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January 07, 2005

just trust us

Don Herzog: January 7, 2005

One thing the Patriot Act does not do is to allow the investigation of individuals "solely on the basis of activities protected by the First Amendment to the Constitution of the United States."  We know that it does not do that.  And even if the law did not prohibit it, the Justice Department has neither the time nor the inclination to delve into the reading habits or other First Amendment activities of our citizens.  Despite all the hoopla to the contrary, for example, the Patriot Act, which allows for court-approved requests for business records, including library records, has never been used to obtain records from the library, not once.

                                                                --John Ashcroft, addressing the Federalist Society, 11/15/'03

The Patriot Act is huge. (You gotta love its name, right? for what it insinuates about opponents.  But these political games are old.  The House leadership juggled to make sure the lend-lease act of World War II came out numbered HR1776.)  And it's hard to read, not just because it's in legalese, but because it inserts endless amendments into other statutes, and sometimes you have to look up the statute being amended to figure out what's going on.  Just for instance, section 802(a)(2)(B) amends legislation from the Clinton administration that prohibited supplying "material support or resources" to terrorists.  The amendment adds "expert advice or assistance" to the earlier definition, and its directly reaching speech raises first amendment issues that have gotten courts involved.

Here Ashcroft was referring to section 215, and this much legalese you owe it to yourself to work through:

(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution. ...                       

(b) Each application under this section ...

(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.

(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.

(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).

(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

Under this language, the feds don't have to think you're involved in terrorism; they just have to think your records would be useful in tackling terrorism.  That the order they get is "ex parte" means you aren't represented when the agent asks a judge or a magistrate to authorize a search, and the connected gag orders are there to ensure you don't find out.  No wonder those doughty radicals of the American Library Association resolved to urge member libraries to protect patron privacy, nor that plenty of libraries are now routinely purging digital records.

All this may or may not be good policy, and that's worth arguing about, though I share David's concerns about cosmic clashes between liberty and security.  But I'm more interested here in thinking about how we properly decide when to trust the government and when not to.

A certain kind of ("law and order") conservative is happy to trust the government on domestic and national security, but suspects that public education, social welfare programs, and the like are shot through with inefficiency, corruption, and endless scandals papered over with bureaucratic mumbles and lies.  Maybe.  But surely we have to watch out for wishful thinking.  It can't be the case that if we think the government should do something, we therefore can trust it.  Nor that if we think it shouldn't, we should scowl in disbelief at whatever good results it reports.

Nor is it a matter of your best hunch about the motives of state actors, or whether power corrupts and absolute power corrupts absolutely, or anything like that.  And please, no more stale refrains about how the left instinctively adores the state and wants it to run all of society.  Here's the key.  The domestic programs scorned by some are open to public inspection.  Enlightenment liberals insisted on sunlight, transparency, the "precious talisman of Publicity," as the Edinburgh Review put it in 1818, so that citizens could unearth abuses and correct them.  In the domestic and national security context, though, it is hard, sometimes impossible, to find out what the government is up to.  Since I firmly endorse that old liberal belief, I know when I'm most inclined to distrust the government:  when ex parte proceedings and gag rules are at the disposal of faceless assistant special agents and magistrates.

So I don't find Ashcroft's assurances all that consoling.  Neither should you.

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» Trust and Terrorism Investigations: from The Volokh Conspiracy
Over at Left2Right, Don Herzog explains that he doesn't trust the government to investigate terrorism cases because terrorism investigations are run secretly — specifical... [Read More]

Tracked on Jan 8, 2005 2:36:28 PM

Comments

Posted by: Chris

Professor Herzog stated: “Under this language, the feds don't have to think you're involved in terrorism; they just have to think YOUR RECORDS would be useful in tackling terrorism.” (my emphasis).

There is a vast amount of critique on this site about things that are insignificant and I have been guilty of it myself, but this one sentence goes to the very heart of the issue.

When you open a checking account and write checks that record does not belong to you. It belongs to the bank. The bank can turn that record over to anyone without a subpoena if it so chooses, unless there are statutes that protect your privacy. UNITED STATES v. MILLER [425 U.S. 435], http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=425&invol=435

When you go to the library and check out a book that record does not belong to you. It belongs to the library. The library can turn that record over to anyone without a subpoena if it so chooses.

When you go to Wal-Mart and your items are scanned and you pay by check that record does not belong to you. It belongs to Wal-Mart. Wal-Mart can turn that record over to anyone without a subpoena if so chooses.

When you go to the doctor that record belongs to the doctor. If it was not for statutes that protect your privacy then the doctor could release those records to anyone he wanted. And the same goes for your conversations and communications with your attorney.

The reasoning is that you have to have a reasonable expectation of privacy and that society (Court) as a whole must recognize that as a reasonable right.

Posted by: Chris | Jan 7, 2005 8:06:38 AM


Posted by: D.A. Ridgely

“Neither should you.” And I don’t.

It is interesting, though, that one of the odd ways the left and the right divide is over what seems to me a sort of cherry-picking attitude when it comes to constitutional absolutism. That is, for example, the ACLU at least used to be fairly absolutist about 1st Amendment rights while the NRA routinely takes an almost absolutist 2nd Amendment position. (An NRA member I know has a bumper sticker that reads “When Guns Are Outlawed, Only The Police Will Have Guns.” I rather like that.)

While I don’t disagree with Mr. Herzog’s concerns or his distinction (I’m all for transparency in government, though I question how effective it really is in curbing abuses – try finding out where even a routine FOIA request should be filed sometime), might I suggest that we have come to a point in our society, 9/11 aside for a moment, where we are already preconditioned to be more accepting of these practices because of the other inappropriately named ‘war’ – the ‘war against drugs.’ All warrant requests are (for fairly obvious and necessary reasons) ex parte proceedings and the gag orders are, if I am not mistaken, similar to prohibitions against banks and other financial institutions disclosing to their customers that the Feds have been looking at their records, putatively to trace drug generated money laundering, etc.

The way to boil a frog is to increase the temperature of the water gradually. I suggest the water has been getting warmer for some time now.

Posted by: D.A. Ridgely | Jan 7, 2005 8:12:37 AM


Posted by: S. Weasel

Or, to put it another way, the frightening thing about the Patriot Act is not that it gives an extraordinary increase in power to the authorities, but that it gives a small, incremental and ordinary increase in power to the authorities.

Posted by: S. Weasel | Jan 7, 2005 8:23:23 AM


Posted by: David Velleman

Re: the title of Don's post

At Slate, Chris Suellentrop sums up Alberto Gonzales's testimony at yesterdays hearings on his nomination to be Attorney General:

It's a strange argument from a conservative: We're the government. Trust us.

Posted by: David Velleman | Jan 7, 2005 9:03:32 AM


Posted by: Ken Hirsch

Although I can understand objections to this, can I ask what you think the ethical and legal situation should be in a real case. Back in August, 2001, Brian Regan was arrested for espionage. He visited at least three libraries in order to use the internet anonymously (or so he thought).

If the FBI had a warrant issued by a judge (not "just trust us") to see what he did on the internet at the library, what should the library's response be? Should the library call Regan and warn him that he is under investigation? Would the country be better off if the library automatically deleted all history of browsing as soon as the patron walks away?

In this particular case--at one of the libraries, at least--Regan walked away without clearing the history of the browser or even logging off and an FBI agent just walked up and examined the browser's history. No warrant needed in this case.

But in the general case, a warrant or subpoena would be required. What do you think the legal requirements should be? Are you objecting the "ex parte" provision? Subpoenas are issued "ex parte" every day in normal criminal cases. The "gag order"? Do you really want the library to inform suspected spies and terrorists that they are investigation?

Provisions already exist for subpoenas in criminal cases to be hidden from the subject of the investigation. Privacy laws for financial and educational records include specific exceptions to allow such subpoenas.

Only one particular federal court is authorized to issue these secret orders, so I'm not really all that worried that this is going to be the basis for widespread abuses like the "Library Awareness Program".

Posted by: Ken Hirsch | Jan 7, 2005 9:53:45 AM


Posted by: Ken Hirsch

Provisions already exist for subpoenas in criminal cases to be hidden from the subject of the investigation. Privacy laws for financial and educational records include specific exceptions to allow such subpoenas.

Only one particular federal court is authorized to issue these secret orders, so I'm not really all that worried that this is going to be the basis for widespread abuses like the "Library Awareness Program".

Posted by: Ken Hirsch | Jan 7, 2005 9:55:14 AM


Posted by: Steve

I'm reasonably libertarian, and non-trusting of the Government, but I've never understood the Left's opposition to the whole library issue in the Patriot Act, for two reasons.
1) Libraries don't really have anything interesting or controversial. I am assuming we all go to libraries now and then, and we all know that libraries are less prurient or controversial than your local Barnes and Noble. I can't imagine libraries actually having anything of value to an anti-terrorist investigation, anyway.
2) If perchance they did, what is wrong with trying to catch wrongdoers through library records? If library records were valuable in catching a child molester, or a serial murderer (perhaps notes he leaves have some pattern-Shakespeare quotes, or something-or internet access, as mentioned above) I would want the police to be able to check in order to catch him (in fact, I assume the police already could). Wouldn't everybody? Do you really argue that police shouldn't be able to use library records to catch child molesters, if it would be useful?
So what makes it different when the suspect is an international terrorist planning a bombing rather than a local pervert planning a rape or murder?

Steve

Posted by: Steve | Jan 7, 2005 10:12:21 AM


Posted by: Matt

Here's something that's interesting to me about the passage quoted and that's not raised by Professor Herzog. The section reads, "...investigation of a _United States person_ is not conducted solely upon the basis of activities protected by the first amendment to the Constitution" (my emphasis). So, the first ammendment protection would seem to be reserved only to "US Persons". Is this supposed to be only US citizens? That's how I read it at first, though I guess that's not obviously correct. I ask because the constitution generally holds for non-citizens who have been admitted to the US (or in some cases are present in the US, which is different from being admitted.) The question becomes complicated (wrongfully, I think) in the case of removal proceedings against an alien. But, that's not what we have here. Does anyone know if this section is proporting to remove some degree of 1st ammendment protections from non-citizens? My reading indicates that the case law on this issue is not 100% settled, but that there is strong indication that admitted (and maybe present) aliens get full first ammendment rights now. I'd be very grateful if anyone can say whether this section is proporting to lessen this.

Posted by: Matt | Jan 7, 2005 10:20:32 AM


Posted by: Henry Woodbury

What D.A. Ridgely said.

To elaborate a little, blasting the Patriot Act, while glossing over the excesses of drug war laws, makes it hard to take its critics seriously. Accurate criticisms have been lost among blanket condemnations with the result that many non-expert reporters and activists look confused, at best, or mindlessly partisan at worst.

A number of legal bloggers have had a field day linking to news stories about Patriot Act "abuses" and pointing out that the "abuses" are the application of Clinton-era drug war laws (or, often enough, simply long-running investigative practice).

The sad news for civil libertarians is that law and order politics is bipartisan. All that changes is who happens to wield executive power at a given moment or in a given jurisdiction.

I think a broad-based effort to roll back drug war laws, mandatory sentencing laws, RICO, the Patriot Act, etc., would be a hard sell, but it could bring together an activist coalition form both the civil-liberties left and the small government right and make some headway. Focusing just on the Patriot Act won't do that.

Posted by: Henry Woodbury | Jan 7, 2005 10:26:55 AM


Posted by: Dallas

A certain kind of ("law and order") conservative is happy to trust the government on domestic and national security, but suspects that public education, social welfare programs, and the like are shot through with inefficiency, corruption, and endless scandals papered over with bureaucratic mumbles and lies.

And, a certain kind of "liberal" is happy to trust the judiciary to legislate in favor of abortion and same-sex marriage, but suspects the judiciary is inadequate to the task of properly screening the applications of the Department of Justice when it comes to ferreting out terroristic activities.

Posted by: Dallas | Jan 7, 2005 10:28:38 AM


Posted by: Bernard

Henry, it seems to me that your criticism would be quite valid if a good proportion of those who object to the Patriot Act were in favour of drug war laws. My experience is that it tends to be the same coalition you talk about bringing together which already vocally objects to both, and that the simple fact that they don't mention drug war laws at the same time as the patriot act is because the drug war laws are not, at that point, being discussed.

If failing to mention every abuse in discussing a particular one were implicitly taken as a sign of support for that abuse then these discussions would last forever ('how can you fail to mention genocide when railing against corporate tax law?).

Posted by: Bernard | Jan 7, 2005 10:35:38 AM


Posted by: Henry Woodbury

Bernard, I completely agree with you on your first point. On the second, however, I think the Patriot Act is a special case for two reasons. First, the Patriot Act does modify many existing laws, and second, it has become a scapegoat for all laws of its type.

I think there are many libertarians and moderates who have begun to tune out criticism of the Patriot Act because so much of it falls into the second category, especially when so much of it is misinformed, as I mentioned.

Even if this isn't the case, the fact that the Patriot Act modified so many existing laws (in some cases clarifying their judicial interpretation) suggests that the whole batch of laws would best be examined together.

Finally, even if the Patriot Act were repealed today, that wouldn't accomplish much. The drug war laws that preceded it would still be in place where they could still be abused.

Posted by: Henry Woodbury | Jan 7, 2005 10:59:20 AM


Posted by: Mona

I also adopt what D.A. Ridgely said. Especially the part about slowly increasing the water temperature to boil the frog.

Don Herzog writes this: A certain kind of ("law and order") conservative is happy to trust the government on domestic and national security, but suspects that public education, social welfare programs, and the like are shot through with inefficiency, corruption, and endless scandals papered over with bureaucratic mumbles and lies.

This is entirely true. However, when it comes to terrorists or others who would commit espionage and seek to harm us, I want the govt to be able to stop them. So, I am willing to accept and assume some corruption attendant to its power to protect me. What is the alternative, human nature being what it is?

Posted by: Mona | Jan 7, 2005 11:12:57 AM


Posted by: Bernard

Henry, it's hard to disagree that misinformed criticism of the Patriot Act is a negative in addressing the real concerns. There are few debating situations more aggravating than having to explain why you disagree with the reasoning of a person whose conclusion you agree with.

On the second part, that looks fine too, with the proviso that any area which does provide particular individual concern should be addressed individually (obviously it's a favoured habit of the executive to throw in unpopular powers they want as part of a popular bill to try to push everything through as a package).

On the final part though, I disagree that it wouldn't accomplish much. Let me explain why by turning the sentence on its head:

"Finally, even if the drug war laws were repealed today, that wouldn't accomplish much. The Patriot Act would still be in place where it could still be abused."

Combined with your assertion, we can conclude that neither law is worth addressing individually, because we'd still have the other one in place to abuse. My experience of the (sadly rare) process by which laws are chipped away is that the repeal of one law for a particular reason increases significantly the pressure for the repeal of further laws along the same line (which is why apparently minor pieces of law are often fiercely fought over, like the grisly but extremely rare 'partial birth abortion', or the marijuana law). Curtailing the power of two big laws at once is extremely unlikely, but succeeding with either would be a great acheivement for civil libertarians.

Oh, and D.A Ridgely, I have to call you on this sentence:

'I’m all for transparency in government, though I question how effective it really is in curbing abuses – try finding out where even a routine FOIA request should be filed sometime'

I'd argue that the difficulty in finding information which is supposed to be publically available is a demonstration that transparency laws, in order to be effective, must be detailed in their requirements of where and how information is available, rather than simply what information. This doesn't call into question the effectiveness of transparency per se.

Posted by: Bernard | Jan 7, 2005 11:18:07 AM


Posted by: Mona

I am delighted to see so many comments accurately describing the ill effects of the war on people who use drugs. That, and RICO, and other pieces of legislation precede The Patriot Act, and are the true genesis of police power abuses.

Myself, I support a certain level of dubious, corruption-friendly legislation that enables the detection of terrorists and their plots. But the wholesale erosion of 4th Amendment rights and other civil liberties in the name of prosecuting a "war" on drugs, or on the mafia, are most alarming.

When I took crim law, I was, as it happens, instructed by the author of the RICO legislation, G. Robert Blakey. He told my class that there are three things that will cause any appellate court to endorse the erosion of civil liberties, and these are:
1.drugs
2.drugs, and
3.drugs.

Posted by: Mona | Jan 7, 2005 11:26:05 AM


Posted by: Michael

It is too easy to point to an area of the Patriot Act and say, "Be afraid, this can be abused." This unhelpful, nitpicking attitude does not win any conservatives over. The standard and correct response is that liberals do not take the threat of terrorism seriously enough. If liberals were really interested in balancing terrorism with liberty rather than merely scoring political points, they would propose ways in which domestic intelligence powers can be expanded post-9/11 that still fall within their sense of liberty. Lacking such a constructive argument, liberals will always fall prey to the criticism that they do not understand the threat and are incapable of dealing with it. This is the same costly problem that John Kerry had with Iraq. There needs to be some kind of recognition on the part of liberals that terrorism is a unique threat that requires a type of vigilance that sits uncomfortably in our current system.

Professor Herzog misleadingly charges conservatives with hypocritically placing too much trust in government in the case of terrorism laws, as if citizens would have no recourse in case of abuse of those laws. In fact, government officials who overreach will pay dearly in the court of public opinion and then at the polls. Does this guarantee that no abuses will ever occur? No, but it certainly reigns in the government. The welfare analogy (conservatives trust government to fight terrorism but not to run welfare programs properly) is inappropriate for two reasons:

1. The primary purpose of government is to protect us from violent death, not to help us out of poverty, so there is a sense that even social programs that are run well are objectionable or at least that their success is less important than the success of those areas of government that protect us from violence. A failed welfare program costs us dollars, a failed terrorism-prevention program costs us lives. So we should give the latter more power and leeway.

2. There is no evidence to support your claim that social programs are somehow more "transparent" than terrorism-prevention laws in terms of discovering abuse. Who has not heard of the alleged abuses at Guantanomo and Abu Ghraib? Numerous independent investigators have publicly reported activities that they consider abusive. Meanwhile, bureaucratic obfuscation, political maneouvring and sheer complexity makes corruption in social programs extremely difficult to discover.

Posted by: Michael | Jan 7, 2005 11:34:15 AM


Posted by: Don Herzog

At the risk of sounding snippy -- actually I'm smiling -- come on, gang, reading comprehension! I never said there shouldn't be a Patriot Act. I said it may or may not be good policy, and that's worth arguing about. But a cost of having it is that we won't know what the state is up to in this domain. Mona's position -- yup, we need things like the Act, and so we have to swallow "a certain level of dubious, corruption-friendly legislation" -- is entirely reasonable. But let's not pretend there's no price tag.

Posted by: Don Herzog | Jan 7, 2005 11:49:15 AM


Posted by: SamChevre

This is a real question--I'm ignorant, not trolling: what is the difference between the provisions Dr Herzog cites above (applying in a terrorism investigation) and those applying in a normal criminal investigation?

Posted by: SamChevre | Jan 7, 2005 11:56:12 AM


Posted by: slarrow

With respect, Prof. Herzog, what is the point of this post? Is it merely to say, "conservatives are odd because they trust people who do things in secret while liberals aren't because they trust people who do things in the open, and isn't it a funny ol' world?" Is it to suggest that we ought to distrust law enforcement more or social program management less? You claim not to want to discuss the Patriot Act as policy in this discussion, but then why be so specific about the dreaded section 215?

(Ah, previewing this comment I see that you make a remark about reading comprehension. Lovely. So I restate my point: okay, there's a cost to having secrecy in criminal or terrorist investigations so the bad guys don't get away or strike again. Don't think anyone will dispute that. And...what comes next, exactly? Do you think it's wrong or should be changed, or are you content with saying, "you crazy conservatives, actually trusting the government you vilify?" Seriously, how much more is there to this post than chest-thumping?)

Posted by: slarrow | Jan 7, 2005 12:04:47 PM


Posted by: Henry Woodbury

Just two points

If the FBI investigates someone, legitimately or not, should that person's name be made public? There's a price tag for transparency as well.

If the government's police powers are potentially corrupt and the government's social welfare authority is potentially corrupt and everyone decides to agrees on those two points, aren't we back to the same old issue -- what is the appropriate role of government? Prof. Herzog's reminder strikes me as a kind of meta-argument: "Let's not talk about the Patriot Act -- let's talk about how we talk about the Patriot Act."

I dunno. I'd rather talk about the Patriot Act.

Posted by: Henry Woodbury | Jan 7, 2005 12:55:01 PM


Posted by: D.A. Ridgely

Perhaps, apropos of Mr. Velleman’s “incommensurables” thread, the point here is that domestic and national security are of such paramount importance by contrast to social welfare programs that even some of the libertarians and especially the social conservatives (who aren’t commenting much anyway) are willing to abide far more of the inherent corruption, inefficiency, etc. of the state in such matters. Of course there’s always a price; or, as Robert Heinlein would have said “TANSTAAFL!”

Most of us are agreed: all other factors being equal, transparency and accountability are very good things. How much lack of transparency or accountability we may be willing to suffer because of exigent circumstances will depend on whether there are readily available alternatives and how risk averse we are.

Posted by: D.A. Ridgely | Jan 7, 2005 12:55:42 PM


Posted by: Don Herzog

slarrow asks, "what's the point"? A few things. 1/Some people might not actually know what section 215 does and doesn't permit; I've seen blurry and factually inaccurate accounts, in the news and on the web. 2/I've been thinking about the charge that surfaces quite regularly in comments here -- that leftists trust an omnicompetent state -- and been setting out ways in which that is false. 3/I think on both sides of the aisle we find odd wishful thinking, and it's worth reminding everyone, including myself, that the decision that the government should do something does not entail that you should trust it. 4/As an extension, there is a weird pressure in partisan politics to pretend that "our" side, whatever that is, gets everything right, and its proposals are all great, and the other side apparently wishes to open the floodgates and visit hellfire and damnation on the planet. The stridency of recent American political debate, which again got me much more interested in participating here than any electoral outcome, could sensibly be calmed down by remembering that in politics we are usually in the business of weighing complex bundles of costs and benefits, or, in a less economoid vein, virtues and vices, &c. (Though this post doesn't touch on the subject, I for instance would be happy to agree that the social welfare state has had problems. I would disagree, emphatically, that it has had no benefits. Maybe for rhetorical purposes, more than a few comments here sound as though it's been an untrammelled disaster.) 5/I've been thinking about recent comments wondering whether there is enough trust in government, and thinking about when we properly trust.

Now all this, as well as my actual post, may be screamingly obvious, in which case I apologize for wasting your time. Or it may be a place where sensible people on the left and right can agree, which would be lovely, better than lovely, unless you think the point of this blog, or political life, is to demonize your opponents and make sure you're never caught dead agreeing with anything they think or say or do. I don't want to live in that world.

Posted by: Don Herzog | Jan 7, 2005 2:15:10 PM


Posted by: pedro

"Perhaps, apropos of Mr. Velleman’s “incommensurables” thread, the point here is that domestic and national security are of such paramount importance by contrast to social welfare programs that even some of the libertarians and especially the social conservatives (who aren’t commenting much anyway) are willing to abide far more of the inherent corruption, inefficiency, etc. of the state in such matters."

I'd think that the inherent corruption, inefficiency, etc. of the state in matters of social welfare programs does not have the devastating human consequences that it does in matters of domestic and national security.

Posted by: pedro | Jan 7, 2005 2:16:11 PM


Posted by: slarrow

Prof. Herzog: whether screamingly obvious or a place of agreement, the salient question is still what comes next. I didn't think you laid out a clear direction of what you thought should be discussed and then chided people for talking about what they thought was interesting about the post. Bad form, sir.

As for (1), unless you planned to discuss the content of section 215, wouldn't a link have sufficed to get the point across? Regarding (2), do you make the claim that the left does not trust the government on domestic and national security (hence rendering false the notion that the left does believe in an omnicompetent state)? I have no beef with (3) and (4) except that they are designed to calm the waters while certain elements of your original post (don't trust Ashcroft, liberals trust open books and conservatives trust secret-keepers) seemed designed to stir the pot. Finally, (5) leads to two great questions for discussion: do we trust government enough? what part(s) (if any) should we trust? But your initial post neither asks those questions nor answers them (unless you count the direct link to Ashcroft of your sketching out of liberal/domestic-conservative/security pairings.)

Now that we've gone round and round on this bit, what item shall we discuss? (Or, since it's Friday afternoon, perhaps we should knock off early and have a bite to eat. It's so much more comfortable discussing what bits of the fedrul gummint you can trust with a nice sirloin and a cold, tall beverage sitting in front of you.)

Posted by: slarrow | Jan 7, 2005 3:22:49 PM


Posted by: Don Herzog

No, the chiding, such as it was (and it really was light-hearted, in addition to claiming to be light-hearted), was about attributing to me views I didn't stake out or imply. I am pretty tolerant on thread drift, and if people want to use this space to argue about the merits of various provisions of the Patriot Act (which after all I said are worth arguing about), or for that matter the war on drugs, hey, fine by me.

On (5), well, my post does say "I'm more interested here in thinking about how we properly decide when to trust the government and when not to." And it offers a first cut on that terrain: you should trust the state when its doings are relatively public or transparent.

But look, I don't want to be in the business of defending the clarity or point of my posts, as against the positions I stake out. Again, if you found this one a pointless loser, I apologize for it.

Posted by: Don Herzog | Jan 7, 2005 3:32:43 PM


Posted by: rtr

Is it better for political argument to be strident or apathetic? And is there anything as strident as a protest rally? Vietnam, NAFTA, WTO, Abortion Clinics, blocking off taffic with Iraq protests, gay pride parades, nativity scenes, judicial nominations... Doesn't the left generally favor stridency more so than the right? Doesn't the right tend to have a slower more conservative nature that once awoken then gets labeled strident? Of course the left now has a built in economic and ideological interest against stridency railing at the welfare state.

I think stridency stems from the attitude nothing is one's own fault, someobody else owes you a better life, etc. Of course, that type of abusive harassment is going to manifest itself in road rage, lines at the post office, and taxes. Everyone now trusts that everyone else including the government is out to screw them through the government. And there is evidence aplenty that the attitude is based in fact.

Posted by: rtr | Jan 7, 2005 4:39:39 PM


Posted by: Terrier

I think we should distinguish between the trust of institutions and the trust of individuals. I trust John Ashcroft about as far as I could throw him if he was holding the Titanic's anchor. I trust nameless FBI agents less. Do I trust the system not to imprison me for life without a hearing and competent defense? That I have more faith in, though I admit, recent developments give me cause to wonder. Actually this issue concerns me greatly - I believe that there are more people than ever who doubt our institutions and if you dear reader are in that group and think it matters little then tell me how we can maintain these institutions without some general assent. Why would you want to maintain these institutions if you believed that they were oppressive? One of the motors of radical fundamentalism is a basic distrust in secular institutions - this leads people to rely even more on the structures of their group for support and makes them more vulnerable to being misled by a demagogue. I think a distrust of the people filling particular jobs is healthy because we are all human but if you distrust the system itself how can you be trusted?

Posted by: Terrier | Jan 7, 2005 4:53:36 PM


Posted by: rtr

I agree wholeheartedly whith what Terrier just said except that I would note that institutions are composed of the same individuals as non-institutions. And in that sense the left wholeheatedly believes and trusts in faith based institutions. Talk about a contraction of separation of church and state! ^_^

Posted by: rtr | Jan 7, 2005 5:08:50 PM


Posted by: tom perkins

"So I don't find Ashcroft's assurances all that consoling. Neither should you."

Call them liberals or leftists, with an eye to the "complaining about taxes thread," I am apparently expected by the left to pay taxes to further unconstitutional purposes that I loathe, and others that I think are simply none of government's business, and these are things which which I know harms me greatly and everyone else in the country, and this purely on the basis of majoritarianism--and the left, or at least Mr. Herzog, has the gall to instruct me I should as loudly if not more so condemn an unconstitutional law which at least furthers a constitutional purpose, the defense of the nation?

I agree that the Patriot Act should be abolished, I do not agree it is more unconstitutional or even more objectionable on those grounds than social security, affirmative action, zoning laws restricting use private property. Government acts transparently there to take money and destroy liberty, where's the improvement?

I certainly don't think transparency has much to do with it, from the relatively mild Jim Crow laws to Kristalnacht and what followed, when government transparently does something it has no business doing it should be stopped, and by force when nothing else will serve. The state we're in, force won't serve to keep government inside clearly worded, "bright line" bounds, neither does the left even remotely want it held there, and the left is more to thank for this than any other political movement in this country.

To the extent the Patriot Act is indentifiably "conservative," I regret that very much.

Now go work on the forest growing in your eyes, and worry about this board later.

Yours, TDP, ml, msl, pfpp

Posted by: tom perkins | Jan 7, 2005 5:14:01 PM


Posted by: tom perkins

RTR wrote:

"Doesn't the left generally favor stridency more so than the right?"

No, the experience of such groups as "ProtestWarrior" shows the left only supports stridency when it is leftist.

Yours, TDP, ml, msl, & pfpp

Posted by: tom perkins | Jan 7, 2005 5:16:10 PM


Posted by: tom perkins

rtr, in all seriousness, I believe the left believes that when an individual is in a leftist/progressive government, it is a purifying and uplifting position that improves human behavior above average level of morality.

Yours, TDP, ml, msl, & pfpp

Posted by: tom perkins | Jan 7, 2005 5:18:32 PM


Posted by: AlanC9

Only people who aren't members of the left ever say things like "the left believes..."

Posted by: AlanC9 | Jan 7, 2005 6:48:10 PM


Posted by: Tom Perkins

I recall in a past post Don Herzog himself claiming the enlightenment itself as a bequested heritage attaching to his sort of liberal gifted annointed philosopers past (although I could be misattributing the post), and then he writes this:

"Enlightenment liberals insisted on sunlight, transparency, the "precious talisman of Publicity," as the Edinburgh Review put it in 1818, so that citizens could unearth abuses and correct them. In the domestic and national security context, though, it is hard, sometimes impossible, to find out what the government is up to. Since I firmly endorse that old liberal belief, I know when I'm most inclined to distrust the government: when ex parte proceedings and gag rules are at the disposal of faceless assistant special agents and magistrates."

See according to our host, this is an old liberal belief. Do you imagine he is a closeted rightist ;^) ?

Personally I associate the left first, datewise, with such sins as an unspecific, unanswerable "J'accuse" followed by a quick trip in a tumbrel, then follows the occulted murder of Anastasia and family and some tens of millions of other victims, then the national socialists* and their tens of millions, Mao & Company's bloodyrise, up to Cambodia's misadventure with socialism. It remains to be seen if the Shining Path will get a shot at a high score.

The leftists, feh! I think a more blood drenched pack of thieves will not be written of in human history--cause the species may yet not survive all the consequences of rejecting the enlightenment as the left has done, and will surely not survive a worse misstep.

Yours, TDP, ml, msl, & pfpp

*Think that's unfair? If you were blond and pink they were good little 3rd way accomodationists with capitalism--same way that the current popular left is pleasant and 3rd way as long as you aren't a consevative or a Christian--though to be fair they've only made any headway in criminalizing Christianity so far.

Posted by: Tom Perkins | Jan 7, 2005 9:17:28 PM


Posted by: Tom Perkins

"gifted annointed" should read "gifted by annointed"

Thank you, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | Jan 7, 2005 9:21:15 PM


Posted by: Tom Perkins

Oh, and let's throw this in.

What richer, more bitter humor in all of classical literature can be had than to hear of the Right Honorable Senator from Chappaquiddick today lecturing Gonzales on the innappropriateness of drowning!

The mind boggles!

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | Jan 7, 2005 9:28:06 PM


Posted by: J. Smith

As long as objection to the Patriot Act remains theoretical (as it is being discussed here) rather than concrete (give me a list of abuses that HAVE actually occurred), social conservatives like myself will be more than willing to accept the Act and it's "scary" provisions. The extreme (and not-so-extreme) criticisms of the Act have not been bolstered by examples of real misuse, which drains credibility from such criticisms in the eyes of folks with more concrete minds.

Any power can be abused. The city counselor in my town can abuse her power at any moment. Does that mean we tirelessly scrutinize every potential abuse or consider eliminating the position altogether? No. We watch for abuses and when we see them we remove the person who is unworthy of our trust.

The Patriot Act protects America from terrorists. That is what it does. Despite the lack of defenders here in this thread, there are many who trust the Patriot Act to protect America AND trust the watchdogs in the press, academia, and the blogosphere to alert us to any ACTUAL abuses.

Until there are abuses, the Act is safe and sound. Fear mongering about encroaching Orwellianism simply doesn't cut it while we still live in the shadow of 3000+ people needlessly dead.

That's my take. I'd love to hear someone else defend the Patriot Act, but apparently I'm the only one outside the Administration who feels so moved. Regardless of the hysterics or concerns of libertarians and left-liberals, the Patriot Act isn't scaring a majority of us. Focus on actual abuses and give it a rest until they exist.

Posted by: J. Smith | Jan 7, 2005 11:45:11 PM


Posted by: J. Smith

Don Herzog wrote: "...I'm more interested here in thinking about how we properly decide when to trust the government and when not to."

The answer is: Never. We should never trust the government to take care of us and not abuse its power. We should always be watchful. At the same time we shouldn't waste our energies fighting over potential abuses, but should be actively cataloging real abuses that occur and hold people accountable when such abuses exist.

This thread (and the majority of Patriot Act discussions) attempts to hold people accountable for abuses that have not happened. We've put the cart in front of the horse and wrongly blamed Ashcroft working the horse too hard when in actuality we haven't moved an inch.

Posted by: J. Smith | Jan 8, 2005 12:03:46 AM


Posted by: Tom Perkins

As fas as that goes, I'd call keeping Padilla without effective counsel for as long as they have an abuse.

I just can't believe any leftist wants us to take them seriously when they say something is unconstitutional, when pretty much entire leftist establishment is unconstitutional.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | Jan 8, 2005 8:58:02 AM


Posted by: Terry J

Interesting Dialog between Orin Kerr and Don Herzog over at The Volokh Consipacy http://volokh.com/

Kerr offers some disagreement, Prof. Herzog emails further comments, Kerr apologizes for misunderstanding the original argument and posts Prof. Herzog's comments.

Posted by: Terry J | Jan 9, 2005 12:58:44 PM


Posted by: Nathan

tom perkins,
Padilla's incarceration (sans counsel) has nothing to do with the Patriot Act....thus you are perpetuating the saw that most criticisms fo the Patriot Act are based on faulty knowledge.
speaking as an attorney who has actually advised clients on various aspects of compliance with the Act, I have concerns over the possible misuse of certain sections of that legislation but also have yet to see a single informed example of actual abuse of the Act.

Posted by: Nathan | Jan 13, 2005 3:07:15 PM


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