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My Dime -- nah, of course I didn't think he'd actually have the integrity or the ability to take personal responsibility for his actions that he'd need to do the right thing and recuse himself
I just thought his "Quack, Quack." comment was WAY cool (. . .)
so where and to whom does one submit an application to become a "truth guide", zit_for_brains? -- and what exactly are the qualifications one must have to become a "truth guide"? -- you must know because you are a "truth guide", right? -- do they give you some fancy-looking "truth guide" certificate? -- maybe you could scan yours and post a picture for the rest of us to see? -- or would that be like revealing the secret handshake? (. . .)
(COMTEX) B: Scalia Defends Hunting Trip With Cheney ( AP Online )
WASHINGTON, Feb 11, 2004 (AP Online via COMTEX) -- Supreme Court Justice
Antonin Scalia strongly indicated he will ignore calls to recuse himself from a
court case involving his friend and hunting partner, Vice President Dick Cheney.
Scalia told a gathering at Amherst College on Tuesday night there was nothing
improper about his accompanying Cheney to Louisiana last month to hunt ducks.
The trip came three weeks after the Supreme Court agreed to hear the Bush
administration's appeal in a case involving private meetings of Cheney's energy
task force.
"It did not involve a lawsuit against Dick Cheney as a private individual,"
Scalia said in response to a question from the audience of about 600 people.
"This was a government issue. It's acceptable practice to socialize with
executive branch officials when there are not personal claims against them.
That's all I'm going to say for now. Quack, quack."
Cheney wants to keep private the details of closed-door White House strategy
sessions that produced the administration's energy policy. The administration is
fighting a lawsuit brought by watchdog and environmental groups that contend
that industry executives helped shape the administration's energy policy.
Democrats in Congress, some legal ethicists and dozens of newspaper editorials
have called on Scalia to stay out of the case. None of the groups in the case
has formally asked Scalia to recuse himself, though the Sierra Club has said it
might.
Supreme Court justices, unlike judges on other courts, decide for themselves if
they have conflicts, and their decisions are final.
Scalia had not publicly addressed the issue before his Tuesday speech in
Amherst, Mass., where about a dozen people wearing black armbands protested. One
held a sign that said "Let's go hunting."
Chief Justice William H. Rehnquist had rebuffed Senate Democratic leaders last
month who questioned the trip, saying that justices strive to follow federal
laws that require judges to stay out of cases in which their impartiality might
be questioned.
Other justices have been asked about the Cheney appeal. In Hawaii on Tuesday,
Justice Ruth Bader Ginsburg would not say whether she thought Scalia should stay
out of the case. While Ginsburg is one of the more liberal members of the court,
she and the conservative Scalia are longtime friends.
Complimenting Scalia's hunting skills, Ginsburg told more than 300 people at a
Rotary Club of Honolulu luncheon that a deer killed by her colleague made for
mouthwatering venison served for New Year's, which the Scalias and Ginsburgs
typically spend together.
"Justice Scalia has been more successful at deer hunting than he has at duck
hunting," Ginsburg said to laughter.
---
Associated Press reporter Matt Sedensky in Honolulu contributed to this report.
On the Net:
Supreme Court: http:/www.supremecourtus.gov/
By GINA HOLLAND
Associated Press Writer
Copyright 2004 Associated Press, All rights reserved
-0-
*** end of story ***
(PR NEWSWIRE) 'Mr. President: It's Not the Pay Records, It's Leadership!' Says Leadership Expert Brent Filson
NEW YORK, Feb. 11 /PRNewswire/ -- President Bush can redress a dismal
performance on "Meet The Press" and at the same time score a leadership coup,
according to leadership expert Brent Filson.
Filson, founder and president of The Filson Leadership Group, Inc., a
corporate leadership consultancy, says that the President should seize the
initiative with his military service controversy by getting all records out
immediately, not just the pay records, telling the truth about his military
service and then using the bully pulpit of his office to deliver a heartfelt
explanation of his actions.
"The issue is not the pay records or quibbling about when he served or
didn't serve," Filson says. "The issue's his leadership. As a leader who
holds others accountable for their actions, the question now is does he hold
himself accountable? If he keeps evading the question, he'll be the second
one-term Bush President.
"Clearly, leadership is vital to our national security," says Filson, who
served as an officer and platoon leader in the US Marine Corps. "And
leadership is going to be a burning issue in this campaign.
"From a leadership standpoint, President Bush's performance with Russert
was an embarrassment," says Filson who has consulted for literally thousands
of leaders of all ranks and functions in top companies worldwide during the
past 19 years. "He looked more like a college sophomore coerced into taking a
communications course instead of the leader of the world's most powerful
nation. Instead of clearly and crisply articulating his positions, he was
tongue-tied, evaded questions, seemed hesitant and nervous, and made
vacillating arguments.
"Here's a man who's been accustomed to saying things speech writers put in
his mouth before carefully chosen crowds, and it's coming back to haunt him.
Being confronted by Russert, President Bush found himself totally out of his
element and in psychological free fall, a leadership disaster. But he can
take comfort in an unwritten leadership law: there's opportunity in failure.
He should seize that opportunity now."
To schedule a broadcast guest appearance for Brent Filson, contact Joel
Strasser at 845-357-5946, or e-mail: pr@actionleadership.com. Filson's latest
leadership book, "The Leadership Talk: The Greatest Leadership Tool," to be
published in Fall 2004, is available now to media in preview galleys.
SOURCE The Filson Leadership Group, Inc.
-0- 02/11/2004
/CONTACT: Joel Strasser, +1-845-357-5946, pr@actionleadership.com, for
The Filson Leadership Group, Inc./
*** end of story ***
"Border relations between Canada and Mexico have never been better." -- George W. Bush, September 24, 2001, joint press conference with Canada's Prime Minister.
zithead -- thank you for completely missing my point -- as long as we have our constitutional rights, genuine rule of law and real courts, defendants will have at least some chance to fight back against any manipulation (or outright fabrication) of evidence offered against them (in the case e.g. of images, be they from film, or digital), although of course the risk posed by manipulation/fabrication of digital evidence (including e.g. digital images created from images originally shot on film) clearly grows with each new generation of chips and software -- in a modern police state, however, with no such constitutional rights, no genuine rule of law and no real courts, the ever-increasing power both of digital surveillance devices, AND of computers and computer techniques for manipulating/creating digital "evidence", will continue to make it easier than it's ever been before for martial law authorities to "prove" anything against anybody (including for purposes of blackmail, intimidation and manipulation) with virtual reality "evidence" they can manufacture with a few clicks of a mouse and have handy to present to the show court and, if they like, to display to the populace to justify their actions and keep the populace "happy" (if not outright lusting for the blood of those the authorities want out of the way) -- for the record, btw, I didn't say a thing about the (merits or lack of merits of the) particular case discussed in the article I posted
and what the heck exactly were you saying with that 'ring through nose' quip? -- was that like what Rush said to 'rebut' a black caller with whom he disagreed? (hey, at least when I say something, one knows what I've said . . .) -- but if you must know -- I've never had any part of me pierced, let alone having ever had a ring through my nose -- and I have no black ancestry of which I'm aware (mostly german, then polish, then some irish/other european, that's all I know about), although I have always been particularly attracted to cute black/mixed-race women, and have spent what have in fact been the best years of my life so far in relationships with several remarkable such women whom I've had the good fortune to know
Every Burglar's Worst Nightmare
RANCHO CORDOVA, Calif. (AP) — A 53-year-old woman who fired nine shots with two handguns to ward off an intruder said she tried to avoid hitting her furniture.
"Priorities, right?" said Carolyn Lisle of Rancho Cordova. "It was one of those nights. I have a few holes in my glass out front."
The Sacramento County sheriff's department said William Kriske, a 47-year-old parolee, was treated for a gunshot wound to the arm, then jailed on suspicion of burglary and resisting arrest after he crashed through Lisle's sliding glass door Thursday evening.
Lisle's three guests fled the home, but she took action, opening fire with a .357 caliber revolver.
"He was like a mosquito hitting the window. Every time he turned around, poweee," she told the Sacramento Bee.
She emptied her first handgun as the intruder crashed through another window to escape, then retrieved a second revolver as he broke into her garage.
"I like to be prepared," she said.
She opened fire again as the intruder fled the garage and approached the house, wounding him.
Sacramento County Sheriff's Sgt. Lou Fatur said Lisle, a retired state worker who once worked as a correctional officer, won't be charged for defending herself with properly registered firearms.
The intruder tried to steal a motorcycle from a home across the street, but was chased off by neighbors who also had armed themselves to come to Lisle's aid.
As the burglar fled, one of the men yelled, "And that's just our womenfolk," Lisle said.
A California Highway Patrol officer stopped Kriske nearby, and he was arrested by sheriff's deputies.
"I don't think he'll be back," Lisle said.
http://www.foxnews.com/story/0,2933,111037,00.html
The Price of Faith Can Be High
The U.S. government may fine a Maine man $10,000 for going to church.
Richard Albert, 52, lives in Township 15 Range 15, a tiny settlement just across the Canadian border from the larger town of St.-Pamphile, Quebec (search). For 40 years he's been crossing the border to go shopping, visit friends and family, see the doctor and go to church.
That all changed with post-Sept. 11 security regulations.
"It was never an issue to cross before May 1, 2003, when they put a gate on the boundary and locked it up," Albert told The Associated Press. "This situation, it's like having a nightmare, and you feel that Big Brother is really controlling you and you can do nothing about it."
Under new rules, entering the U.S. is forbidden when the border station is closed. Township 15 Range 15's station is open from 6 a.m. to 9 p.m. weekdays, 8 a.m. to 4 p.m. Saturdays, and not at all on Sundays.
At all other times, the Department of Homeland Security (search) tells people to drive to the nearest open crossing station. That's in Fort Kent, Maine — 60 miles away as the crow flies, and much further along the dirt logging roads it would take to reach on the Canadian side.
Canada has no problem with Albert going back and forth. He's on a pre-approved list of border residents who are allowed to walk or drive across the border at will. But the U.S. equivalent, known as the Form 1 program, died last May.
Since then, Albert's simply been driving around the gate on Sundays. But recently, DHS installed a security camera, and Albert received notice three weeks ago that he faced fines of up to $5,000 for two illegal re-entries.
Senator Susan Collins' office has been seeking a solution and is concerned about Albert's fines, said spokeswoman Jen Burita.
"She was hoping the situation wouldn't come to this," Burita told the AP.
Albert is more blunt.
"We're supposed to stay here and not move? There's nothing here on the American side," he said. "We feel like we're being treated like animals here. At 9 p.m. we're locked in the barns, and at 6 a.m. we're let out to pasture."
http://www.foxnews.com/story/0,2933,111037,00.html
something else to consider re an age of ubiquitous digital surveillance -- any police state worth its salt will be able to "prove" anything it wants:
Digital evidence raises doubts
Tuesday, February 10, 2004 Posted: 10:39 AM EST (1539 GMT)
(AP) -- When Victor Reyes went on trial for murder last year, the technology that fingered him was supposed to be a star witness.
Police in Florida had used software known as More Hits to determine that a smudged handprint they had found on duct tape wrapped around a body -- but originally couldn't decipher -- implicated Reyes in the 1996 killing.
The judge let prosecutors introduce More Hits' digital enhancement. But the defense called it "junk science," and had an art professor testify that the process resembled how Adobe Photoshop can be used to make trick-photo illustrations.
Reyes was acquitted.
Jurors said they based their decision mainly on the notion that the print didn't prove Reyes was the killer -- not on the legitimacy of More Hits' method. And a Florida appeals court later ruled that More Hits' technology -- used by 215 U.S. police departments -- is acceptable.
Still, some defense attorneys learned a lesson: Get more aggressive about challenging digitally generated evidence.
"Now whenever you hear the word enhancement, an antenna goes up," said Hilliard Moldof, a Florida defense attorney who is questioning digitally enhanced fingerprints in two cases.
Or in the words of Mary DeFusco, head of training for the Philadelphia public defender's office: "I thought digital was better, but apparently it's not. We're definitely going to take a look at it."
As more police departments abandon chemically processed film in favor of digital photography, the technology could be confounding for the justice system.
Film images are subject to darkroom tricks, but because digital pictures are merely bits of data, manipulating them is much easier.
And although willful evidence manipulation is rare, forensic specialists acknowledge that a poorly trained examiner incorrectly using computer enhancement programs can unwittingly introduce errors.
"What you can do in a darkroom is 2 percent of what Photoshop is capable of doing," said Larry Meyer, former head of photography for State Farm Insurance Co.
Courts have consistently allowed digital photographs and enhancement techniques. But some observers say such methods should endure a more thorough examination, as have technologies such as DNA analysis.
"There have been relatively few challenges to the use of digital technology as evidence and in most of them the courts have looked at them in a fairly superficial way," said Edward Imwinkelried, an evidence expert at the University of California-Davis law school.
Concerns about the impeachability of digital photographs are one reason many police departments have been hesitant to ditch film for crime scene photographs and forensic analysis.
In fact, some people who train law enforcement agencies in photography estimate that only 25 to 30 percent of U.S. police departments have gone digital -- despite the huge cost benefits of no longer having to buy film and the ease with which digital pictures can be captured and disseminated.
The police department in Santa Clara, California, bought 30 digital cameras recently but is holding off on giving them to detectives and technicians until the department specifies ways to lock away the original photos as evidence "so there can be no question that anything was changed," said Sharon Hoehn, an analyst for the department.
George Pearl, who runs a civil-case evidence service in Atlanta and is a past president of the Evidence Photographers International Council, sticks with film partly because he doesn't want to explain on a witness stand if he used a computer to adjust the contrast and other settings of a digital image.
"Even if it was honest adjustments," Pearl said. "Juries, they're all skeptical and they're all sitting there waiting to jump on something that's wrong."
Some law enforcement officials also worry about the limitations that still plague digital photography.
Digital pictures can't be blown up as clearly for courtroom displays as well as film photos. Or the compression needed to store a digital file on disk can make the image blurry or blocky, potentially obscuring key details.
"Digital imaging for the most part has a long way to go to meet the quality of film," said Richard Vorder-Bruegge, an FBI forensic expert who chaired a panel that wrote guidelines for law enforcement use of digital imaging.
For example, he said, a negative shot on traditional 200-speed film can produce the equivalent of 18 megapixels of resolution. Only highly specialized, expensive digital cameras approach that now; most that consumers buy are less than 5 megapixels.
Vorder-Bruegge concedes that a top-notch photographer with plenty of time "could do an outstanding job" with a 1-megapixel camera. But such skills are in short supply in many police departments, especially smaller ones.
Consequently, he believes cops should stay with film for capturing close-up details of footprints and tire tracks.
Many people in law enforcement believe Vorder-Bruegge's assessments are too conservative. They say that with proper training and stringent procedures, digital photos should not be problematic.
For one thing, blurriness or other errors in digital imaging are nowhere near severe enough to "fool an examiner into misidentifying a fingerprint," said George Reis, a crime scene investigator in Newport Beach, California, where police began converting to digital a decade ago, saving more than $6,000 a month in Polaroid costs. Reis helps other police agencies make the digital conversion through a business he runs, Imaging Forensics.
In Oregon State Police's forensic laboratory, which has been all digital for about five years, original pictures of fingerprints and other evidence are encrypted so they can't be changed, and burned onto a CD, giving the lab the equivalent of a film negative to reference later.
Any enhancement, such as lightening or darkening elements of the picture -- something traditionally done in film darkrooms as well -- is performed on a copy of the image, not the original, said Mike Heintzman, the lab director.
Erik Berg, a forensic supervisor in Tacoma, Washington, and the developer of More Hits, said digital photos can allow for even more security than traditional means of stowing film negatives in a drawer.
"I have the ability to lock down one or more digital files to a point where I can ensure not only who can or cannot look at it, but for how long, whether or not they can print it or distribute it," he said. "I can also prove whether or not it has been tampered with since it was created."
Perhaps most importantly, software such as More Hits or Adobe Photoshop now can automatically log changes made to an image, so the alterations can be reproduced by other people. The function was not deployed during the Reyes investigation in Florida.
Barbara Heyer, who defended Reyes, concedes that if used properly, the logging function can improve the acceptability of digital evidence.
"Until there's a history of [what was done and when], not only will I attack it, it should be attacked," Heyer said. Otherwise, "you are relying solely on the word of the person doing the work. That's not something I would like to do when someone's facing life in prison or death."
Copyright 2004 The Associated Press. All rights reserved.
http://www.cnn.com/2004/TECH/ptech/02/10/digital.evidence.ap/index.html
'Economic Leaders' Who Met Bush Are Also Donors
Tue February 10, 2004 08:44 PM ET
By Adam Entous
WASHINGTON (Reuters) - Billed by the White House as a round-table of "economic leaders" on U.S. policy, several of the CEOs who huddled with President Bush on Tuesday were also major contributors to his and other Republican campaigns, records show.
Among them was Goldman Sachs Chief Executive Henry Paulson, who emerged from the White House with only praise for the administration's policies despite warnings from his firm's senior economist about rising federal budget deficits.
"Sentiment is better. Debt markets are better. ... The president's economic programs are working," said Paulson.
Like other economic round-tables arranged by the White House, Tuesday's brought together people who mostly see eye to eye with the president -- or at least do so publicly.
In a book about his rocky tenure as Bush's first Treasury secretary, Paul O'Neill derided what he saw as little more than cheerleading sessions stacked with loyalists. O'Neill was later fired for balking at Bush's new round of tax cuts.
The White House says the meetings allow Bush to gauge boardroom sentiment first hand.
White House spokesman Scott McClellan announced Tuesday's session as a gathering of "economic leaders" from "growing sectors of our economy," including the high-tech, financial, automotive and retail sectors.
"This is an opportunity for the president to highlight his six-point plan for strengthening the economy even more," McClellan said.
What the White House did not mention was that several of the executives in attendance also happened to be major Republican donors, including Michael Dell, founder and CEO of Dell Inc., according to records compiled by the Center for Responsive Politics.
After the meeting, with the White House press staff looking on, Hewlett-Packard Co. CEO Carly Fiorina praised Bush's tax cuts and described the reaction of all the business leaders in the room as "quite enthusiastic." She gave $2,000 to Bush last year.
MUM ON BUDGET DEFICIT
Likewise, Paulson predicted a pickup in job growth and business investment, before concluding: "All in all, I think we're all feeling better ... and we're optimistic that the president's economic programs are working."
In praising the administration's course, Paulson made no mention of the record budget deficit. Ed McKelvey, senior economist at Goldman Sachs, was widely quoted last year as warning that "the U.S. federal budget is out of control."
In other recent Wall Street reports, McKelvey has warned of the "difficulty of cutting the budget deficit" as Bush has pledged to do in his election-year budget.
Paulson's contributions last year included $15,000 to the National Republican Congressional Committee and $2,000 for Bush, a database search showed.
Commerce Secretary Don Evans brushed aside a question about the discrepancy between Paulson's public praise of the president and Goldman Sachs' market warnings. "We're going to cut the deficit in half in the next five years. ... (Bush is) absolutely committed to doing that," Evans said.
While acknowledging there was some discussion with the CEOs about the administration's decision to not renew tax breaks for business investment, Evans insisted: "They didn't ask for it (the tax breaks) to be extended."
He said everyone was in agreement that "the president's six-point (economic plan) is focused exactly were it needs to be focused."
Among the other major donors who attended the round-table: General Motors Corp.'s CEO Rick Wagoner and Marilyn Carlson Nelson of Carlson Cos. Both gave $2,000 to Bush according to the Center for Responsive Politics.
© Reuters 2004. All Rights Reserved.
http://www.reuters.com/newsArticle.jhtml?type=domesticNews&storyID=4329888
Rumsfeld Says Iraq Killings Reflect Human Nature
Tue February 10, 2004 09:08 PM ET
By Will Dunham
WASHINGTON (Reuters) - Defense Secretary Donald Rumsfeld, asked about Tuesday's car bombing in Iraq that killed about 50 people, said there are murders in every major city in the world "because human beings are human beings."
During a Pentagon briefing, Rumsfeld also said he could not remember the widely publicized assertion made by U.S. ally Britain in the months before the Iraq war that President Saddam Hussein's forces could launch weapons of mass destruction within 45 minutes of being ordered to do so.
Air Force Gen. Richard Myers, chairman of the military's Joint Chiefs of Staff, said at the same briefing that he was optimistic about security despite Tuesday's blast that ripped through a police station as civilians lined up to apply for jobs in Iskandariya, 25 miles south of Baghdad.
"We continue to be optimistic about the situation on the ground in Iraq." There has been "a lot of success," Myers said, in bringing stability and security to Iraq ahead of the June 30 target date for returning self-governance to Iraq.
Rumsfeld said it was impossible to prevent all attacks.
"I point out that an attacker has all the advantage," Rumsfeld said.
"It's impossible to defend in every location against every conceivable kind of attack at every time of the day or night. It is not possible," he added.
Rumsfeld noted that "somewhere between 150,000 and 210,000" Iraqis are working in security forces, with many "recently trained and new to these assignments. They're getting better at it all the time."
"That does not mean that there will not be people that are killed. I mean, look at any city on the face of the Earth. Everyone's against homicide. And yet in every ... major city on the face of the Earth, homicides occur every week. Hundreds occur every year in every city."
"Now, why if we have all those policemen, why if we have everyone against homicides, do they still occur? The answer is because human beings are human beings," Rumsfeld added.
BRITISH DOSSIER
Prime Minister Tony Blair's government said in a September 2002 "White Paper" that Saddam's chemical and biological weapons "are deployable within 45 minutes of an order to use them." The dossier became the source of major controversy in Britain, with critics arguing that Blair's government exaggerated Iraq's capabilities.
No chemical or biological weapons have been found in Iraq nearly 11 months after the invasion that toppled Saddam. Such weapons were the main reason cited for the war, in which more than 500 U.S. troops and thousands of Iraqis have died.
Asked by a reporter whether he personally had believed the British contention, Rumsfeld said, "I don't know that I want to get into that kind of a subject. First of all, who are you quoting on that?"
A reporter responded that it was "Tony Blair's White Paper."
Rumsfeld then was asked whether he had an opinion on the 45-minute claim when it was first made in 2002.
"I don't remember the statement being made, to be perfectly honest," Rumsfeld replied.
On another subject, Myers said the United States had not yet deemed as authentic a letter that U.S. military officials in Iraq described as written by an associate of Osama bin Laden and aimed at provoking an Iraqi civil war. Myers said that "authenticity is still being evaluated."
"I haven't read it. I don't know if it's authentic. People who've read it think it is," Rumsfeld added.
U.S. Brig. Gen. Mark Kimmitt said in Baghdad Monday that "we are persuaded" that the letter was authentic.
© Reuters 2004. All Rights Reserved.
http://www.reuters.com/newsArticle.jhtml?type=domesticNews&storyID=4329975
Bush's Vietnam-Era Military Records Show Gaps
Tue February 10, 2004 08:54 PM ET
By Randall Mikkelsen
WASHINGTON (Reuters) - President Bush was absent for long periods of his final two years of National Guard duty but met service requirements, according to new records cited by the White House in an effort to refute accusations he shirked Vietnam War-era military obligations.
"These documents clearly show that the president fulfilled his duties," White House spokesman Scott McClellan said on Tuesday during a contentious press briefing as he sought to quell a controversy over whether Bush skipped Guard duty.
The issue has sidetracked the Bush team as his re-election effort gets under way.
McClellan said the White House learned on Monday that pay and service records had been found that documented Bush's service as an F-102 jet pilot in the Texas Air National Guard, which is part of the U.S. part-time military system.
"He (Bush) completed his military obligation in a satisfactory manner," retired Air Force Lt. Col. Albert Lloyd, a personnel specialist, said in a written description of the records that was also issued by the White House.
Although the records, some of which had been previously released, were not fully legible, Lloyd said they reflected that Bush earned the required number of service points.
The documents show long gaps in Bush's Guard service, from May through late October 1972, and mid-January through early April 1973.
Bush spent part of the fall of 1972 working on a political campaign in Alabama, but he performed "equivalent duty" while out of Texas, McClellan said.
The records show Bush earned service points and was paid for duty in late October and November of 1972, but officials could not specify which dates he served in Alabama. They also could not explain the gap in 1973.
The records may not end the controversy.
The Democratic Party said in a statement, "There is still no evidence that George W. Bush showed up for duty as ordered while in Alabama." It noted an evaluation report from superiors in Texas said Bush had not been "observed" from April 1972 to May 1973.
The White House later said the evaluation reflected that Bush was no longer serving as pilot during that period, but that Bush recalled serving in a "nonflying status."
Bush left, with an honorable discharge, eight months shy of the obligatory six years' service on Oct. 1, 1973, to attend Harvard Business School. The heaviest Guard service in his last two years came in July 1973, when he was paid for 19 days.
The National Guard and reserves, rarely called up during the Vietnam War, came to be regarded as "draft havens for relatively affluent young white men," the Air National Guard says in a history on its Internet site.
In an NBC interview broadcast on Sunday, Bush acknowledged he had not volunteered for the "political war" in Vietnam, but said he supported the government and would have gone had his Guard unit been called. "I put in my time, proudly so," he said.
Massachusetts Sen. John Kerry, front-runner in the race for the Democratic presidential nomination who volunteered for and was decorated for his duty in Vietnam, has said Bush should answer questions over his military record.
He declined to comment on the new records, saying: "It's not my story. It's not my question."
The Bush team has responded aggressively to the criticisms that could tarnish the president's portrayal of himself as a "war president" leading the country in a fight against global terrorism.
McClellan said the payroll records were proof of Bush's service.
But Washington Post columnist Richard Cohen, writing of his own Guard service, said: "For two years or so, I played a perfectly legal form of hooky. To show you what a mess the Guard was at the time, I even got paid for all the meetings I missed."
© Reuters 2004. All Rights Reserved.
http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=4329918
Mel Gibson says his wife could be going to hell
By Jeannette Walls with Ashley Pearson
MSNBC
Updated: 12:35 p.m. ET Feb. 10, 2004
Mel Gibson has come under fire for being hard on Jews in his film “The Passion of the Christ” — but apparently, he feels that Protestants are also doomed to damnation. In fact, it looks like Gibson, a conservative Catholic, believes that his Episcopalian wife could be going to hell.
Gibson was interviewed by the Herald Sun in Australia, and the reporter asked the star if Protestants are denied eternal salvation. “There is no salvation for those outside the Church,” Gibson replied. “I believe it.”
He elaborated: “Put it this way. My wife is a saint. She’s a much better person than I am. Honestly. She’s, like, Episcopalian, Church of England. She prays, she believes in God, she knows Jesus, she believes in that stuff. And it’s just not fair if she doesn’t make it, she’s better than I am. But that is a pronouncement from the chair. I go with it.”
Gibson also said in the interview that he was nearly suicidal before he made his controversial film. “I got to a very desperate place. Very desperate. Kind of jump-out-of-a-window kind of desperate,” he said in the interview. “And I didn’t want to hang around here, but I didn’t want to check out. The other side was kind of scary. And I don’t like heights, anyway. But when you get to that point where you don’t want to live, and you don’t want to die, it’s a desperate, horrible place to be. And I just hit my knees. And I had to use ‘The Passion of the Christ’ to heal my wounds.”
Gibson’s rep wasn’t available for comment.
---------------------------------------
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http://msnbc.msn.com/id/4224452/
twitboy -- so, you're deeply disappointed their guards didn't just beat them senseless and sodomize them with the same sort of manure-shovel handle you've so happily lodged up your own arse, eh? -- but then again, maybe you'll find a bright side to this scandalous story when the day comes they take you in -- maybe they'll teach you a little English too . . .
(and never mind that those kids almost certainly never did anything in the first place to warrant or justify their having been held at all, let alone completely incommunicado, for an extended period of time -- if they had, dubya and gang would never have allowed their release)
Even the Bush administration is trying to stop the administering of Drugs that help people in pain..they are going after the doctors in witch hunts. Now the Doctors are scared of the costly attorney fees to protect themselves against the Federal government. When will this all end???? When Bush and his croneys get out of our lives forever. How dare they try and stop the treatment for all the people who suffer in real pain!
Here is an email from the founder of http://www.painreliefnetwork.org/
Dear Friends,
We at PRN have been working behind the scenes to involve AMA. This bodes extremely well for our movement. As soon as the new website is launched we will ask all our members to rejoin. You will see when you get there that we have made getting active on this issue easy.
Progress.
Siobhan
About the AMA Position on Pain Management Using Opioid Analgesics
Unbalanced and misleading media coverage on the abuse of opioid analgesics not only perpetuates misconceptions about pain management; it compromises the access to adequate pain relief sought by over 50 million Americans living with pain.
In the past several years, there has been growing recognition on the part of health care providers, government regulators, and the public that the undertreatment of pain is a major societal problem.
Pain of all types is undertreated in our society. The pediatric and geriatric populations are especially at risk for undertreatment. Physicians fears of using opioid therapy, and the fears of other health professionals, contribute to the barriers to effective pain management.
In 2001, in an unprecedented collaboration, the US Drug Enforcement Administration (DEA) joined 21 Health Groups, including the American Medical Association, calling for balanced policy governing prescription pain medications. "Both health care professionals and law enforcement and regulatory personnel, share a responsibility for ensuring that prescription pain medications are available to the patients who need them, and for preventing these drugs from becoming a source of harm or abuse," the joint statement said.
The AMA supports the position that (1) physicians who appropriately prescribe and/or administer controlled substances to relieve intractable pain should not be subject to the burdens of excessive regulatory scrutiny, inappropriate disciplinary action, or criminal prosecution. It is the policy of the AMA that state medical societies and boards of medicine develop or adopt mutually acceptable guidelines protecting physicians who appropriately prescribe and/or administer controlled substances to relieve intractable pain before seeking the implementation of legislation to provide that protection; (2) education of medical students and physicians to recognize addictive disorders in patients, minimize diversion of opioid preparations, and appropriately treat or refer patients with such disorders; and (3) the prevention and treatment of pain disorders through aggressive and appropriate means, including the continued education of physicians in the use of opioid preparations.
Additionally, the AMA supports the Federation of State Medical Boards Model Guidelines for the Use of Controlled Substances for the Treatment of Pain, which encourages adequate pain management and addresses physician concerns about disciplinary actions by medical boards, as well as the policies and guidelines of the American Pain Society, the American Academy of Pain Medicine, the American Geriatric Society, and the American Society for Addiction Medicine, which support the appropriate use of opioid analgesics for pain management.
At its annual policymaking meeting this summer, the AMA House of Delegates adopted policy recommendations stating their opposition to the harassment of physicians by DEA agents in response to the appropriate prescribing of controlled substances for pain management and to the inappropriate use of 21 Code of Federal Regulations Section 1306.04 or any other rationale that would involve placement of licensure restrictions on physicians who use opioid analgesics and other pain-reducing medications appropriately to treat patients with pain. The AMA requests that state medical and specialty societies submit examples of physicians who allegedly have been harassed by DEA agents for appropriate prescribing of controlled substances for pain management to the AMA's Office of General Counsel.
The AMA is committed to the goal of protecting the legitimate use of prescription drugs for patients in pain. And education is the best medicine.
To this end, the AMA has created a national Pain Management CME program for physicians to address many of these issues. The review board for this activity consists of expert reviewers from 16 medical specialty societies and other professional health care organizations. The CME program was funded through an unrestricted educational grant from Purdue Pharma, L.P.
In addition, the American Academy of Pain Medicine recently announced a new initiative, named TOP MED (Topics in Medicine), a comprehensive "virtual textbook" on treating patients of all ages suffering from different types of pain. The web-based, self-directed textbook will be made available free of charge to medical students across the country in the fall of 2004.
Preventing drug abuse is remains an important societal goal‹it should not hinder patients ability to receive the care they need and deserve or discourage physicians from prescribing pain medications when medically appropriate.
F6 note -- thanks to easymoney101 for this one -- this is a copy of the post she made over on the regular board, brought over here with her blessing:
http://www.investorshub.com/boards/read_msg.asp?message_id=2341222
easymoney101 -- people should take the time to read the things dubya actually said during that visit to Missouri:
http://www.investorshub.com/boards/read_msg.asp?message_id=2335670
nonsensical gibberish is what I see, uttered by a man who clearly has no clue re what he's talking about, and who for good measure is deliberately and even gleefully lying and engaging in demagoguery while he's at it
(PR NEWSWIRE) Remarks by President Bush in a Conversation on the Economy
WASHINGTON, Feb. 9 /PRNewswire/ -- The following is a transcript of
remarks by President Bush in a conversation on the economy:
SRC Automotive
Springfield, Missouri
12:25 P.M. CST
THE PRESIDENT: Jack, thanks for having me. I want to thank the good
folks who work here for allowing us to disrupt your day to talk about our
economy and how it works. And hopefully out of this discussion, people will
learn better how people make decisions, decisions with their own money or
decisions with investor's money. I hope people come away from this discussion
with this great sense of optimism about the future for our country. It's
exactly what I believe. I believe we ought to be -- (Applause).
So this ought to be a lot of fun. I am thrilled to be here with the two
United States Senators from Missouri, Kit Bond and Jim Talent. I appreciate
their friendship and thank them for coming. (Applause.) Congressman Roy
Blunt, who you know well, is with us today. (Applause.) He's a man who knows
a good deal. I said, would you like to fly down to your home town on Air
Force One? (Laughter.) Guess what his answer was? (Laughter.)
I appreciate the Mayor coming, Tom Carlson. Mr. Mayor, thank you for
being here. (Applause.) Fill the potholes. (Laughter and applause.) Sorry,
Mr. Mayor, you didn't ask for any advice. (Laughter.)
I also want to thank the other state and local officials and community and
business leaders for coming here. Thank you all for coming, as well.
Before I begin to talk a little bit about the economy, and then of course
have our panelists talk about what they think, and some of the decision-making
they made, I want to introduce a fellow who you may or may not know. His name
is Travis Morrison. Travis, why don't you stand up right quick. (Applause.)
I guess you know Travis. (Laughter.) I didn't until I arrived, but I know a
lot of people like Travis.
See, Travis is a person who takes time out of his life to volunteer in
your community. When the tornados hit here, he went up to help those who
suffered. When people are looking for food, particularly children, he's
willing to take time out of his life to fill the knapsacks full of food for
the kids. He walks for the March of Dimes. He works for the United Way.
He's a soldier in the army of compassion.
A lot of times, this country talks about our strengths, and we should. We
talk about the military strength of America. And that's important. And we're
going to keep us strong. We talk about how fat our wallets may be, and that's
important, too. But the true strength of America is found in the hearts and
souls of people like Travis, people who are willing to love their neighbor,
just like they would like to love themselves. (Applause.)
I like to talk about the Travis Morrisons of the world because everybody
can be an army -- a soldier in the army of compassion. Everybody can make a
difference. This country's strength is found in the faith centers and
neighborhoods and community centers, where people help somebody who hurts.
And one of my jobs is to lift that spirit of America and invigorate it and to
call people to action. One of the best ways to do so is to remind people that
in Springfield, Missouri, there are thousands of people like Travis, and if
you want to help your community, help make somebody's life a little brighter.
Travis, thanks for what you do. Thanks for being a solid, sound American by
volunteering to help somebody who hurts.
Speaking about strengths, our country has been through a lot over the last
three years. I just want you to think about what the economy has been
through. In March of 2000, the stock market started to decline, and that
matters if you own stocks. And a lot of you do. You own them through your
retirement accounts, for example. It was an indication of the rough times
ahead. See, when a stock market sometimes indicates -- is a predictor of the
future, and sure enough, in the first quarter of 2001, the country was in a
recession. And when you're in a recession, it means somebody is not going to
be able to work. Things are going backwards. The economy is in decline.
People are starting to get laid off. There's a lot of uncertainty out there.
People just aren't sure what their future looks like. It's tough times when
the country is in a recession.
We started to recover from the recession, and then we got attacked on
September the 11th, 2001. In other words, we had tough economic times to
begin with, and then the enemy hit us. And that changed us. It really did.
It hurt us economically. It changed our whole outlook about the world.
Perhaps by now, you're beginning to get an impression of how it changed my
outlook. It changed the way I look at the threats to America. It reminded me
that my most important duty, my most solemn obligation is to protect our
country and the people. I'll never forget the lessons of September the 11th,
and when I see a grave and gathering threat to the United States, we will deal
with it. We will deal with it for the good of our country. (Applause.)
The war on terror goes on, unfortunately. But we're going to win. We're
going to win because America is tough and strong and disciplined and patient.
We'll win because we've got fabulous men and women in the United States
military who are willing to sacrifice for our own security and for the
freedom. (Applause.)
And, then, after we settled in with the new reality of the world, we
discovered that some of the corporate citizens in America forgot what it meant
to be a responsible citizen. See, when you're a CEO of a corporation, you
have a responsibility -- Jack knows that and I suspect he might talk about --
at least when he talks, you'll hear he recognizes that. But we had some
people in this country who didn't tell the truth to their shareholders and
their employees.
By the way, we passed laws -- and I want to thank the senators and the
congressmen who are here -- we passed laws, and now they know there will be a
consequence in America for not telling the truth. We expect people in
positions of responsibility, in CEO America, in corporate America, to be
honest to their shareholders and their employees. That affected the people's
confidence. Make no mistake about it, when we started reading that some of
these CEOs of publicly-held companies lied with the numbers, it affected
people's confidence.
And then, of course, as you know, I made the tough decision to secure
America by -- after having gone to the United Nations and after having worked
to give Mr. Saddam Hussein a chance to disarm himself. To do what the world
had demanded, we went and disarmed him. (Applause.)
The march to war affected the people's confidence. It's hard to make
investment. See, if you're a small business owner or a large business owner
and you're thinking about investing, you've got to be optimistic when you
invest. Except when you're marching to war, it's not a very optimistic
thought, is it? In other words, it's the opposite of optimistic when you're
thinking you're going to war. War is not conducive to -- for investment. And
so we've overcome a lot. And I say we've overcome a lot because we're
growing. The growth is good. New jobs are being created. Interest rates are
low. Home ownership in America is at one of the highest levels ever, and
that's positive. People are owning their own home. (Applause.)
A lot of it had to do with the fact that we cut your taxes, a lot of the
reasons why this economy is growing. (Applause.) Make no mistake about it,
the main reason the economy is growing is because the entrepreneurial spirit
of America is strong and we've got the greatest workers in the world.
(Applause.) But it helps when those workers have got more money in their
pocket. And it helps when the small business owners have got more money in
their coffers. And that's what tax relief does. See, when you cut the taxes
for the people, you let them keep more of their own money. It means somebody
is going to demand an additional good or a service, and when they demand an
additional good or a service in our economy, somebody is going to produce that
good or a service. And when somebody produces it, somebody is more likely to
find work.
And, secondly, we did some smart things with the tax relief. We said if
you have a child, you ought to get help with raising that child, so we
increased the child credit to $1,000 per child. (Applause.) It says that we
want to -- we want the tax code to work the right way. We used to penalize
marriage. That didn't make any sense. We ought to be rewarding marriage in
the tax code -- and so there was a marriage penalty. (Applause.)
We helped small businesses by encouraging them to invest. We cut the
taxes on everybody. Sometimes in Washington you see them play favorites --
so-and-so gets a tax relief, so-and-so doesn't. My attitude is, if you're
going to give tax relief, you ought to give it to everybody who pays taxes.
(Applause.) And we did that, and it's helping. People have got more money in
their pocket to spend. You know what I'm talking about.
Small businesses are feeling pretty good about their future, because
there's incentives for them to invest. And by the way, it's very essential
for you to understand that when you say cutting taxes on everybody who pays
taxes -- in other words, you're reducing individual income tax rates -- that
affects small business. Most small business owners are sole proprietorships
or sub-chapter S corporations, which means they pay tax at the individual
income tax rate. So when you hear us talking about cutting individual income
taxes, think small business, as well.
And most new jobs in America are created by small businesses. It makes
sense to invigorate the small business sector of this country. If you're
worried about job creation, if you're worried about somebody finding work, it
makes sense to stimulate the small business sector of this economy. And
that's what we did.
Now, I want to -- before we let Jack talk -- he's probably wondering
whether or not -- I'm filibustering. (Laughter.) I think that's what you
call it in the Senate, isn't it? Yes. Anyway, I do want to talk to you real
quick that -- this is one of the real challenges we face -- a couple of
challenges. One, my attitude is, in order to make sure people can find work,
that we need to open up markets for U.S. products. I believe we need to have
tort reform so that these frivolous and junk lawsuits -- (applause.)
I know we need tort reform particularly when it comes to health care. The
costs of health care are going up dramatically. And that affects small
business owners, it affects employees. One cause of increasing health care
costs is the frivolous lawsuits that are running these docs out of business,
that are causing people to have to practice defensive medicine. We need
medical liability reform now in Washington, D.C. (Applause.)
We need association health plans so small businesses can pool risk, so
they can better provide health insurance for their employees. We need health
savings accounts. We've expanded them in the Medicare law, but I want people
to understand they're available now. And it's a really good way for people to
buy insurance, whether you're a small business owner and/or an employee.
People ought to look into health savings accounts.
We want less regulation. We need an energy plan. We need to be less
dependent on foreign sources of energy. If you're a business, you need to
have reliable sources of energy available. But I don't know if you know this
or not, but the tax relief we passed is set to expire, parts of it. And some
of it's going to expire next year in 2005. In other words, the child credit
is going down in 2005 unless Congress acts. The marriage penalty is going
back up in 2005 unless Congress acts. And that's going to be an interesting
part of the national dialogue. I believe we need to make the tax cuts
permanent. (Applause.)
There are some in Washington and they're going to say, let's not make the
tax cuts permanent. That means it's going to raise your taxes. When you hear
people say, we're not going to make this permanent, that means tax increase.
Now is not the time to raise taxes on the American people. This economy is
getting better. We're showing good growth, good strong growth. Yet, some in
Washington want to raise your taxes. Make no mistake about it -- let me tell
you what's going to happen when they raise them. They're going to say, oh,
we've got to raise it so we can pay down the deficit. No. They're going to
raise the taxes and increase the size of the federal government, which would
be bad for the United States economy.
People have got to understand and listen to the rhetoric carefully. When
they say, we're going to repeal Bush's tax cuts, that means they're going to
raise your taxes, and that's wrong, and that's bad economics. (Applause.)
Anyway, that's enough from me. (Laughter.)
MR. STACK: I'm stimulated, stimulated.
THE PRESIDENT: I'm not interested in you being stimulated, I'm interested
in the economy being stimulated. (Laughter.) And since you're an
entrepreneur -- (laughter). See, one of the things that's fabulous about this
country is people can start their own business. We want people owning
something in America. We want you owning your home; we want you owning your
own business; we want you owning your retirement account or your health care
plan; we want you managing your affairs.
And Jack understands what it means to own something. He's an
entrepreneur. He's a risk-taker. And as a result of being an entrepreneur and
a risk-taker and somebody who has actually made it happen in a positive way,
he's also an employer. He's hiring people.
So, Jack, thanks for your -- letting me come by.
MR. STACK: It's nice to have you here. You are definitely the toughest
act to follow I've ever had in my entire life. (Laughter.)
THE PRESIDENT: I think you can handle it.
* * * * *
THE PRESIDENT: He said bonus depreciation. That means that it was the
tax relief passed by Congress encouraged him to invest. When he buys a piece
of equipment, somebody has to make the equipment, which means somebody is more
likely to find a job. So when Jack makes a decision to buy a piece of
equipment, based upon the tax relief, he really says, I'm going to not only
help my workers become more productive -- which means better pay over time --
but it means somebody is going to have to make the equipment. And that's how
the economy works. It's an economy that responds to the decision-making
process of a lot of people around the world like Jack.
He said he's going to add employees. That's great. That's what I'm
hearing all over the country. You know, ten people here, 15 people there, but
it adds up in America. It adds up because there's a lot of entrepreneurs and
a lot of small businesses. In order to figure out how this economy is going
to do and whether or not to be upbeat about it, just listen to the business
owners, the small business owners who are on the leading edge of hiring folks.
We've got a fellow here named Mike Sadler. Mike is the President of Custom
Manufacturing and Polishing. Why don't you tell us what you do.
* * * * *
THE PRESIDENT: Mike's company is a sub-chapter S. That's a legal term
for they pay tax at the individual income tax rate. So when you hear people
talking about reducing individual income tax rates, you're really cutting
taxes on his business, as well. That's important if you're interested in job
growth because he has got more money in his coffers, money that will enable
him to more likely hire somebody as the demand for his products stay strong,
money that will enable him to pay for health care benefits for employees.
In other words, money available in the private sector, and particularly in
the small business coffers, is money that's going to be put to good use. It's
money that's going to make it easier for somebody to find a job. And I'm
telling you, Congress should not raise the taxes on people that are creating
jobs and of people that are spending this money wisely.
So I want to thank you, Mike, for coming. I appreciate you're
entrepreneurial spirit. You hiring anybody this year?
MR. SADLER: We're probably going to get two or three, yet, this year.
THE PRESIDENT: Two here, or three there, all of a sudden, it starts
adding up all across the country.
Tricia is with us. Tricia Derges is the President and CEO of Mostly
Memories. It's an interesting name.
MS. DERGES: It's an interesting company.
THE PRESIDENT: All right, well, tell us about it.
* * * * *
THE PRESIDENT: Good. Let me just pick up a couple of things she said.
One, she is going to invest. I don't want to get repetitive, but I'm going to
-- somebody has got to make the conveyor belt. (Laughter.) That's how the
economy works. When your people talk about stimulating the economy, tax
relief encourages her to make a decision, and that decision then affects
somebody's ability to find work.
Secondly, she talked about people who have been laid off. One of the most
important things our society must do is to train people for jobs which exist.
And I hope that the state of Missouri uses the community college system here
in a way that says, let's devise curriculum based upon the needs of the
employers, so that people can find work. We've constantly got to upgrade the
skills of our fellow citizens. As this economy changes, people need to get --
learn new skills. And the best place to do that is a place like the community
college. That's why I've called on Congress to provide money for job training.
And I'm sure you had to help these people learn their jobs. But it's
amazing what happens when people are able to gain new skills and a new lease
on life, be more productive as a worker. Higher productivity means better
pay.
I'll never forget meeting a lady in Arizona, where she told me that she
had worked 15 years as a graphic artist, went to community college, took some
courses, then got employed by a high-tech company, and makes more in her first
year in her new job as she did after 15 years in her old job. And so
education provides ample opportunity for new workers if it's done right. And
the best way to do it is to trust the local people to put a curriculum in
place to train people for jobs which actually exist.
Mr. Mayor, this is a good way to recruit business, by the way, is if
you've got a good worker training program so that the employers know that they
can find somebody who can do the job.
Speaking about people doing the job, Gary Brown is with us. He's a
warehouse supervisor here at SRC Automotive. Thanks for being with us.
You've got kids, you've got --
MR. BROWN: Yes, a lot of kids.
THE PRESIDENT: How many have you got?
MR. BROWN: I have four kids.
THE PRESIDENT: That is a lot. (Laughter.)
* * * * *
THE PRESIDENT: He got tax relief. See, everybody who pays taxes got tax
relief. He told me, about $3,000.
MR. BROWN: That's right.
THE PRESIDENT: That may not sound like a lot -- might not sound a lot to
somebody; it's a lot to him. (Applause.)
MR. BROWN: Yes, it is.
THE PRESIDENT: Sounds like a lot to me. (Applause.)
MR. BROWN: Yes, and if we continue going down that road, it's only going
to help us to -- my wife is a stay-at-home mom, we home-school all our kids.
And we'd like to continue that --
THE PRESIDENT: Congratulations.
MR. BROWN: -- and, hopefully, keep them home-schooled and with a good
education.
THE PRESIDENT: Yes, that's a -- first of all, Mom, you're doing -- that's
tough. (Laughter.) But it's -- I appreciate that. I appreciate the idea of
you wanting to give your children the education from you and the mom. Tax
relief helps; $3,000 makes it a little easier for mom to stay at home, to help
them meet their dreams and aspirations.
I'm going to tell you what's going to happen if Congress doesn't make this
permanent. When the child credit goes back down, this man and his family are
going to pay $1,500 more -- let me rephrase that -- instead of $3,000 a year,
they're only going to receive $1,500 a year from the government. That's like
a $1,500-tax increase. Now is not the time for Congress to be raising taxes
on the people. (Applause.)
MR. BROWN: To put some -- talk about my wife a little bit. One thing she
also does is she also takes care of my nephew, whose mom is right now serving
in the 203rd Engineer Battalion in Iraq. (Applause.)
THE PRESIDENT: Fabulous. Yes, thanks. I appreciate that. Pass the
word, the Commander-in-Chief is incredibly proud.
MR. BROWN: I will.
THE PRESIDENT: Thank her for her service. (Applause.) And you might
remind her, when Iraq is free and democratic and peaceful, it will change the
world.
These are historic times. These are times where we have a chance to
define a more peaceful world for our children. I mean, we'll keep America
secure by taking -- making the tough decisions, by speaking clearly and by
being strong. But it's also important for our fellow citizens -- and people
who wear our uniform can attest to this -- that a free Iraq in the midst of a
part of the world where there's such hatred, such despondency and
hopelessness, will be an historic moment for world peace. See, free societies
are peaceful societies. People need to see what can happen when there's a free
society.
And you tell your relative --
MR. BROWN: Sister.
THE PRESIDENT: Sister, you tell your sister, thanks a lot. And it's a
meaningful sacrifice she is making. (Applause.)
MR. BROWN: Thank you.
THE PRESIDENT: Teresa, thanks for coming.
MS. NOBLITT: It's an honor to be here with you.
THE PRESIDENT: You don't have a big family, do you?
MS. NOBLITT: Yes.
THE PRESIDENT: How many kids?
MS. NOBLITT: Four. (Laughter.)
THE PRESIDENT: It seems to be running here -- is this company policy?
(Laughter.) You've got five -- six. (Applause.)
Tell us about yourself. You're an accountant?
* * * * *
THE PRESIDENT: Yes, that's good. See, one of the things she's saying is
that with the tax relief means she can save more money and put it aside for
her kid's education. That's noble and important.
See, tax relief can be used to spend, and that's good, because it
increases consumer demand, but tax relief also is being saved by a lot of our
families, and that savings are really important in a society that rests upon
the flow of capital. Savings actually is capital to be invested so people can
find work. Tax relief is vital.
This family received $2,700 in tax relief this year, every year, unless
Congress, of course, doesn't act. When the child credit goes down and the
marriage penalty goes up, which is going to happen in '05 unless this Congress
acts, makes the decision, does what is right, this good family will pay $1,300
-- have $1,300 less in money to spend. And it means people in Congress will
be spending it.
Now, we've got plenty of money in Washington. I would rather have Teresa
making the decision with that $1,300 than the people in Congress. She makes
wise decisions with her money. (Applause.)
I hope you've enjoyed the conversation. I have. One of the things that
you hear if you listen carefully to what these folks are saying is that
government policies can make a difference in people's lives in a positive way.
The entrepreneurial spirit in this country is strong. You've got people who
started businesses out of garages and had people delivering goods in the
streets, and they had to kick them out and make them go get a warehouse.
(Laughter.) A guy takes a huge risk on a giant debt to equity ratio and has
succeeded. People buy the company. A man over here buys a company. This is
-- I love the entrepreneurial spirit in the country. And tax policy has got
to encourage it. (Applause.)
And we're going to keep it strong here in America. The other thing you
hear, mothers and dads doing their duty, being responsible citizens by loving
their children. Government needs to stand with the moms and dads. We need to
be squarely on their side, whether it be sending signals to professional
sports teams, we're not going to put up with any -- you ought not to be
putting up with any steroid use amongst your players. We ought to be
supporting the moms and dads who are trying to teach their children the right
lessons in life. We also ought to be supporting helping them raise their
kids. And tax relief helps people raise their children.
I'm glad you all came. I'm thrilled to be back in this part of our
country, the great Springfield, Missouri. It's got good folks here, good,
honest, down-to-earth, hardworking people that really represent the backbone
of America. I'm proud that you all sat us there today and shared your stories
with us. I hope the people listening have a better sense of how this economy
works. I hope the people listening come away with a great sense of optimism
about the future of America, primarily because the great strength of America
is the people of this country. And you just heard five good people talk about
America and where we're headed.
May God bless you all, and may God continue to bless this country.
(Applause.)
END
1:09 P.M. CST
SOURCE White House Press Office
-0- 02/09/2004
/CONTACT: White House Press Office, +1-202-456-2580/
/Web site: http://www.whitehouse.gov/
CO: White House Press Office
ST: District of Columbia, Missouri
IN:
SU: EXE ECO
*** end of story ***
Bush defends service record in NBC interview
President also stands by Tenet, decision to go to war in Iraq
By Mike Stuckey
MSNBC Politics Editor
Updated: 8:33 p.m. ET Feb. 08, 2004
President Bush defended his service in the National Guard during an interview aired Sunday on NBC’s “Meet the Press” and offered to produce evidence to counter allegations raised by political opponents that he was AWOL for a time in 1972.
In an hourlong session with host Tim Russert conducted Saturday in the Oval Office of the White House, the president also defended his decision to go to war in Iraq, said CIA chief George Tenet was in no danger of losing his job, and wouldn’t rule out further tax cuts, even before giant federal deficits are erased.
The charges about Bush’s service record, which date back to the 2000 campaign, have been raised again in this year’s campaign by a number of the Democratic candidates and the party chairman, Terry McAuliffe. What’s at issue is Bush’s record of attendance in the guard in 1972 when he transferred temporarily from a Texas unit to an Alabama unit while he was working on a political campaign.
Critics say he missed required drills during that time and that his “honorable” discharge on Oct. 1, 1973, shows that Bush completed five years and four months of service — less than the obligatory six years — before entering graduate school.
Massachusetts Sen. John Kerry, the front-runner for the Democratic presidential nomination, again questioned Bush's record in the National Guard on Sunday.
“Just because you get an honorable discharge does not in fact answer that question,” Kerry said while campaigning in Virginia.
The White House has consistently defended the president’s service record and says any comments about it are politically motivated.
But Kerry insisted he was not making a political issue of Bush’s service, saying he had no trouble with the “many people” like Bush who served in the Guard to reduce the odds of seeing combat in Vietnam.
“The issue here, as I have heard it raised, is was he present and active on duty in Alabama at the times he was suppose to be? I don’t have the answer to that question,” said Kerry, who won three Purple Hearts, one Bronze star and one Silver star in Vietnam.
On “Meet the Press,” Bush said, “I put in my time, proudly so.” When pressed by Russert on why news reporters who previously investigated the charge could find no records of his Alabama service, Bush said, “They’re just wrong. There may be no evidence, but I did report; otherwise, I wouldn’t have been honorably discharged. In other words, you don’t just say ‘I did something’ without there being verification. Military doesn’t work that way. I got an honorable discharge, and I did show up in Alabama.”
When asked why he served less than the six-year commitment, Bush responded, “I was going to Harvard Business School and worked it out with the military.”
The president said he “absolutely” would release all records of his time in the National Guard to settle the issue. “The records are kept in Colorado, as I understand, and they scoured the records. And I’m just telling you, I did my duty, and it’s politics, you know, to kind of ascribe all kinds of motives to me. But I have been through it before. I’m used to it.”
Other issues
On other topics, Bush did not explain why he changed his mind last week and appointed an independent commission to look into problems with U.S. intelligence agencies. But he said he was confident the probe “will help future presidents understand how best to fight the war on terror.”
As to the fact that the commission will not deliver its report until after Bush stands for re-election, the president said, “The reason why we gave it time is because we didn't want it to be hurried. This is a strategic look, kind of a big-picture look about the intelligence-gathering capacities of the United States of America, whether it be the capacity to gather intelligence in North Korea or how we've used our intelligence to, for example, learn more information about AQ Kahn. And it's important that this investigation take its time.”
Bush said that one issue with U.S. intelligence that does not concern him is Tenet’s stewardship of the CIA, saying his job is “not at all” in jeopardy.
Once again, Bush stood by his selling of the Iraq war to the American public by warning that Saddam Hussein had weapons of mass destruction, despite the fact that post-war searches have not supported that claim. “I went to Congress with the same intelligence — Congress saw the same intelligence I had, and they looked at exactly what I looked at, and they made an informed judgment based upon the information that I had. The same information, by the way, that my predecessor had. And all of us, you know, made this judgment that Saddam Hussein needed to be removed.”
Plan to cut deficit
On the economy, Bush touted his plan to cut the deficit in half within five years but would not rule out further tax cuts before the budget is balanced. “That's a hypothetical question which I can't answer to you because I don't know how strong the economy is going to be. I mean, the president must keep all options on the table, but I do know that raising the child — lowering the child credit thereby raising taxes on working families does not make sense when the economy is recovering, and that's exactly what some of them are calling for up on Capitol Hill.
"They want to raise taxes of the families with children, they want to increase the marriage penalty. They want to get rid of those taxes on small businesses that are encouraging the stimulation of new job creation, and I'm not going to have any of it.”
Asked about his declining approval ratings in the polls, and especially in Europe, Bush said, “When you do hard things, when you ask hard things of people, it can create tensions. And I … heck, I don't know why people do it. I'll tell you, though, I'm not going to change, see? I'm not trying to accommodate. I won't change my philosophy or my point of view. I believe I owe it to the American people to say what I'm going to do and do it, and to speak as clearly as I can, try to articulate as best I can why I make decisions I make, but I'm not going to change because of polls. That's just not my nature.”
http://msnbc.msn.com/id/4209283/
complete interview transcript (dubya said 'war' 33 times) at:
http://msnbc.msn.com/id/4179618/
(my comment -- is it just me, or is he showing signs of losing that relative sort of coherence and composure he had left in the tank to begin with?)
a shepherd, er, pilot just a little bit ahead of his time? -- and what's the big whoop anyway? -- I mean, really now, who in heck do they think they are, acting like they're gonna get religion into government without also getting it into the new consumerism?
(how can people like this NOT know just how incredibly presumptuous, patronizing, arrogant and rude this sort of thing is? -- if the rest of us have any questions about your beliefs, we'll ask -- trust us) (. . .)
Pilot reportedly promoted Christianity on flight
American spokesman: 'That would be against our policy'
Sunday, February 8, 2004 Posted: 10:42 PM EST (0342 GMT)
(CNN) -- American Airlines is investigating reports that a pilot asked passengers to identify themselves as Christians so non-Christians on board could talk to them about their faith, a spokesman has said.
Spokesman Tim Kincaid said on Sunday the incident reportedly happened Friday on Flight 34 from Los Angeles, California, to John F. Kennedy International Airport in New York City.
"It is under investigation," Kincaid said. "We've had some complaints about it."
Kincaid said the pilot, whose name was not released, reportedly asked Christian passengers to raise their hands before suggesting that the other passengers should discuss Christianity with those passengers.
The pilot, who had just returned from a mission to Costa Rica, reportedly said he would be available at the end of the flight for further discussion, Kincaid said.
"We're investigating to learn the facts," Kincaid said. "That would be against our policy if it did happen."
The pilot was not scheduled to fly during the weekend, the airline said.
http://www.cnn.com/2004/TRAVEL/02/08/airline.christianity/index.html
spree -- the very first thing we gotta do is get up off our own butts and vote -- it's gotta be the biggest percentage turnout by far in many cycles, the biggest ever by far in actual number -- without that, pulling a margin out of the swing votes, as I think Kerry will, could prove to be not enough
besides, I really don't want this to even be close -- 'go ahead, dub-boy, steal a couple, it don't matter' -- and I'm cautiously optimistic it won't
spree -- nah, it's gotta be Edwards -- he's a nicely balanced good campaigner who'll be perfect to play good cop to Kerry's bad cop -- but then again, I also think Kerry will probably take at least 2 or 3 southern states in any event . . .
spree -- yup (eom)
bulldzr -- here's hoping enough of us wake up to this cold new morning we do indeed all face (whether or not we see it for what it is) soon enough to be able to do something about it before there is no turning back -- where in particular the upcoming presidential election (assuming it actually happens, of course) will, whichever way it goes, be a decisive turning point, perhaps even the final decisive turning point if it goes to dubya . . .
. . . this is NOT a drill -- repeat, this is NOT a drill . . .
(easymoney101's friend's take on things here now should be interesting -- ya think?)
rooster -- and I think a lot of folks wish we'd had a true and courageous leadership that would, upon 9/11, have said something like:
"we will find those who orchestrated this atrocity, and we will move with great strength to protect ourselves; but we will not hand our enemies the very victory they seek in the ways we go about doing so -- no terrorists are going to cause us to ourselves destroy our own freedoms, the very freedoms for which we are known, the very freedoms which they so despise, as we respond with a terrible resolve to their repugnant schemes against, and attacks upon, our great nation . . ."
to anyone wanting so see more re Patriot Act II and related, just start by searching the web for "Patriot Act II" (with the quotes) -- I used http://www.google.com -- and for the whole picture, search the web also for "Victory Act" (again, with the quotes), which was just another attempt at Patriot Act II under a different name last Aug/Sept (remember that little related promotional tour asscrack made leading up to 9/11/03, and the related speech dubya made at Quantico that day?) (I'll forego any specific Victory Act posts for now; I think I've gotten the basics with what I've already posted today)
there's a lot out there -- and guess what, Tweedledum and Tweedledee -- this whole Patriot Act II and related deal is not just made up or make-believe or lunatic ranting, it's quite real . . .
(and regarding those nifty no-paper all-computerized voting systems we'll all have real soon, I forgot to mention -- of course they'll be all nice and secret too, so NOBODY will EVER know how YOU voted) (. . .)
zitboy, I've said it before and I hereby say it again -- I stand by what I've stated about my positions and reasonings, as (I take it) you stand by what you've stated re yours respectively -- and don't worry, I'm well aware you're damn well not gonna let anyone shine any light into that dark little corner you're hiding in, nosirree! -- the bottom line is, those who read our posts make up their own minds, and I'm just fine with that
(awaiting your thoughts re what if any sort of new constitutional amendment should be unconstitutional and void if it conflicts with the Constitution as it stood before -- that should be an easy one for you . . .)
finally, to wrap this string of Patriot Act II and related news and background posts, at least for now -- here's what's currently on the front page at patriotwatch.org (link at end):
:: PATRIOTWATCH ::
"As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air - however slight - lest we become unwitting victims of the darkness." Justice William O. Douglas
:: Saturday, February 07, 2004 ::
What We Warned You About
Feds Win Right to War Protesters' Records
"In what may be the first subpoena of its kind in decades, a federal judge has ordered a university to turn over records about a gathering of anti-war activists. In addition to the subpoena of Drake University, subpoenas were served this past week on four of the activists who attended a Nov. 15 forum at the school, ordering them to appear before a grand jury Tuesday, the protesters said."
Link to Article
PATRIOTWATCHERS please do what you can to support the Iowa anti-war activists. We will continue to keep you informed of what you can do to help.
You know we have never taken a position on the Iraq war. We support the brave young and women that are in Iraq. Our problem is with the administration and in particular the Pentagon. The overwhelming majority of those in the military are absolute professionals. We are confident that the overwhelming majority of those in the service support your right to speak out. To support our view please check out an interview by Axis of Logic with two U.S. soliders back from Iraq:
"You have to have been out of the country for a few months to notice it. I almost felt like I was coming home to a police state or something. They were screening everyone at the airport and pulled aside some elderly guy who was a prominent anti-war activist. I didn t catch his name but a few people at the airport said he was a Christian peace missionary who had been over in Iraq during the bombing campaign.
What are we coming to when we harass old men who have the courage to challenge our notions of war? That was like a slap in the face to me when I saw how rude and nasty they were to this kind looking old man. He had the courage to stand up for what he believed in and that is why I am in the military. I took an oath to defend our liberties and to see them trampled on was insulting.
We are supposed to be fighting the war on terror against the terrorists, not the people who should have the right to stand against war if they want to. I hope that the country can see how dangerous it is getting to speak out against this current administration. I don t really think the war protesters are right on most of their issues, but I would fight to the death for their right and freedom to say it. I know a lot of guys who have had their family protest the war. What s gonna happen when they start arresting the soldiers families, or stop them from flying on a plane?"
This is exactly where we are coming from. There is ABSOLUTELY nothing wrong with peaceful, non-violent protest. This is America. Hold the line at the Constitution!
...
:: Friday, February 06, 2004 ::
How to Protect America, and Your Rights
Jeffrey Rosen, author of the recently released the Naked Crowd takes a look at CAPPS II, MATRIX, the SAFE Act and sunsetting the PATRIOT Act:
"Unfortunately, officials have been less willing to accept sensible compromise in the design of another important data system, the Multistate Antiterrorism Information Exchange, or Matrix. This program would combine public and private databases — including criminal histories, driver's license data, digitized photographs and significant amounts of consumer data — to allow state and federal law enforcement officials to conduct searches and create personal dossiers. Eight states (including New York) have agreed to participate in the program, although several have refused because of privacy concerns. In its current form, the system poses a significant danger that unscrupulous state officials will conduct dragnets in search of crimes that have nothing to do with terrorism. But were the administration to follow the model of the Capps 2 compromise, the Matrix system could be designed so that names could not be linked with personal data unless the system indicated a significant risk for terrorism or other violent crimes.
Link to Article
...
EU Commission Plots Global Travel Surveillance System
Where the hell is the crowd that was afraid of black helicopters and the UN? Afraid of the UN...for some reason that is very funny. By the way whatever happened to Operation Eschelon?
"Observers of the European Commission's negotiations with the US Department of Homeland Security over the transfer of airline passenger data might easily run away with the impression that the Commission has meekly capitulated to the US' extraterritorial and unilateralist demands. A report into the Commission's activities published this week by Privacy International however argues persuasively that the Commission has used the US negotiations as a Trojan Horse to aid the construction, first, of the EU's own surveillance and monitoring systems, and second, of a global system.
Link to Article
...
The Business Travel Coalition Demands Hearings on CAPPS II
Shouldn't You?
Another sign it is ok to question the security measures presented by the U.S. government. At a minimum shouldn't Congress exercise it's vital role of oversight? The Business Travel Coalition thinks so.
"The Business Travel Coalition today transmitted a letter to the Senate Commerce and the House Transportation Committees signed by over 100 travel industry executives urging hearings on CAPPS II and the growing data privacy problems within commercial air transportation. Signatories to the letter stated, “There is increasing concern in all corners of the travel industry that there has been insufficient public policy debate regarding the tradeoffs, safeguards and remedies that such a comprehensive data collection program as CAPPS II should require. Personal travel information deserves the same level of Congressional scrutiny and debate that medical records and financial information policies were afforded in the past.”
Link to Article & Letter
...
:: Thursday, February 05, 2004 ::
Military to Ease Tribunal Rules for Lawyers
Talkleft reports that the Pentagon has decided to ease some it's rules for defense lawyers representing their clients at the military tribunals:
"The Pentagon has not dropped its insistence that agents can listen in, but the reworked rules are much more explicit about how the government chooses which suspects, if any, it will monitor, and which government agency will do the monitoring. A defense lawyer would be notified about planned electronic monitoring and could object to it at trial, [Miami Attorney Neal] Sonnett said.
Another big change: The Pentagon will remove the ban on private lawyers receiving help from their home offices or outside counsel in their representation of detainees at military tribunals, even if such lawyers are not on a Pentagon-approved list."
...
N.Y. City Council Passes Anti-Patriot Act Measure
Kudos to the Bill of Rights Defense Committee!!
"New York City, site of the country's most horrific terrorist attack, Wednesday became the latest in a long list of cities and towns that have formally opposed the expanded investigatory powers granted to law enforcement agencies under the USA Patriot Act."
Link to Article
...
GITMOWATCH
A win for the administration on GITMO: "The full court granted a request from the Bush administration to stop a lower court from communicating with a detainee at Guantanamo Bay, Cuba". UPI reports a breakdown of the GITMO detainees. The numbers include: at least 160 from Saudi Arabia, Yemen with 85, Pakistan with 82, Afghanistan 80, Jordan 30, Egypt 30, Tunisia 8, Russia 8, France 7, Bahrain 7, Candada 2, Australia 2, Chechnya 2, Uzbeks 2, Syrians 2, Georgian 2, Sudanese 2, and Bangladesh, Belgium, Denmark, Germany, Iraq, Kenya, Libya, Mauritania, Qatar, Spain and Sweden all have at least a single citizen at GITMO.
...
Bush Supports Deadline Extension for Sept. 11 Commission
"President Bush said on Wednesday that he would support a two-month extension for the federal commission investigating the Sept. 11, 2001 terrorist attacks, even though bipartisan legislation introduced this week calls for at least a seven-month extension."
Link to Article
What the Justice Department Inspector General's Report Doesn't Tell Us
"Last Wednesday, the Department of Justice (DOJ)'s Office of the Inspector General (OIG) issued a semiannual report that documented the processing of more than 1,000 complaints of alleged civil rights and civil liberties abuses the DOJ received in a six-month period. The report came on the heels of two major arguments for amending sections of the USA PATRIOT Act: On Monday, federal judge Audrey Collins handed down a ruling that part of the Act is unconstitutional. On Tuesday, one of the Act's leading authors, Georgetown Law Professor Viet Dinh, said that he supports modifications.
Link to Article
...
:: Wednesday, February 04, 2004 ::
Bush Administration Surveillance Update
The Pentagon has decided to kill the LifeLog project. CAPPS II, TTIC, the Terrorist Screening Center, the National Crime Information Center and parts of US VISIT all receive an increase in the President's budget request. From the creators of TIA a new project Metacarta. DARPA envisions that Metacarta will " find, track and sometimes arrest people...across the globe". The Antiwarblog reports on pending legislation that would embed CIA agents in local police departments. Meanwhile, EPIC reports that CAPPS II Director Admiral Loy recently testified that "14.5% of all passengers are currently designated as selectees and that CAPPS II is gameable and can be compromised. CAPPS II cannot go forward until a congressionally mandated GAO report on the privacy implications of CAPPS II is published. The report is due on February 15th (Sunday on a federal holiday of a three day weekend??)
...
PI releases Report on Transfers of Air Passenger Data to the U.S. Department of Homeland Security
"Privacy International has released a report on the transfer of passenger data between the EU and the U.S. The report is the most comprehensive investigation yet published on negotiations between the US Department of Homeland Security and the Commission over the mandatory transfer to the US of files on all EU air passengers. The report shows how the European Commission agreed to U.S. requests for European data in order to create its own European surveillance system to track movement throughout the EU."
Link to Report
...
:: Tuesday, February 03, 2004 ::
How We Are Fighting the War on Terrorism-IDs and the Illusion of Security
Another great piece by security expert Bruce Schneier:
"In recent years there has been an increased use of identification checks as a security measure. Airlines always demand photo IDs, and hotels increasingly do so. They're often required for admittance into government buildings, and sometimes even hospitals. Everywhere, it seems, someone is checking IDs. The ostensible reason is that ID checks make us all safer, but that's just not so. In most cases, identification has very little to do with security.
Let's debunk the myths:
Link to Op-Ed
...
This is Patriotic?
"Only 45 days after the World Trade Center attack, Congress approved legislation that the president signed that same day. The USA Patriot Act passed with one day of debate and virtually no public participation.
It is not about patriotism."
Link to Op-Ed
...
Tennessee Considers Joining the MATRIX
"The decision for Tennessee to join a federally funded crime and terrorism database project some consider too expensive and an invasion of residents' privacy will be made after a new Tennessee Bureau of Information director is hired, officials say."
Link to Article
...
Urge Congress to Reject Ashcroft’s Veto Threat -ACLU
"Two years after the passage of the PATRIOT Act, the movement to fix this broad and un-American piece of legislation is gaining momentum. Despite an unprecedented public relations offensive by Attorney General Ashcroft and a veto threat from the White House, Congress is moving toward revising the Patriot Act’s most dangerous provisions."
Link to Article
...
:: Monday, February 02, 2004 ::
Read About Whistleblower Jesselyn Radack
PATRIOTWATCH supports strong protections for whistleblowers. Mother Jones examines Jesselyn Radack and whistleblowers in this excellent article:
"Although not as well known, Radack seems to have joined the ranks of people who've been punished or exiled by the Bush administration for questioning its policies or spin, the most recent being Ambassador Joseph Wilson and his CIA operative wife. But what's happened to Radack is more than just a case study of political vengeance, Bush-style. "Whistleblowers are not necessarily people I'd want to have a beer with," says C. Fred Alford, a University of Maryland political scientist and the author of a fascinating book that applies psychological theory to whistleblowers' experiences. "There is almost by definition something a little unsocialized about the true believer, as I like to call them." Or even, in our go-along-to-get-along society, something a little scary. As one whistleblower told Alford, we're all afraid of people who feel compelled to "commit the truth."
For more information on Jesselyn Radack check out her web site Coalition for Democratic Rights and Civil Liberties
...
MATRIX Update
Utah unloads the MATRIX, Maryland declines and Iowa considers joining the MATRIX. One question remains. How did former Utah Governor Mike Leavitt sign up Utahns to the MATRIX without ever consulting the public or the state legislature? Finally, the MATRIX is cleared in a case of handing over personal information on one Utah citizen.
...
http://www.patriotwatch.org/
zitboy -- amd just where exactly did I say that I agreed, or concede that I had to agree, with Jefferson on every point?? -- sorry, but I've always been an absolutist 'Federalist' on this one; hardly a radical position -- it in fact is, and also properly should and has to be, the Supreme Court that has final, sole jurisdiction over what is and is not constitutional (and yes, even 'constitutionally constitutional', as you so aptly put it)
I can't say exactly what all the 'supreme court dude' read, as I wasn't there, though I'd bet everything I've got he read the whole entire Constitution at least once before he got to the Supreme Court -- btw, do you ever find it at all curious that you apparently think that that 'dude' you (summarily and without basis, btw) derided for having authored what remains a major Supreme Court Constitutional law decision could somehow have done that without ever having read the Constitution? or was that just your way of saying he just had to be one of those idiots who obviously don't 'get' it because his evident view of the Constitution doesn't coincide with yours?
what I can say is that you definitely have absolutely no respect for, and apparently have no true understanding of, the Constitution, what it is, why it is, and what it means (heck, you can't or won't even get to grips with the long-established and unquestioned 'Federalist' role and jurisdiction of the Supreme Court on issues of Constitutional law) -- at least not one bit I can see based on the spew you've been hurling in front of us here so far -- the only unifying theme I see so far in your gibberish is the attitude of one who is hell-bent on (trying to rationalize) changing the Constitution, in ways that will destroy fundamental principles embodied in the Constitution (whether that aspect is fully appreciated or admitted or not); beyond that, never mind what the Constitution actually says or means, let alone the rest of reality that doesn't (including the rest of us who don't) conform to the agenda
if you want to really show me and the rest of us what ya got -- if you want to chew on the ultimate and at this point the sole utterly unanswered intellectual nut remaining in this area -- try this one:
can the Supreme Court, should the Supreme Court have power and jurisdiction to, hold unconstitutional (unconstitutionally unconstitutional, even) a new duly-adopted amendment to the Constitution, on the basis of being directly contrary to and incompatible with, and therefore impermissible and void, under existing principles set forth in the Constitution before such amendment?
say, for example, an amendment explicitly repealing the separation of church and state and (among other things) explicitly authorizing the federal government to run and fund social programs, including prisons, through religious institutions?
then say, for example, an amendment that simply repeals the 4th Amendment; hell, it's damned inconvenient in this terrorist age, not to mention already shot full of holes and damned unrealistic anyhow by now anyway, right?
then say, for example, an amendment that simply repeals the 2d Amendment?
and then let's skip any further incrementals and go straight to the extreme case -- an amendment that explicitly repeals the Constitution in its entirety and substitutes some 'perfect' basis for a fascist police state that (at least effectively) abolishes (any real power of) the legislative and judicial branches, consolidates absolute power in the executive, and reduces any individual rights and liberties that remain at that point to privileges that may or may not be granted to some good and honest part or other of the populace from time to time in the sole discretion of the executive?
in short -- is there anything in the Constitution as it stands now that your 'we' can't change or repeal? -- if so, what? defined how, and why? and how exactly is such an amendment, which by definition could not happen without the backing of the executive to begin with, to be blocked if adopted? -- and if there is nothing your 'we' can't change or repeal, how again, exactly, and why, do you figure not?
(to anyone who actually thinks about this and would like to give it just that one little extra bit of zing, don't forget to remember -- we're all going to have those nifty no-paper all-computerized voting systems when it comes to all those various state votes on ratifying any such crazy amendments that could never happen, which will have to have happened before any such crazy amendments that could never happen could ever reach the Supreme Court -- or not) (. . .)
Secret Patriot Act II Destroys Remaining US Liberty
Total Police State Takeover
The Secret Patriot Act II Destroys What Is Left of American Liberty
By Alex Jones
www.infowars.com
2-11-3
Congressman Ron Paul (R-Tex) told the Washington Times that no member of Congress was allowed to read the first Patriot Act that was passed by the House on October 27, 2001. The first Patriot Act was universally decried by civil libertarians and Constitutional scholars from across the political spectrum. William Safire, while writing for the New York Times, described the first Patriot Act's powers by saying that President Bush was seizing dictatorial control.
On February 7, 2003 the Center for Public Integrity, a non-partisan public interest think-tank in DC, revealed the full text of the Domestic Security Enhancement Act of 2003. The classified document had been leaked to them by an unnamed source inside the Federal government. The document consisted of a 33-page section by section analysis of the accompanying 87-page bill.
*Note: On February 10, 2003 I discovered that not only was there a house version that had been covertly brought to Hastert, but that many provisions of the now public Patriot Act II had already been introduced as pork barrel riders on Senate Bill S. 22. Dozens of subsections and even the titles of the subsections are identical to those in the House version. This is very important because it catches the Justice Department in a bald-faced lie. The Justice Department claimed that the secret legislation brought into the House was only for study, and that at this time there was no intention to try and pass it. Now upon reading S. 22, it is clear that the leadership of the Senate is fully aware of the Patriot Act II, and have passed these riders out of their committees into the full bill. I spent two hours scanning through S. 22 and, let me tell you, it is a nightmare for anyone who loves liberty. It even contains the Our Lady of Peace Act that registers all gun owners. It bans the private sale of all firearms, creates a Federal ballistics database, and much more.
The bill itself is stamped 'Confidential ö Not for Distribution.' Upon reading the analysis and bill, I was stunned by the scientifically crafted tyranny contained in the legislation. The Justice Department Office of Legislative Affairs admits that they had indeed covertly transmitted a copy of the legislation to Speaker of the House Dennis Hastert, (R-Il) and the Vice President of the United States, Dick Cheney as well as the executive heads of federal law enforcement agencies.
It is important to note that no member of Congress was allowed to see the first Patriot Act before its passage, and that no debate was tolerate by the House and Senate leadership. The intentions of the White House and Speaker Hastert concerning Patriot Act II appear to be a carbon copy replay of the events that led to the unprecedented passage of the first Patriot Act.
There are two glaring areas that need to be looked at concerning this new legislation:
1. The secretive tactics being used by the White House and Speaker Hastert to keep even the existence of this legislation secret would be more at home in Communist China than in the United States. The fact that Dick Cheney publicly managed the steamroller passage of the first Patriot Act, insuring that no one was allowed to read it and publicly threatening members of Congress that if they didn't vote in favor of it that they would be blamed for the next terrorist attack, is by the White House's own definition terrorism. The move to clandestinely craft and then bully passage of any legislation by the Executive Branch is clearly an impeachable offense.
2. The second Patriot Act is a mirror image of powers that Julius Caesar and Adolf Hitler gave themselves. Whereas the First Patriot Act only gutted the First, Third, Fourth and Fifth Amendments, and seriously damaged the Seventh and the Tenth, the Second Patriot Act reorganizes the entire Federal government as well as many areas of state government under the dictatorial control of the Justice Department, the Office of Homeland Security and the FEMA NORTHCOM military command. The Domestic Security Enhancement Act 2003, also known as the Second Patriot Act is by its very structure the definition of dictatorship.
I challenge all Americans to study the new Patriot Act and to compare it to the Constitution, Bill of Rights and Declaration of Independence. Ninety percent of the act has nothing to do with terrorism and is instead a giant Federal power-grab with tentacles reaching into every facet of our society. It strips American citizens of all of their rights and grants the government and its private agents total immunity.
Here is a quick thumbnail sketch of just some of the draconian measures encapsulated within this tyrannical legislation:
SECTION 501 (Expatriation of Terrorists) expands the Bush administration's "enemy combatant" definition to all American citizens who "may" have violated any provision of Section 802 of the first Patriot Act. (Section 802 is the new definition of domestic terrorism, and the definition is "any action that endangers human life that is a violation of any Federal or State law.") Section 501 of the second Patriot Act directly connects to Section 125 of the same act. The Justice Department boldly claims that the incredibly broad Section 802 of the First USA Patriot Act isn't broad enough and that a new, unlimited definition of terrorism is needed.
Under Section 501 a US citizen engaging in lawful activities can be grabbed off the street and thrown into a van never to be seen again. The Justice Department states that they can do this because the person "had inferred from conduct" that they were not a US citizen. Remember Section 802 of the First USA Patriot Act states that any violation of Federal or State law can result in the "enemy combatant" terrorist designation.
SECTION 201 of the second Patriot Act makes it a criminal act for any member of the government or any citizen to release any information concerning the incarceration or whereabouts of detainees. It also states that law enforcement does not even have to tell the press who they have arrested and they never have to release the names.
SECTION 301 and 306 (Terrorist Identification Database) set up a national database of "suspected terrorists" and radically expand the database to include anyone associated with suspected terrorist groups and anyone involved in crimes or having supported any group designated as "terrorist." These sections also set up a national DNA database for anyone on probation or who has been on probation for any crime, and orders State governments to collect the DNA for the Federal government.
SECTION 312 gives immunity to law enforcement engaging in spying operations against the American people and would place substantial restrictions on court injunctions against Federal violations of civil rights across the board.
SECTION 101 will designate individual terrorists as foreign powers and again strip them of all rights under the "enemy combatant" designation.
SECTION 102 states clearly that any information gathering, regardless of whether or not those activities are illegal, can be considered to be clandestine intelligence activities for a foreign power. This makes news gathering illegal.
SECTION 103 allows the Federal government to use wartime martial law powers domestically and internationally without Congress declaring that a state of war exists.
SECTION 106 is bone-chilling in its straightforwardness. It states that broad general warrants by the secret FSIA court (a panel of secret judges set up in a star chamber system that convenes in an undisclosed location) granted under the first Patriot Act are not good enough. It states that government agents must be given immunity for carrying out searches with no prior court approval. This section throws out the entire Fourth Amendment against unreasonable searches and seizures.
SECTION 109 allows secret star chamber courts to issue contempt charges against any individual or corporation who refuses to incriminate themselves or others. This sections annihilate the last vestiges of the Fifth Amendment.
SECTION 110 restates that key police state clauses in the first Patriot Act were not sunsetted and removes the five year sunset clause from other subsections of the first Patriot Act. After all, the media has told us: "this is the New America. Get used to it. This is forever."
SECTION 111 expands the definition of the "enemy combatant" designation.
SECTION 122 restates the government's newly announced power of "surveillance without a court order."
SECTION 123 restates that the government no longer needs warrants and that the investigations can be a giant dragnet-style sweep described in press reports about the Total Information Awareness Network. One passage reads, "thus the focus of domestic surveillance may be less precise than that directed against more conventional types of crime."
*Note: Over and over again, in subsection after subsection, the second Patriot Act states that its new Soviet-type powers will be used to fight international terrorism, domestic terrorism and other types of crimes. Of course the government has already announced in Section 802 of the first USA Patriot act that any crime is considered domestic terrorism.
SECTION 126 grants the government the right to mine the entire spectrum of public and private sector information from bank records to educational and medical records. This is the enacting law to allow ECHELON and the Total Information Awareness Network to totally break down any and all walls of privacy.
The government states that they must look at everything to "determine" if individuals or groups might have a connection to terrorist groups. As you can now see, you are guilty until proven innocent.
SECTION 127 allows the government to takeover coroners' and medical examiners' operations whenever they see fit. See how this is like Bill Clinton's special medical examiner he had in Arkansas that ruled that people had committed suicide when their arms and legs had been cut off.
SECTION 128 allows the Federal government to place gag orders on Federal and State Grand Juries and to take over the proceedings. It also disallows individuals or organizations to even try to quash a Federal subpoena. So now defending yourself will be a terrorist action.
SECTION 129 destroys any remaining whistleblower protection for Federal agents.
SECTION 202 allows corporations to keep secret their activities with toxic biological, chemical or radiological materials.
SECTION 205 allows top Federal officials to keep all their financial dealings secret, and anyone investigating them can be considered a terrorist. This should be very useful for Dick Cheney to stop anyone investigating Haliburton.
SECTION 303 sets up national DNA database of suspected terrorists. The database will also be used to "stop other unlawful activities." It will share the information with state, local and foreign agencies for the same purposes.
SECTION 311 federalizes your local police department in the area of information sharing.
SECTION 313 provides liability protection for businesses, especially big businesses that spy on their customers for Homeland Security, violating their privacy agreements. It goes on to say that these are all preventative measures ö has anyone seen Minority Report? This is the access hub for the Total Information Awareness Network.
SECTION 321 authorizes foreign governments to spy on the American people and to share information with foreign governments.
SECTION 322 removes Congress from the extradition process and allows officers of the Homeland Security complex to extradite American citizens anywhere they wish. It also allows Homeland Security to secretly take individuals out of foreign countries.
SECTION 402 is titled "Providing Material Support to Terrorism." The section reads that there is no requirement to show that the individual even had the intent to aid terrorists.
SECTION 403 expands the definition of weapons of mass destruction to include any activity that affects interstate or foreign commerce.
SECTION 404 makes it a crime for a terrorist or "other criminals" to use encryption in the commission of a crime.
SECTION 408 creates "lifetime parole" (basically, slavery) for a whole host of crimes.
SECTION 410 creates no statute of limitations for anyone that engages in terrorist actions or supports terrorists. Remember: any crime is now considered terrorism under the first Patriot Act.
SECTION 411 expands crimes that are punishable by death. Again, they point to Section 802 of the first Patriot Act and state that any terrorist act or support of terrorist act can result in the death penalty.
SECTION 421 increases penalties for terrorist financing. This section states that any type of financial activity connected to terrorism will result to time in prison and $10-50,000 fines per violation.
SECTIONS 427 sets up asset forfeiture provisions for anyone engaging in terrorist activities.
There are many other sections that I did not cover in the interest of time. The American people were shocked by the despotic nature of the first Patriot Act. The second Patriot Act dwarfs all police state legislation in modern world history.
Usually, corrupt governments allow their citizens lots of wonderful rights on paper, while carrying out their jackbooted oppression covertly. From snatch and grab operations to warantless searches, Patriot Act II is an Adolf Hitler wish list.
You can understand why President Bush, Dick Cheney and Dennis Hastert want to keep this legislation secret not just from Congress, but the American people as well. Bill Allison, Managing Editor of the Center for Public Integrity, the group that broke this story, stated on my radio show that it was obvious that they were just waiting for another terrorist attack to opportunistically get this new bill through. He then shocked me with an insightful comment about how the Federal government was crafting this so that they could go after the American people in general. He also agreed that the FBI has been quietly demonizing patriots and Christians and "those who carry around pocket Constitutions."
I have produced two documentary films and written a book about what really happened on September 11th. The bottom line is this: the military-industrial complex carried the attacks out as a pretext for control. Anyone who doubts this just hasn't looked at the mountains of hard evidence.
Of course, the current group of white collar criminals in the White House might not care that we're finding out the details of their next phase. Because, after all, when smallpox gets released, or more buildings start blowing up, the President can stand up there at his lectern suppressing a smirk, squeeze out a tear or two, and tell us that "See I was right. I had to take away your rights to keep you safe. And now it's your fault that all of these children are dead." From that point on, anyone who criticizes tyranny will be shouted down by the paid talking head government mouthpieces in the mainstream media.
You have to admit, it's a beautiful script. Unfortunately, it's being played out in the real world. If we don't get the word out that government is using terror to control our lives while doing nothing to stop the terrorists, we will deserve what we get - tyranny. But our children won't deserve it.
------------------------------------
Comment
From Jim
Italicsmyn@aol.com
2-13-3
Jeff,
Alex Jones' article, Secret Patriot Act II Destroys What is Left of American Liberty, reminds me:
In the 1970's I had a friend who had penpals all over the world. One day he wrote me that his pal in the Soviet Union had written that he feared for his life because the KGB were shadowing his every move. He never knew why. A stray word perhaps? Then one day he just disappeared, as so many seemed to do. And I thanked God that I lived in a country where that kind of thing didn't happen.
The story is told that shortly after Nikita Khrushchev was made leader of the Soviet Union, he was addressing a large audience on the iniquities of Joseph Stalin when suddenly a voice shot out from the back of the hall: "You were one of his colleagues, why didn't you stop him?"
Glaring round the crowded hall, Khrushchev bellowed: "Who said that?"
No one moved in the awful silence that followed.
"WHO said that!" Still not a man moved.
And when the tension had become unbearable,
Khrushchev quietly said: "Now you know why."
Jim
http://www.rense.com/general34/takeover.htm
With a Whisper, Not a Bang
By David Martin
The San Antonio Current
Wednesday 24 December 2003
Bush signs parts of Patriot Act II into law — stealthily.
On December 13, when U.S. forces captured Saddam Hussein, President George W. Bush not only celebrated with his national security team, but also pulled out his pen and signed into law a bill that grants the FBI sweeping new powers. A White House spokesperson explained the curious timing of the signing - on a Saturday - as "the President signs bills seven days a week." But the last time Bush signed a bill into law on a Saturday happened more than a year ago - on a spending bill that the President needed to sign, to prevent shuttng down the federal government the following Monday.
By signing the bill on the day of Hussein's capture, Bush effectively consigned a dramatic expansion of the USA Patriot Act to a mere footnote. Consequently, while most Americans watched as Hussein was probed for head lice, few were aware that the FBI had just obtained the power to probe their financial records, even if the feds don't suspect their involvement in crime or terrorism.
The Bush Administration and its Congressional allies tucked away these new executive powers in the Intelligence Authorization Act for Fiscal Year 2004, a legislative behemoth that funds all the intelligence activities of the federal government. The Act included a simple, yet insidious, redefinition of "financial institution," which previously referred to banks, but now includes stockbrokers, car dealerships, casinos, credit card companies, insurance agencies, jewelers, airlines, the U.S. Post Office, and any other business "whose cash transactions have a high degree of usefulness in criminal, tax, or regulatory matters."
Congress passed the legislation around Thanksgiving. Except for U.S. Representative Charlie Gonzalez, all San Antonio's House members voted for the act. The Senate passed it with a voice vote to avoid individual accountability. While broadening the definition of "financial institution," the Bush administration is ramping up provisions within the 2001 USA Patriot Act, which granted the FBI the authority to obtain client records from banks by merely requesting the records in a "National Security Letter." To get the records, the FBI doesn't have to appear before a judge, nor demonstrate "probable cause" - reason to believe that the targeted client is involved in criminal or terrorist activity. Moreover, the National Security Letters are attached with a gag order, preventing any financial institution from informing its clients that their records have been surrendered to the FBI. If a financial institution breaches the gag order, it faces criminal penalties. And finally, the FBI will no longer be required to report to Congress how often they have used the National Security Letters.
Supporters of expanding the Patriot Act claim that the new law is necessary to prevent future terrorist attacks on the U.S. The FBI needs these new powers to be "expeditious and efficient" in its response to these new threats. Robert Summers, professor of international law and director of the new Center for Terrorism Law at St. Mary's University, explains, "We don't go to war with the terrorists as we went to war with the Germans or the North Vietnamese. If we apply old methods of following the money, we will not be successful. We need to meet them on an even playing field to avoid another disaster."
Opponents of the PATRIOT Act and its expansion claim that safeguards like judicial oversight and the Fourth Amendment, which prohibits unreasonable search and seizure, are essential to prevent abuses of power. "There's a reason these protections were put into place," says Chip Berlet, senior analyst at Political Research Associates, and a historian of U.S. political repression. "It has been shown that if you give [these agencies] this power they will abuse it. For any investigative agency, once you tell them that they must make sure that they protect the country from subversives, it inevitably gets translated into a program to silence dissent."
Opponents claim the FBI already has all the tools to stop crime and terrorism. Moreover, explains Patrick Filyk, an attorney and vice president of the local chapter of the ACLU, "The only thing the act accomplishes is the removal of judicial oversight and the transfer of more power to law enforcements agents."
This broadening of the Patriot Act represents a political victory for the Bush Administration's stealth legislative strategy to increase executive power. Last February, shortly before Bush launched the war on Iraq, the Center for Public Integrity obtained a draft of a comprehensive expansion of the Patriot Act, nicknamed Patriot Act II, written by Attorney General John Ashcroft's staff. Again, the timing was suspicious; it appeared that the Bush Administration was waiting for the start of the Iraq war to introduce Patriot Act II, and then exploit the crisis to ram it through Congress with little public debate.
The leak and ensuing public backlash frustrated the Bush administration's strategy, so Ashcroft and Co. disassembled Patriot Act II, then reassembled its parts into other legislation. By attaching the redefinition of "financial institution" to an Intelligence Authorization Act, the Bush Administration and its Congressional allies avoided public hearings and floor debates for the expansion of the Patriot Act.
Even proponents of this expansion have expressed concern about these legislative tactics. "It's a problem that some of these riders that are added on may not receive the scrutiny that we would like to see," says St. Mary's Professor Robert Summers.
The Bush Administration has yet to answer pivotal questions about its latest constitutional coup: If these new executive powers are necessary to protect United States citizens, then why would the legislation not withstand the test of public debate? If the new act's provisions are in the public interest, why use stealth in ramming them through the legislative process?
http://www.truthout.org/docs_03/printer_122903A.shtml
Ashcroft pushing PATRIOT II, Bush hesitating
By BILL STRAUB
Scripps Howard News Service
June 12, 2003
WASHINGTON - Attorney General John Ashcroft is pushing for enhanced law enforcement powers to conduct the nation's ongoing war on terrorism, but the White House is taking a cautious route in the face of some public and congressional reservations.
Ashcroft, the moving force behind the USA-PATRIOT Act, said the law he credited with helping to "save innocent lives" nonetheless contains "several weaknesses which terrorists could exploit, undermining our defenses."
With that in mind, the Justice Department continues to work on what is popularly referred to as PATRIOT II, which would further broaden law enforcement's mandate. Ashcroft already is publicly lobbying for three changes - making it unlawful to fight for a designated terrorist organization, imposing the death penalty for various terrorist actions and extending pre-trial detention for those arrested for terrorism-related offenses.
Several members of Congress, including Republicans like Rep. James Sensenbrenner of Wisconsin, chairman of the House Judiciary Committee, have expressed concerns about providing law enforcement with much more authority, raising questions about civil liberties.
"I believe the (Justice) Department and Congress must be vigilant toward short-term gains which ultimately may cause long-term harm to the spirit of liberty and equality which animate the American character," Sensenbrenner said.
Now the White House is sending signals that it prefers a slow approach to dealing with any changes and is promising to work with lawmakers in assessing the strengths and weaknesses of the anti-terrorism laws.
Ari Fleischer, the president's press secretary, said the administration is constantly reassessing the status of anti-terrorism laws, "because it's an ongoing issue against opponents who quickly realize what strengths we have and then design ways to get around our strengths to exploit potential weaknesses."
It's likely, he said, that the period of constant review will continue for an extended period.
"And this will also be, of course, done with an eye toward maintaining civil liberties and constitutional protections," Fleischer said. "And this is where it's very important to continue to discuss these matters with members of Congress in both parties who have important thoughts about this."
Asked specifically if President Bush supports Ashcroft's push for broader powers, Fleischer said, "the president wants to work closely with members of Congress on anything that will help strengthen our ability to fight terrorism, and it depends on the specifics and we'll work with Congress on those."
Recent reports have raised questions about the USA-PATRIOT Act as it pertains, for instance, to holding individuals in police custody without a warrant while authorities investigate their immigration status. A recent inspector general's report criticized the Justice Department for the treatment accorded some illegal aliens who were rounded up and detained even though it turned out they had no connections with terrorism.
Ashcroft is unapologetic, insisting that the USA-PATRIOT Act has resulted in "steady progress in America's war on terrorism." The Justice Department, he said, has reached plea agreements with 15 individuals charged under the law who are providing "critical intelligence about al Qaeda and other terrorist groups, about their safe houses, their training camps, their recruitment, their tactics in the United States and the operations of terrorists who mean to do citizens harm, both here and abroad."
http://www.knoxstudio.com/shns/story.cfm?pk=BUSH-ASHCROFT-06-12-03&cat=WW
Red Alert for Bill of Rights!
Justice Department vs. Democracy
Nat Hentoff
March 7th, 2003 7:00 PM
The Justice Department . . . seems to be running amok. . . . This agency right now is the biggest threat to personal liberty in the country. —Republican conservative Dick Armey, former House majority leader, New Republic, October 21, 2002
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This nation . . . has no right to expect that it always will have wise and humane rulers, sincerely attached to the principles of the Constitution. . . . [If] the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. —United States Supreme Court, Ex Parte Milligan, 1866, declaring Abraham Lincoln's suspension of habeas corpus and other abuses of the Bill of Rights unconstitutional
--------------------------------
We may never know the name of the patriot who leaked John Ashcroft's draft of a sequel to the USA Patriot Act to Charles Lewis, head of the Center for Public Integrity. Lewis put the 86 pages on his web site (www.publicintegrity.org) on February 7, and that night Bill Moyers interviewed Lewis on his PBS television program, Now. This broke the story of the most radical government plan in our history to remove from Americans their liberties under the Bill of Rights.
As The Washington Post warned in a February 12 editorial, this proposed law—prepared in secret for months while the Justice Department told Congress it had no such legislation in mind—gives the Bush administration "more power unilaterally to exempt people from the protections of the justice system and place them in a kind of alternative legal world." For more on the liberties that may be lost—through secret arrests, stripping Americans of citizenship, dragnet collection of DNA—see last week's column, "Ashcroft Out of Control."
On Bill Moyers's program, Charles Lewis said it took "the most incredible kind of courage" for a member of the Justice Department to have leaked this draft. "There's gonna be a witch-hunt," Lewis predicted. "[If found, the leaker] could very likely not only lose their job, but . . . be ruined professionally. [And I] have an incredible respect for anyone who does that."
Called the Domestic Security Enhancement Act of 2003, the legislation was most likely intended to be sprung on Congress and the rest of us once the war on Iraq began. As Charles Levendosky, editorial page editor of the Casper, Wyoming, Star-Tribune—a ceaselessly vigilant watcher of the Justice Department—said in his syndicated column:
"The DSEA isn't a working paper. It's a complete proposal for legislation. One cannot escape the ramifications. The thoroughness of DSEA is meant to discourage congressional changes, deletions or amendments. . . . It attacks the fundamental framework of our democracy by removing the checks and balances that hold it together and make it work."
In addition to the judiciary and Congress, the other check the Framers relied on to stop uncontrolled government power was what used to be called the Fourth Estate. That's why the First Amendment guarantees "Congress shall make no law . . . abridging the . . . freedom . . . of the press."
But most of the media treated this unprecedented revision of the Constitution as a one- or two-day story, and there was scant mention of it on television. Interestingly, the largest response soon after Bill Moyers's program was from 3581 radio stations. And Moyers's Web site got more than 200,000 hits after the February 7 interview with Charles Lewis.
But as happened with The Washington Post's front-page story on the torture of prisoners in CIA interrogation at our military bases overseas—and the Los Angeles Times' detailed report on the CIA's targeted killings—there has been hardly any follow-up in newspapers or on broadcast and cable television.
Aldous Huxley once wrote of our "almost infinite appetite for distraction," and that attention deficit has increasingly characterized the effect on the press of the 24-hour news-cycle race. I wonder what the job qualifications are these days for assignment editors.
If any member of the press is interested, the American Civil Liberties Union has prepared a 19-page, single-spaced, section-by-section analysis of the myriad constitutional violations in the Domestic Security Enhancement Act of 2003. The ACLU released a similar, invaluable dissection of the first USA Patriot Act, but very little of that appeared in the media. And to this day, not many Americans know what's in that omnivorous law—let alone how it's being implemented.
The new ACLU analysis of USA Patriot Act II was written by legislative counsel Timothy Edgar.
In his initial summary, Edgar notes that this bill, if signed into law by the eager president, would, among other consequences, "threaten public health by severely restricting access to crucial information about environmental health risks posed by facilities that use dangerous chemicals." Have you seen that anywhere in the media?
Also, the law would "allow for the sampling and cataloguing of innocent Americans' genetic information without court order and without consent." And "permit, without any connection to anti-terrorism efforts, sensitive personal information about U.S. citizens to be shared with local and state law enforcement."
And, although Operation TIPS has been canceled—thanks to Dick Armey when he was majority leader of the House—the Justice Department doesn't give up easily. This new bill, the ACLU points out, would provide "an incentive for neighbor to spy on neighbor and pose problems similar to those inherent in Attorney General Ashcroft's 'Operation TIPS' by granting blanket immunity to businesses that phone in false terrorism tips, even if their actions are taken with reckless disregard for the truth."
For those who remember the stunningly illegal orders given to government officials by Richard Nixon, USA Patriot Act II will "shelter federal agents engaged in illegal surveillance—without a court order—from criminal prosecution if they are following orders of High Executive Branch officials." Trust the White House!
In 1771, Sam Adams wrote in the Boston Gazette: "Power makes men wanton . . . it intoxicates the mind; and unless those with whom it is entrusted are carefully watched," such men will not govern the people "according to the known laws of the state." How intently will Congress be watching?
http://www.villagevoice.com/issues/0311/hentoff.php
Ashcroft Out of Control
Ominous Sequel to USA Patriot Act
Nat Hentoff
February 28th, 2003 3:00 PM
Many of the new security measures proposed by our government in the name of fighting the "war on terror" are not temporary. They are permanent changes to our laws. Even the measures that, on the surface, appear to have been adopted only as long as the war on terror lasts, could be with us indefinitely. Because, as Homeland Security director Tom Ridge himself has warned, terrorism is a "permanent condition to which America must . . . adjust." —American Civil Liberties Union, January 29
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Since September 11, 2001, a number of us at the Voice have been detailing the Bush administration's accelerating war on the Bill of Rights—and the rising resistance around the country. This battle to protect the Constitution, and us, has entered a new and more dangerous dimension.
On February 7, Charles Lewis, head of the Washington-based Center for Public Integrity, received a secret, but not classified, Justice Department draft of a bill that would expand the already unprecedented government powers to restrict civil liberties authorized by the USA Patriot Act. This new bill is called the Domestic Security Enhancement Act of 2003. Lewis, in an act of patriotism—since this still is a constitutional democracy—put the 86-page draft on the center's Web site, where it still remains (www.publicintegrity.org).
On the evening of February 7, Charles Lewis discussed this new assault on our fundamental liberties on Bill Moyers's PBS program, Now.
Three days later, on the editorial page of the daily New York Sun, primarily a conservative newspaper, Errol Louis wrote: "[The] document is a catalog of authoritarianism that runs counter to the basic tenets of modern democracy."
I have the entire draft of the bill. Section 201 would overturn a federal court decision that ordered the Bush administration to reveal the identities of those it has detained (imprisoned) since 9-11. This sequel to the USA Patriot Act states that "the government need not disclose information about individuals detained in investigations of terrorism until . . . the initiation of criminal charges."
Many of the prisoners caught in the Justice Department's initial dragnet were held for months without charges or contact with their families, who didn't know where they were. And these prisoners were often abused and out of reach of their lawyers—if they'd been able to find a lawyer before being shifted among various prisons. When, after much pressure, the Justice Department released the numbers of the imprisoned, there were no names attached, until a lower court decided otherwise.
Under the proposed Ashcroft bill reversing that court decision, for the first time in U.S. history, secret arrests will be specifically permitted. That section of bill is flatly titled: "Prohibition of Disclosure of Terrorism Investigation Detainee Information." In Argentina, those secretly taken away were known as "the disappeared."
Moving on, under Section 501 of the blandly titled Domestic Security Enhancement Act of 2003, an American citizen can be stripped of citizenship if he or she "becomes a member of, or provides material support to, a group that the United States has designated as a 'terrorist organization,' if that group is engaged in hostilities against the United States."
Until now, in our law, an American could only lose his or her citizenship by declaring a clear intent to abandon it. But—and read this carefully from the new bill—"the intent to relinquish nationality need not be manifested in words, but can be inferred from conduct." (Emphasis added).
Who will do the "inferring"? A member of the Justice Department. Not to worry. As John Ashcroft's spokeswoman, Barbara Comstock, says of objections to this draft bill: "The [Justice] department's deliberations are always undertaken with the strongest commitment to our Constitution and civil liberties." (This is a faith- based administration.)
What this section of the bill actually means is that if you provide "material support" to an organization by sending a check for its legal activities—not knowing that it has been designated a "terrorist" group for other things it does—you can be stripped of your citizenship and be detained indefinitely as an alien. While South Africa was ruled by an apartheid government, certain activities of the African National Congress were categorized as "terrorist," but many Americans provided support to the legal anti-apartheid work of that organization.
Under Section 302 of John Ashcroft's design for our future during the indefinite war on terrorism, there is another change in our legal system. Under current law, the FBI can collect DNA identification records of persons convicted of various crimes. But under the USA Patriot Act II, the "Attorney General or Secretary of Defense" will be able to "collect, analyze, and maintain DNA samples" of "suspected terrorists." And as Georgetown law professor David Cole notes—"mere association" will be enough to involve you with suspected terrorist groups. What does "association" mean? For one thing, "material support," under which you could lose your citizenship.
In reaction to the stealth with which the Justice Department has been crafting this invasion of the Bill of Rights, Democratic senator Patrick Leahy of Vermont, ranking minority member of the Senate Judiciary Committee, said on February 10: "The early signals from the administration about its intentions for this bill are ominous. . . .
"For months, and as recently as just last week, Justice Department officials have denied to members of the Judiciary Committee that they were drafting another anti-terrorism package. There still has not been any hint from them about their draft bill."
Leahy continued: "The contents of this proposal should be carefully reviewed, and the public must be allowed to freely engage in any debate about the merits of any new government powers the administration may seek."
But where is the debate in Congress or in the media? After a few initial press stories about the USA Patriot Act II, there has been little follow-up. To be continued here [F6 note -- see my next post, a reply to this post].
http://www.villagevoice.com/issues/0310/hentoff.php
arthritis -- truly good to hear from you! there's a good and important battle to be fought and won here, old friend
yeah, I'd say Kerry/Edwards is a lock for the ticket at this point -- good call
(btw -- couldya unblock my pms plz? thx)
Interested Persons Memo: Section-by-Section Analysis of Justice Department draft “Domestic Security Enhancement Act of 2003,” also known as “PATRIOT Act II”
February 14, 2003
To: Interested Persons
From: Timothy H. Edgar, Legislative Counsel
Date: February 14, 2003
Re: Section-by-Section Analysis of Justice Department draft “Domestic Security Enhancement Act of 2003,” also known as “Patriot Act II”
The Department of Justice (DOJ) has been drafting comprehensive anti-terrorism legislation for the past several months. The draft legislation, dated January 9, 2003, grants sweeping powers to the government, eliminating or weakening many of the checks and balances that remained on government surveillance, wiretapping, detention and criminal prosecution even after passage of the USA PATRIOT Act, Pub. L. No. 107-56, in 2001.
Among its most severe problems, the bill
Diminishes personal privacy by removing checks on government power, specifically by
-- Making it easier for the government to initiate surveillance and wiretapping of U.S. citizens under the authority of the shadowy, top-secret Foreign Intelligence Surveillance Court. (Sections 101, 102 and 107)
-- Permitting the government, under certain circumstances, to bypass the Foreign Intelligence Surveillance Court altogether and conduct warrantless wiretaps and searches. (Sections 103 and 104)
-- Sheltering federal agents engaged in illegal surveillance without a court order from criminal prosecution if they are following orders of high Executive Branch officials. (Section 106)
-- Creating a new category of “domestic security surveillance” that permits electronic eavesdropping of entirely domestic activity under looser standards than are provided for ordinary criminal surveillance under Title III. (Section 122)
-- Using an overbroad definition of terrorism that could cover some protest tactics such as those used by Operation Rescue or protesters at Vieques Island, Puerto Rico as a new predicate for criminal wiretapping and other electronic surveillance. (Sections 120 and 121)
-- Providing for general surveillance orders covering multiple functions of high tech devices, and by further expanding pen register and trap and trace authority for intelligence surveillance of United States citizens and lawful permanent residents. (Sections 107 and 124)
-- Creating a new, separate crime of using encryption technology that could add five years to any sentence for crimes committed with a computer. (Section 404)
-- Expanding nationwide search warrants so they do not have to meet even the broad definition of terrorism in the USA PATRIOT Act. (Section 125)
-- Giving the government secret access to credit reports without consent and without judicial process. (Section 126)
Enhancing the government’s ability to obtain sensitive information without prior judicial approval by creating administrative subpoenas and providing new penalties for failure to comply with written demands for records. (Sections 128 and 129)
-- Allowing for the sampling and cataloguing of innocent Americans’ genetic information without court order and without consent. (Sections 301-306)
-- Permitting, without any connection to anti-terrorism efforts, sensitive personal information about U.S. citizens to be shared with local and state law enforcement. (Section 311)
-- Terminating court-approved limits on police spying, which were initially put in place to prevent McCarthy-style law enforcement persecution based on political or religious affiliation. (Section 312)
-- Permitting searches, wiretaps and surveillance of United States citizens on behalf of foreign governments – including dictatorships and human rights abusers – in the absence of Senate-approved treaties. (Sections 321-22)
Diminishes public accountability by increasing government secrecy; specifically, by
-- Authorizing secret arrests in immigration and other cases, such as material witness warrants, where the detained person is not criminally charged. (Section 201)
-- Threatening public health by severely restricting access to crucial information about environmental health risks posed by facilities that use dangerous chemicals. (Section 202)
-- Harming fair trial rights for American citizens and other defendants by limiting defense attorneys from challenging the use of secret evidence in criminal cases. (Section 204)
-- Gagging grand jury witnesses in terrorism cases to bar them from discussing their testimony with the media or the general public, thus preventing them from defending themselves against rumor-mongering and denying the public information it has a right to receive under the First Amendment. (Section 206)
Diminishes corporate accountability under the pretext of fighting terrorism; specifically, by
-- Granting immunity to businesses that provide information to the government in terrorism investigations, even if their actions are taken with disregard for their customers’ privacy or other rights and show reckless disregard for the truth. Such immunity could provide an incentive for neighbor to spy on neighbor and pose problems similar to those inherent in Attorney General Ashcroft’s “Operation TIPS.” (Section 313)
Undermines fundamental constitutional rights of Americans under overbroad definitions of “terrorism” and “terrorist organization” or under a terrorism pretext; specifically by
-- Stripping even native-born Americans of all of the rights of United States citizenship if they provide support to unpopular organizations labeled as terrorist by our government, even if they support only the lawful activities of such organizations, allowing them to be indefinitely imprisoned in their own country as undocumented aliens. (Section 501)
-- Creating 15 new death penalties, including a new death penalty for “terrorism” under a definition which could cover acts of protest such as those used by Operation Rescue or protesters at Vieques Island, Puerto Rico, if death results. (Section 411)
-- Further criminalizing association – without any intent to commit specific terrorism crimes – by broadening the crime of providing material support to terrorism, even if support is not given to any organization listed as a terrorist organization by the government. (Section 402)
-- Permitting arrests and extraditions of Americans to any foreign country – including those whose governments do not respect the rule of law or human rights – in the absence of a Senate-approved treaty and without allowing an American judge to consider the extraditing country’s legal system or human rights record. (Section 322)
Unfairly targets immigrants under the pretext of fighting terrorism; specifically by
-- Undercutting trust between police departments and immigrant communities by opening sensitive visa files to local police for the enforcement of complex immigration laws. (Section 311)
-- Targeting undocumented workers with extended jail terms for common immigration offenses. (Section 502)
-- Providing for summary deportations without evidence of crime, criminal intent or terrorism, even of lawful permanent residents, whom the Attorney General says are a threat to national security. (Section 503)
-- Completely abolishing fair hearings for lawful permanent residents convicted of even minor criminal offenses through a retroactive “expedited removal” procedure, and preventing any court from questioning the government’s unlawful actions by explicitly exempting these cases from habeas corpus review. Congress has not exempted any person from habeas corpus -- a protection guaranteed by the Constitution -- since the Civil War. (Section 504)
-- Allowing the Attorney General to deport an immigrant to any country in the world, even if there is no effective government in such a country. (Section 506)
Given the bipartisan controversy that has arisen in the past from DOJ’s attempts to weaken basic checks and balances that protect personal privacy and liberty, the DOJ’s reluctance to share the draft legislation is perhaps understandable. The DOJ’s highly one-sided section-by-section analysis reveals the Administration’s strategy is to minimize far-reaching changes in basic powers, as it did in seeking passage of the USA PATRIOT Act, by characterizing them as minor tinkering with statutory language designed to bring government surveillance authorities, detention and deportation powers, and criminal penalties “up to date.”
This ACLU section-by-section analysis of the text of the legislation, however, reveals that the DOJ’s modest descriptions of the powers it is seeking, and the actual scope of the authorities it seeks, are miles apart. The USA PATRIOT Act undercut many of the traditional checks and balances on government power. The new draft legislation threatens to fundamentally alter the constitutional protections that allow us as Americans to be both safe and free. If adopted, the bill would diminish personal privacy by removing important checks on government surveillance authority, reduce the accountability of government to the public by increasing government secrecy, further undermine fundamental constitutional rights of Americans under an already overbroad definition of “terrorism,” and seriously erode the right of all persons to due process of law.
Our detailed section-by-section analysis follows.
Title I – Diminishing Personal Privacy by Removing Checks on Government Intelligence and Criminal Surveillance Powers
Title I amends critical statutes that govern intelligence surveillance and criminal surveillance. Both forms of surveillance are subject to Fourth Amendment limitations. See Katz v. United States, 389 U.S. 347 (1967) (criminal surveillance); United States v. United States District Court (“Keith”), 407 U.S. 297 (1972) (intelligence surveillance). Yet while traditional searches are governed by warrant procedures largely drawn from the common law, wiretapping and other forms of electronic surveillance are governed by standards and procedures embodied in two federal statutes that respond to Katz and Keith – Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 28 U.S.C. §§ 2510-22, which governs surveillance of criminal suspects, and the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §§ 1801-63 which governs surveillance of foreign powers and agents of a foreign power for intelligence purposes.
Making it easier for the government to initiate surveillance and wiretapping, including of United States citizens and lawful permanent residents, through the secret Foreign Intelligence Surveillance Court (Sections 101-111). The draft bill’s proposed amendments to FISA attack key statutory concepts that are critical to providing appropriate limits and meaningful judicial supervision over wiretapping and other intrusive electronic surveillance for intelligence purposes. These limits were approved by Congress in 1978 because of a history of abuse by government agents who placed wiretaps and other listening devices on political activists, journalists, rival political parties and candidates, and other innocent targets. These so-called “national security wiretaps” and other covert surveillance were undertaken without any court supervision and without even the slightest suspicion that the targets of such surveillance were involved in criminal activities or were acting on behalf of any foreign government or political organization. This pattern of abuse culminated in the crimes of Watergate, which led to substantial reforms and limits on spying for intelligence purposes.
FISA represented a compromise between civil libertarians, who wanted to ban “national security wiretaps” altogether, and apologists for Presidential authority, who claimed such unchecked intelligence surveillance authority was inherent in the President’s Article II power over foreign relations. The Congress chose to authorize intelligence wiretaps without evidence of crime, subject to a number of key restraints. One of these restraints, separating intelligence gathering from criminal investigations, has been significantly weakened by the USA PATRIOT Act. The USA PATRIOT Act abolished the “primary purpose” test – the requirement that FISA surveillance could only be used if the primary purpose of surveillance was gathering of foreign intelligence, and not criminal prosecution or some other purpose.
The draft bill eliminates or substantially weakens a number of the remaining constraints on intelligence surveillance approved by Congress. Taken as a whole, these changes go a long way to undermine limits on intelligence surveillance essential to preserving civil liberties and to preventing a repeat of the wiretapping abuses of the J. Edgar Hoover and Watergate eras.
Authorizing the government to initiate wiretaps and other electronic surveillance on Americans who have no ties to foreign governments or powers (sec. 101). This section would permit the government to obtain a wiretap, search warrant or electronic surveillance orders targeting American citizens and lawful permanent residents even if they have no ties to a foreign government or other foreign power. Under FISA, the government need not show, in many circumstances, probable cause that the target of a wiretap is involved in any criminal activity. FISA requires an alternate showing – probable cause that the target is acting on behalf of a foreign government or organization, i.e., a “foreign power.” Section 101 of the draft bill eliminates this requirement for individuals, including United States citizens, suspected of engaging in “international terrorism.” It does so by redefining individuals, including United States citizens or lawful residents, as “foreign powers” even if they are not acting on behalf of any foreign government or organization. The “foreign power” requirement was a key reason FISA was upheld in a recent constitutional challenge. See In re Sealed Case No. 02-001, slip op. at 42 (Foreign Intelligence Surveillance Ct. of Rev. Nov. 18, 2002) (while FISA requires no showing of probable cause of crime, it is constitutional in part because it provides “another safeguard . . . that is, the requirement that there be probable cause to believe the target is acting ‘for or on behalf of a foreign power.’”)[1]
Permitting surveillance of the lawful activities of United States citizens and lawful permanent residents if they are suspected of gathering information for a foreign power (sec. 102). United States citizens and lawful permanent residents who are not violating any law should not be subject to wiretapping or other intrusive electronic surveillance. The FISA contains dual standards for non-U.S. persons and for U.S. persons with respect to surveillance of “intelligence gathering activities,” i.e., the gathering of information for a foreign government or organization. These standards reflect the judgment of Congress that U.S. persons should not face electronic surveillance unless their activities “involve or may involve” some violation of law (as, for example, would certainly be the case with respect to any activity in furtherance of terrorism or other crime). For non-U.S. persons, this showing does not have to be made, i.e., the gathering of information by foreign persons for foreign powers is enough to trigger FISA. The draft bill (at section 102) applies the lower standard to U.S. persons.
Lawful gathering of information for a foreign organization does not necessarily pose any threat to national security. This amendment would permit electronic surveillance of a local activist who was preparing a report on human rights for London-based Amnesty International, a “foreign political organization,” even if the activist was not engaged in any violation of law. By eliminating this need to show some violation of law may be involved before authorizing surveillance of U.S. persons, Congress could well succeed in rendering FISA unconstitutional, by eliminating another key reason FISA was upheld in a recent court challenge. See In re Sealed Case No. 02-001, slip op. at 42 (Foreign Intelligence Surveillance Ct. of Rev. Nov. 18, 2002) (holding that FISA surveillance of U.S. persons meets Fourth Amendment standards in part because a surveillance order may not be granted unless there is probable cause to believe the target is involved in activity that may involve a violation of law).
Permitting the government, under some circumstances, to bypass the Foreign Intelligence Surveillance Court altogether (Sections 103, 104). Section 103 gives the Attorney General the power to authorize intelligence wiretaps and other electronic surveillance without permission from any court, including the Foreign Intelligence Surveillance Court, for fifteen days, after an attack on the United States or force authorization resolution from the Congress. Under existing federal statutes, a formal declaration of war by the Congress triggers a host of civil liberties consequences, including authorization by the Attorney General to engage in intrusive electronic surveillance for up to fifteen days without any court order at all. The draft bill expands this power dramatically by eliminating judicial review for any surveillance under FISA for a period up to fifteen days pursuant to (1) an authorization of force resolution by the Congress or (2) a “national emergency” created by an attack on the United States. For surveillance under the latter circumstance, no action by Congress would be required. Once the President has unilaterally decided such an attack has occurred, the Attorney General could unilaterally decide what constitutes an “attack” on the United States, creating an emergency that justifies what would otherwise be plainly illegal wiretaps.
DOJ’s rationale for this change is that declarations of war are rare and the statute should be updated to reflect this. This argument fundamentally misconstrues the purpose of this provision. The normal FISA process, including review by the Foreign Intelligence Surveillance Court, was Congress’s attempt to impose meaningful limits over national security surveillance conducted without a formal declaration of war and for continuing threats that cannot easily by defined by reference to traditional war powers. To use Congress’ grant of surveillance authority following a declaration of war as an argument to permit surveillance even in the absence of such action by Congress is a fundamental intrusion on Congress’s war powers.
The draft bill (at section 104) also expands special surveillance authority, available for up to a year with no court order at all, for property “under the open and exclusive control of a foreign power” by permitting eavesdropping on “spoken communications.” This expansion of authority leaves intact the current requirement that such surveillance can go forward only if the Attorney General certifies under oath that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” Still, the new authority would plainly involve eavesdropping on communications protected by the Fourth Amendment, as it would inevitably result in listening – without any court order – to the conversations in the United States of anyone who might be using telephones, computers, or other devices owned by a foreign government, political organization, or company owned by a foreign government.
There are serious questions about whether the secret review of surveillance orders by the Foreign Intelligence Surveillance Court, which by its nature can only hear the government’s side of the case, is effective in protecting Americans’ civil liberties. These amendments would bypass judicial review under FISA altogether.
Sheltering federal agents engaged in illegal surveillance without a court order from criminal prosecution if they are following orders of high Executive Branch officials (Section 106). This section would encourage unlawful intelligence wiretaps and secret searches by immunizing agents from criminal sanctions if they conduct such surveillance, even if a reasonable official would know it is illegal, by claiming they were acting in “good faith” based on the orders of the President or the Attorney General. In order to ensure that FISA was successful in bringing national security surveillance under the rule of law, Congress not only provided a process for legal intelligence surveillance, but also imposed criminal penalties on any government agent who engages in electronic surveillance outside that process. Congress also provided a “safe harbor” for agents who engaged in surveillance that was approved by the Foreign Intelligence Surveillance Court, even if such surveillance was not in fact authorized by FISA. The draft bill (at section 106) substantially undercuts the deterrent effect of criminal sanctions for illegal wiretaps or electronic surveillance by expanding the “safe harbor” to include surveillance not approved by any court, but simply on the authorization of the Attorney General or the President.
Of course, the very spying abuses FISA was designed to prevent were undertaken with the authorization of high-ranking government officials, including the President. For example, President Nixon authorized just such a covert search of the Brookings Institution, whom he and his staff suspected of possessing classified information that had been leaked to the press. As described by Nixon biographer Richard Reeves:
Nixon sat up. “Now if you remember Huston’s plan [to engage in covert surveillance] . . .”
“Yeah, why?” Haldeman said.
Kissinger said: “But couldn’t we go over? Now, Brookings has no right to classified–”
The President cut him off, saying, “I want it implemented. . . . Goddamit get in there and get those files. Blow the safe and get them.”[2]
Any government official acting within the scope of his employment already enjoys “qualified immunity” from charges of violating Fourth Amendment or other constitutional rights – i.e., an official cannot be punished or held civilly liable if a reasonable government official would not have known his or her conduct was illegal. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Providing additional protection to government officials who engage in wiretaps or searches without a court order, where a reasonable official would know those wiretaps or searches were clearly illegal, would take away any incentive for such officials to question an illegal authorization by the President, Attorney General or other high official.
Further expanding pen register and trap and trace authority for intelligence surveillance of United States citizens and lawful permanent residents beyond terrorism investigations (Section 107). This section allows the government to use intelligence pen registers and trap and trace surveillance devices to obtain detailed information on American citizens and lawful permanent residents, including telephone numbers dialed, Internet addresses to which e-mail is sent or received, and the web addresses a person enters into a web browser, even in an investigation that is entirely unrelated to terrorism or counterintelligence. In so doing, it erodes a limitation on this authority that was part of the USA PATRIOT Act.
The standard for obtaining a pen register or trap and trace order is very low, requiring merely that a government official certify that the information it would reveal is “relevant” to an investigation. Under section 216 the USA PATRIOT Act, the government was given new power to obtain this sensitive information for Internet communications merely by making this certification. This expansion was a serious erosion of meaningful judicial oversight of government surveillance because it expanded the authority to get court orders for pen registers and trap and trace devices in a way that permitted the government to access far more detailed content than was available before such authority was extended to the Internet.
For United States citizens and lawful permanent residents, Congress limited the new authority to terrorism and counterintelligence investigations. This section would remove that limitation, opening the door to expanded government surveillance of United States citizens and lawful permanent residents under controversial government law enforcement technologies like CARNIVORE and the Total Information Awareness Pentagon “super-snoop” program whose development Congress just voted to limit.
Providing cleared, appointed counsel for the Foreign Intelligence Surveillance Court of Review (Section 108). While we welcome the provision providing for an appointed, cleared counsel to argue in favor of a ruling of the Foreign Intelligence Surveillance Court when the government appeals its decisions, it should not substitute for participation, in appropriate cases, by interested civil liberties organizations. The Foreign Intelligence Surveillance Court approves government orders for electronic surveillance and physical searches under FISA. It meets in secret and never hears from anyone other than the government officials seeking its approval. If an order is denied, the government has the right to seek review of that denial in a special three-judge court of appeals, called the Foreign Intelligence Surveillance Court of Review. No one can appeal the approval of a surveillance order, as the target of the surveillance is not notified. Instead, the only challenge to an approved order would occur later, if the information obtained is to be used in a criminal prosecution, in a suppression motion before the district court. If the information is used only for intelligence purposes, there is never an opportunity to challenge the lawfulness of an order approving surveillance.
This section seeks to remedy the problems inherent in a one-sided proceeding, at least with respect to appeals before the Court of Review, by permitting the court to appoint an advocate with security credentials to defend the decision reached in the initial hearing before the Foreign Intelligence Surveillance Court. While the ACLU welcomes this effort to inject an adversary process into the Court of Review’s proceedings, it warns that appointing a cleared lawyer should not be a substitute for independent advocacy by civil liberties or other interested organizations. Organizations independent of the government should be permitted to file briefs amicus curiae and, in appropriate cases, to participate in oral argument as interveners on behalf of Americans who may face increased surveillance as a result of an interpretation of FISA being urged by the government. For this reason, Congress should adopt legislation providing clear procedures that require the publication of opinions by the Foreign Intelligence Surveillance Court and the Court of Review, with redactions for classified information.
Providing new contempt powers for Foreign Intelligence Surveillance Court without sufficient due process (Section 109). This section seeks to give the Foreign Intelligence Surveillance Court the power to enforce its judgments through explicit contempt powers. While the ACLU does not object to the enforcement of lawful court orders, the draft bill does not specify a means by which parties seeking to challenge an order of the court can vindicate their rights, such as by a motion to quash. If the court is to be given this authority, both the Fourth Amendment and due process require a mechanism, which currently does not exist, for a party facing a possible contempt sanction to appear before the Foreign Intelligence Surveillance Court and be heard, prior to the imposition of any sanctions.[3]
Using an overbroad definition of terrorism that could cover tactics used by some protest groups as a predicate for criminal wiretapping and other surveillance under Title III (Sections 120, 121). Current law provides, at 18 U.S.C. § 2516, a list of “predicate offenses” that permit the government to conduct wiretaps and other intrusive surveillance. The list is quite lengthy, but reflects the judgment of Congress that electronic surveillance is a particularly intrusive investigative method that is not appropriate for all criminal investigations but should be reserved only for the most serious crimes.
Title 18 already provides that any terrorism crime defined by federal law is a predicate for Title III surveillance. See 18 U.S.C. § 2516(q) (providing that any violation of sections 2332, 2332a, 2332b, 2339A, or 2339B is a predicate offense for Title III surveillance). The draft bill, however, extends the predicate even further, to cover offenses that are not defined as terrorism crimes under federal law, but do fit the definition of either international or domestic terrorism, i.e., they involve acts that are a violation of federal or state law, are committed with the intent of affecting government policy, and are potentially dangerous. See 18 U.S.C. § 2331. It is this broad definition that sweeps in the activities of a number of protest organizations that engage in civil disobedience, including People for the Ethical Treatment of Animals and Operation Rescue. Since true crimes of terrorism are already predicates for Title III surveillance, providing this authority is not necessary to listen to the telephone conversations and monitor the e-mail traffic of terrorist groups. To ensure Title III wiretaps are not used to monitor the activities of protest organizations, Congress should reject this provision and should also amend the definition of “terrorism.”
Creating a new category of “domestic security surveillance” that relaxes judicial oversight of electronic surveillance of Americans engaged in entirely domestic activity (Section 122). This section authorizes looser standards for judicial oversight of wiretaps of electronic surveillance orders of Americans for entirely domestic activity under a new theory of domestic intelligence gathering. Intelligence-based surveillance and criminal surveillance are conducted under different rationales, but both are subject to Fourth Amendment protections. See Katz and Keith, supra. Title III, which governs criminal surveillance, provides significantly more robust protections than those afforded for surveillance of foreign intelligence conducted in the United States pursuant to FISA. Title III requires more frequent and continuing supervision of the surveillance order by the authorizing judge, and subsequent notice to the target of the surveillance order unless the government shows adverse results would occur if notice were given.
Title III governs electronic surveillance in domestic criminal and terrorism cases; the looser intelligence standards provided by FISA, including the ability to conduct surveillance in virtually complete secrecy, have always been reserved for “agents of a foreign power.” The proposed amendment would fundamentally redefine domestic intelligence gathering through wiretaps and other intrusive surveillance to include entirely domestic security investigations. In so doing, DOJ claims it is accepting the “invitation” of the Supreme Court in Keith to devise specific standards for domestic intelligence investigations. It is far from clear the Supreme Court ever issued such an “invitation” because of the ambiguity of the term “domestic intelligence.” FISA is, in one sense, a purely domestic intelligence gathering power; it governs gathering of intelligence on United States soil and authorizes surveillance of United States citizens. Under this understanding of “domestic intelligence,” Congress has already provided far looser standards for such surveillance than it has for criminal investigations.
In any event, the draft bill’s redefinition of intelligence creates what is in essence a twilight zone between the criminal standards provided in Title III and the foreign intelligence standards for targets involved with “foreign powers” in FISA. That twilight zone, as conceived by the draft bill, has significant implications for Americans’ right to privacy. Under the DOJ’s proposed standards, for domestic terrorism, the normal time period for domestic surveillance orders under Title III would triple from 30 days to 90 days, or, in the case of pen registers and trap and trace devices, from 60 days to 120 days; the judge would be prevented from requiring more frequent reports than once every 30 days, limiting the judge’s ability to provide meaningful supervision, and absolute secrecy could be imposed on the government’s claim of harm to the “national security,” a standard that provides no meaningful judicial check.
Providing for general surveillance orders covering users of high technology devices with multiple functions, thus lowering the bar to surveillance (Section 124). This section would, in some cases, relieve the government from showing probable cause that would justify reading a person’s e-mail if it had shown probable cause that a person’s telephone conversations would be relevant to criminal activity. It authorizes a general warrant that, in the physical world, would allow officers who could show probable cause to search only one drawer of a desk to obtain a court order allowing a search of the entire building.
The proposed change would erode the privacy rights of users of multi-function devices. Multi-function devices represent an important advance in communications technology. Such devices can combine the functions of a telephone, fax machine and computer with Internet access, or those of a mobile phone and text messaging service. Another example is the popular TiVo video storage device which both records television programs received through a cable or satellite system and communicates a user’s preferences through a computer modem.
Unfortunately, the draft bill continues a DOJ trend of using advances in technology to justify eroding privacy standards. While technology is constantly changing, the principles of the Constitution remain constant. Specificity is a basic requirement for any constitutional judicial process permitting government searches or seizures. The Fourth Amendment states that “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.” The fact that the government can show probable cause to monitor e-mail, for example, does not mean that it should also have authority to listen to the target’s telephone conversations. Of course, if the government can satisfy the probable cause or other application standard with respect to all of the functions of a device, there is no reason it cannot be granted approval to monitor those functions in a single order. However, the draft bill would make approval for each function automatic, providing that “communications transmitted or received through any function performed by the device may be intercepted and accessed unless the order specifies otherwise . . .”
In addition, an order that covers, for example, a personal computer that carries voice or data transmission, also permits “upon a showing as for a search warrant . . . the retrieval of other information (whether or not constituting or derived from a communication whose interception the order authorizes).” While somewhat oblique, this language would permit the seizure of any information stored on a computer’s hard drive if the government obtains a order to intercept communications through any of the computer’s communications functions and makes the required showing.
There is no reason that the purchase of new technology should diminish the user’s privacy. Whether one owns one device with several communications functions, or separate communications devices, the government’s obligations to show probable cause that the monitoring of communications or the seizure of data will provide some evidence of crime should be the same.
Expanding nationwide search warrants so they do not have to meet even the broad definition of terrorism in the USA PATRIOT Act (Section 125). The USA PATRIOT Act gave the government authority to issue nationwide search warrants in terrorism investigations, based on the extremely broad definition of domestic and international terrorism contained in 18 U.S.C. § 2331. This definition covers any violation of law, state or federal, that involves “acts dangerous to human life” and is committed with the requisite intent. The draft bill (at section 125) expands the use of nationwide search warrants to cover any offense listed as a federal terrorism crime under 18 U.S.C. § 2332b(g)(5)(B). In general, this is unlikely to be needed as the crimes listed as terrorism crimes are either violent offenses or at least “involve” dangerous acts. To the extent such offenses do not at least “involve” violence or dangerous acts, they should not be terrorism crimes at all and should not trigger special terrorism powers that are unavailable in order criminal investigations. If Congress grants additional authority for nationwide search warrants for certain offenses listed as terrorism crimes, its authority to get nationwide search warrants under an overbroad definition of international and domestic terrorism should be curtailed, by, for example, eliminating that authority or amending the definition of terrorism.
Giving the government secret access to credit reports without consent and without judicial process (Section 126). [F6 note: this part has become law -- http://www.investorshub.com/boards/read_msg.asp?message_id=2324331 ]. This section would allow the government to secretly obtain anyone’s credit report without their consent and without any judicial procedure.
The government should not have access to sensitive personal information which has been collected for business purposes on the same basis as businesses, because the government’s powers – for example, to compel questioning before a grand jury, arrest, deport, or incarcerate – are far greater than the powers of any business.
In any event, the draft bill does not, as the heading states, provide “equal access” for government to such reports; rather, the statute greatly expands access to credit reports by authorizing the government to obtain these reports without consent, notice to the person to whom the credit report pertains, and without a court order. Credit reports are available to business with a “legitimate business need” but only with the consent of the person whose credit report is being examined, such as when that person applies for a loan or a job.
Anyone who has applied for a job or a mortgage and encountered a problem because of a false credit report – which could the result of identity theft, simple error, or malice – knows how difficult it can be to get errors corrected. Under this provision, however, the consequences of an erroneous credit report are far more serious than when credit reports are used for business purposes. Under this provision, because credit reports can be obtained without notice or consent, there is no opportunity for the person to contest an erroneous report.
Creating new terrorism “administrative subpoenas” and providing new penalties for failure to comply with written demands for records that permit the government to obtain information without prior judicial approval (Sections 128 and 129). Under these sections, government can demand – and enforce its demands through civil and criminal penalties – documents and other information from a business, such as an Internet Service Provider, or any individual without prior court approval. Administrative subpoenas provide the government with the ability to compel production of documents or information without obtaining a court order. While such subpoenas can be challenged, after they are issued, through a motion to quash, such a motion must be brought by the party challenging the subpoena, who incurs the trouble and expense of challenging the subpoena.
The draft bill authorizes the use of administrative subpoenas and what the DOJ calls “national security letters” to obtain information in terrorism investigations. These sections reduce judicial oversight of terrorism investigations by relegating the role of the judge to considering challenges to orders already issued, rather than ensuring such orders are drawn with due regard for the privacy and other interests of the target. Furthermore, by granting the government power to compel production of records or other information, such as computer files, without first going to court, the draft bill will likely increase the administrative burden imposed on small businesses, particularly high-technology firms, who are facing ever-increasing demands for records in both civil cases and criminal investigations.
Title II – Diminishes Public Accountability and Due Process By Increasing Government Secrecy
Authorizing secret arrests in immigration and other cases where the detained person is not criminally charged (Section 201). After September 11, 2001, well over a thousand persons whom the government said were connected to its terrorism investigation were detained on immigration charges or material witness warrants without the government revealing who they were or other basic information about their arrests that has always been available to the public and the press. Never before had our government sought to detain persons within the United States in secret; a public process for depriving any individual of liberty is an essential component of the rule of law in a democratic society. As Alexander Hamilton made clear in the Federalist papers more than two centuries ago, a policy that allows “confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten” is a “dangerous engine of arbitrary government.”[4] “The requirement that arrest books be open to the public is to prevent any ‘secret arrests,’ a concept odious to a democratic society . . . .” Morrow v. District of Columbia, 417 F.2d 728, 741-42 (D.C. Cir. 1969).
The government’s policy of secret arrests came under fire in both federal and state court in lawsuits brought by the American Civil Liberties Union and other civil liberties and press freedom groups. So far, every court to reach the merits of the argument has agreed that the government’s secret arrests policy is not supported by law, is not necessary to protect national security, and violates fundamental principles reflected in state and federal open records laws.[5] When confronted with the ruling in New Jersey state court, the DOJ responded not by complying or appealing the ruling to a higher court, but by issuing a regulation preempting that state’s law. It has now chosen to ask Congress to cut short the federal lawsuit in the much the same way.
Threatening public health by severely restricting access to crucial information about environmental health risks posed by facilities that use dangerous chemicals (Section 202). This section would deprive communities and environmental organizations of critical information concerning risks to the community contained in “worst case scenarios” prepared under federal environmental laws. Under section 112(r) the Clean Air Act, 47 U.S.C. § 7212(r), corporations that use potentially dangerous chemicals must prepare an analysis of consequences of the release of such chemicals to surrounding communities. This information is absolutely critical for community activists and environmental organizations seeking to protect public health and safety, and the environment, and by ensuring compliance by private corporations with environmental and health standards and alerting local residents to the hazards to which they may be exposed.
The proposed amendment (sec. 202) severely restricts access to such information, limiting such access to reading rooms in which copies could not be made and notes could not be taken, and excising from the reports such basic information as “the identity or location of any facility or any information from which the identity or location of the facility could be deduced.” “Official users” are given greater access, but these users only include government officials, and government whistleblowers who reveal any information restricted under this section commit a criminal offense, even if their motivation was to protect the public from corporate wrongdoing or government neglect.
Harming fair trial rights for American citizens and other defendants by limiting defense attorneys from challenging the use of secret evidence in criminal cases (Section 204). This section would inhibit the ability of the accused to defend themselves against criminal charges based in part on classified information. The Classified Information Procedures Act (CIPA), 18 U.S.C. App. 3 §§ 1-16, provides a special procedure to govern an extraordinary situation – where the government seeks to use information in a criminal case which is classified by Executive Order without revealing in open court any more information than is necessary to provide the defendant with a fair trial under the Sixth Amendment.[6]
CIPA entrusts to federal district judges the “gatekeeper” function of determining what classified information can be excluded from open court, what information can be given to the defense in summary form, and what essential information must be disclosed to the defendant to ensure his right to contest the accusations against him and to ensure that evidence the jury or other factfinder considers is reliable, having been tested in an adversarial proceeding. The judge has the power to consider a government request to delete information or substitute a summary in an ex parte proceeding, i.e., without the benefit of hearing from the defense. CIPA does not give the government a right to make its case in the absence of the defense; instead, the judge determines how much of the prosecution’s submission to examine ex parte and in camera, i.e., in secret. The proposed amendment (sec. 204) would seriously undermine the judge’s initial gatekeeping role by compelling a judge, at the request of the prosecution, to determine whether and how to redact classified information without the benefit of an adversary hearing. In other words, the amendment would take away the judge’s authority, under current law, to hear defense objections to a prosecution request for authorization to delete specified items of classified information from documents relevant to the defense’s case.
CIPA strikes the right balance between the government’s national security interests and the defendant’s right to see the evidence against him or her. This amendment undermines that balance.
Gagging grand jury witnesses in terrorism from discussing their testimony with the media or the general public, thus preventing them from defending themselves and denying the public information it has a right to receive under the First Amendment (Section 206). This section would gag grand jury witnesses so that they could not publicly respond to false information about them leaked to the press. Rule 6(e) of the Federal Rules of Criminal Procedure imposes a general obligation of secrecy requiring attorneys and grand jurors to refrain from commenting on “matters occurring before the grand jury.” In theory, grand jury secrecy is imposed primarily to protect the reputation of individuals who become subject to a grand jury investigation. In practice, such secrecy does not always afford much protection, as law enforcement officials who leak information to reporters in violation of Rule 6(e) are rarely discovered and prosecuted.
Grand jury secrecy is not imposed on witnesses, who are free to speak about their testimony to friends, associates or to the media. In practice, this limitation is essential to afford targets of a grand jury investigation the opportunity to defend themselves against leaked accusations and media speculation. Under the proposed amendment (section 206), witnesses in terrorism investigations could be unfairly smeared in the media and be deprived from the ability to defend themselves under pain of a criminal sanction.
Title III – Diminishing Personal Privacy by Removing Checks on Local Police Spying; Undermining Genetic Privacy; Removing Checks on Foreign-Directed Searches and Arrests, Even for Dictatorships; Sharing Sensitive Immigration Information With Local Police
Allowing for the sampling and cataloguing of innocent Americans’ genetic information without court order and without consent (Sections 301-306). The proposed bill authorizes collection of genetic information of persons who have not been convicted of a crime for terrorism investigation purposes, and the entering of that sensitive information into a database. At a minimum, such collection should not be permitted on persons who have not be convicted of serious crimes unless a judge decides to permit such collection by issuing a court order on the basis of probable cause to believe the information will assist in a criminal investigation. Furthermore, personal genetic information must be destroyed within a reasonable time, such as when a suspect is cleared, to ensure it is not available for misuse by the government or private industry at a later date.
Drawing a DNA sample involves an intrusion on personal privacy that is far more invasive than simply taking a fingerprint. A fingerprint is useful only as a form of identification. By contrast, a DNA sample includes such intimate, personal information as the markers for thousands of diseases, legitimacy at birth, or (as science advances) aspects of an individual’s personality such as his or her temperament. In addition, this personal information is not unique to the individual alone, but also provides clues to the genetic traits of everyone in that individual’s bloodline. Genetic discrimination is not merely a distant artifact of the discredited eugenics movement of the first half of the Twentieth Century, but is widespread today among private employers, and is (in most states) perfectly legal.[7]
The potential misuse of DNA information contained in a database requires careful safeguards before such information is collected, and concerning the storage of such information. For example, no forensic purpose is served by saving the DNA itself, as opposed to just the information contained in the DNA that proves identity. The proposed legislation fails to include such safeguards.
Permitting, without any connection to anti-terrorism efforts, sensitive personal information to be shared with local and state law enforcement; opening sensitive visa files to local police (Section 311). This section would authorize the sharing of sensitive consumer credit information and educational records with state and local officials without any limits and without any connection to a terrorism investigation. While sharing of sensitive information in the possession of the federal government should be permitted in some circumstances to accomplish anti-terrorism objectives, such records should not be disseminated broadly for other purposes. The draft legislation contains no requirement that sharing of sensitive information with state and local officials be limited to anti-terrorism investigations; instead, such information can be shared simply “to assist the official receiving that information in the performance of official duties of that official.” Special authority to share sensitive personal records should not be granted so blithely.
The draft legislation also provides for sharing of sensitive visa information with state and local officials, including state and local law enforcement, on a broad basis, without requirement that such sharing of information be connected to anti-terrorism investigations. In authorizing such sharing of sensitive immigration files, DOJ is at odds with the views of many state and local police departments, who fear involvement in immigration enforcement matters may undermine their ability to establish the trust and confidence of immigrant communities. Absent such trust, many local and state police are concerned that members of immigrant communities will fear contacting the police if they are a victim of crime or a witness to crime.[8]
DOJ also appears to be at odds with the White House, which has assured the public that the Bush Administration was not interested in expanding the role of state or local law enforcement in immigration matters except with respect to terrorism investigations. As White House Counsel Alberto Gonzalez made clear last year, “Only high-risk aliens who fit a terrorist profile” would be placed in the National Crime Information Center (NCIC) database, which is available to state and local law enforcement officials, and the Administration’s conclusion that state and local police had “inherent authority” to arrest such persons was limited to this group of non-citizens.[9] Such a narrow policy would be completely undermined by the adoption of this broad language.
Terminating court-approved limits on police spying designed to prevent McCarthy-style law enforcement persecution based on political or religious affiliation (Section 312). In the name of “intelligence gathering,” police departments in many cities spied on innocent members of the public who were active in churches, community groups and political organizations. Federal courts, responding to civil rights lawsuits urging an end to such spying, issued decrees prohibiting this spying absent some reason to believe those individuals were involved in criminal or terrorist activity.
Police spying on political and religious activity is not a relic of some distant past. Recently, citizens in Denver, Colorado, were shocked to learn that the Denver Police Department had kept approximately 3,048 illegal files on peaceful protest groups including Amnesty International and the Nobel Peace Prize-winning American Friends Service Committee. The file on the American Friends Service Committee labeled them a “criminal extremist” group. The files pre-dated September 11, 2001, and were not collected as a response to the terrorist attacks.
The draft bill ends these decrees using language patterned after the Prison Litigation Reform Act. Eliminating these sensible, court-approved limits on local police spying would chill dissent, making Americans afraid to join protest groups and activist organizations, attend rallies, or express their views on controversial policies such as abortion or the war in Iraq.
Loosening sensible protections on police monitoring of political and religious activity will not make us safer from terrorism. During the years the FBI illegally spied on individuals exercising their rights under the First Amendment, including such civil rights leaders as Dr. Martin Luther King, Jr., resources were diverted and not a single instance of violence was prevented. Freeing local police to spy on innocent individuals is not likely to be any more productive. It only makes us less safe as resources are diverted from more productive investigations, and less free, as individuals find themselves entered into a police database for activities that are constitutionally protected.
Granting immunity to businesses that provide information to the government in terrorism investigations, even if their actions are taken with disregard for their customers’ privacy or other rights and show reckless disregard for the truth (Section 313). This section would prevent a person harmed by a business’s disclosure of information about them, including false information, from holding the business accountable. It would encourage false terrorism tips that could result in ruined reputations, lengthy detentions and even violence. Under this section, a business is given immunity from liability if it shares information voluntarily with the government, based on merely on its “reasonable belief” that its actions would help the government prevent or investigate terrorism.
This section resurrects many of the same problems with Operation TIPS that led Congress to ban that program last year. Enormous controversy was sparked by the Bush Administration’s Operation TIPS plan to enlist businesses with access to private homes or otherwise able to obtain sensitive personal information without any court supervision. Under the plan, utility operators or others would be encouraged to report “suspicious activity” through a special federal hotline, where the reports would be placed in a central computer database. The program was rife with potential for abuse, including the reporting of false or erroneous information, and the concern that businesses and private individuals would allow their private prejudices to determine who qualifies as “suspicious.” When Congress learned of “Operation TIPS” and considered its potential dangers, it banned the program in legislation creating the new Department of Homeland Security. See Homeland Security Act of 2002, § 880, Pub. L. No. 107-296, 116 Stat. 2135, 2245 (2002).
The draft legislation poses many of the same dangers as the government’s earlier, more elaborate private spying program. False information can ruin a person’s reputation, lead to an erroneous arrest and even to violence. Those who are subject to such false reports should have legal recourse if the business or individual responsible for making the report acted irresponsibly. Defamation is the most likely legal action resulting from a false tip to law enforcement. Further protection for defamation defendants would weaken the incentive for a business to think twice before using a false tip to law enforcement to settle a private score or indulge in invidious discrimination. The proposed language paradoxically would increase the incentive for reports of information of dubious validity, diverting law enforcement from more serious potential crimes.
Granting additional immunity is unnecessary because there is already ample protection in state law against frivolous lawsuits. Truth is always a defense to defamation and states also generally provide a qualified privilege against defamation claims involving reports to law enforcement even where the information proves to be false, protecting a defendant against liability unless malice can be shown. See, e.g., Restatement (Second) of Torts §§ 598, 600.
Permitting searches, wiretaps and surveillance of United States citizens on behalf of foreign governments – including human rights abusers – in the absence of Senate-approved treaties (Sections 321-22). This section would authorize the DOJ to help foreign governments – including those that systematically abuse human rights and do not respect the rule of law – invade Americans’ privacy even when the United States Senate has failed or refused to approve a treaty allowing such assistance with such a government. Under current law, the United States does not engage in covert surveillance or issue search warrants on behalf of foreign nations unless the Senate has approved a mutual legal assistance treaty. If a foreign nation with which the United States does not have such a treaty requires information from a United States citizen or resident for its own judicial process, it may still obtain that information by asking the assistance of a United States district court in issuing an order to take testimony or obtain “a document or other thing” under 28 U.S.C. § 1782, but it may not issue search warrants or certain surveillance orders. This limitation ensures that that the Senate consents to more intrusive surveillance on behalf of a foreign nation before Americans’ privacy can be invaded at the behest of a foreign government. The draft bill (at section 321) sweeps aside this sensible limitation altogether.
These limitations on foreign-directed searches, wiretaps and surveillance orders do not need to substantially impede the investigation and prosecution of terrorism, as Congress has provided “universal jurisdiction” over many serious terrorism offenses. In other words, such offenses are a crime under United States law and subject to U.S. jurisdiction even if committed in a foreign nation. For such offenses, a United States Attorney could obtain the full panoply of searches and surveillance orders to aid in the investigation of that crime, even if such a crime was also being investigated by a foreign nation under its own laws. Such information could then easily be shared with the foreign nation, under information sharing provisions approved by Congress in the Homeland Security Act. See Homeland Security Act of 2002, §§ 891-99, Pub. L. No. 107-296, 116 Stat. 2135, 2252-58.
Permitting arrests and extraditions of United States citizens and other persons to a foreign country in the absence of a Senate-approved treaty and without judicial inquiry into the extraditing country’s human rights record (Section 322). Among other things, this section allows, on the determination of the Attorney General, a United States citizen or other person to be sent to a foreign dictatorship to be prosecuted even if an American judge would find that the extradition request was made on account of his or her race, nationality or political opinions. It allows the government to send Americans and others abroad to face foreign criminal charges in foreign criminal courts for a host of charges without any of the protections that normally appear in Senate-approved extradition treaties, and strips any judge hearing an extradition request of the authority to consider the fairness of the requesting country’s judicial system or its human rights record.
Section 322 authorizes extradition in the absence of an extradition treaty or in excess of limits imposed by existing extradition treaties. Extradition involves arresting an individual, including a United States citizen, because a foreign government accuses that person of violating a foreign law. It is subject to basic constitutional limitations. See, e.g., Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936) (holding that extradition may take place only in accordance with law because of “the fundamental consideration that the Constitution creates no executive prerogative to dispose of the liberty of the individual”). One important safeguard that protects Americans from facing trial in a potentially unfriendly nation, or in a nation that does not respect fundamental fair trial principles or abuses human rights, is the requirement that such extradition take place where the Senate has, by ratifying an extradition treaty, approved of the practice of a foreign nation sufficiently to permit such extradition.
Another, critical safeguard is the requirement of judicial supervision of extradition requests. This section expressly prohibits the judge from considering any of the following:
-- “humanitarian concerns,”
-- “the nature of the judicial system of the requesting foreign government,” and
-- “whether the foreign government is seeking extradition of a person for the purpose of prosecuting or punishing the person because of race, nationality or political opinions of that person.”
Under this legislation, an American can be sent abroad to face trial under before the courts of a foreign dictatorship, and an American judge has no ability under the statute to even inquire as to the fairness of that country’s court system or the reasons behind its criminal accusations.
Current basic due process and constitutional limits on extradition do not need to substantially impede the prosecution of terrorism, as Congress has provided “universal jurisdiction” over many serious terrorism offenses. In order words, such offenses are a crime under United States law even if committed in a foreign nation. For such offenses, a United States Attorney could charge a person suspected of a terrorism crime committed in a foreign nation if the United States lacked an extradition treaty.
Title IV –Undermining Fundamental Constitutional Rights Of Americans Under Overbroad Definitions Of “Terrorism” And “Terrorist Organization”; Reducing Due Process in Administrative Proceedings for Pilots; Undermining Financial Privacy and Due Process
Further criminalizing association – without any intent to commit specific terrorism crimes – by broadening the crime of providing material support to terrorism, even if support is not given to any organization listed as a terrorist organization by the government (Section 402). Under this section, a person who provides “material support” for “terrorism” as defined under the USA PATRIOT Act, could face a conviction, and lengthy prison terms, even if they did not provide any support for an organization listed as a terrorist organization. The definition of terrorism is not linked to any specific crimes, but covers all dangerous acts that are a violation of any federal or state law and are committed to influence government policy. See 18 U.S.C. § 2331. The definition arguably covers some protest activities, such as those used by Operation Rescue or by protesters in Vieques Island, Puerto Rico, as such tactics involve dangerous acts that are a violation of law and are committed to influence the government.
This section modifies the requirement to the crime of providing material support for terrorism, 18 U.S.C. § 2339A, which is a separate crime from providing material support for a designated terrorist organization, 18 U.S.C. § 2339B. Under current law, a person, including an American citizen, can only be prosecuted for providing material support for terrorism if the support is provided with the intent to further one of a list of terrorism crimes. A person can be prosecuted for providing resources to a terrorist organization that is designated by the government under the much broader definition of terrorism that arguably covers some protest groups, but only if such an organization has been designated as an international terrorist organization by the Secretary of State. See 18 U.S.C. § 2339B. In each case, the person effectively has some notice that what they are doing is prohibited: either the activity they support is a crime or the group whose lawful activities they would support has been publicly designated a terrorist organization. The amendment takes away this notice by permitting prosecution for providing support for the activities of an undesignated organization.
Groups such as Greenpeace arguably could be designated an international terrorist organization, because of the overbroad definition, but the government has not so designated them. Under this provision, however, the determination of whether to apply the terrorism definition to protest groups belongs not with high Executive Branch officials, but to the prosecutor who chooses to invoke the new criminal definition.
Creating a new, separate crime of using encryption technology that could add five years or more to any sentence for crimes committed with a computer (Section 404). Under this section, any federal felony committed with encryption technology that is now commonly part of computer software could be punished by an additional five years (or more, for a repeat offense.) The criminal conduct will not be any different; the only reason for additional penalties will be that the defendant used a certain technology to commit the offense. Here again, the DOJ’s description of the crime differs from the language proposed in the draft text. DOJ says it makes it a separate federal crime for a person to “knowingly and willfully use[] an encryption technology to conceal any incriminating communication . . . .” However, the draft text contains no requirement that the defendant intend to conceal anything; the crime is complete if the defendant intentionally uses an encryption technology in the commission of a crime. Thus, a simple fraud crime could, if committed using garden-variety encryption technology available with most standard web browsers, carry an additional jail term of up to five years regardless of whether the defendant intended to conceal his activity by using encryption.
Shifting burden of proof to defendant to obtain pretrial release for a laundry list of terrorism crimes (Section 405). Under this section, the right to bail, protected by the Eighth Amendment, is denied for a host of crimes said to be likely to be committed by terrorists unless the defendant is able to overcome the presumption created by the statute. A major reason for the Constitution’s prohibition against excessive bail is that defendants are presumed innocent until and unless they have been convicted in a court of law. Despite this, under certain circumstances, the Constitution permits pretrial detention. In general, the government must establish, by clear and convincing evidence, that no release conditions can adequately ensure the appearance of the defendant at trial or the safety of the community.[10]
There is no reason to exacerbate the constitutional problems posed by the presumption against pretrial release for some drug crimes by expanding that presumption to additional crimes. Before the government imprisons a person who has not been convicted of any crime, the government must bear the burden of establishing that the defendant is a flight risk or a danger to the community. This should not be hard to convince a court with respect to true terrorism defendants; there is no need to apply a pretrial detention presumption to a laundry list of offenses that are simply said to be likely to be committed by terrorists.
Imposing potentially life-long supervision and eliminating statute of limitations for nonviolent crimes listed as terrorism crimes, even where they create no risk of death or serious injury (Sections 408 and 410). Under section 408, a defendant who has served his or her sentence for a nonviolent crime listed as a terrorism crime could face life-long supervision, and possible reincarceration if those supervision conditions are violated, even if the crime for which he or she was convicted posed no risk of death or even serious injury. Likewise, section 410 removes entirely the statute of limitations for such nonviolent offenses. Under the USA PATRIOT Act, certain severe consequences follow from the commission of certain terrorism crimes, including the potential for life-long supervision, even after serving a full criminal sentence. In drafting the USA PATRIOT Act, Congress provided for a modest and very sensible limitation for such consequences – they only follow where the offense results in, or creates a foreseeable risk of, death or serious injury.
Indeed, it is not clear why any offense that would not at least create a risk of serious injury deserves to be labeled terrorism at all. The draft bill (at sections 408 and 410) eliminates this sensible restriction, by applying the severe consequence of lifetime supervision and removal of the statute of limitations even for crimes which do not create even a risk of death or serious injury. While DOJ uses the example of a computer crime causing severe financial damage or the provision of material support to an organization labeled as terrorist, it does not explain why such actions, if they truly were serious enough to be considered terrorism under a common sense rather than a legal definition, would not easily meet the requirement of causing at least a risk of serious injury.
Creating 15 new death penalties, including a new death penalty for “terrorism” under a definition which could cover acts of protest such as those used by Operation Rescue or protesters at Vieques Island, Puerto Rico, if death results (Section 411). The draft bill dramatically expands the death penalty, creating fifteen separate new death penalty crimes by defining a new death sentence that sweeps in the remaining crimes listed as federal crimes of terrorism in 18 U.S.C. § 2332b(g)(5)(B) that do not provide for the death penalty. Among others, these include the provision of material support for the lawful activities of an organization labeled a terrorist organization by the government, 18 U.S.C. § 2339B. While the DOJ labels this provision as providing for the death penalty for terrorist “murders,” there is no language in the text that requires any showing by the government of an intent by the defendant to kill; it is sufficient that death results from the defendant’s actions.
Even more troubling, the draft bill is not content to create fifteen new death penalties, but also contains language that sweeps in any violation of state or federal law that is committed under the definition of domestic or international terrorism contained in 18 U.S.C. § 2331. As a result, activities that (1) involve “acts dangerous to human life,” (2) are a violation of any state or federal law, and (3) are committed in order to influence government or the population by intimidation or coercion become death-penalty eligible if death results. Arguably, this definition could fit some protest activities, such as those used by Operation Rescue, People for the Ethical Treatment of Animals, or Greenpeace. For example:
-- If protesters at Vieques Island, Puerto Rico, a military bombing range unpopular with local residents, cut a fence to trespass on the military’s bombing range, and a bomb killed one of the demonstrators, a prosecutor could charge the survivors with a eligible crime for which the sentence could be death.
-- If Greenpeace activists attempted to block an oil tanker entering a port to protest the company’s safety record, and a member of the tanker’s crew drowned attempting to ward off the activists’ boat, the protesters could be charged with a crime for which the sentence could be death.
-- If an Operation Rescue anti-abortion demonstration succeeded in blocking a woman seeking follow-up treatment for complications following her abortion, and the woman died, the protestors could be charged with a crime the sentence for which could be death.
Under this provision, protesters could be charged with the death penalty as the result of a tragedy. While dangerous protest tactics can be punished under the law, they are not terrorism and should not be treated as if they were.
Reducing due process for pilots accused of posing a security threat (sec. 409). While the government has authority to revoke a pilot’s license on a sufficient showing that the pilot presents a risk to air security, such denials must be accompanied by a fair opportunity for the accused pilot to be heard in an administrative hearing and to have judicial review of any final determination. The draft bill’s procedures for revoking pilot licenses are deficient in this respect. They do not clearly provide for an administrative hearing (as opposed to an administrative determination), and judicial review is provided only through a direct appeal to the United States Courts of Appeals, who are unlikely to have the time or resources to conduct a thorough review of the administrative record.
Further undermining privacy in financial transactions and due process in asset forfeiture and other civil proceedings (subtitle B; secs. 421-28). Continued amendment of money laundering and asset forfeiture laws have resulted in a serious erosion of financial privacy and of due process rights in asset forfeiture and other proceedings. These sections continue that trend:
-- Section 421 multiplies by five times the maximum civil penalty for violating economic sanctions or trade embargoes from $10,000 to $50,000. This provision would severely penalize the thousands of Americans who travel to Cuba every year (often without fully appreciating that their travel is prohibited). It would also penalize physicians or other activists who wish to protest our sanctions on other countries, such as Iraq, by bringing medicine or other humanitarian aid to those nations in violation of such an embargo.
-- Section 422 targets “hawalas” – traditional money transfer systems used for entirely legitimate reasons in many Muslim cultures – by undermining key concepts of the money laundering statutes. Under this provision, money can be deemed “laundered” even if the funds involved are not proceeds of a crime.
-- Section 423 further undermines due process for organizations unfortunate enough to be labeled as “terrorist organizations” by the government, by depriving them of the ability to defend their status as legitimate charities in a proceeding to revoke their tax-exempt status.
-- Section 427 and 428 expand civil asset forfeiture – a procedure rife with due process problems that the government can use to seize property without proving that the owner is guilty of any crime and without a pre-seizure hearing. Under this provision, the assets of a protest group that arguably fits the USA PATRIOT Act’s overbroad definition of terrorism could be more easily seized by the government, and the use of secret evidence is explicitly authorized to permit such seizures.
Title V – Stripping Americans of All Their Rights as U.S. Citizens; Unfairly Targeting Immigrants Under the Pretext of Fighting Terrorism
Stripping even native-born Americans of all of the rights of United States citizenship if they provide support for “terrorism,” allowing them to be indefinitely imprisoned in their own country as undocumented aliens. (Section 501). This section would permit the government to punish certain criminal activity by stripping even native-born Americans of U.S. citizenship, thereby depriving them of any nationality at all and potentially relegating them forever to imprisonment as undocumented immigrants in their own country. Among the activities that could be punished this way are providing material support for an organization – including a domestic organization – labeled as a terrorist organization by the government, even if the support was only for the lawful activities of that organization.
The Fourteenth Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” While Americans do have the right to give up their citizenship in the United States, the Constitution does not give Congress any power to take away from an American his or her status as a citizen even for participating in crime in time of war. See Trop v. Dulles, 356 U.S. 86 (1958) (conviction by court martial of crime of desertion during World War II could not constitutionally lead to loss of citizenship, even though crime was committed voluntarily). Rather, as the Supreme Court has made clear, every citizen of the United States enjoys “a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that citizenship.” Afroyim v. Rusk, 387 U.S. 253 (1967) (citizenship could not be forfeited merely by voting in foreign election without the requisite intent to abandon U.S. citizenship).
While DOJ is correct to observe that certain voluntary acts, such as serving in a foreign army, can serve to terminate U.S. citizenship, these “expatriating acts” must indicate some desire to show an affinity with a foreign sovereign. Only acts that indicate such a desire to relinquish American nationality can be made the basis for a finding that strips an American of his or her citizenship. See Vance v. Terrazas, 444 U.S. 252, 262 (1980).
Moreover, it is the government’s burden to establish that the expatriating act was committed with the intent of relinquishing citizenship, a showing this section attempts to short-circuit. See id. at 261 (holding that the “trier of fact must . . . conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship.”) Expatriating acts are not defined by reference to how repugnant or offensive they are, or by whether they constitute serious crimes, but by whether they show the individual has an intent to attach himself or herself to another sovereignty. Thus, while serving in a foreign army or voting in a foreign election may indicate an intent to abandon American nationality, the commission of a series of grisly murders, or the control of a vast criminal enterprise plainly do not, although the former are legal while the latter are serious crimes.
Providing support to a terrorist organization, which possesses no sovereignty under international law, is a crime, see 18 U.S.C. § 2339A, but plainly does not indicate that the individual desires to attach himself or herself to the allegiance of a foreign nation or to abandon U.S. citizenship in the way that, for example, serving in a foreign army might. Indeed, expatriation in the draft bill is not even limited to providing material support to foreign terrorist organizations, as wholly domestic organizations can be designated as terrorist organizations under 8 U.S.C. § 1182(a)(3). In addition, expatriation could result from support of organizations “engaged in hostilities” against the “national security interests” of the United States – which could mean anything -- not just against the United States or its people. Finally, the draft bill would allow expatriation even for support of the lawful, humanitarian activities of an organization that the United States has labeled a “terrorist organization,” which belies DOJ’s analogy of supporting terrorism by serving in a foreign army engaged in hostilities against the United States.
Targeting undocumented workers with extended jail terms for common immigration offenses (Sections 502 and 505). Under the pretext of fighting terrorism, this section – which applies to low-level, garden variety immigration offenses that have nothing to do with terrorism at all – unfairly targets undocumented workers. The United States census revealed that more than seven million undocumented immigrants are living in the United States. At present, the United States is engaged in negotiations with Mexico in part to decide whether to permit greater numbers of temporary workers to come to the United States legally, and whether such a program would also provide a path to legal status for undocumented Mexicans or other undocumented immigrants.
Under the pretext of fighting terrorism, this section short-circuits the national debate over immigration policy by substantially increasing penalties for a number of very common immigration crimes often committed by undocumented immigrants. These include unlawful entry (INA § 275(a)(1)), reentry after removal (INA § 276), and failing to register with the immigration authorities (INA § 264(e)). The draft bill (at sec. 505) also provides that the offense of failing to depart after a deportation order (INA § 243) is a continuing offense – meaning that, in practice, no statute of limitations will apply. Increasing these penalties now would almost certainly not prove an effective deterrent to illegal immigration, as the threat of penalties for illegal immigration has never been sufficient to outweigh the causes of immigration including the pull of economic opportunity and the conditions in the home country, but could frustrate our relations with Mexico and other important U.S. allies seeking to negotiate a new framework for immigration policy.
Providing for summary deportations, even of lawful permanent residents, whom the Attorney General says are a threat to national security (Section 503). Under this provision, any immigrant, including longtime lawful permanent residents, may be expelled from the United States on the unilateral determination of the Attorney General that they are a threat to “national security,” which is defined as “the national defense, foreign relations, or economic interests of the United States.” INA § 219(c)(2). A person facing removal under this section will be separated from his or her family and community without ever being able to effectively answer the government’s true reasons for labeling him or her a security risk.
Immigrants and other non-citizens involved in terrorism are deportable under current law,[11] and suspected terrorists are subject to mandatory detention during any immigration or criminal proceedings.[12] The purpose of this amendment is to eliminate due process entirely for immigrants, including lawful permanent residents, accused of crimes or terrorism by permitting their expulsion merely on the Attorney General’s fiat. It is based on the fundamentally flawed notion that non-citizens in the United States do not possess the right to fair treatment under the law, a notion that the Supreme Court has repeatedly rejected. See Zadvydas v. Davis 533 U.S. 678, 693 (2001) (reiterating long-standing constitutional rule that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”).
The proposal is another DOJ initiative that flies in the face of President Bush’s stated opposition to the use of secret evidence in immigration proceedings on the basis that fair treatment should be afforded everyone in America. Under the proposal, a non-citizen, including a lawful permanent resident, accused of posing a risk to national security could be detained and deported without having committed any violation of law and without ever knowing the basis of the accusation against him or her. The provision would essentially authorize a repeat of the “Palmer raids,” a discredited episode in the 1920s that involved widespread mass deportations and widespread abuse of the rights of law abiding Russian and other immigrants during a wave of anti-immigrant and nativist hysteria.
DOJ originally asked for this summary deportation power shortly after September 11 in its initial drafts of the USA PATRIOT Act. It was firmly rejected, on a bipartisan basis, by a Congress deeply concerned about the use of secret evidence and core due process in immigration proceedings. It should be rejected again.
Completely abolishing fair hearings for lawful permanent residents convicted of even minor criminal offenses through a retoractive “expedited removal” procedure, and preventing any court from questioning the government’s unlawful actions by explicitly exempting these cases from habeas corpus (Section 504). Under this new “expedited removal” provision, any immigrant who was convicted even of a minor criminal offense long ago could be deported under a special procedure that provides for no immigration hearing at all and restricts the federal courts from questioning whether the government’s actions are within the law. The expedited removal provision, which currently applies only to some classes of undocumented immigrants, would now apply to all immigrants, including lawful permanent residents. “Expedited removal” would be available for crimes which are called “aggravated felonies” (and other crimes) but can be as minor as a shoplifting offense for which a suspended sentence of one year or more is imposed. No discretionary relief is available, regardless of the compelling humanitarian circumstances of any particular case, and the provision applies retroactively. The provision also unconstitutionally exempts these cases entirely from habeas corpus, 28 U.S.C. § 2241, which protects the right of all persons in custody – including immigrants – to a judicial determination of the legality of the government’s actions.
In 1996, Congress adopted harsh laws that greatly expanded the number and types of crimes that could lead to automatic deportation – i.e., deportation without any possibility to even apply for discretionary relief from the Attorney General. At that time, DOJ went even further than Congress, arguing that the law applied retroactively, so that even immigrants who had been granted relief for crimes committed years or decades earlier and had turned their lives around would now face automatic deportation. DOJ also argued that its controversial retroactive interpretation of the law could not be questioned by any federal court, including the Supreme Court.
In 2001, the Supreme Court firmly rejected DOJ’s position, finding both that Congress had not intended the 1996 immigration laws to apply retroactively and that restrictions on judicial review still left intact the federal court’s power to correct unlawful government action through a writ of habeas corpus under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289 (2001). (“Judicial intervention in deportation cases is unquestionably required by the Constitution.”) At the same time, in Congress, a growing number of members of Congress, on both sides of the aisle, began to reconsider the scope of the 1996 laws, culminating the decision of the House Judiciary Committee in 2002 to approve H.R. 1452, the Family Reunification Act, which would restore discretionary relief for some lawful permanent residents accused of relatively minor offenses, particularly if they had come to the United States at an early age.
The draft bill would seriously undermine fair treatment of lawful permanent residents. It would deny fundamental due process in immigration proceedings by completely eliminating an actual hearing. It would disregard the Supreme Court’s St. Cyr ruling, stripping the judiciary of its core functions in such cases.
The provision attempts to insulate the Attorney General’s “expedited removal” decision from judicial review by taking a step never taken by Congress since the Civil War – expressly denying access to habeas corpus, 28 U.S.C. § 2241, to prevent the federal courts from correcting unlawful actions by the immigration authorities. Because of the jurisdiction provided by by 28 U.S.C. § 2241, the Supreme Court in St. Cyr was able to consider the merits and found that Congress had not intended to apply the 1996 laws retroactively. This court-stripping provision violates the Constitution, because the Constitution protects habeas corpus – the Great Writ that keeps detention within the boundaries of the rule of law.[13]
Expanding the Attorney General’s authority to designate a country to which an immigrant could be deported, and permitting such deportation even if there is no effective government in such a country (Section 506). This section would authorize the Attorney General to dump immigrants ordered removed in any country in the world, and even to areas which are lawless and have no governing authority whatsoever. This section would have a devastating effect on Somalis and other Africans. While the world’s attention is focused elsewhere, a tragedy of extraordinary proportions has been building in Africa, where in Somalia, for example, effective government has broken down as rival armed groups vie for power. For this reason, a federal district court is now entertaining a plea from Somalis to halt deportations to that country. The Immigration and Nationality Act does not provide for forced deportation of anyone to a country or region that lacks any form of government, nor should it. Deportation should not be a death sentence, as such deportation could easily become. Nor is it good foreign policy to simply dump into lawless regions non-citizens ordered removed from the United States because such a policy that will simply exacerbate the severe challenges facing such areas of the world.
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ENDNOTES
[1] This and other similarities to criminal wiretap requirements were essential to the review court’s holding that “FISA as amended is constitutional because the surveillances it authorizes are reasonable.” Id. at 56. The ACLU does not agree with that conclusion, but simply notes that even a court with the broadest view of the government’s surveillance power has found the requirement that the government show probable cause that a target is acting for a foreign power is constitutionally based.
[2] Richard Reeves, PRESIDENT NIXON: ALONE IN THE WHITE HOUSE 335 (2001). The plan was apparently not implemented, despite President Nixon’s order, but certainly contributed to the pattern of abuse that finally lead to the Watergate break-in and cover up.
[3] In the absence of such a process, a party could well be barred from challenging the lawfulness of the underlying order in any proceeding to enforce contempt sanctions. See Walker v. City of Birmingham, 388 U.S. 307, 317 (1967) (holding civil rights marchers could not challenge the lawfulness of an injunction forbidding a peaceful march in proceedings to enforce contempt sanctions).
[4] THE FEDERALIST No. 84 (Hamilton) (emphasis in original) (quoting 1 Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 335).
[5] See American Civil Liberties Union of New Jersey v. County of Hudson, No. HUD-L-463-02 (N.J. Super. Ct. Law Div. April 12, 2002), rev’d on other grounds, 779 A.2d 629 (N.J. Super. App. Div. 2002); Center for National Security Studies v. United States Dep’t of Justice, 215 F. Supp. 2d 94 (D.D.C. 2002) (appeal pending before D.C. Circuit).
[6] “In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor . . . .” U.S. Const. amend. 6.
[7] See Testimony of Barry Steinhardt, Associate Director of the American Civil Liberties Union, Before the House Judiciary Committee, Subcommittee on Crime, March 23, 2000 (reporting an American Management Association survey in 1997 that reported that six out of ten employers responding use genetic screening information for employment purposes.)
[8] The National Immigration Forum has posted on its website a list of statements by local and state police from across the country, all opposing any attempt to enlist them in the enforcement of immigration laws. See Opposition to Local Enforcement of Immigration Laws, updated October 1, 2002, available at: http://www.immigrationforum.org/currentissues/articles/100102_quotes.htm
[9] See Letter from White House Counsel Alberto R. Gonzalez to Migration Policy Institute, June 24, 2002, available at: http://www.migrationpolicy.org/files/whitehouse.pdf
[10] See United States v. Salerno, 481 U.S. 739, 751 (1987) (holding that pretrial detention is constitutional “[w]hen the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community”).
[11] See INA § 237(a)(4)(B) (“Any alien who has engaged, is engaged, or at any time after admission engages in any terrorist activity . . . is deportable.”)
[12] USA PATRIOT Act, § 412, Pub. L. No. 107-56, 115 Stat. 321 (2001), codified at INA § 236A.
[13] Another court-stripping provision, in Section 504(d), would give the government power to deport people before a federal judge could hear their challenges, even where the law clearly allows judicial review, by posing serious barriers to the judge's ability to stay deportation while considering the case. The provision would overturn rulings of four federal appeals courts that found that the very stringent standard that applies for a judge to grant a request to stop deportation altogether under by INA § 242(f)(2) does not apply to a court’s ability to temporarily delay deportation while it considers the case. See, e.g., Mohammed v. Reno, 309 F.3d 95 (2d Cir. 2002) (on appeal from habeas review of removal order); Beijani v. INS, 271 F.3d 670 (6th Cir. 2001); Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) (en banc); Lal v. Reno, 2000 WL 831801 (7th Cir. June 26, 2000) (unpublished); but see Weng v. Attorney General, 287 F.3d 1335 (11th Cir. 2002). As one court noted, in rejecting the interpretation the DOJ is now seeking to enact in this legislation, “This would effectively require the automatic deportation of large numbers of people with meritorious claims, including every applicant who presented a case of first impression.” Andreiu, 253 F.3d at 48
© American Civil Liberties Union
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11835&c=206
[F6 note -- all uses of bolded, underlined and italicized text are as in the original; hope I didn't miss any, as I had to manually transcribe those attributes of the original]
(gonna try again -- formatting) (eom)
THE PATRIOT ACT II: TERRORIZING THE AMERICAN PEOPLE
www.gunowners.org
Apr 2003
EXECUTIVE SUMMARY
On February 7, 2003, the Washington-based Center for Public Integrity released a draft of new "anti-terrorism" legislation being crafted by the Justice Department. The broad new powers conferred on government by the Domestic Security Enhancement Act of 2003 (DSEA), labeled "CONFIDENTIAL -- NOT FOR DISTRIBUTION," are alarming.
Our analysis suggests that, rather than toughening our ability to capture and kill Osama bin Laden and his ilk, this bill would instead rely on cosmetic "solutions" which threaten the constitutional rights of Americans, without increasing our national security. In fact, this placebo will probably make our country considerably less secure.
Some of the most significant provisions follow:
PRIVACY AND UNLAWFUL SEARCHES
-- The government could bug, wiretap, or search anyone in America for up to 15 days without going to any court if Congress had authorized the use of military force (i.e., under circumstances which currently exist). [Section 103]
-- The government could seize personal information about Americans (including credit information, educational transcripts, etc.) in a wide range of circumstances without the approval of any court by issuing "administrative subpoenas" (i.e., subpoenas or letters issued by bureaucrats and not authorized by any court). [Sections 126, 128, & 129]
-- All of this information could be used to prosecute Americans. [Section 105]
-- If the government, incredibly, was so inept that it failed to comply with the virtually non-existent limitations on bugs and searches, there would be a defense in a proceeding against an agent who violated the law and/or the Constitution, thereby effectively legalizing all searches. [Section 106]
-- Individuals and groups which engage in or advocate civil disobedience or Second Amendment rights, including GOA, could be classified as "foreign powers" and subject to electronic surveillance for up to a year without the approval of any court. [Section 104]
BIG BROTHER
-- DSEA would authorize the creation of a DNA bank of all persons "suspected" of being terrorists. [Section 302-6]
-- Businesses that unlawfully turn over private consumer information to the federal government out of terrorism-related paranoia would be insulated from lawsuits. [Section 313]
ARRESTS AND SUSPENSION OF CONSTITUTIONAL RIGHTS
-- DSEA would allow the government to revoke or suspend a pilot's license for two months without any intervening judicial review during that time period [Section 409]. This provision may well be intended to deter pilots wishing to carry firearms in the cockpit. The guidelines issued by the Transportation Security Administration require all kinds of new testing (emotional, psychological, etc.) for every pilot who seeks to carry a firearm. (Of course, pilots already go through similar testing before qualifying for a pilot's license.) These additional tests could become fishing expeditions for a future Clinton-Gore Justice Department -- giving officials a pretext to suspend or revoke the licenses of those pilots who wish to carry firearms in the cockpit under DSEA's new suspension provisions.
-- DSEA could allow members and supporters of GOA and other organizations to be stripped of their citizenship [Section 501], arrested and held indefinitely without charges, here or abroad [Section 503-6], in secret at a secret location [Section 201], without access to an attorney or benefit of constitutional protections.
BACKGROUND
A year ago, Gun Owners of America [GOA] -- together with a wide range of organizations on all sides of the ideological spectrum -- warned that the so-called "P.A.T.R.I.O.T. Act's" overly broad definition of terrorism could allow the federal government to spy on -- and potentially shut down -- groups like GOA.
GOA and other groups negotiated with the Senate and the administration in removing some of the more noxious provisions, but was only partly successful in correcting the bill's inadequacies.
In particular, the Federal Bureau of Investigation -- which hardly shrouded itself in glory in connection the Waco and Ruby Ridge incidents -- was given broad new powers to wiretap, monitor, search, and detain "suspects" without probable cause or due process and without giving them access to attorneys.
On February 7, the Washington-based Center for Public Integrity released a draft of follow-up legislation being crafted by the Justice Department. The broad new powers conferred on government by this follow-up bill, labeled "CONFIDENTIAL -- NOT FOR DISTRIBUTION," are alarming.
Given the inability of the administration to capture and kill Osama bin Laden and many other top al Qaeda leaders, the Justice Department appears to be poised to use a future terrorist tragedy to create the impetus for passage of this bill, dubbed the "Domestic Security Enhancement Act of 2003 [DSEA]."
The importance of provisions waiving constitutional rights for non-citizens increases dramatically if the government can revoke the citizenship of native-born Americans for any reason -- much less, for potentially minor transgressions.
Although they may disagree with some overly broad interpretations crafted by the courts, Americans have no problem with constitutional rights for confessed serial killers, even though their admitted crimes are very serious. So the notion that bad people don't deserve the protections afforded by the rule of law is a relatively novel one -- and not a constitutional idea at all.
Rather than suspending the Constitution, concerned Americans believe the administration should honor it by:
-- creating a non-politically correct military;
-- allowing the military to seek, capture, and/or kill terrorists like Osama bin Laden, irrespective of whether resolute action has the approval of the UN or other participants in the "new world order";
-- treat REAL terrorists, like the bomber in WTC1, with severity, rather than moving to shorten their sentences (as was done prior to 9/11/2001);
-- securing our borders.
On the other hand, with the new DSEA draft posing the possibility that GOA and its officers, employees, and members could be stripped of their citizenship, the notion of suspending the Constitution for objectionable behavior is not something we support.
THRESHOLD OBSERVATIONS
A couple of threshold observations:
First: Three thousand people died on 9/11. While this is a tragedy of immense proportions, it is important to remember that perhaps as many as 169,000,000 people were killed during the 20th century by despotic governments given totalitarian powers [R.J. Rummell, Death By Government, Transaction Publishers, New Brunswick, NJ (2000)]. Americans who believe "it can't happen here" should consider how federalizing police powers resulted in tragic consequences in places like Ruby Ridge, Idaho and Waco, Texas.
Second: Over the past thirty years, most of our "dire" predictions have, if anything, understated the government abuse of the open-ended programs and over-broad language which we opposed. If anything, many Americans underestimated the extent to which:
-- the installation of seatbelts and air bags would result in "safety roadblocks," racial profiling, and the decapitation of infants;
-- the Brady Law would give rise to an effort by the Clinton administration to tax and register gun transactions using its illegally maintained database;
-- the enactment of a ban on full automatics in 1986 would only open the door to semiautomatic bans and calls for handgun registration; and
-- the Racketeer Influenced and Corrupt Organizations Act would primarily apply not to the Mafia, but to legitimate businesses and political demonstrators -- and would be later used by "conservative" Republican Senators to penalize gun dealers for minor infractions. The attempt to apply RICO to gun dealers occurred in 1998, but was beaten back after GOA mobilized thousands upon thousands of gun owners to lobby their Senators.
Given our experience with government, only a fool would agree to enact legislation which could arguably outlaw our organizations in the expectation that the language would not be interpreted as broadly as it could. This is particularly true because the Justice Department presumably knows how to draft legislation precisely crafted to oppose terrorism, and has chosen not to do so.
AN OVERVIEW
THE THRESHOLD DEFINITION OF "TERRORIST" -- A CASE STUDY
The question of whether DSEA is a "good bill" or a "bad bill" may revolve around whether its draconian remedies are narrowly targeted at legitimate threats, such as al Qaeda operatives, or are, instead, broadly applicable to militia groups or gun groups like Gun Owners of America and the National Rifle Association.
Some of the terms at the core of the bill are new; others were already on the books. For the second category, however, the impetus toward expansive interpretation of terms like "terrorist organization" was non-existent when the only ramification of the designation was determining who would be denied a visa. Now that this classification has cataclysmic consequences in terms of the ability of the government to search, bug, wiretap, and arrest, the dynamic has changed completely.
Here's the bottom line: At its lowest common denominator, a native-born American could be stripped of his U.S. citizenship and permanently and clandestinely detained in a secret location without charges and without an attorney if he:
1. "provid[ed] material support... to...
2. a terrorist organization, as defined by section 219 of the Immigration and Nationality Act -- a definition which requires that the organization
3. "engag[e] in a terrorist activity" (which includes "[t]he use of any... firearm... with intent to endanger, directly or indirectly, the safety of one or more individuals or cause substantial damage to property...") and
4. "threate[n] the security of United States nationals..."
5. if the organization is] "engaged in hostilities against..."
6. [U.S.] "national security interests...."
Requirement #1: Material support: Anyone who has ever contributed a dime to an organization which the administration, after the fact, determines to be a "terrorist organization" has "provided material support" to that organization. The definition of "material support" would be loosened even further by DSEA to include "knowingly provid[ing], attempt[ing] to provide, or conspir[ing] to provide a terrorist organization with one or more individuals (including himself) to work in concert with it or under its direction or control." Hence, if GOA were designated a "terrorist organization," all 300,000 members would be "at risk."
Requirement #2: Terrorist organization: A "terrorist organization" is an organization designated as such under section 219 of the Immigration and Nationality Act. It is far from implausible to assume that a Republican administration would make such a certification with respect to militia organizations such as the Deacons for Defense, an armed group which protected blacks against the KKK in the 1960s. It is reckless to assume a Clinton or Gore administration would not make such a designation with respect to conservative groups on the fringes of respectability, plus Gun Owners of America and the National Rifle Association, as well.
Requirement #3: Use of a firearm to threaten property: This requirement doesn't mandate injury to a person or destruction of property. It merely requires the "use" (which may include "carry") of a firearm with "intent" to damage property. UNITA (the group comprised of anti-communist, Angolan freedom fighters) clearly falls within this definition. The Deacons for Defense could very well have fallen within the definition since many of its participants carried guns while patrolling neighborhoods for the protection of residents within. As for GOA, it sanctions carrying firearms and using them for the protection of one's self, one's family, and one's home, even if that protection does not fall within the precise strictures of "self-defense," as it has been recently defined by the courts. Hence, the organization, its officers, and its members may well unlawfully "use" (i.e., "carry") firearms with intent to injure or cause property damage.
Requirement #4: Threat to "security" of U.S. nationals: Whether an American's "security" is threatened is a wholly subjective question.
Requirement #5: Hostilities: Traditionally, the question of whether a nation was engaged in "hostilities" against the United States involved a relatively high threshold and a comparatively bright-line definition. H owever, the notion, introduced by DSEA, of unaffiliated individuals and organizations engaging in "hostilities" is a complete tabula rasa. UNITA was actually at war with a U.S. communist ally -- and, thus, clearly falls within the ambit of this definition. But, just as a nation preparing for war may be engaging in "hostilities" before the first bullet is fired, there is nothing in this requirement that mandates that there be actual violence for an organization or individual to "engage in hostilities." Having said that: (1) groups like the Deacons for Defense clearly engaged in physical force to obtain their objectives of protecting black neighborhoods, and (2) GOA, by advocating the use of the Second Amendment to battle despots, could, by the application of "conspiracy" doctrine, easily fall within the scope of the definition if a member, subscribing to this notion, became violent.
Requirement #6: What are "national security interests"? Surely, the protection of an "ally," like the communist government of Angola, would fall within the term. When the GOA member discussed in connection with requirement #5 attacks a government building or official, there is no doubt that a "national security interest" would be invoked here. And in the case of the Deacons for Defense, which protected blacks against the KKK and the southern government establishment which supported it during the turbulent 1960s, it is fairly easy to see how "a national security interest" would be invoked by the "powers that be."
PRIVACY AND UNLAWFUL SEARCHES
-- The government could bug, wiretap, or search anyone in America for up to 15 days without going to any court if Congress had authorized the use of military force (i.e., under circumstances which currently exist). [Section 103]
-- The government could seize personal information about Americans (including credit information, educational transcripts, etc.) in a wide range of circumstances without the approval of any court by issuing "administrative subpoenas" (i.e., subpoenas or letters issued by bureaucrats and not authorized by any court). [Sections 126, 128, & 129]
-- All of this information could be used to prosecute Americans. [Section 105]
-- If the government, incredibly, was so inept that it failed to comply with the virtually non-existent limitations on bugs and searches, there would be a defense in a proceeding against an agent who violated the law and/or the Constitution, thereby effectively legalizing all searches. [Section 106]
-- Individuals and groups which engage in or advocate civil disobedience or Second Amendment rights, including GOA, could be classified as "foreign powers" and subject to electronic surveillance for up to a year without the approval of any court. [Section 104]
BIG BROTHER
-- DSEA would authorize the creation of a DNA bank of all persons "suspected" of being terrorists. [Section 302-6]
-- Businesses that unlawfully turn over private consumer information to the federal government out of terrorism-related paranoia would be insulated from lawsuits. [Section 313]
ARRESTS AND SUSPENSION OF CONSTITUTIONAL RIGHTS
-- DSEA could allow members and supporters of GOA and other organizations to be stripped of their citizenship [Section 501], arrested and held indefinitely without charges, here or abroad [Section 503-6), in secret at a secret location [Section 201], without access to an attorney or benefit of constitutional protections.
A SECTION-BY-SECTION ANALYSIS OF TROUBLESOME PROVISIONS
Treating GOA Like a Foreign Terrorist Nation for the Purpose of Searches, Bugs, and Wiretaps: Section 101 would allow individual "terrorists" to be classified as "foreign powers." A person engages in "international terrorism" if he engages in an illegal activity "dangerous to human life" to "influence the policy of a government," provided that a single letter crossed foreign boundaries in connection with the "terrorist's" activities. It is fairly clear, for example, that the Clinton administration would have classified Operation Rescue organizers as "terrorists" had it had the legal capacity to do so. Once an individual is classified as a "foreign power," this would, for example, allow virtually unlimited secret wiretapping and searches of that person under the Foreign Intelligence Surveillance Act (FISA). And, under section 104, the government could conduct electronic surveillance for up to a year without the approval of any court at all. GOA would have also been vulnerable under these definitions.
Treating the "Agents" of Gun Groups Like North Korea for the Purpose of Searches, Bugs, and Wiretaps: Having defined "foreign power" to include individuals who engage in civil disobedience, section 102 would allow an individual who engages in "clandestine [i.e., non-public] intelligence gathering activities [for] a foreign power" to be classified as "an agent of a foreign power," irrespective of whether such activities are unlawful under U.S. law.
15-Day Authorization for Wiretapping, Bugging, or Search of any American at any Time when Congress Has Authorized the Use of Force: Section 103 would allow electronic surveillance, physical searches, and the use of pen registers for up to 15 days without any court approval -- even approval of the secret FISA [Foreign Intelligence Surveillance Act] court -- at any time Congress has authorized the use of military force. In other words, the government could, under current circumstances, bug your house, tap your phone, and search your home or person for 15 days without a court order.
Establishment of Virtually Unlimited Warrantless Electronic Surveillance Against GOA: Section 104 would allow one year of electronic surveillance of spoken communications of "foreign powers" without any court's approval. This would not be as serious if sections 101 and 111 did not extend the definition of "foreign power" to domestic organizations and individuals who engage in or who advocate (1) civil disobedience, or (2) the use of the Second Amendment as a check on despotism.
Use of the Product of Secret or Warrantless Searches in Criminal Prosecutions: Section 105 would allow information obtained without procedural protections and ostensibly for foreign intelligence purposes to be used to prosecute individuals if the AG, the Deputy AG, an Associate AG, or an Assistant AG approved. This makes a huge end run around the Fourth Amendment protection against warrantless searches and seizures.
Authorization of Unconstitutional Searches: Section 106 would create a defense for a federal agent conducting an illegal search not authorized by any court -- no matter how unlawful or unconstitutional -- if the search was in connection with an investigation authorized by the president or Attorney General. Given that massive expansion of secret and warrantless searches under DSEA, this "just-following-orders" provision appears to remove any impediment at all to the most egregious violations of constitutionally protected privacy rights.
Expansion of Pen Register Authority: In 2001, the Justice Department argued for a very broad ability to monitor the phone calls of non-citizens whenever necessary "to obtain foreign intelligence information" -- without the approval of any court, including the FISA "secret court." Section 107 of the new legislation would extend this power to U.S. citizens.
Expanded Sanction Ability of FISA Court: Section 109 would explicitly give the secret FISA court the ability to sanction individuals in any way a regular court can sanction them, including, for example, contempt of court. The difference is that individuals have no right to appear before the FISA court, to be represented before it, or to contest its judgments.
Removal of Sunset Provision: Section 110 would, in the guise of making a "technical correction," remove the sunset from provisions allowing the broad use of pen register and trap and trace devices.
Treatment of GOA as a "Foreign Power": Section 111 would allow "international terrorist organizations" to be treated like foreign powers under a broader range of circumstances than allowed by current law. The government could, for example, conduct electronic surveillance or searches for up to a year without any court's approval. This section also insures that an "international terrorist organization" cannot be classified as a "United States person," thereby affording it protections from many of FISA's more onerous impositions.
Applicability of Electronic Surveillance Provisions of Title 18 to GOA: Section 121 would expand the circumstances under which electronic surveillance could be conducted. It would insert the broad definition of "terrorist activities" in the electronic surveillance provisions of Title 18 and would explicitly state that electronic surveillance could be conducted in connection with any of these activities. In particular, "terrorist activities" would include all of the overbroad definition of "international terrorism," plus "related preparatory, material support, and criminal activities."
Warrantless Electronic Surveillance: Section 122 would explicitly add to the ability of the Justice Department to conduct electronic surveillance without the approval of any court. Specifically, it would add four sections as "surveillance predicates." One of these predicates -- 18 U.S.C. 930(c) (attempting to kill someone with a firearm on a federal facility) -- could be applicable in cases where a hunter on BLM land and on a federal installation uses a firearm for self-defense, but does not fall within the formal strictures of the common law defense.
Extension of Time Periods for Electronic Surveillance: In the case of individuals determined by the government to be engaged in "terrorist activities," section 123 would:
-- extend the normal time for the investigation from 30 to 90 days;
-- eliminate the ten-day requirement for periodic reports to judges while electronic surveillance is ongoing, allowing courts to require them at no shorter intervals than 30 days;
-- delay the requirement of notifying the subject that his personal electronic communications were accessed in cases where the Justice Department determines that national security would be endangered;
-- extend the normal duration of pen registers and trap and trace devices from 60 to 120 days.
Implied Authority to Search Databases: Section 124 would provide that an order to engage in electronic surveillance is an implicit authorization to intercept any of a device's functions. Thus, an order authorizing interception of transmissions from a Palm Pilot would automatically authorize seizure of all of the information stored in the Palm Pilot. An order authorizing interception of e-mails would be taken to authorize access to all information stored in the computer.
Nationwide Judge-Shopping for Search Warrants: Section 125 would allow "nationwide search warrants" -- thereby allowing nationwide judge-shopping, even in districts which have little relationship to the purported crime -- in a broader range of circumstances. In particular, "computer crimes" would be subject to nationwide search warrants.
Warrantless Seizure of Personal Information: Section 126 would allow law enforcement personnel to obtain a person's credit report without a warrant by simply certifying that they will use it "only in connection with their duties to enforce federal law." It would be a crime to notify a consumer that his credit report had been accessed.
Authorization of Field Autopsies, Even when Contrary to Religious Beliefs: Section 127 would allow the autopsy of bodies outside U.S. jurisdiction, even in cases, such as Orthodox Jews, where religious beliefs prohibit the practice.
Warrantless "Administrative Subpoenas": Section 128 would broadly authorize the issuance of "administrative subpoenas" (i.e., subpoenas issued by bureaucrats without the approval of any court) in the case of "domestic or international terrorism" investigations.
Expansion of Current Warrantless "Administrative Subpoena" Authority: Section 129 would amend the provisions of federal law currently authorizing "administrative subpoena"-type demands in limited circumstances. It would expand the scope of current non-judicial information demands to cover "domestic," in addition to "international" terrorism. It would also create a procedure for judicial enforcement in the case of non-compliance and would establish a prison sentence of up to five years. The loosely defined "domestic terrorism" provision opens the door to broad investigations and warrantless searches of domestic organizations, particularly militia-type Second Amendment groups.
Secret Arrests: Under section 201, once a person was arrested pursuant to broadened authorities, the law would prohibit Freedom of Information Act lawsuits to obtain information about those persons in custody.
Gag Order on Public Disclosure of Worst-Case Scenarios: Section 202 would prohibit the release of "worst case scenario" reports required to be prepared by facilities handling dangerous chemicals. The reports would be available only in "read-only" form -- and only to persons living or working in the affected area.
Concealment of Information Relating to the Capitol Complex: Section 203 would exempt OSHA-type information relating to the Capitol complex from the Freedom of Information Act. Once dubbed "the people's house," this is one more admittedly small step toward turning the Capitol into a fortress.
Requirement that Classified Information Procedures Act Hearings Be Conducted in Secret: Section 204 would allow the government to require courts to conduct Classified Information Procedures Act procedures ex parte (i.e., without the presence of any party, other than the government).
Extension of Grand Jury Secrecy Rules to All Cases: Section 206 would impose grand jury-type secrecy requirements on a broad range of persons receiving subpoenas. Secrecy requirements would apply in any case where there was a possibility of flight, destruction of documents, evidence-tampering, "or other serious jeopardy to an investigation," whether or not in connection with a terrorism case.
DNA Database: Section 302 would allow a DNA database of "suspected" terrorists -- with the federal government exercising unfettered discretion over who is a "suspected" terrorist. A "suspected terrorist" would be any person "as to whom [sic] the Attorney General... has determined that there is reason to believe [has violated the loosely defined statutes discussed above]." Thus, it would not seem to be a defense that there is no reason to believe the subject is a terrorist, so long as the AG has determined there is reason to believe. Section 306 would make it clear that this extends to "suspected terrorists" on conditional release, parole, probation, or any other kind of federal supervision. Section 303 would allow the attorney general to establish DNA databases for suspected terrorists. Section 304 contains definitions, and section 305 states that this provision will not be taken to diminish any authority currently available for collecting DNA samples.
Distribution of Private Financial Data: Section 311 would drop restrictions on sharing federal-government-held information concerning credit history and educational records with states and localities.
Invalidation of Surveillance Consent Decrees: Section 312 would overturn judicial consent agreements that the New York City Police Department and other law enforcement agencies entered with respect to surveillance of individuals and organizations that "may" be engaged in criminal wrongdoing.
Squeal Rule: Section 313 would allow businesses the virtually unlimited ability to turn over private information to the government without civil liability, based on their assessment that the information "may assist" a terrorist inquiry.
Search Warrants on Behalf of Foreign Governments: Section 321 would explicitly allow the government to obtain search warrants and pen/trap register requests on behalf of foreign governments, irrespective of whether the U.S. has entered a treaty with the country authorizing this practice.
Extradition for Crimes Not Contained in Extradition Treaties: In the name of curing anachronistic treaties, section 322 would open the doors on the types of crimes for which Americans could be extradited to Third World countries. An individual could be extradited for any crime carrying a penalty in excess of ten years under a politically correct regulatory statute enacted by Congress or by the state where the person is found.
Regulation of the Internet: Section 401 would criminalize and create a cause of action against a person who "knowingly convey[s] false or misleading information, where the information reasonably may be believed, [if the information concerns] criminal activity relating to weapons of mass destruction...." Several observations with respect to persons -- particularly conspiracy theorists -- wishing to conduct discussions of terrorism on the internet: (1) Under decisions going back to the 1930's, the word "knowingly" can be interpreted to include willful ignorance, gross recklessness, and other states of mind not requiring objective knowledge. It can also be taken to imply that the communication was "knowing," irrespective of whether the sender "knew" of the "false or misleading" nature of the content. (2) Under a broad range of federal statutes, including the SEC's Rule 10b5, "false or misleading" information includes true statements that fail to include other information which might be of interest to the reasonable listener. This is usually couched in language like: "fails to state a fact necessary to make the statement not misleading." (3) What person, conveying the most outrageous information on the internet, could credibly argue that the information "may not reasonably be believed"? (4) The information need not concern criminal activity of the sender. More likely, in fact, it will be mindless speculation on criminal activities of Osama bin Laden, al Queda, etc.
Broadening the Definition of International Terrorism to Cover GOA, NRA, etc.: Section 402 would expand the phrase "providing material support to terrorism," to cover "knowingly provid[ing], attempt[ing] to provide, or conspir[ing] to provide a terrorist organization with one or more individuals (including himself) to work in concert with it or under its direction or control." This would insure that an employee or volunteer for any organization designated as "terrorist" could also be swept up in the law's broad criminal proscriptions.
Outlawing Encryption: Section 404 provides that, if an individual knowingly or unknowingly commits a federal regulatory offense (like virtually every major American corporation) and encrypts his communications, the act of encryption is, in and of itself, a felony carrying a five-year prison sentence. Again, the language provides that the person must "knowingly" use the encryption technology, but that "knowledge" requirement probably does not extend to the question of whether the encrypted communication is "incriminating" or whether the individual is engaging in unlawful activity.
Denying Bail: Section 405 would create a presumption that an individual accused of terrorism would not be granted bail and would not be released prior to trial. Among the crimes for which unconvicted prisoners would presumptively not be released is "injury to government property." Thus, this broad new class of malefactor would be imprisoned, without any finding of guilt, based on the government's unproven accusation.
"Affecting Interstate Commerce": In sections 403 and 407, the Justice Department argues that a jurisdictional predicate for terrorism prosecutions granting jurisdiction in any case where the act "affects interstate commerce" is not broad enough. Irrespective of the underlying policy, it is unclear that any act committed within the U.S. would not "affect commerce," as that term has been broadly defined by the courts.
Lifetime Government Supervision Authorized for a Broad Range of Non-Serious Crimes: Last year's bill established that a person who has been convicted of any "terrorism"-type offense could be subject to government supervision and restrictions on his movement for the rest of his life. Section 408 would make it clear that a person under "supervision" could be reimprisoned at any time for the rest of his life for multiple violations of the lifetime restrictions imposed on him. The court would be required by law to impose supervision and restrictions for AT LEAST ten years -- even if the court found that the individual did not present a risk to the community. The section also broadens the list of crimes invoking lifetime supervision to crimes which DO NOT "create a foreseeable risk of, death or serious injury," extending that list to "crimes likely to be committed by terrorists and supporters of terrorism...."
Revocation of Pilot Certification without Judicial Review: Section 409 would allow the government to suspend, revoke, or deny pilot certification based on "national security." The FAA administrator would be required to suspend the license of any pilot for whom the Under Secretary of Transportation had issued an "initial determination" that the pilot posed a risk. The courts would be explicitly prohibited from reviewing the administrator's order or the "initial determination." This means that, if this provision were upheld as constitutional, there would be no judicial redress to an unconstitutional, unlawful, or arbitrary suspension of a pilot's license until it became "final" at the end of 60 days.
Removal of Statute of Limitations for "Terrorism": Section 410 would remove the statute of limitations on the open-ended "terrorism" offenses which have been discussed.
Increase in Fine for Supporting Groups Like GOA: Section 421 would increase the fine for supporting terrorist organizations (like, potentially, GOA or NRA) to $50,000 per violation.
Expansion of Open-Ended Money Laundering Provisions: "Money laundering" is a federal statute which has recently been subject to considerable prosecutorial abuse. In particular, the Wall Street Journal has reported extensively on the way legitimate businesses which engage in regulatory violations and then divert the proceeds of their "unlawful activities" (i.e., business) to other purposes have found themselves faced with money laundering charges. Section 422 would expand even further the ability of the government to prosecute honest businessmen under the money laundering provisions by covering financial transactions arguably not executed with the "proceeds" of the "illegal" enterprise. Section 426 would explicitly add some of the open-ended "terrorism"-related provisions to the open-ended "money laundering" statute.
Revocation of GOA's Tax-Exempt Status and Professional Licenses: Section 423 would specifically authorize the government to jerk GOA's tax-exempt status, and section 424 allows the government to deny it commercial and professional licenses.
Broadening Sanctions Against GOA Supporters: Section 425 would take the broad definition of "material support or resources" from section 402 of the draft and apply it to criminal sanctions contained in 18 U.S.C. 2339C.
Forfeiture: Section 427 would take the open-ended provisions of last year's bill providing for forfeiture of the assets of a "terrorist" organization -- and would extend the provision to "persons" planning acts of "terrorism" against foreign states and international organizations. This is particularly important for American conservatives who supported anti-Communist organizations like Angola's UNITA long after the Clinton administration had abandoned UNITA and was supporting the communist government in power.
Correction of Errors: Section 428 would supposedly make "technical corrections" to last year's bill -- a bill enacted with such haste that, apart from any questions of substance, it was rife with references to non-existent sections (e.g., 31 U.S.C. 5333) and other factual errors.
Extending Secret Arrests to American Citizens on U.S. Soil (Section 501): This provision would allow the government to revoke the citizenship of native-born Americans if they "provid[e] material support... to" or "serv[e] in" an organization which the government has designated as a "terrorist organization." For citizenship to be revoked, the organization would have to be engaged in "hostilities against the United States, its people, or its national security interests..." [emphasis added]. However, the term "hostilities" may extend far beyond acts of war or violence, and U.S. "national interests" are almost completely open-ended. Aid to UNITA, for instance, would almost certainly fall within the ambit of this section, and it may be that support of an organization like GOA -- which advocates that the Second Amendment is a shield against despotism -- would also qualify. In addition, militia groups would almost certainly be covered by this section. Once a native-born American has his citizenship stripped, section 503 would allow the newly stateless American to be removed to an undisclosed location abroad if the Attorney General "has reason to believe" that such a person "pose[s] a danger to the national security." Section 504 would allow the person to be removed from the U.S. under "expedited procedures." Section 506 specifically expands the ability of the government to deport newly expatriated Americans to any country it chooses. Once stripped of citizenship, section 505 would take away the discretion of courts to suspend the criminal penalty for failure to depart, in the event that the former American cannot find a new country to accept him. Preexisting authorities, of course, would allow the government to detain the former American indefinitely without charges, in secret, without an attorney or other constitutional protections.
http://www.gunowners.org/patriotii.htm
Stealth Implementation of "PATRIOT ACT II"
January 12, 2004
Lost amid the tumult surrounding Saddam Hussein’s December 14 capture was enactment of a measure radically extending federal counter-terrorism powers. Most of the details of H.R. 2417, the Intelligence Authorization Act for fiscal year 2004 "are secret, including the total cost of the programs, which are estimated to be about $40 billion," noted an AP story. That amount is "slightly more than Bush had requested." The measure’s publicized portions include new FBI powers "to demand financial records from casinos, car dealerships, and other businesses," as well as several pilot programs permitting data exchanges between agencies.
Representative Ron Paul (R-Texas) opposed the measure, insisting that it "should outrage every single American citizen." "It appears we are witnessing a stealth enactment of the enormously unpopular ‘PATRIOT II’ legislation that was first leaked several months ago," stated Rep. Paul in a November 20 speech on the House floor. "These expanded police powers will enable the FBI to demand transaction records from businesses … without the approval or knowledge of a judge or grand jury. This was written into the bill at the 11th hour over the objections of members of the Senate Judiciary Committee, which would normally have jurisdiction over the FBI."
"I also have concerns about the rest of the bill," continued Rep. Paul. "One of the few things we do know about this final version is that we are authorizing even more than the president has requested for the intelligence community.... Despite the tens of billions we spend on these myriad intelligence agencies, it is impossible to ignore the failure of our federal intelligence community to detect and prevent the September 11 attacks."
http://www.thenewamerican.com/tna/2004/01-12-2004/insider/patriotact.htm
Get Ready for PATRIOT II
By Matt Welch, AlterNet
April 2, 2003
The "fog of war" obscures more than just news from the battlefield. It also provides cover for radical domestic legislation, especially ill-considered liberty-for-security swaps, which have been historically popular at the onset of major conflicts.
The last time allied bombs fell over a foreign capital, the Bush Administration rammed through the USA PATRIOT Act, a clever acronym for maximum with-us-or-against-us leverage (the full name is "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism").
Remarkably, this 342-page law was written, passed (by a 98-1 vote in the U.S. Senate) and signed into law within seven weeks of the Sept. 11 terrorist attack. As a result, the government gained new power to wiretap phones, confiscate property of suspected terrorists, spy on its own citizens without judicial review, conduct secret searches, snoop on the reading habits of library users, and so General John Ashcroft wants to finish the job. On Jan. 10, 2003, he sent around a draft of PATRIOT II; this time, called "The Domestic Security Enhancement Act of 2003." The more than 100 new provisions, Justice Department spokesperson Mark Corallo told the Village Voice recently, "will be filling in the holes" of PATRIOT I, "refining things that will enable us to do our job."
Though Ashcroft and his mouthpieces have issued repeated denials that the draft represents anything like a finished proposal, the Voice reported that: "Corallo confirmed ... that such measures were coming soon."
You can read the entire 87-page draft here [F6 note -- link provided at the end of this post]. Constitutional watchdog Nat Hentoff has called it "the most radical government plan in our history to remove from Americans their liberties under the Bill of Rights." Some of DSEA's more draconian provisions:
-- Americans could have their citizenship revoked, if found to have contributed "material support" to organizations deemed by the government, even retroactively, to be "terrorist." As Hentoff wrote in the Feb. 28 Village Voice: "Until now, in our law, an American could only lose his or her citizenship by declaring a clear intent to abandon it. But – and read this carefully from the new bill – 'the intent to relinquish nationality need not be manifested in words, but can be inferred from conduct.'" (Italics Hentoff's.)
-- Legal permanent residents (like, say, my French wife), could be deported instantaneously, without a criminal charge or even evidence, if the Attorney General considers them a threat to national security. If they commit minor, non-terrorist offenses, they can still be booted out, without so much as a day in court, because the law would exempt habeas corpus review in some cases. As the American Civil Liberties Union stated in its long brief against the DSEA, "Congress has not exempted any person from habeas corpus – a protection guaranteed by the Constitution – since the Civil War."
-- The government would be instructed to build a mammoth database of citizen DNA information, aimed at "detecting, investigating, prosecuting, preventing or responding to terrorist activities." Samples could be collected without a court order; one need only be suspected of wrongdoing by a law enforcement officer. Those refusing the cheek-swab could be fined $200,000 and jailed for a year. "Because no federal genetic privacy law regulates DNA databases, privacy advocates fear that the data they contain could be misused," Wired News reported March 31. "People with 'flawed' DNA have already suffered genetic discrimination at the hands of employers, insurance companies and the government."
-- Authorities could wiretap anybody for 15 days, and snoop on anyone's Internet usage (including chat and email), all without obtaining a warrant.
-- The government would be specifically instructed not to release any information about detainees held on suspicion of terrorist activities, until they are actually charged with a crime. Or, as Hentoff put it, "for the first time in U.S. history, secret arrests will be specifically permitted."
-- Businesses that rat on their customers to the Feds – even if the information violates privacy agreements, or is, in fact, dead wrong – would be granted immunity. "Such immunity," the ACLU contended, "could provide an incentive for neighbor to spy on neighbor and pose problems similar to those inherent in Attorney General Ashcroft's Operation TIPS."
-- Police officers carrying out illegal searches would also be granted legal immunity if they were just carrying out orders.
-- Federal "consent decrees" limiting local law enforcement agencies' abilities to spy on citizens in their jurisdiction would be rolled back. As Howard Simon, executive director of Florida's ACLU, noted in a March 19 column in the Sarasota Herald Tribune: "The restrictions on political surveillance were hard-fought victories for civil liberties during the 1970s."
-- American citizens could be subject to secret surveillance by their own government on behalf of foreign countries, including dictatorships.
-- The death penalty would be expanded to cover 15 new offenses.
-- And many of PATRIOT I's "sunset provisions" – stipulating that the expanded new enforcement powers would be rescinded in 2005 – would be erased from the books, cementing Ashcroft's rushed legislation in the law books. As UPI noted March 10, "These sunset provisions were a concession to critics of the bill in Congress."
I wouldn't be writing this article today had an alarmed Justice Department staffer not leaked the draft to the Center for Public Integrity in early February. Ashcroft, up to that point, had repeatedly refused to even discuss what his lawyers might be cooking up. But if 10,000 residents of Los Angeles had been vaporized by a "suitcase nuke" in late January, it is reasonable to assume that the then-secret proposal would have been speed-delivered for a congressional vote, even though Congress has not so far participated in drafting the legislation (which is, after all, its Constitutional role).
As a result of the leak, and the ensuing bad press, opposition to the measure has had time to gather momentum before the first bomb was dropped on Saddam's bunker. Some of the criticism has originated from the right side of the political spectrum – a March 17 open letter to Congress was signed not only by the ACLU and People for the American Way, but the cultural-conservative think tank Free Congress Foundation, the Gun Owners of America, the American Conservative Union, and more.
One does not have to believe that Ashcroft is a Constitution-shredding ghoul to find these measures alarming, improper and possibly illegal. Glancing over the list above, and at the other DSEA literature, I can see multiple ways in which a Fed with a grudge could legally ruin my life. Removing checks and balances on law enforcement assumes perfect behavior on the part of the police.
Safeguarding civil liberties is an unpopular project in the most placid of times. Since Sept. 11, the Bush Administration has shown that it will push the envelope on nearly every restriction it considers to be impeding its prosecution of the war on terrorism. This single-minded drive requires extreme vigilance, before the fog of war becomes toxic.
Detailed critiques of the Patriot II draft have been prepared by the ACLU and the Center for Public Integrity. The Lawyers Committee for Human Rights also has a useful 98-page report on post-Sept. 11 civil liberties, and the Electronic Privacy Information Center maintains an outstanding PATRIOT-related site.
Matt Welch is the Los Angeles correspondent for the National Post, and an editor of the L.A. Examiner. He also maintains a weblog about current events.
http://www.alternet.org/story.html?StoryID=15541
And here's the direct link to "The Domestic Security Enhancement Act of 2003" referred to in the foregoing article -- it gets into the interesting stuff right from the start:
http://www.publicintegrity.org/dtaweb/downloads/Story_01_020703_Doc_1.pdf