Left2Right

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Posted by: Sebastian Holsclaw

Ok, but if we weigh the benefit of the anonymous library records right, I suspect we will find that it is pretty low and thus adequately protected by probable cause searches. It is certainly a lesser right than the that of sanctity in one's own home--which can be removed by a probable cause search with warrant.

Posted by: Sebastian Holsclaw | Apr 7, 2005 11:29:46 AM

Posted by: Tad Brennan

Mr. Holsclaw--

Good. If we treat the issue via two applications of the 4th amendment, then I agree that it is not clear why library records should enjoy greater immunity from search and seizure than one's own home, or why the standard of probable cause, "reasonableness" of the search and seizure, and so on, should be higher in the one than the other.

But I take it that the civil liberty lobby's line on library records usually subsumes the library records under some sort of 1st Amendment protection, right?

Thus showing 1) that your leveling move misses the point--or on the contrary 2) that recourse to the 1st Amendment has once again elevated a *defeasible* right against *unreasonable* govt. interference into a fetishized *unconditional* right against *any* govt. interference. I.e. that subsumption under the 1st A. has led to a decrease in the clarity of thought.

I'm open-minded on which of those two it is--I have some inclination to think it may be the second rather than the first (i.e. to agree with you).

But I certainly think that anyone who hates to see library records fetishized into an absolute right, of higher status than one's home or person, should also hate to see the records of gun dealers treated in the same way.

One of the first clues, after the dust of the World Trade Center had settled, to the fact that the Bush administration really was not serious about the war on terror except when it helped their domestic political agenda, was the fact that Ashcroft pressed to make *every* kind of data available to the war on terror, *except* any data whose collection might offend the NRA.

Posted by: Tad Brennan | Apr 7, 2005 1:11:28 PM

Posted by: Sebastian Holsclaw

So far as I know, the records of gun dealers for purchases are available under probable cause searches. Not just generally, but under probable cause searches. I understand that some are produced under a promise by the state only to use them for the particular case at hand (which seems appropriate for a probable cause search). I don't have a problem with that.

Posted by: Sebastian Holsclaw | Apr 7, 2005 1:26:19 PM

Posted by: Tad Brennan

Mr. Holsclaw--

No, no--I certainly did not want to suggest that *you* were someone with discordant attitudes towards library records and gun records.

But I would be interested to hear whether you agree that your more moderate reaction to the original post by MacLean reflects the fact that you treat it as a 4A matter rather than a 1A matter--does that account for why some get more up in arms over it than others?

Posted by: Tad Brennan | Apr 7, 2005 1:36:45 PM

Posted by: Dan Kervick

No argument here - I don't claim to know how to strike the balance. Just some anecdotes and an observation:

Following 9/11, I decided I wanted to try to learn some Arabic, so that I could read what Arabs were writing for myself, instead of relying on English-language sources, from either the right or the left, who were telling me conflicting things.

One day I bought an Arabic newspaper to get some reading material for practice. I was buying some books at the same time. But I decided to buy the paper in cash first, and then purchased the other stuff with my charge card, as is my wont. I didn't want my charge card number appearing on some list somewhere of people buying Arabic literature.

Another time, I again wanted to buy an Arabic newspaper along with some books, but I had no cash at all on me - just a charge card. So I didn't buy the newspaper at all.

I have felt the same way whenever I have I wanted to buy a book by, say, Noam Chomsky, Edward Said or Tariq Ali. I have a new job which requires me to make appointments around the country, and sometimes the UK, and do some flying. I now worry about the possibility of showing up for a flight one day and finding myself on a no-fly list due to some bureaucrat taking an interest in what he regards as suspiciously left-wing reading of a not-entirely gung-ho, pro-war on terrorism variety. I don't fret and wring my hands over the prospect - but I do think about it. So far as I am aware, the concern hasn't been enough to change my actual reading habits where it comes to books - just that one newspaper thing. But I'm guessing it may have influenced some people.

Unduly paranoid? Probably. But the mere fact that I am even thinking like this - something I never experienced before - means the Patriot Act has already had at least one rotten effect, even if nobody in fact ever looks into my reading. If one reads the literature of protest from the Soviet bloc during the Cold War, a consistent theme is the paranoia and intellectual constipation that results from the constant sense that someone might be watching or listening - a sense that comes to suffuse one's life, even when nobody is watching or listening.

I have also had the experience of venting my discomfort to others and hearing them say: "You don't have anything to worry about if you have nothing to hide."

I know that some traditionally religious people are used to this feeling - since they believe God is always watching and keeping His accounts. But it is a rather new thing for secularists like me.

Posted by: Dan Kervick | Apr 7, 2005 1:40:38 PM

Posted by: Tad Brennan

Mr Kervick--

As a secularist, I would have no problem having an omniscient and benevolent deity watching over my actions, since that being would also be able to see that they are, indeed, innocent and not terror-related.

What should frighten all of us, and what the traditionally religious people should have no precedent for feeling, is the thought that there is a distinctly non-omniscient and distinctly non-benevolent authority who is likely to misconstrue my innocent actions, and whose initial misconstrual may lead me, as an American citizen, to be held incognito for years on end without any rights of due process. (Oh, maybe Hamdi changed that a little--feeling better now?)

To think that traditional religious belief involves specters like this is to deeply misunderstand the religious outlook.

Posted by: Tad Brennan | Apr 7, 2005 1:48:08 PM

Posted by: Dan Kervick

To think that traditional religious belief involves specters like this is to deeply misunderstand the religious outlook.

I don't know. In teaching intro philosophy classes over the years, it has sometimes been my impression that there are a certian number of individuals - certainly a fairly small minority - who do not even want to think about the existence of God debates, because they believe God will punish them for even entertaining the question as a matter for debate rather than dogmatic, convinced silence.

More commonly: most religious people are not entirely "innocent", at least by their own lights. Like the rest of us, they are sinners, and do all sorts of things God wouldn't like. However, those of them who think of God on the Supreme Lawgiver model also have to live with the belief that not only are their actions in violation of the law, but the supreme legal authority knows what they are doing. You may find this to be an unenlightened form of religious consciousness - but I think it is a fairly common one.

Posted by: Dan Kervick | Apr 7, 2005 2:10:41 PM

Posted by: Tad Brennan

Oh, yeah--they are worried about being convicted of things they are *really doing*, because they think that God sees all.

All I was saying is, I don't mind being convicted for the things I'm doing--what you were worried about with your choices of reading material is being convicted for things you were *not* doing (i.e. you were *not* in fact planning terroristic acts).

I wasn't saying that religious people can bootstrap their faith in God's omniscience into a practical ability to simply *stop doing wrong things* (some may pull it off, but few). Nope--lots of folks do things they believe will get them punished. I was just saying that their fear is the fear of being caught *dead to rights*, not the fear of false accusations and false imprisonment.

There certainly *have* been theists who thought God could be duped, or God could be misinformed, or that God could punish the innocent out of factually unsubstantiated suspicion. But the more popular forms of late attribute omniscience to their divinities, and look at these earlier kinds as superstitious.

Ain't that right, y'all? Why are the secular Mr. Kervick and I discussing what the religious do and don't do, when there are religious readers out there who can set us straight? Cripes, it's like the problem with the lawyers going awol this morning....

Posted by: Tad Brennan | Apr 7, 2005 2:23:24 PM

Posted by: Literally Retarded

If I might be so rude as to post a comment on the original post...

Mr. Maclean's discussion is clear and levelheaded, and I, for one, appreciate that. Let me add a couple of small things:

1. The Patriot Act was modeled on, and infringement-of-rights-wise is identical to a 20-year federal law aimed at organized crime. I don't remember so many knickers getting twisted over that.

2. There is no provision which requires libraries to keep records. My own public library keeps records for 24 hours and then destroys them. I believe that the ALA encourages it members to do the same thing.

3. Any egregious violation of privacy will be immediately litigated. I would imagine that there are hordes of trial lawyers (public-protection attorneys) drooling at the idea. Violations of privacy don't occur in theory.

Posted by: Literally Retarded | Apr 7, 2005 2:58:21 PM

Posted by: DJmatheso

LR:
Your third point is well taken. But have you investigated who has standing to bring a suit, and who is able to find out when a library record is pulled?

The FBI doesn't exactly call you on the phone to let you know they've pulled your library record. In fact, I'm pretty sure--based on a credible source who had actually read the Patriot Act, which I haven't--that the fact of a search is classified.

So I wouldn't count on do-gooding lawyers ever getting a chance to litigate the issue, since no one is ever going to find out that their records were searched.

See also, sneak and peak warrants.

Posted by: DJmatheso | Apr 7, 2005 3:46:07 PM

Posted by: Achillea

There's key difference, at least to me, between the records of a library and the records of a bookstore (or a gun store). Most commonly-available libraries, last time I looked, were 'public libraries.' They're not private homes or businesses, they're public services provided and maintained by the government (variously city, county, state, or federal).

That said, I share the concerns both of those who fear innocent people may be persecuted for 'controversial' reading habits and those who fear innocent people may needlessly meet death and destruction at the hands of the nutbar who kept the 'Osama Apologia' and 'Bomb-Making 101' 18 months overdue. Nothing is going to absolutely-for-sure prevent both of those outcomes. We live in an imperfect world. All we can do is take as many precautions and keep as close an eye on the process as we can.

Posted by: Achillea | Apr 7, 2005 3:59:55 PM

Posted by: miab

Literally Retarded writes: "3. Any egregious violation of privacy will be immediately litigated. I would imagine that there are hordes of trial lawyers (public-protection attorneys) drooling at the idea. Violations of privacy don't occur in theory."

But they do occur in secrecy. Part of the PATRIOT act's library provisions makes it illegal for the librarian to tell you that your records are being inspected. It even makes it illegal for your librarian to call a lawyer to ask how to respond to the government's request for records.

Sebastian H. writes: "Ok, but if we weigh the benefit of the anonymous library records right, I suspect we will find that it is pretty low and thus adequately protected by probable cause searches. It is certainly a lesser right than the that of sanctity in one's own home--which can be removed by a probable cause search with warrant. "

First, there is *no* probable cause requirement for these library searches. There is not even a relevance requirement (that's right, they can demand your records even if there is absolutely no connection to any sort of investigation of anything bad). Gonzalez's huge concession was to agree to a change that would require that the records be "relevant" to an investigation. Relevance is the absolute faintest most tenuous standard there is. Also, note that there is no requirement that there be any suspicion that the person whose records are being sought be under suspicion -- the investigation can be of anyone at all, not just of the person whose records are being sought.

To bring it back to Mr. Holsclaw's analogy to home searches, this would be equivalent to allowing the government to search your home for candy bars for the purpose of helping establish a baseline non-drug-user home candy bar count, in order to demonstrate that a higher candy bar count in someone else's house (who you've never met) may be indicative pot-induced munchies.

A silly example? Probably; but the fact that a certain type of abuse would be silly for the government to do does not seem to me like a good reason to give it the right to commit that abuse.

Posted by: miab | Apr 7, 2005 4:04:22 PM

Posted by: Literally Retarded

Imagine that you are a public defender. Your client claims that he's totally innocent, that the only thing that could possibly be incriminating is a book you took out of the library two months ago. Then imagine flipping through your Rolodex, pulling the card for the NYT reporter you met downtown some years back.

My client, you say to the reporter, has been the victim of a secret search of library records. Seems to me fairly straightforward. Bruce Cutler got John Gotti off at least three times with similar tactics.

Posted by: Literally Retarded | Apr 7, 2005 5:01:04 PM

Posted by: Literally Retarded

Oops. I fumbled the pronoun in the second sentence.

Posted by: Literally Retarded | Apr 7, 2005 5:03:26 PM

Posted by: Tad Brennan

John Gotti? Checked out library books? Wow, you learn something every day. (I'd hate to be the person who has to collect his over-due fines).

Sorry, L.R.--I know you only said "similar", and I don't mean to detract from your point. It just struck me as a funny juxtaposition.

Posted by: Tad Brennan | Apr 7, 2005 5:05:52 PM

Posted by: Literally Retarded

Actually, he checked out library books and gave them as "gifts" to his "made men," swearing them to "omerta." Much like the tax guys finally putting Capone away, it was the library enforcers that sent Gotti to the "slammer."

Posted by: Literally Retarded | Apr 7, 2005 5:15:36 PM

Posted by: Don Herzog

A while ago on this blog, I rounded up some of the facts about the Patriot Act here.

Posted by: Don Herzog | Apr 7, 2005 6:18:10 PM

Posted by: miab

If the government goes through your underwear drawer in the woods, and no one is there to hear it . . .

Literally Retarded's example is not the likely one. The likely scenario is that the FBI peruses your records, makes a secret file about you, and you never find out. Multiply by 10,000.

As with the drug exception to the 4th Amendment, these cases will only get litigated, if at all, under the worst possible fact patterns. No unreasonable search cases will show up in the Supreme Court based on the thousands (millions? tens? none? will we ever know?) of people whose homes have been thermal-imaged or dog-sniffed, or who were randomly stopped and frisked, who did *not* end up getting prosecuted. Every case involves a *successful* search followed by a prosecution, which makes every court excluding that evidence a target for the tough-on-crime crowd, which always seems to forget that the disincentive to unreasonable searches and other bad government action prohibits these actions against the innocent, not just the guilty.

Similarly, no library cases will be litigated, or even come to the attention of the searchee, except where the fishing expedition actually turned something up -- and public sentiment & NY Times coverage will be driven by the fact pattern, not the legal issues.

"My client, you say to the reporter, has been the victim of a secret search of library records." "No," says the reporter, "he has been the victim of a *successful* search of library records." Later, in a statement to the press Alberto Gonzalez says, "This proves the progam is working. We're catching bad guys."

Meanwhile, the government has been going through the underwear drawers of thousands of innocent people.

It's not crazy to support this outcome, but, as MacLean says in his original post, "My point is not to claim that the government should not have the authority to demand the library records of any citizen, or that it should have a more limited authority. It is that when we weigh the costs and benefits of sacrificing liberty for security, we should have a clear grasp of what the costs and benefits are."

Posted by: miab | Apr 7, 2005 6:25:42 PM

Posted by: Dan Kervick

This seems to me an incorrect way to account for the costs. A certain right to privacy that we previously enjoyed has been sacrificed. The issue is not (merely) the probability that any person will suffer as a result of searching for library records. Rather, it is that most of us now enjoy the privacy of those records at the will of the government, not as a right. The purpose of rights is not only to protect people from various harms, but also and primarily to recognize a certain status that people have to claim things as their due. To receive a benefit because someone gives it to you is different from receiving the same benefit because it is your right. This is the more significant cost of curtailing our rights.

I personally care more about being protected from harms more than I care about the mechanism by which the protection occurs, and I only care about the recognition that I possess some right to the extent that that recognition actually protects me from something. What concerns me about the Patriot Act, and other like trends in our society, is not just that the right to privacy has been curtailed, but that actual privacy is being lost, and that the sphere of privacy we previously enjoyed is radically contracting. Since I, for one, regard privacy as a precious thing, vital for the nourishment of healthy human personalities, the loss of privacy strikes me as a harm in itself, whether or not that loss leads to prosecutorial overreaching or persecution from the authorities. Just the very idea that someone might be looking into what I read is distressing to me, even if the looker never does anything with it.

I know some are of the opinion that we are at the dawn of a new era of the "end of privacy" in which technology will eventually result in a virtually total transparency of every individual to every other individual. All I can say is that I hate this world already, which appears to me as a sort of nightmare world. But maybe I'm just a dinosaur.

I can't help thinking that the Patriot Act will never go away, and that everything that is supposed to be sunsetted will be extended indefinitely until we all just get used to it, and it forms part of our new conception of what is normal. And then we will be called upon to extend the reach of surveillance yet further, strike some new "balance" between liberty and security.

Many of these potential encroachments strike me as so bad that I would easily accept a slightly greater risk of violent death rather than endure them.

Posted by: Dan Kervick | Apr 7, 2005 7:09:04 PM

Posted by: Perseus

Tad Brennan writes: "One of the first clues, after the dust of the World Trade Center had settled, to the fact that the Bush administration really was not serious about the war on terror except when it helped their domestic political agenda..."

Since I'm more like the bumbling Dr. Watson than Sherlock Holmes (or Professor Moriarty), could you provide me with a few more clues to prove this claim?

Posted by: Perseus | Apr 7, 2005 9:20:32 PM

Posted by: Tad Brennan

Perseus--

How about the fact that they were less interested in writing a solid Homeland Security bill than in writing one loaded with union-busting measures that had *no* relation to the security of Americans, but were guaranteed to force Democrats to either betray the unions or be labeled weak on security?

How about the fact that they gave the vital task of post-war reconstruction over to a bunch of clueless policy hacks from the Heritage foundation with *no* experience in nation-building, who proceeded to fritter away the vital early months chasing such ideological red herrings as privatizing all of the functional Iraqi public services (what little there was left), and tinkering with corporate tax policy and deregulation? I.e., all the things that appeal to their domestic political base, instead of doing the things that would have actually made Iraq secure for its people and for our soldiers?

How about the fact that they wrote Iraq appropriations bills that were fiscally irresponsible, so that people who cared about where the money might come from were left voting for them and against them? Sure, it was smart politics, and we all know how well it worked to win an election--but it had nothing to do with making this country safe from terrorism.

And how about the fact that from day one--I mean Sept. 12--the president *never* reached across the aisle to make the defense of America a bipartisan effort, if he could use it as a wedge to paint Democrats as weak on defense?

And how about the fact that an administration that really cared about the war on terror would have kept on putting money into non-proliferation where it has really worked--the program to decommission and secure the former Soviet nukes? But no, that wasn't part of Bush's personal grudge against Saddam Hussein.

And how about the fact that an administration that wanted to make America strong when it is under threat around the world would not be plunging the nation into deficits to cut taxes for its wealthiest donor base? Do you want to tell me that the fiscal priorities of this administration reflect a serious intent to fight the war on terror, rather than the intent to pay back donors, and then say "9/11 changed everything" whenever questions are raised?

Look, I'm not denying that there are serious people in Washington, people who really do care about the defense of the nation. But at the top of the current Rove/Bush/DeLay gang, there is nothing but a relentless striving to stay in power, no matter what it costs the nation.

Posted by: Tad Brennan | Apr 7, 2005 11:01:05 PM

Posted by: D.A. Ridgely

I’d begin by saying something glib like “Never trust the government,” but I don’t want to incur Mr. Velleman’s wrath again.

We libertarian types are inclined, however, to traffic in pithy little aphorisms like “Any government powerful enough to give you what you want is powerful enough to take it away, too.” As with wealth, so with security and liberty.

Bear in mind here that what we are talking about is the extent to which we should be willing to trust (our own) government. As has been noted, most secret searches remain secret. The 4th Amendment remedy for illegally obtained incriminating evidence is that the evidence may not be introduced in a criminal proceeding. It doesn’t make the evidence go away. Data mining and unauthorized electronic surveillance techniques becomes more sophisticated every day and, as more and more of our routine transactions of all sorts are conducted electronically, the notion of a generalized right to privacy becomes an increasingly moot point. I’ll risk mildly aggravating Mr.Kervick’s paranoia by noting that everything he ever transmits through the Internet (such as his curious interest in Arabic) is recorded and accessible through far more sophisticated searching and screening techniques than Google.

On the other hand, I suspect even the notion of a generalized right to privacy is a very recent phenomenon. We had a brief period in human history when urbanization afforded people a level of anonymity never before possible. (Try keeping secrets in a small town.) Those days are gone forever. Even so, I have a hard time caring much about public libraries (about which, Mr. Brennan, I can only see 4th Amendment privacy claims). Do we really have a reasonable expectation of privacy in our dealings with public libraries? I can’t say that I ever had any expectations one way or the other, let alone reasonable expectations.

That is not to suggest that I would not prefer to have viable, enforceable rights of privacy against the government. Quite the contrary. On the security versus liberty scale, I lean way over in the liberty category. (Then again, Mr. Brennan, to answer your question from a different thread, if I think the private use of deadly force to protect unattended property is acceptable, you shouldn’t be surprised to find I think the same deadly force should be acceptable to protect one’s person rather than retreating in a public space. A preference for liberty entails a preference for self-help.) But if you folks on the left or the right insist on having a big, powerful government, one of the things you are going to have to reconcile yourselves to is the fact that the security you hope it will provide will come at a tremendous potential and, probably more often than not, actual cost.

Posted by: D.A. Ridgely | Apr 7, 2005 11:12:00 PM

Posted by: Tad Brennan

Mr. Ridgely--

Just to be clear: I was neither saying that I *do* think library records should enjoy 1st Amendment protection, nor that you *should* do so. I was reflecting on what I believe has been one line of thought about the matter, namely that they would be covered under a general freedom of expression category. Perhaps my memory is simply at fault here; perhaps none of the people who have opposed the 'patriot act' library provisions have done so on these grounds.

On spring-guns--it is surely not *inconsistent* for you to say that what you will do to protect unattended property you will do with equal equanimity (and a larger caliber) to protect your person in a public space. On the other hand, it would also not be inconsistent for a libertarian to think that private property and public space mark very different spheres, and make different demands on the agents who operate in them. It is consistent to say that I will swipe anyone who comes into my den, but merely circle warily any other bears I meet on the open steppes. So, while I am not surprised to hear your answer, I do at least learn something from it that I did not know before.

Posted by: Tad Brennan | Apr 7, 2005 11:32:26 PM

Posted by: D.A. Ridgely

Mr. Brennan:

Quite so. I was only noting I personally didn't think there was any serious 1st Amendment argument. That such arguments have been raised, however, wouldn't surprise me in the least.

I understand your ursine distinction, too. However, my sense of the situation contemplated by the law in that thread discussion is that the other bear is already approaching you in a decidedly unfriendly manner. Moreover, I lose my own liberty if I am forced to circle the (common) steppes every time a potentially unfriendly bear comes along.

Posted by: D.A. Ridgely | Apr 7, 2005 11:46:49 PM

Posted by: Perseus

Tad Brennan: I don't see a lot of facts on offer. What I do see is a lot of typical liberal political spin on the various actions and policies of the administration. So I'll get back to reading Sherlock Holmes.

Posted by: Perseus | Apr 7, 2005 11:55:32 PM

Posted by: DBCooper

I would also be interested in source material for the assertions Mr. Brennan is making. It reads like material from Greg Palast and some of the other "journalists" at commondreams.org.

Posted by: DBCooper | Apr 8, 2005 12:02:12 AM

Posted by: Tad Brennan

commondreams.org

Nope--never heard of it, don't read it. We subscribe to the WSJ, and I read the NYT on line. Those are my two primary news sources. And I trawl through a lot of liberal blogs, natch, but not that one. I also like reading Conan Doyle.

Posted by: Tad Brennan | Apr 8, 2005 12:13:41 AM

Posted by: Tad Brennan

Perseus--

And by the way--remember the last time you thought I should cool my liberal jets, about what I was calling a coordinated assault on the judiciary by the Rove/Bush/DeLay gang? We had the exchange back on this thread:

http://left2right.typepad.com/main/2005/03/its_spelled_goo.html

where you said:
"I'd like to see more evidence for your claim that "one of these branches is systematically trying to subordinate another of the branches to its will." "

You'll find more evidence in the NYT report today:
http://nytimes.com/2005/04/08/politics/08judges.html

It's the report of a DeLay judge-bashing shindig. He tells us that the courts have "run amok", but he has a solution:
""The response of the legislative branch has mostly been to complain. There is another way, ladies and gentlemen, and that is to reassert our constitutional authority over the courts.""

There's an especially nice bit when a Repubican senator's aide advocates "mass impeachments" of federal judges. It's choice.

But the idea that "one of the branches is systematically trying to subordinate another of the branches to its will"? Probably just typical liberal spin.

Posted by: Tad Brennan | Apr 8, 2005 12:32:09 AM

Posted by: DBCooper

Tad Brennan: Many NYT editorials and columns are posted in the commondreams.org newscenter, so my guess wasn't as far off as you might think...unless I am to believe either the ghost of Sir Arthur or the WSJ was your source material. Between those two, I would guess the apparition.

Posted by: DBCooper | Apr 8, 2005 12:35:32 AM

Posted by: Tad Brennan

There are two things I find almost equally mysterious:

1) How the author of the Sherlock Holmes series could also be the credulous, unscientific ninny who fell for every cut-rate spiritualist trick in the book;

2) How a newspaper that contains some of the best investigative journalism in the country, often pointing out gross corporate malfeasance and taking a highly critical stance towards the administration's venality, can also be the home of the most hopelessly know-nothing, reactionary, idea-impoverished, editorial board in the country. That's the WSJ for you--if the morons on the editorial page ever read the lead stories on the front page, they'd be apoplectic. Good thing *they* get all their facts from Fox News.

Posted by: Tad Brennan | Apr 8, 2005 12:49:13 AM

Posted by: Perseus

Ok, Tad Brennan.

1) So what has Delay actually *done* to try to subordinate the courts? I know that he has publicly threatened the possibility of impeachment (the comments of a senator's aide don't bother me), but has he taken any concrete actions to bring it about such as conferring with the chair of the House Judiciary Committee about impeaching a judge (the NYT article indicates that he hasn't)? BTW, Vice-President Cheney recently repudiated the idea of impeaching any of the judges involved in the Schiavo case. And for historical perspective, if Delay were to try to impeach some judges, he would be following the precedent of the father of the Democratic Party, Thomas Jefferson, who had US Supreme Court Justice Samuel Chase impeached because of his Federalist politics.

http://www.pbs.org/wgbh/amex/duel/peopleevents/pande02.html

As for the remaining suggestions--passing bills to remove court jurisdiction, changing Senate rules that allow the Democratic minority to filibuster appeals court nominees, and using Congress's authority over court budgets to punish judges whom it considers to have overstepped their authority--only the last one concerns me as a constitutional matter. The idea of stripping the court of its jurisdiction gets more people's hackles up--and there should be a vigorous debate before the power is exercised--but, like it or not, the power was included in the Constitution as a check against the judiciary.

2) Re: Sir Arthur Conan Doyle. Definitely an unexplained mystery. Perhaps he was injecting some of Sherlock Holmes's morphine and cocaine?

3) Re: WSJ editorial page. You're being uncharacteristically dyspeptic. Gigot has won the Pulitzer for his commentary. Since you have demonstrated the patience of a saint with some of the more churlish comments on this site, I'll refrain from launching an equally dyspeptic attack on the NYT.

Posted by: Perseus | Apr 8, 2005 2:14:56 AM

Posted by: Mark

Mr. Gonzales attempted to reassure critics by pointing out that the government to date has exercised restraint in using its authority. He also assured the Committee, as defenders of the Patriot Act consistently have done, that "the department has no interest in rummaging through the library records or the medical records of Americans."

I have never committed a violent crime against anyone. I have never carried a concealed weapon. Therefore, using the same kind of logic, Alberto Gonzales should be willing to give me a letter authorizing me to enter federal buildings without passing through a metal detector.

But he won't, for the same reason I don't want to trust my privacy to his interests and restraints.

Posted by: Mark | Apr 8, 2005 2:47:50 AM

Posted by: Chris

Is there an “expectation to privacy” to library records or is it comparable to your banking records which belong to the bank and not you?

Posted by: Chris | Apr 8, 2005 5:10:50 AM

Posted by: amh

this comment will be completely out of the blue since I have not read any comments and don't have time...but...do people really think that if someone wanted to learn how to make a bomb or get information on anything (be it government property, nuclear weapons, etc, etc) that these 'potential' terrorists are going to the library?? Especially knowing that library records can be confiscated? Hope I’m not raining on a parade here, but it is called the internet. Anything you could really want to find on these subjects you just have to do a search on the net…..(maybe I am just a lot younger than most on this board) but even when I was going to the Library for school papers I still was at the computer 90% of the time doing research. Do you really think the libraries have the most up-to-date (if any) information on how to build a nuclear bomb, or ‘regular’ bomb, or anything?? The reason is hasn’t been (or hasn’t really been) used is because this law is worthless. It should be repelled just for the fact it is a useless law that is there to stir controversy rather than accomplish anything….well that’s my 2 cents…oh- one more thing actually- to read something at the library you don't have to check it out...my library had nice comfy couches and chairs and you can sit in there from opening to closing, reading to your heart's content without anyone ever knowing what book you have (you could even place it back on the shelf when you are done!)

Posted by: amh | Apr 8, 2005 8:14:44 AM

Posted by: Tad Brennan

Perseus--

Yes, I apologize for being grouchy last night. On the other hand, I bet I can out-dyspeptic you when it comes to some parts of the NYT editorial page, esp. Maureen Dowd.

About our interactions--several times I have said "the sky is falling", and you have noted, sagely, that the sky fell in a rather similar way back in the early days of our Republic. How reassured should I be? To my mind, things got pretty ugly during the Jefferson/Adams controversies. Yes, we survived, and yes, those were perhaps the predictable teething pains of an infant empire. But I for one think we came fairly close to some constitutional crises back then (Alien and Sedition Acts, anyone?), and I don't want to use that era as the yard-stick for politics as usual in a 200-year old enterprise.

The extreme version would be if I were to express alarm about some states' secession from the Union, and you were to point out that this sort of thing happened fairly often in the 1860s. No, we are clearly not into matters of that gravity, or anywhere near. I suppose my point is just that history provides a wonderful and necessary perspective. It also contains some horrendous precedents we don't want to repeat. Sometimes, noting that we have seen the likes of this before is a comfort. Sometimes, it is cause for alarm in itself.

We'll both keep watching, I suppose....And thanks for giving me a pass on uncharacteristic dyspepsia. Now if I could only get a prescription for it.

Posted by: Tad Brennan | Apr 8, 2005 8:48:57 AM

Posted by: Perseus

Tad Brennan: I could point out more recent and less extreme historical episodes: Bush v. Gore (many on the left bashed the judiciary for that one), desegregation and busing, Roe v. Wade, FDR's court-packing scheme, etc. Of course, what one views as alarming depends on where you're sitting on the political fence. And if this give you any more comfort, I will also say that I think that impeaching judges except for malfeasance is a bad idea (and since Cheney is president of the senate--which must try impeachments--I don't expect that any judges will be removed).

As for your prescription for dyspepsia, you'd better hope that your pharmacist doesn't have some sort of moral or religious scruple against filling it.

Posted by: Perseus | Apr 8, 2005 5:39:24 PM

Posted by: Amy Peikoff

In an ideal society, libraries would be private, and your lending agreement would be protected as a private contract that the government had no business knowing about in absence of a warrant. In addition, I think it should be harder to get a warrant to search library records than it is to get other types of warrants. All library records show is what one _reads_; what one will do with the knowledge he gains is anyone's guess.

In my dissertation I argued that the right to privacy should not be a separate legal right -- that all such cases should be adjudicated using rights to liberty, property, and contract. If these last three rights were strongly protected, each of us could have much more privacy than we now have -- or stand to have in the future.

Posted by: Amy Peikoff | Apr 16, 2005 1:19:50 PM

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