In a gesture intended to be reminiscent of the Patent and Trademark Office's special rule about patent applications for perpetual motion machines — no patent granted without a working model — I propose a new rule about comments that reference the Patriot Act: If you allege that some government misconduct was done pursuant to the Patriot Act, you must cite and quote the relevant section (for instance, from this online version) to prove that the Patriot Act can indeed be involved.
Yes, I know that perpetual motion machines are impossible, and abuse of the Patriot Act is vastly overstated (see, e.g., this post, among many others, for examples) but in fact possible. Nonetheless, annoying times call for annoying measures. (For those curious about the straw that broke the camel's back, see some of the comments to this post.)
Remember, "Patriot Act," like "fascism" and "unconstitutional," is not Latin for "government action I don't like."
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I hope that in the future you do the same regarding civil rights legislation and anything that the Supreme Court did.
Shouldn't "and 'judicial activism'" be part of that list?
As for the Patriot Act, what I would find useful is the answer to this question: has it helped? What has it empowered the government to do, that was before illegal, that can be shown to have produced a good outcome? I've seen enough protestations over what the Patriot Act isn't to convince me that it really doesn't trample over my Civil Rights, but I've never seen a clear justification for it that shows that it was worth the trouble it has caused.
I can't speak for national security, but I can point to this salutary effect of the Patriot Act: it helps me to quickly sort out commentators that I respect from those that I don't. As soon as I see the breathless freak-out post on the Patriot Act, I can stop reading the other posts by that author. Judicial nominations are good for that, too. :-)
Just Me
from
" David Keene, chairman of the American Conservative Union in Washington, D.C., said federal agents are not doing anything illegal, but he was not sure if their actions were proper.
"Most of the prosecutions (under the act) have not involved terrorism," Keene said. "In fact, within the last month, the Justice Department has urged U.S. attorneys to look creatively at the act and pointed out that these powers are not limited to terrorist investigations."
and
"Brian Michaels, an attorney in Eugene, Ore. who has written articles critical of the Patriot Act, said he was surprised the use of the act in the Galardi case came to light so quickly.
"It's a felony for anyone receiving a subpoena under this act to tell anybody," Michaels said. "This has added a layer of secrecy." "
Myself, I am skeptical of the portions of the act which make mentioning that one is the subject of a subpoena authorized by the act a felony being portions which cover this case, but who am I to argue with an attorney?
Unlike perpetual motion machines, which I am dead certain cannot exist, or the coherence of the vectors of the Brownian motion of the molecules of water in a cup randomly being aligned in such a way that the water launches itself out of the solar system, which by comparison is merely unlikely--the PATRIOT ACT is the sort of law which is unwise because it is open to abuse, has been abused already, and will continue to be abused in the future--in fact, it is only the imagination of such folk as Larry which can limit the ways and magnitude of the abuse of laws like the PATRIOT ACT.
And Larry, if we're going to talk about what's nice.
It would be nice if every law passed at every level of government had to cite the portions of the applicable organic law which the legislature purported to make that law legitimate, and if jurors were invited by the judiciary to judge the legitimacy and application of the law in that light, as well as only the evidence at hand.
That would make, I think, for many fewer such august families as those you mention; I think that would be very nice, and that we would be better off as a society and nation for it.
Yours, TDP, ml, msl, &pfpp
along the same lines, in a recent episode of "Law and Order," which is usually pretty accurate about legal issues, one of the cops was frustrated by the inability to get an arrest of a suspect. He said, "Can't we just use the Patriot Act"? There was an immediate cut to a scene of a Swat team busting down a door and taking the suspect in, implying of course that the cops could use the PAtriot ACt to arres someone w/o normal probable cause or warrant requirements. More liberal propaganda, and this time from a show that is generally, IMHO, quite pro-prosecution.
I should add that I thought the tinfoil hat guy comment that set this off this policy was being humorously ironic, until I read his later comments.
Patriot act bites brothel owner.
Yours, TDP, ml, msl, &pfpp
Now I remember.
`the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.'
Yours, TDP, ml, msl, &pfpp
Do you disagree with the sentiment? If so, for what reasons?
Or do you not understand the sentiment?
Yours, TDP, ml, msl, &pfpp
Not to get between you and Larry, Tom, but I don't understand this "sentiment" either. By "organic law," do you mean some form of the natural law of which Rousseau was such a fan? Or do you mean perhaps an "organic" document of law, like the Constitution or, for the Charleton Heston fans out there, the Ten Commandments?
As for jurors judging the legitimacy of the law, I can only revert to the old story of the stolen cow. A man was on trial for stealing a cow. The cow's owner took the stand and testified to seeing the defendant steal the cow. The defendant took the stand and admitted that he had stolen the cow. The jury came back: "Not guilty." The judge said, "I don't think you applied the law in the case very well. Go back there, review the jury instructions, and deliberate some more." When the jury returned, the foreman stood up and said, "Not guilty, and he has to give the cow back."
Jurors are invited to review the legitimacy of laws passed by legislators in the voting booth. Apparently, Tom, you believe that keeping up with the passing of said laws and following the careers of legislatures in order to cast an informed vote that affects the legislative process is too great a burden on American citizens. This is both disheartening and delightfully ironic when considered in light of your "helpful" suggestion.
Can you understand this?
--It would be a good thing if an amendment were passed which required the national legislature to cite in a the portion of the Constitution which authorized the law which they passed.--
Have I lost you yet?
--It would also be a good thing if a defendant's attorneys could, on the basis of a Constitutional Amendment, raise before a jury the issue of whether the jury agreed with the justification the national legislature gave for the law which the defendant was accused of violating.--
You still with me?
What is you learned opnion?
Yours, TDP, ml, msl, &pfpp
Now I feel compelled to "get in between Larry and Tom." Or maybe I am just bored at work.
--It would be a good thing if an amendment were passed which required the national legislature to cite in a the portion of the Constitution which authorized the law which they passed.--
Why? What's wrong with our current system where federal prosecutors or lawyers argue in court about which portion of the Constitution authorized a law (or, as is more likely, that no portion of the Constitution forbids it). Also, your post seems to assume that it would be difficult for the legislature to cite to such Consitutional authority for many laws. There are, however, relatively few laws that are found to be Unconstitional and that's despite the best efforts of some very fine legal minds. So what exactly does your Consitutional amendment add to the process other than having the unnecessary step of having the legislature explicitly state which clause they are relying on (you' probably see alot of "Commerce clause" and "necessary &proper clause" references.
--It would also be a good thing if a defendant's attorneys could, on the basis of a Constitutional Amendment, raise before a jury the issue of whether the jury agreed with the justification the national legislature gave for the law which the defendant was accused of violating.--
That's called arguing that a law is unconstitutional except we ask judges to make that decision not juries. Why would it be a good thing to let juries decide what laws are unconstituional? Do you really feel that most juries are competent to do so? Would people still get to appeal such issues of law if they feel the jury was wrong? Does the appeal go to an appelate judge or to an "appellate jury" and then finally to the "Supreme Jury" ?
I am glad you put your suggestion in plain English. I couldn't figure out what you were saying in your first post. Now that I understand what you are saying, I realize how much I disagree with it.
Kris, by orgainc law I generally meant the constitution of a state or the national governemnt, but I did not want to exclude the charter of a territory, or a home rule city (where of course a state constitution and the federal one could also be applicable).
What is more sad, that jurors are not aware of every jot and tiddle of the law, or that Congress--to mention the PATRIOT ACT--didn't itself read the whole thing first. If they didn't, how could it be innapropriate to ensure jurors are given every opportunity to refresh and expand their knowledge of the law as they are asked to make life-altering decisions on some narrow slice of it?
"Not guilty, and he has to give the cow back." That may very well be a jural decision more in keeping with community mores than anything the legislature would prescribe, and if such decisions are to be made, they should be made by juries, not by prosecutors, defense lawyers, and judges in chambers agreeing on deferred prosecution, or some permutation of the like.
"Jurors are invited to review the legitimacy of laws passed by legislators in the voting booth. Apparently, Tom, you believe that keeping up with the passing of said laws and following the careers of legislatures in order to cast an informed vote that affects the legislative process is too great a burden on American citizens. This is both disheartening and delightfully ironic when considered in light of your "helpful" suggestion."
Voters are asked to review the general performance of the legislature and usually the specific performance of an incumbent legislator against the prospective performance of a challenger. I don't think they do too badly, all things considered. To reiterate, voting is a judgement of overall, generic merit.
Jurors have a different task. In keeping with the common law (and still, reluctantly, according to the Supreme Court, the law of the land), they are to judge the specific law, the application of the law as it is specific to the case at hand, and the specific facts of the case. It has been a tragic judicial fad of the last century that jurors are not to be informed of their first two jobs, and that officers of the court who do so can be censured if they do, or even if they acknowledge those tasks exist.
You are being disheartened by, and find delightfully ironic, the difference between apples and oranges. With respect to judging the merit of the acts of the legislature, voting and being a juror are two different things.
Yours, TDP, ml, msl, &pfpp
Your citation to this article only goes to prove Eugene's and my point.
Also, because you are not a lawyer I have to say that I don't respect you, either. Indeed, in my culture is is downright odd not to be a lawyer, and now I see why. However, I urge you to send letters to whoever you lay people send letters to telling them these things. This should keep you out of trouble and provide entertainment for many.
Jurors in this country are NOT asked to "judge the specific law." It ocassionally happens that a jury refuses to follow a law because they disagree with it but if they do this, they are going beyond what they have been empaneled to do. Jurors are finders of fact and they are supposed to apply the facts to law based on the instructions given to them by the court.
If that still doesn't turn your crank, I presume you are fine with the first example of the Patriot Act being--I think---misused, where a garden variety bribery case was being used as an excuse to "look creatively at the act and pointed out that these powers are not limited to terrorist investigations." You are fine with the PATRIOT ACT being used to combat garden variety crimes as opposed to terrorism?
Yours, TDP, ml, msl, &pfpp
1) Jury duty and voting are self-evidently two different things, civic acts of fundamentaly differing scope and character. If you disagree, please explain.
2) Jailgor writes: "Jurors in this country are NOT asked to "judge the specific law." sadly, that is true today. In fact, defense attorneys aren't allowed to bring it up.
Which of these facts do you dispute:
a) The US Supreme Court did nothing to substantially impair jury nullification until 1895, in United States v Sparf. Even since then, the Supreme Court has refused to condemn the practice outright, and the citations of the USSC justices praising the practice far outnumber their disparagements of it.
and
b) As evidenced by John Jay's statement, "The jury has the right to judge both the law as well as the fact in controversy." and John Adams' statement, "It is not only [the juror's] right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." the founding fathers felt that jury nullification was a right of juries and a part of due process.
Psst. Hey Larry, do you think the Framers had tinfoil on under their wigs?
Yours, TDP, ml, msl, &pfpp
I would dispute the fact that the current state of affairs is sad but it's something reasonable minds can disagree on. I can envision many hypotheticals where jury nullification would seem to be a good thing but, in general, I am against it so I humbly tend to disagree with Mssrs. Jay and Adams. I applaud your use of precedent (or attempt to distinguish it) and original intent in your argument. You even started to sound like a lawyer there. You might earn Larry's respect yet :)
Does each juror get to re-decide M'Cullough v. Maryland each time? Wickard v. Filburn?
There may be plenty of nullification going on now.* I don't see why anyone but a criminal defendant thinks it's a good idea. We have legislatures to decide whether ex-felons should be allowed to own guns, or whether a person may drive 100 mph past an elementary school.
* There was an op-ed piece a few years back in which it was suggested that a number of acquittals in drug related trials in the District of Columbia were race-related nullifications. ('No matter what the evidence, I'm not going to vote to send another young black man to jail'). You want this?
It's somewhat inaccurate to talk about the Patent Office's "special rule" against the patenting of perpetual motion machines. In fact, it's the application of a very general rule -- the rule that patents must be "useful" (codified at 35 USC 101) -- to a specific circumstance.
Also, though the MPEP (Manual of Patent Examining Procedure) provides very specific guidelines for when patent examiners should issue a Section 101 rejection (see, e.g., 706.03) -- and notes that "perpetual motion machines" are among those that should ordinarily get such a rejection -- it's tough on my ears to call the MPEP a "rule." The MPEP provides guidelines for patent practice and is, in general, binding on patent examiners (except for the section on interferences, which the Board of Patent Appeals and Interferences has specifically stated should not be followed). However, the examiner is not the final authority on patentability -- ultimately, the Courts are -- and the MPEP is not binding on the Courts.
My two, very persnickety, cents. (Good post.)
so, you cited a dubious source in order to back up a paranoid claim. again, that's exactly what Euguene is concerned about and only goes to prove his point.
I am sure you will find no countervailing account anywhere, including with the Secret Service.
It is then, I think, not a dubious source.
As I said before, if they are taking an inch--performing an investigation and taking names, notes, etc.*--in this case, why should they be given a mile--the USA PATRIOT ACT. I also note you have nothing to say about whatever provisions of the patriot act law enforcement can imaginetively stretch to other sorts of investigations than terrorism being so stretched. Should I presume you approve and are comfortable with whatever evolution in the use of the patriot act which you think is likely to occur?
The argument against the patriot act which should suffice is that it is an emotional band-aid for the security service bureaucrats and political officers of this nation, giving them a fig leaf of insufficient powers to hide behind, and paper over their failings with--when they could have prevented 9/11 with the authority they already had if they hadn't had their heads up their alimentary tract.
What powers they don't need they shouldn't have.
That is a full and sufficient reason for the patriot act to be voided.
*On looking at the poster for one second, they should have apologized and left. Period.
Yours, TDP, ml, msl, &pfpp
news.yahoo.com/s/nm/20050826/pl_nm/security_libraries_dc
"The U.S. House of Representatives, ignoring protests from civil liberties groups, voted this summer to reauthorize 16 provisions of the act that expire at the end of the year, including the library clause. "
I don't disagree with your statement here. I was merely pointing out that jurors are THE SAME people as voters (at least, if they so choose to fulfill both civic duties). And those people already have a voice regarding their views on the legitimacy of laws that are passed -- their vote. That's the place where a view on the legitimacy of a law is properly expressed. If you think a law is bad, vote out the guy who wrote it, and push the new guy to get rid of it! Yeah, it takes more time and effort, and more focus and more information, and more education, and more concern and...wait, I can see why you don't think American citizens today should be held to this...
But as for worshipping at the altar of the almighty juror, since I'm a former prosecutor, let me explain to you what my job was in the courtroom. If I asked you, and God bless your idealistic little heart, you'd say it was to prosecute criminals by proving a case beyond a reasonable doubt. Not to be cynical, but that's a nice try. My job was to make the jurors LIKE ME. If they liked me more than defense counsel and his client, they convicted. PERIOD. It's not a matter of presenting the right evidence. It's a matter of how you present it. Given the opportunity (and believe me, I always gave it to them) jurors will be MORE THAN HAPPY to replace the intelligent thought process necessary to properly deliberate with their kneejerk emotional reaction about which side seems more honest and friendly.
Given this (it seems anecdotal, but juror studies and the existence of the jury consultant industry bear it out), I think you'd be as unhappy with the unjust results of jurors' legal interpretations as folks are now with unjust verdicts that result from this same phenomenon. I'd invite you to trial watch a bit if you don't believe me and play the game yourself: watch the trial and ask yourself which attorney you like more. Then wait for the verdict. Try this at home. Works in civil cases, too.
By the way, I had very few acquitals. I'm very likeable.