renewed most of the Patriot Act, Obama will most likely not close Gitmo any time soon, I see no movement out of Iraq, and Obama has doubled down on Afghanistan.    GWB may have been the worst president in recent memory (since at least Nixon) for libertarians, though Obama seems to be on a trajectory to surpass him.

I Feel Like I'm Taking Crazy Pills

Just as a brief aside, it is sometimes entertaining to be a libertarian without an affiliation to either the Coke or Pepsi party.  It's amazing, from the perspective of standing off to the side on a point of the political spectrum that most civics books don't even acknowledge exists**, how much of political discourse is team-loyalty politics rather than meaningful policy discussion.

The posts that happened to set me off down this path were a pair from Kevin Drum about poor Barney Frank having to meet rowdy protestors and a lament on the frustrations of cloture in the Senate, but I am not particularly singling him or the left out.  In fact, I read Drum because he is less bad on the team politics angle than others.  I force myself to read a couple of political blogs on the left and right to see what they are saying.  A few observations:

  • Both teams are absolutely convinced that they are occupying the high ground and it is the other side that is resulting to personal attacks, negative campaigning, astroturfing, whatever.  Seriously, its really hilarious -- I see exactly the same posts written about "our side is losing because we don't resort to the low tactics of the other side" written by bloggers on both sides of the political spectrum on the same day.
  • Both teams are absolutely convinced that the media does not give their side the coverage or respect they deserve.
  • Both teams are guilty of trying to block dissent through clever rhetorical games without having to actually answer policy critiques.  Team red did it with the Iraq war, saying it was wrong to criticize a President in wartime, a useful concept when it is combined with the theory that the President can declare any time to be wartime.   Team blue takes a different approach, by claiming any opposing argument on subjects like climate or health care are being raised as part of plots funded by nefarious interest groups, and so therefore don't deserve a response.
  • Both teams hold up wacky members of the opposing team's fringes and attempt to portray them as representative of the mainstream opposition.  (OK, I may have been guilty of this once or twice myself)
  • Both teams can be loud and strident where they are energized and ticked off (this is a good thing).  Both teams have recently compared the opposition president to Hitler.   Both teams have been "obstructionist" as the minority in Congress.  Both teams have dreamed of changing the filibuster rules in the Senate while in the majority.  Both teams have freaked at suggestions the filibuster rules in the Senate would be changed while in the minority.  Both teams have promised bipartisanship when they were in the majority and not delivered on it.  Both teams have members who are corrupt.  Both teams have members who have had affairs.
  • Both teams have supposed evil genius schemers in the background (Rahm Emanuel meet Karl Rove).  Both teams have found it convenient to make concerted personal attacks on individual opponents (Sarah Palin meet Bill Clinton).
  • Both teams have promised respect for the Constitution in the Executive office and not delivered on it.  Both teams have promised a less interventionist foreign policy and never delivered on it (people forget GWB first campaigned almost as an isolationist against Clinton's Kosovo interventions).  Both teams have Presidents who are addicted to signing statements.  Both teams have really gone after selected Supreme Court nominees.
  • Both teams have Congressmen who support ethanol subsidies, which thoughtful people agree are stupid.  Both teams have Congressmen who support farm subsidies, which thoughtful people agree are stupid.  Both teams have Congressmen who support trade interventions (e.g. sugar tariffs) which thoughtful people agree are stupid.  Both teams have actively supported ratcheting up the war on drugs, which some thoughtful people may agree with but I think is stupid.  Both teams have voted in the last 15 years for major government interventions in medicine, education, and limitations on personal freedoms in the name of security.  When team blue was in power, it supported a law that was basically the Patriot Act, but had it voted down due to team red opposition.  When team red was in power, it forcefully pushed through the Patriot Act which it had previously opposed, this time against the opposition of team blue members who had previously supported it.

All this is not to say that libertarians are necessarily better people.  If we had a real team that wasn't a political joke, we'd probably engage in similar behaviors.  Of course, the difference is that we would be trying to lower the stakes of the political game rather than continue to raise them.

** Footnote: I don't know about you, but my civics textbooks in elementary school described a 2-dimensional political spectrum that ran from "fascism" on the political right to "communism" at the extreme of the left.  How does a libertarian even place himself on a spectrum that ranges from totalitarian statism to totalitarian statism?   I haven't seen such textbooks lately, so I don't know if this "heads statism wins, tails freedom loses" approach to the political spectrum still exists.

By the way, I have been reading a book called The Vampire Economy by Gunter Reimann, published in 1939.  It is a description of the economic policy of Nazi Germany, a subject that gets very little coverage because, frankly, later Nazi atrocities are such a magnet for attention.

I challenge anyone to read that book and find any substantial point of differentiatoin between Hitler's economy and a strongly socialist country.  And the section on strong-arming the banking industry for political goals was especially entertaining the context of the last 2 administrations.

Hitler approached his later war with Russia as an ideological war to the finish between polar opposites, but in fact it was really a feud between blood brothers.

Full Quote Referenced in the Title from Zoolander: "The man has only one look, for Christ's sake! Blue Steel? Ferrari? Le Tigra? They're the same face! Doesn't anybody notice this?  I feel like I'm taking crazy pills!"

Please Discuss

Today, here on Cape Cod, where every car has an Obama sticker, I was struck by two cars which had Obama stickers as well as this same slogan, a paraphrase of a Ben Franklin bon mot:

Those who give up their liberty for more security neither deserve liberty nor security.

I have absolutely no problem with this bumper sticker in its original context, which I presume was to protest things like the Patriot Act, indefinite detentions, and wiretapping during the Bush Administration (and all retained, so far, by this Administration).

But my question back to them would be -- do you still support this statement in the context of pending health care legislation, which is yet another example of trading individual liberty for security, albeit security of a slightly different type?

The Next Crisis-Emergency-Rush

I have been trying to find a word to describe the legislative style we have seen prominently over the last 9 months (though it was used long before this administration -- the Patriot Act comes to mind).   Unable to think of any other name, an in homage to "murder-death-kill" in "Demolition Man,"  I am going to call it Crisis-Emergency-Rush.

TARP was a Crisis-Emergency-Rush.  As was the Stimulus bill, Waxman-Markey, and now Health Care.  (The last two are particularly hilarious when one needs to evaluate the need to rush.   Waxman-Markey is implemented over decades, and the health care bills as currently written don't really begin to take effect until 2013).

So here is my prediction for the next Crisis-Emergency-Rush:  Raising taxes.  Obama already has his boys out sending trial balloons about new taxes, even beyond those required in Waxman-Markey and to fund the health care bill.  Having spent over a trillion dollars on useless spending to support favored political constituencies, Obama will now declare a fiscal crisis that can only be solved by increased taxes on his non-favored constituencies.

Positive News About the Economy

A bit over a week ago, I forecast that we had passed the economic bottom and would soon be back on the way up.  The IBD lists a number of reasons why I may be correct:  (ht:  Carpe Diem)

"¢ A broad rally in stocks, confirmed last Thursday, continuing into this week and led by the beaten-down financials.

"¢ A surprising 22% surge in February housing starts to a seasonally adjusted annual rate of 583,000 units.

"¢ A back-to-back jump in retail sales ex autos, in both January and February.

"¢ A return to profitability at several major banks, including Citigroup, Bank of America and JPMorgan.

"¢ A doubling in the obscure but important Baltic Dry Index, a key indicator of global trade flows.

"¢ An upwardly sloping yield curve, which Fed research suggests all but ensures a rebound by year-end.

"¢ A Housing Affordability Index that has hit an all-time high.

"¢ A two-month improvement in wholesale used-car prices, measured by the Manheim Index.

"¢ A rise in Monster's Employment Index in February, suggesting a turn in the job market may be around the corner.

"¢ A 4 1/2-year high in the dollar against other major currencies, on a trade-weighted basis.

"¢ A sharp increase in the money supply, as measured by M2 and M1. Weekly M2 growth has averaged 10.1% year-over-year since the start of 2009, while M1 has grown at a 14.6% rate.

"¢ A two-month rally in the Index of Leading Indicators.

"¢ A growing body of evidence that the "liquidity crunch" is dead. Data show nearly $14 trillion in liquidity on the sidelines of the markets, ready to boost consumer spending, credit growth or further stock market gains.

Of course, this makes the entire argument for the trillion dollar plus stimulus bill moot.  If my company had started spending itself into debt to fight some sort of emergency, and then found the emergency did not exist, you can bet we would be spending every hour of the day to stop as much of that emergency spending as possible.  Not so in Washington.  Despite now forecasting an improving economy, and basing his budget on this being a milder-than-normal recession, Obama has not even suggested any roll-back in the massive spending and debt-creation program.  Which just goes to prove that the "stimulus" bill had nothing to do with stimulus in the first place, but was a leftish spending plan sold based on panic, in exactly the same way the Bush administration sold the Patriot Act.

In fact, much of Obama's remaining legislative agenda (including nationalization of parts of the health care system and a Co2 cap-and-trade system) include what are effectively large tax increases that cannot realistically be passed in the depths of a recession.  So expect a lot of talking up of the economy to prepare the way for these tax increases, not to mention the tax increases that will be necesary, but have not yet been proposed, to pay for the servicing of the huge debt and new spending we just took on.

One final prediction:  As the economy improves enough for the average person to see the improvement, expect the Obama administration to be spinning like mad.  Their first objective will be to take credit for the recovery.  This is absurd, as it appears that the recovery will start long before the first dollar of spending occurs.  The media may, however, let him get away with this.  If it does not, his second story will be that the confidence exuded by the passing of the stimulus bill created the recovery.  This is also absurd on its face, given the crash in equity prices after the stimulus bill was passed and the extreme general skepticism about the stimulus in poll numbers.

Postscript: By the way, I would argue the whole story of this stimulus bill is a microcosm of the climate debate.  Extreme panic was generated based on a fear that their might be some possibility of a catastrophe (ie a second Great Depression) and that on the precautionary principle, we spent a trillion dollars just in case.  Remember that in January, Obama said there will be - not might be - another 5 million job losses, a number we will come nowhere near.

As it turned out, there was never a realistic chance of a catastrophe, but the costs will remain, and all the while the panic over the issue was used as cover to pass a whole range of freedom-reducing initiatives.   Naomi Klein was half right in the shock doctrine -- there are folks who use emergencies to successfully push for radical change, but it is almost always the forces of more government control who win out, not the supporters of laissez faire.

Update: A similar list here from Forbes.

I Warned You

Earlier, I predicted there was no way the Democrats would fulfill their promise to reign in the imperial presidency, since they hoped to have a President from their own party next term.  In practice, the party affiliation of the President seldom has much to do with their desire to increase executive power.  For example, while GWB and the Republicans rightly deserve a lot of blame for the worst parts of the Patriot Act, in fact most of that act was actually proposed by Bill Clinton circa 1995  (and, ironically, was defeated by Republicans led by John Ashcroft).  I am starting to believe that, like the expression there are no atheists in foxholes, we might equally well be able to say that there are no civil libertarians in the White House.

I told you so.  And here:

In the past 24 hours, specifically beginning with the moment Barack
Obama announced that he now supports the Cheney/Rockefeller/Hoyer House
bill, there have magically arisen -- in places where one would never
have expected to find them -- all sorts of claims about why this FISA
"compromise" isn't really so bad after all. People who spent the week
railing against Steny Hoyer as an evil, craven enabler of the Bush
administration -- or who spent the last several months identically
railing against Jay Rockefeller -- suddenly changed their minds
completely when Barack Obama announced that he would do the same thing
as they did. What had been a vicious assault on our Constitution, and
corrupt complicity to conceal Bush lawbreaking, magically and
instantaneously transformed into a perfectly understandable position,
even a shrewd and commendable decision, that we should not only accept,
but be grateful for as undertaken by Obama for our Own Good.

Accompanying those claims are a whole array of factually false
statements about the bill, deployed in service of defending Obama's
indefensible -- and deeply unprincipled -- support for this
"compromise."

The Profit Motive Rocks

This post from TJIC, which is really about something entirely different, mentions that the price of cocaine has been dropping sharply over the last 10 years.  This is something I have heard police officials lament as well.

Does the profit motive rock or what?  The largest and most powerful government in the world stations armed men and ships around the country.  It has a legal system in place with huge penalties that has of late been nearly entirely dedicated to drug enforcement.  The US has even subverted 200 year old Constitutional restrictions on searches and property seizures (the Patriot Act is mostly used for drug, not terrorism, actions).  All to stop the importation of certain valuable substances.  And even so, the human mind is powerful enough to subvert all of these restrictions and bring in so much supply that the price continues to drop.

Al Gore believes that alternative energy efforts in the US are being subverted by the oil companies:

Apparently, according to Gore, the oil companies drive up prices
reducing supply and then depress them in a telling pattern. As soon as
the political will swells to a light boil, the companies reduce
prices/increase supply.

Really?  Independent drug traders are able to subvert a million government officials with guns to keep cocaine prices low, but Exxon, with a 5% market share (at most) in oil, is able to hold the line on oil supply?

Sure.  In 1972 and 1978 there were a series of oil price shocks (to real levels about where they are today) that convinced everyone that oil prices would keep going up and up and that oil would run out within a few decades.  Of course, in about 1984 oil prices crashed, and stayed down for almost 20 years.  Depending on how you date it, it took oil supply development between 6 and 12 years after the price signal to flood the world with oil, and that was in an environment with price controls and windfall profit taxes that reduced development incentives. 

Right now, we are about 5 years in to the current oil price spike.  Go long at your own risk.

More on supply and demand vs. price manipulation in oil here.  More on Al Gore, including a fisking of his solar plan, here.

Update: Of course, the Democrats in Congress are doing everything possible to keep oil prices up.  If I wanted to ensure high oil prices, I would 1.  Kill incentives to increase supply, perhaps with a "windfall" profits tax and 2.  Put the most promising potential new exploration areas off-limits to new development.  Congressional scorecard:  #2 is in place, and both Obama and Hillary and Pelosi are proposing #1.

Update #2:   Another thought on Gore's statement:  The boom-bust
patterns in oil are characteristic of nearly every other commodity out
there, which therefore presupposes that if oil prices are the result of
manipulation, then every other commodity must be as well since their
prices demonstrate the same patterns.  We see these patterns in
commodities that politicians have never even heard of and in which they
have never thought to exercise their "political will."  (political will
in this context defined as use of government force against a segment of
the populace).

A reasonable person might
suppose that the surge in prices followed by a drop a number of years
later is better explained by the time delay in increasing oil
production after oil prices spike. In many ways, Al's theory is simply
delusional.  If your friend started trying to tell you, in all
seriousness, that every action Microsoft takes is actually aimed at
thwarting him personally, you would think him insane.  But this is
effectively Gore's argument, showing the immensity of the politician's
ego.  Oil prices move not because of supply and demand, but because of
us politicians.  Every tick up and down is carefully managed to thwart
us brave Congressmen!

When a politician describes price signals as mainly influencing political actions, rather than the actions of free producers and consumers, they are probably a socialist.

Academic Arguments for the Imperial Presidency

Well, this, from Opinio Juris, certainly got my blood moving this morning:

The first part of Posner and Vermeule's book offers a forceful
theoretical defense of executive authority during times of emergency.
The book offers a thoughtful and well-reasoned perspective on the
cost-benefit analysis at play when government seeks the optimal balance
between the competing goods of security and liberty. Posner and
Vermeule argue that there is a Pareto security-liberty frontier at
which no win-win improvements are possible. That is, at this frontier
any increase in security will require a decrease in liberty, and
vice-versa. From my perspective, the existence of this security-liberty
frontier appears unassailable.

Given this frontier, Posner and Vermeule then offer their central
argument of institutional competence. They argue that there are few or
no domains in which it is true both that government choices about
emergency policies are not accurate (on average) and
that judicial review can make things better. They further argue that
civil libertarians who subscribe to vigorous judicial review in times
of emergency fail to identify a large and important set of cases in
which government blunders or acts opportunistically during emergencies and in which judges can improve matters

I haven't read the book, and am only just getting through the symposium they are holding.  My first, primal reaction is YUK!  Here are a couple of random thoughts:

  • I don't know if the last statement in the second paragraph is true -- I suspect it is not, or at least is subject to "improve matters" being interpreted differently by each individual.  However, it strikes me that even if the statement is true, checks and reviews by other branches of government still circumscribe executive excesses by their threat.  And the act and/or the threat of review leads to open political debate that can redirect executive actions.  Even GWB, who has pushed the theory of executive powers to new levels, can arguably be said to have modified his management of the Iraq war in response to Congressional scrutiny, even without explicit legislation being passed. 
  • The incentive system in government is for the government and its employees to grab new powers over the populace.  Anything that slows down that process, even in a "Crisis" is a good thing
  • If they want to argue that the Congress is useless as a check because in times of crisis they just become the president's bitch, I can't argue with you.  Just look at how the Democratic majority actions on Patriot Act rollbacks (none) or FISA enforcement (they actually retroactively gave Bush the power he wanted).  But this does not mean we should give up hoping they will try.
  • Government officials love it when they can act with enhanced power and decreased accountability.  If we institutionalize an imperial presidency in times of "crisis" and then give the President the power to declare a "crisis", then you can bet we will always be in a crisis.   Even if checks and balances don't tend to improve civil liberties decision-making in times of crisis, they at least help us get out of the crisis and declare normality again.  Otherwise we would never go back.

The real problem is that a government full of lifetime government employees is never, ever going to make the right choice on the security-freedom curve.  Really, by security, we mean government intrusion, so you can think of this as the government power vs. individual power curve.  And lifetime government employees are always going to choose for more power for themselves.  The problem is not who in government should fix our point on this curve, the problem is that anyone in the government is allowed to fix this point. 

That was what the Constitution was supposed to be for -- an act of the people fixing this point for the government.  The founding fathers were well aware of republics that had processes for slipping into dictatorship in times of war.  Rome was a good example, and eventually demonstrated what happened in this system -- the crisis never went away and you got a dictator all the time with no republic.  The founders explicitly did not write such a capacity for the president into the Constitution.  And it should stay that way.

Hopefully I will have more coherent thoughts after having read more of their work.

Update:  This comes to mind, for example

A recent interview with
Mike McConnell, the director of national intelligence, suggests that
the administration also feels duty-bound to withhold information when
it might be useful to critics who oppose President Bush's
anti-terrorism policies, since those policies are necessary to protect
national security. But the very same information can"”indeed, should"”be
released at a more opportune time, when it will help the president
pursue his policies....

And then further, to the issue of eavesdropping international calls:

It's
pretty clear McConnell's real concern is that debating this issue
endangers national security because it threatens to prevent the
president from doing whatever he thinks is necessary to fight
terrorism. Hence Steven Aftergood, director of the Project on
Government Secrecy at the Federation of American Scientists, is not at
all exaggerating when he observes, "He's basically saying that
democracy is going to kill Americans." And not just democracy, but
constitutional government of any kind, since anything that interferes
with the president's unilateral decisions with respect to national
security (which is whatever he says it is) is going to kill Americans
too.

National Security Letters

From the beginning, national security letters had to end badly.  One only has to understand incentives to know that things were going to go off the rails.  Specifically, national security letters are an easy way to for investigators to short-circuit a lot of procedural steps, including review and approval of warrants by judges, steps that have been put in place for a real Constitutional purpose.  Anyone who is at all familiar with the operation of any government bureaucracy had to know that their use would steadily grow well outside the narrow bounds of urgent national security issues.  Anytime government employees can grow their power without supervision or accountability, they will tend to do so.  What absolutely guaranteed that this would happen, and sooner rather than later, was the legal non-disclosure requirements around these letters that prevents anyone from discussing, investigation, or discovering their abuse and misuse.

The Washington Post carries a great anonymous editorial from one person served with such a letter:

Three years ago, I received a national security letter (NSL) in my
capacity as the president of a small Internet access and consulting
business. The letter ordered me to provide sensitive information about
one of my clients. There was no indication that a judge had reviewed or
approved the letter, and it turned out that none had. The letter came
with a gag provision that prohibited me from telling anyone, including
my client, that the FBI was seeking this information. Based on the
context of the demand -- a context that the FBI still won't let me
discuss publicly -- I suspected that the FBI was abusing its power and
that the letter sought information to which the FBI was not entitled....

Without the gag orders issued on recipients of the letters, it is
doubtful that the FBI would have been able to abuse the NSL power the
way that it did. Some recipients would have spoken out about perceived
abuses, and the FBI's actions would have been subject to some degree of
public scrutiny. To be sure, not all recipients would have spoken out;
the inspector general's report suggests that large telecom companies
have been all too willing to share sensitive data with the agency -- in
at least one case, a telecom company gave the FBI even more information
than it asked for. But some recipients would have called attention to
abuses, and some abuse would have been deterred.

I found it
particularly difficult to be silent about my concerns while Congress
was debating the reauthorization of the Patriot Act in 2005 and early
2006. If I hadn't been under a gag order, I would have contacted
members of Congress to discuss my experiences and to advocate changes
in the law.

Tim Lynch makes a point about the national security letters I found intriguing and that has not been discussed very often, that the letters represent effect conscription of ordinary citizens into an intelligence or even big brother role.  The author of the WaPo editorial makes the same point:

I resent being conscripted as a secret informer for the government and
being made to mislead those who are close to me, especially because I
have doubts about the legitimacy of the underlying investigation.

I'll Make a Bet

Via Hit and Run:

A blistering Justice Department report accuses the FBI of
underreporting its use of the Patriot Act to force businesses to turn
over customer information in terrorism cases....The report, to be
released Friday, also says the FBI failed to send follow-up subpoenas
to telecommunications firms that were told to expect them.....

Overall,
the FBI underreported the number of national security letters it issued
by about 20 percent between 2003 and 2005..... In 2005 alone, the FBI
delivered a total of 9,254 letters relating to 3,501 U.S. citizens and
legal residents.

The Patriot Act....allows the FBI to issue national
security letters without a judge's approval in terrorism and espionage
cases.

Here is my bet:  Even more interesting will be a review of these letters, if that is ever allowed, to see how many really had any burning relation to national security.  My guess is that many of these are being used in drug cases and financial cases that only the most creative FBI agent could twist into a national security situation.

If You Want To Watch A Documentary on 9/11

I don't know much about the ABC 9/11 special everyone is arguing about, except to say that I am always suspicious of dramatic reenactments.  If you want a quick answer to whose fault the attacks were, I will give it to you and save you time:  The terrorists.  And if you want to to know which party's president ignored terrorism the most, I will answer that as well:  It's a tie.  Clinton ignored it for longer**, while Bush ignored it closer to the event.  To be fair, no one really expected the type of attack on September 11, so the blame game is kind of silly.

If you want to watch a great documentary that focuses on the terrorists and their victims, and not the politicians, the National Geographic special Inside 9/11, in two 2-hour parts, is being replayed tonight.  It is fabulous.

** By the way, Clinton supporters could defend their man and his attentiveness to terrorism by pointing out that most of the Patriot Act was actually proposed by Clinton in the mid-1990's.   Interestingly, but not surprisingly, I haven't heard many Democrats making this particular argument.

Circumscribing the "War on Terror"

One of the reasons I blog is that the act of writing helps me clarify my thinking on certain issues.  I have written a number of times about my concerns over the "war powers" this administration is taking upon itself.  Arnold Kling's article in TCS Daily helped me clarify a better framework for thinking about my issues.  I can now put my concerns in two categories:

  • The administration is going too far in using the war as an excuse to circumvent a number of Constitutional protections, from habeas corpus to search and seizure.  This does not mean that I am necessarily against all new activities, but they need to be initiated within our Constitutional framework.  Take surveillance activities.  Its not unreasonable to think that terrorism demands new surveillance tools.  But the principle we have always followed for surveillance is that Congress authorizes the power and the judiciary gets some type of review of the targets and methods.  Bush seems to have become impatient with separation of powers to the point that he does not even try to engage the other arms of the government, instead using the war to claim a fiat power.  (It should be noted that even when the separation of powers is respected, as with the Patriot Act, mistakes are made and we can go too far.  However, at least we can debate it and there are Congressmen we can hold accountable).
  • The second category of problem I have is with the open-ended nature of the war.  Calling this the "War on Terror" is only marginally more precise and limiting than saying we are fighting the "War against Bad Stuff."  If one asks, "Who are we fighting", the administration answers "Whoever the President says we are fighting against".  If one asks "When is it over" the administration either answers "Whenever the President says it is" or else, probably more honestly, they say "not for a long, long time."

In terms of civil liberties, the second point may be the most problematic.  Most citizens will grant the President some special war powers (as in fact the Constitution does), though we can argue whether the current administration has gone too far in defining these powers for themselves.   But if you combine this with letting the administration define exactly who the enemy is and how long the war lasts, it makes for a combination deadly to civil liberties.

Take the example of detention of enemy combatants.  Administration supporters argue that we have always been authorized to hold enemy combatants until the end of the war, as we did in WWII.  And so we did.  We were at war with Germany, so we detained German soldiers we captured until the end of the war.  Note that these are definitions that everyone at the time could agree on -- ie everyone knew what a German soldier was and everyone knew that "end of the war" meant when we marched into Berlin.  Few German detainees were held for much more than a year.  By the way, it is interesting to note that even in WWII, we abused this notion.  The administration defined "enemy combatant" as "anyone in the US of Japanese descent", so that we ended up interning innocent American citizens for years, much to our shame today.

However, in the current "war", an enemy combatant is anyone the administration says is an enemy combatant (at least in their theory) and "for the duration" means as long as the administration cares to hold them, up to and including "forever." 

Conservatives wish to argue that the "War on Terror" is a new kind of war and demands new tools to fight it, which they use to justify all kinds of secret searches and detainments.  Fine, but then it also needs new types of civil liberties checks.  Coming back to our detention example, in WWII it was not really necessary to have some kind of judicial review on the question of whether a captured German soldier was an enemy combatant;  the uniform was a pretty good giveaway.  However, such a review is necessary today, since the enemy combatants languishing at Gitmo (many of who I am willing to believe are bad guys) don't have any identifying uniforms or paperwork.

If I read him right, Kling is saying something similar:  Some security activities that were traditionally not allowed may be necessary, but for every civil liberties give-back there needs to be a countervailing new control or check on government activity:

On the whole, Posner makes a persuasive case for tilting the judicial
balance in favor of reasonable efforts to promote security rather than
strict-constructionist civil libertarianism. However, I believe that
what we need to do is re-build our civil libertarian fortresses, not
simply retreat from them. That is why I favor much stronger accountability for agencies engaged in surveillance. It is why I am proposing here a formal process for naming our enemies.

Does it Bother Anyone Else...

Does it bother anyone else that the only complaint voiced in this article about government requirements for building in surveillance backdoors into the Internet is about the cost?

Oh, and by the way, note the date on the act in question.  1994 makes it a Clinton-era law crafted after the first attempt to bomb the WTC.  All of you Democrats who feel smugly certain that civil liberties will be safe if only your party was in charge should note how closely the Patriot Act resembles Clinton's proposed anti-terrorism bill.  Just as Republicans have found that politicians shed their small government talk once they are in charge, our country's leadership tends to abandon any past queasiness about trampling on civil liberties once in a position of power, no matter what party they represent.

Bankrupcy of Advocacy Journalism

I have never been one to wade much into the whole "media bias" issue.  Whenever I have discussed it, my main point of view is that journalists of whatever political stripe tend to suspend necessary skepticism when writing about an issue they are really passionate about.  That is why advocacy journalism can yield such crap.  I have never once dug into a strong advocacy journalism piece and not found any number of "facts" to be without attribution and often to not even make any sense.

Most people have now heard the origins of the now-famous "million homeless families" non-statistic, which was reprinted over and over but has been admitted to have been just made up by a leading homeless advocate.  And lets not forget Mary Mapes, who proudly describes herself as an advocacy journalist, and her now famous use of forgeries in her Bush-National Guard reports, leading to the classic "Fake but Accurate" meme.  People who believe in a cause, whether it be homelessness or GWB's fundamental corruption, suspend skepticism for "facts" and "statistics" that fit their point of view on the subject.  Usually they will shrug off challenges to the fact, saying "well, it may not be exactly X but we know the problem is a really big number."  In other words, fake but accurate.

Angela Valdez has a nice analysis of one such advocacy journalism effort, in this case the Oregonian's over-one-hundred part series on the "meth epidemic".  For example, she writes:

On Feb. 20 of this year, columnist S. Renee Mitchell wrote, without
offering data to back up her claim: "The number of meth addicts"”and the
crimes they commit to support their habits"”is exploding."....

In fact, meth use during the past four years has either declined or
stayed flat, according to two major national drug-use studies. The
National Survey on Drug Use and Health shows that meth use did not
increase at all from 2002 (two years before The Oregonian
started its carpet-bombing coverage) through 2004, the last year for
which there is data. The University of Michigan's Monitoring the Future
Study, which examines drug use among youth, actually shows a decline in meth use among high-school students from 1999 to 2005....

Despite The Oregonian's reliance on this figure, there is no good evidence that meth causes 85 percent of the property crimes in Oregon.

Portland State University criminology professor Kris Henning
says the number just doesn't make sense. Department chair Annette Jolin
says the unsupportable statistic has become "something of a joke"among
statistical researchers in the department.

For one thing, Oregon property crimes are much lower than they
were 10 or even 20 years ago, the time period of the supposed meth
"epidemic."

"If meth causes property offenses, and meth use has gone up,"
Henning says, "then property offenses should have gone up. And they
haven't. It's either that, or all the people who commit property crimes
have disappeared and been replaced by a small number of meth users."

I looked at the silliness of meth hysteria statistics here.  But my point is that this is not a meth issue - this is an advocacy journalism issue.  You could write the same article challenging any number of articles in the paper every day.

PS-  But on the subject of meth, I will make one prediction:  I predict that the meth hysteria will do more to create legislation and police practices that will undermine civil liberties than did 9/11.  In fact, much of the Patriot Act is already used more to fight the drug war than to fight terrorism.

More Reasons to Fear the Patriot Act

There have been any number of stories about how provisions of the Patriot Act are used more routinely to proecute drug cases than to pursue, you know, terrorists.  Note, however, this provision in the Patriot Act that has nothing to do with national security (via Overlawyered).

Quietly slipped into the reauthorization of the Patriot Act:
first-time-ever authority for the Justice Department to engage in
wiretapping and bugging of private premises for purposes of going after
antitrust violators.

Given the fact the the feds regularly prosecute companies with large market shares for A) raising prices (i.e. monopoly pricing); for B) lowering prices (i.e. predatory pricing); and for C) keeping prices the same (ie price fixing), this becomes an open mandate to listen into any private conversation at any company with a non-trivial market share.  Have fun at your next staff meeting over there at Microsoft or Exxon. 

From the Incredible Bread Machine by G.W. Grant:

"Now let me state the present rules,"
The lawyer then went on,


"These very simple guidelines,
You can rely upon:
You're gouging on your prices if
You charge more than the rest.
But it's unfair competition if
You think you can charge less!
"A second point that we would make
To help avoid confusion...
Don't try to charge the same amount,
That would be Collusion!
You must compete. But not too much,
For if you do you see,
Then the market would be yours -
And that's Monopoly!

Fantastic Interview with Andrew Napolitano

Over the past few days, I have posted a lot on first and fourth amendment issues, from wiretaps and detentions to free speech to prosecutorial abuses.  It turns out I could have saved my self a lot of time and just linked this great interview with former Judge Andrew Napolitano.

We are in a fit of
constitutional chaos when the government views constitutional guarantees as
discretionary. As Americans, we order our lives on the belief that we have
extraordinary freedoms. We believe those freedoms don't come from the
government. They come from our humanity. The government doesn't
give freedom; the government
under the Constitution is restrained from
interfering with it. I can
basically say whatever I want about the government. I can basically travel
wherever I want to go. I can basically worship however I see fit. If the
government comes to the view that those freedoms are discretionary, no matter
how noble the stated [reason to restrict them] may be, then we're in a state of
constitutional chaos. We will not be able to order our lives based on freedom.
We won't know who will be prosecuted or who'll just be swept away.

On the Patriot Act:

Let's put aside all of
the procedural problems with enacting it. Forget about the fact that there was
no debate. Forget about the fact that most members of Congress didn't even have
an opportunity to read it. It is a direct assault on at least three amendments
to the Constitution: the First Amendment, the Fourth Amendment, and the Fifth
Amendment. The
PATRIOT Act legitimates the notion that if we
give up certain freedoms, the government will keep us safer. I reject that
notion from a moral and legal point of view. I also reject it from a practical
point of view. It doesn't work. The government doesn't need our freedoms to
keep us safer. No one"”no lawyer, judge, or historian"”can point to a single
incident in American history where national security was impaired because
someone insisted on their right to free speech or their right to privacy or
their right to due process.

The PATRIOT Act encourages what the
government calls "national security letters""”basically, self-written search
warrants. It violates the Fourth Amendment, which prohibits self-written search
warrants. The
PATRIOT Act and two of its predecessors, the Foreign
Intelligence Security Act of 1977 [
FISA] and the Electronic
Privacy Act of 1986, authorized the government to obtain search warrants by
bypassing [longstanding tradition in] the courts. Today an
FBI agent investigating a
person need only satisfy her or himself that the person under investigation is
a threat to national security. The agent doesn't have to demonstrate evidence
to a judge

On the regulatory state:

[The FDR era] began, in my view,
the dark part of American history where the federal government believed that it
could solve any problem that was national in scope, irrespective of whether it
was a
federal problem. A federal problem is one arising
under the 18 specific enumerated powers given to the federal government under
the Constitution. A
national problem is something
that exists in New Jersey and California and Texas and Illinois. But just
because it's national doesn't mean it's federal and therefore can be addressed
by the federal government....

In terms of the
government control of our lives, in terms of the percentage of our income that
the government takes from us, in terms of the types and the areas of human
behavior we let the government regulate, we are infinitely less free. And as
Jefferson once said, it is in the natural order of things that the government
should be greater and human
liberty lesser.

Women have
much more freedom. African Americans have much more freedom. Gays have much
more freedom. The discrimination that was rampant, and often caused by the
government, 40 or 50 or 60 years ago"”there's been progress in those areas. But
the destruction of federalism, the centralization of power in Washington, the
belief that Washington can regulate all aspects of our lives will, if not
checked, lead us to a totalitarian form of government. Freedom is the power and
ability to obey your own free will and conscience rather than the free wills
and consciences of others.

The interview also has a very useful short summary of the history of FISA and the Patriot act, and demonstrates how the incremental assaults on the fourth amendment have added up.  I encourage you to read it all.  In addition to this interview, Reason also had a good debate on the Patriot Act here.

Reviewing Detentions

Back when there was all that controversy about flushing Korans at Gitmo, my general reaction was that the charges of outright torture were overblown.  In fact, today I think all this focus on torture-lite was counter-productive, diverting attention from the core question of "no matter how well they are treated, do we have a right to indefinitely detain them at all?" 

The main theme in my posts both on detentions as well as NSA wiretaps has been that our current problems with terrorism do not justify the relaxation or overriding of our core principles of separation of powers.   If we are are going to detain people, it should be following rules laid out by Congress and with clear points of review or appeal to the judiciary.  The exact rules for Habeas Corpus may be different for people captured in Afghanistan than in Omaha, but they can't be thrown out all-together by administration fiatThe rights protected by our Constitution and its amendments are our rights as humans, not just as Americans.  Our rights not to be locked up indefinitely or not to be subject to invasive searches without a warrant predate government - they are protected by the government, not provided by the government.  As such, even foreigners, who presumably are human, possess these rights too.

It turns out that the Gitmo detentions, years after they began, are starting to get the third party scrutiny that you and I expect to get after 48 hours of detention.

If accurate, this National Journal cover story is scandalous.  Stuart Taylor's Journal column sums up the major points:

  • A high percentage, perhaps the majority, of
    the 500-odd men now held at Guantanamo were not captured on any
    battlefield, let alone on "the battlefield in Afghanistan" (as Bush asserted) while "trying to kill American forces" (as [press secretary Scott] McClellan claimed).

  • Fewer than 20 percent of the Guantanamo detainees, the best available evidence suggests, have ever been Qaeda members.
  • Many scores, and perhaps hundreds, of the detainees
    were not even Taliban foot soldiers, let alone Qaeda terrorists. They
    were innocent, wrongly seized noncombatants with no intention of
    joining the Qaeda campaign to murder Americans.

  • The majority were not captured by U.S. forces but
    rather handed over by reward-seeking Pakistanis and Afghan warlords and
    by villagers of highly doubtful reliability.

Maybe an actual government body that does not report to the President, such as the judiciary, can finally enter the fray and habeas some of their corpuses. 

And by the way, I am soooo fed up with the counter-argument, "coyote, you are more interested in the rights of terrorists than security".  I answered this here, but in the case of detentions it is perfectly clear to me that the goal of detaining demonstrably dangerous folks does not require avoidance of judicial review.  I am sure this administration like any other does not like the courts or Congress looking over its shoulder, but they have to get over it.  The Administration has decided that the other branches of government can't be trusted, and the theme of many of their recent actions has been to fight against any separation of powers restrictions on the administration.

Related thoughts:  I see decent support in polls for these detentions and wiretaps.  My sense is that people who trust Bush are OK with him taking on these powers, and people who don't trust him are horrified.  The history of the Patriot Act is illustrative of this.  Most of the Patriot Act was originally proposed by Bill Clinton in response to Oklahoma City and the first bombing of the WTC.  At that time, Republicans opposed it, eventually defeating it in the Senate with the opposition led by... John Ashcroft.  Yes, I know the argument the world changed on September 11, but I think an even more important explanation of this turnaround for Republicans is that they did not trust Clinton, so didn't give him the power, but do trust Bush.  Of course the short-sightedness of this approach is stunning, since we know no party stays in power forever.  To Republicans, if you are comfortable with Bush being able to detain people of his choice without review and to wiretap without warrant, then you need to also be comfortable with Hillary Clinton, Howard Dean, or maybe Patty Murray having the same power some day.  Are you?  Really?  Because I am not comfortable giving the power to either party.

Yes, the world may have shifted on its axis on September 11, but not enough for us to throw out separation of powers.

UpdateMore here.

Whose Civil Liberties am I Protecting?

I generally don't get worked up by the memes that fly back and forth between various political blogs.  However, one of late is starting to irritate me.  I have seen it all over the place on conservative blogs, but I will quote from James Taranto because I saw it on Best of the Web most recently:

Related to the terrorism-is-no-big-threat claim is the argument that American lives are less important than the civil liberties of terrorists.

Its not the lives vs. liberties part that works me up -- there probably is a real trade-off in there somewhere.  What irks me is portraying concerns about the Patriot Act, indefinite detentions without trial, and eavesdropping outside of the normal separation of powers checks and balances as "concern for the civil liberties of terrorists".

I am sure that there is a name for this kind of semantic trick, though I can't remember it, but I will say its bush league, right out of high school debate.  You could just as easily stump for repeal of the fourth amendment because it is only concerned with the "civil liberties of criminals".

No one except a few crazies cares much for the civil rights of convicted criminals and terrorists.  After all, what could be more of a violation of their civil rights than incarcerating them, but I have seldom seen a bond issue for more prisons that people won't vote for.

No, the problem is with the civil rights of the rest of us who are innocent.  We don't want our email read just in case we are terrorists.  We don't want our houses broken into at night just in case we are drug dealers.  And if we find ourselves in police custody, we want our habeas corpus rights respected and we want to get our due process or be released.

You see, that's the nagging little problem.  Because the people the administration and their law enforcement arms are detaining and eavesdropping on are only "suspected terrorists", or I will even grant you "strongly suspected terrorists".  And there is a whole great world of difference between even a strongly suspected terrorist and a convicted terrorist.  That is what due process and the presumption of innocence is all about.  We have a legal term for a person "suspected" by the police of crime or terrorism:  Innocent citizen.

Yes, I understand that for the police to do their business, they need to be able to investigate suspected criminals.  As I wrote here, we have a process for that - the legislature sets the rules for investigations and searches, the Supreme Court tests the rules against the Constitution, the administrative branches follow the rules, and the courts have various review roles, from approving wiretaps and search warrants to being a source of appeal for habeas corpus violations.  That is why I stated that though I opposed provisions of the Patriot Act, at least it followed this separation-of-powers script.  It is when the administration claims new powers for itself without legislative authority or judicial review that really gives me the willies.

And yes, I know that the counter-argument is that we are at war and the administration and the President as commander-in-chief have the abilities under their powers to do, uh, whatever it takes I guess to prosecute a war.  After all, you can't run to Congress for a vote every time you want to move the troops in a war, can you?

There is a major problem with this argument.  To the extent that the President has all this extra wartime power, the founding fathers put in a very sensible Constitutional provision that the Senate must make a declaration of war before the President has these wartime powers.  And you know what -- the Senate of this country has not declared war since about 1941 on anyone.  Even if I give GWB credit for all the best motives in the world, we cannot have a government where the President can assume all kinds of magic wartime powers AND unilaterally declare war himself (and no, the Senate authorization for military action in Afghanistan was not a declaration of war, at least in this sense).  Effectively the Administration is asking us to a) allow the Administration to define when and who we are at war against; b) allow the Administration to identify, without outside review, who the combatants are in this war; and c) allow the Administration to search or indefinitely detain these combatants that they identified, indefinitely and without review outside of Administration-controlled organizations.

No way.  And I don't think a President has these powers to arbitrarily name who is a threat and detain them without due process even in a declared war - I mean, does anyone remember the embarrassing Japanese internments in WWII?  Were the Japanese internments any different, except in scale, from the powers the administration is claiming today?

Supporters of the war in Iraq have defended that Iraq is better off despite the high ongoing civilian death toll from terrorist acts.  They argue that the people of Iraq are willing to pay the price of dealing with these terrorist attacks in order to gain the status of a free and open state.  I would ask, then, aren't we in the US just as willing to deal with some increased risk of terrorism in order to maintain a free and open state?

I don't consider myself a tinfoil hat guy.  I think many of the security concerns behind the administration's actions can be addressed with some respect to separation of powers, if the administration was just willing to try.  However, it is my observation that the administration gave up trying to work with Congress about 2 years into his first term.  GWB hasn't tried to push any kind of legislative agenda.  He hasn't tried to bring any adult supervision to the gross display of spending excess going on.  He hasn't even used his veto pen once.  It strikes me that the Bush administration decided in about 2002 that Congress wasn't serious (I can sympathize with that) and that they were going to go off on their own and run things by themselves.  Sorry, but no matter how good your intentions, it does not work that way.

The Worst Danger from Terrorism

A number of years ago, I heard someone (George Carlin maybe?  Commenters help!) ask "What's the worst thing that can happen to you if you smoke pot" and the answer was "Get thrown in jail".  The not so subtle message was that the preventative measures applied to prevent marijuana use were worse than the drug use itself.

I would say this fairly summarizes my fears about government responses post 9/11.  Reason's Hit and Run quotes T.J. Rogers along the same lines:

What's the worst thing that Al-Qaida can do to America? We have
probably already seen it. Of course, the government can talk about
bigger things, like the use of weapons of mass destruction, to justify
its use of totalitarian tactics.

I would much rather live as a free man under the highly improbable
threat of another significant Al-Qaida attack than I would as a serf,
spied on by an oppressive government that can jail me secretly, without
charges. If the Patriot Act defines the term "patriot," then I am
certainly not one.

By far, our own government is a bigger threat to our freedom than any possible menace posed by Al-Qaida.

The worst thing the terrorists can do is not another 9/11, but to push America into abandoning its separation of powers and its traditional protections of individual rights.

Reasonable people can disagree whether the Patriot Act goes too far in violating civil rights.  I personally opposed most of the measures in that act when Bill Clinton proposed them the first time and opposed them again this time around.  However, whether I support the Act or not, at least the Act and its provisions are still following the separation of powers script written into our country's DNA:  Congress proposes new administrative powers vis a vis searches, the administration and justice organizations follow the procedures, with certain oversight and appeals rights granted to the courts.

What worries me more than the Patriot Act is the administration's claiming of broader and broader police state powers in the name of combatting terrorism, whether it be detaining people indefinitely without a warrant or eavesdropping on citizens without a warrant.  I understand that both of these programs have practical goals related to security, but I think that most of these goals can still be reached by continuing to respects separation of powers.  Congress must still set the rules for a program such as detention of suspected enemy combatants, and these rules should include a role for the judiciary to review individual cases.