Subpoena Ruled Unconstitutional Because Some Bloggers Are Really Freaked Out By the Bush Administration:
Here's an excerpt from Magistrate Judge Stephen Crocker's new ruling that the First Amendment doesn't let criminal investigators issue a subpoena to people who purchased items from a person charged with tax evasion. The government apparently wanted the testimony so individuals could testify that they really did pay for the items, thus proving the income required. Why did the First Amendment block the subpeona? The person charged with tax evasion sold books, so the subpoenas are for book purchasing, and DOJ is part of the Bush Administration, and geez, we all know how some people like totally lose it about that kind of stuff:
UPDATE: Commenter Matt Bruce asks a good question: "Wouldn't the fiery rhetoric just melt the frost off the keyboards?"
In this era of public apprehension about the scope of the USAPATRIOT Act, the FBI’s (now-retired) "Carnivore" Internet search program, and more recent highly-publicized admissions about political litmus tests at the Department of Justice, rational book buyers would have a non-speculative basis to fear that federal prosecutors and law enforcement agents have a secondary political agenda that could come into play when an opportunity presented itself. Undoubtedly a measurable percentage of people who draw such conclusions would abandon online book purchases in order to avoid the possibility of ending up on some sort of perceived "enemies list."I just love the line, "the chilling effect on expressive e-commerce would frost keyboards across America", immediately followed by the warning, "Fiery rhetoric quickly would follow." Yeah, always gotta worry about that fiery rhetoric — it can pop up any time, really. In terms of the law, here's what I don't get, or rather, here's one of the several things I don't get: If public misunderstanding of Judge Crocker's decision makes the otherwise constitutional subpoena unconstitutional, can't Judge Crocker write his opinion in a calming and soothing way to make the subpoena constitutional? Or are bloggers and their fiery rhetoric really that incorrigible?
[FOOTNOTE: I am not finding that such fears are well-founded, but neither can I find them completely speculative or irrational. Quite apart from any book buyer's personal fear of federal apparatchiks or black helicopters is the more commonly shared notion that living in the land of the free means that it's none of the government’s business what books people are reading.]
Taken a step further, if word were to spread over the Net — and it would — that the FBI and the IRS had demanded and received Amazon’s list of customers and their personal purchases, the chilling effect on expressive e-commerce would frost keyboards across America. Fiery rhetoric quickly would follow and the nuances of the subpoena (as actually written and served) would be lost as the cyberdebate roiled itself to a furious boil. One might ask whether this court should concern itself with blogger outrage disproportionate to the government’s actual demand of Amazon. The logical answer is yes, it should: well-founded or not, rumors of an Orwellian federal criminal investigation into the reading habits of Amazon’s customers could frighten countless potential customers into canceling planned online book purchases, now and perhaps forever.
UPDATE: Commenter Matt Bruce asks a good question: "Wouldn't the fiery rhetoric just melt the frost off the keyboards?"
Too bad nobody reads anymore.
:)
"now and perhaps forever." Sounds like the title of an Air Supply song. This one really strikes me as odd. Forever?
And as a fearless blogger, I'm not about to let the fire-breathers taint my decisions.
What's that Mark Twain quote? A lie can travel halfway around the world while the truth is still putting on its shoes. And that was in the day before the internet!
[OK Comments: Greg, what does that have to do with the constitutionality of the subpoena? The fact that people won't understand the legal ruling is presumably correct. The question is why it is relevant. ]
I also don't think that the Court's consideration of the rights of third parties who do not know about the subpoena and thus have no occasion to object to it to be a frivolous proposition. Under your theory, the third parties' views would never be heard, as they would not know about the subpoena or proceedings and Amazon would be barred from raising these issues for them.
How badly do you have to screw up a prosecution for tax evasion that you need external witnesses to show the tax evader earned money?
From a legal viewpoint, though, the judge is pretty clearly incorrect leading to plain goofy. People purchasing things online really don't show the greatest expectation of privacy -- they have, after all, just sent their names and addresses to several different people, using infrastructure leased from even more people for multi-user use -- and the same metric used to protect freedom of expression would prevent warrants from being presented to nearly any and every company providing products.
While I don't like the actions of the idiots, I'd rather they get away with them once and then have a law stop it from happening again, rather than have to hope that every time this pops up a friendly activist rather than literal or unfriendly activist gets it.
this line is hilarious and one reason why i keep coming back
Here, the government had a very small need for the information (almost vanishingly small when you learn from the article that they were able to recover all this information from the guy's hard drive). Against that very small need for the information must be weighed what the court found was a not "completely speculative or irrational" fear of ill intent. If we lived in a society where there was perfect information (no misinterpretations of rulings) combined with a perfectly just government, then the fear would vanish into nothingness and could not outweigh even the very slight need the government had here.
Of course, if we had this perfect information and perfectly just government, much of First Amendment law would be unnecessary, as much of it is based on how the law, regulation or other government action will effect people who never run afoul of it. No one would ever fear going to the post office to pick up their Communist Party propoganda, because they'd know, the government being perfectly just and they having perfect information, that the program is just to weed out annoying junk mail and not keep a list of Communist Party sympathizers. (Lamont v. Postmaster General, 381 US 301)
What I don't understand is a First Amendment balance based on the judge's estimate of possible public misunderstanding of different possible paths that then lets the judge pick among those options the choice that he declares will minimize the harm in light of his own estimates of possible public reaction. It sounds a great deal like a constitutional label for the judge just doing whatever he wants.
Now, maybe we want that: maybe we want judges to review all grand jury subpoenas to see if they're good subpoenas and not bad subpoenas, based solely on the judge's view of public policy. But I don't know of legal authority for that position.
Nick
And as for legal authority, even the case you cited, Branzburg, said that Grand Juries cannot run roughshod over the Constitution. They cannot use subpoenas to harass the press, for example:
Branzburg at 708
So, yeah, if the subject of a subpoena can raise a cognizable First Amendment issue, the judge should look to see if it's at least a good faith or bad faith investigation. And in the jurisdictions that have faced this issue head-on since Branzburg, when a First Amendment issue comes up, the judge weighs the government interest in enforcing the subpoena against the First Amendment right claimed. (Corpus Juris Secundum has a section on First Amendment defenses to grand jury subpoenas, so it's not like this is a novel theory. Solove also lists several decisions at the circuit court level endorsing this sort of balancing test. There's no want of authority.)
We trust judges to do this sort of weighing all the time. It seems pretty easy in theory. Terrorist threat, that would tolerate a high burden on free speech. Getting the names of witnesses when they already have admissible business records, that's a pretty weak interest and so would tolerate much less burden.
Only figuratively.
Actually wouldn't it also melt the keyboard itself? Methinks that would have the same effect as merely frosting it.
On the other hand, if fire can't melt steel, maybe it can't melt frost either. ;)
It's not a "notion." For non-lawyer Americans it is one of the defining elements of what makes Americans free and America great.
The great, big GOVERNMENT can just find another way to reach it's goal. Convicting this alleged tax evader is trivial compared to the government looking into my bookshelf.
It will "chill" Amazon into financial distress and perhaps bankruptcy.
Thr Judge is correct.
For once this non-lawyer finds himself in sympathy with *big, bad Gubmint*. Presumably the investigators needed shoppers' personal info to possibly call them as witnesses to the alleged crime. Which was not the crime of selling subversive literature without paying taxes. Anyone expecting privacy after handing over lots of personal data including credit card info, lives in a dream world. What's the next step? Creative tort law firms' class-action against online merchants allegedly violating customer's expectation of privacy? Or perhaps emotional pain and suffering due to non-speculative fear? Now there is a real receipe for frosting business and heating up cost.
I'm not a criminal lawyer, but let's say I ran a brick and mortar book store. And let's say I keep copies of my invoices on my computer, or, better yet, the carbon copies of invoices and payments.
Now, if I were charged with tax evasion, wouldn't the government seize all of my invoices. These could (depending on how I completed the invoice) list their addresses, banking information, book purchase, and every other piece of information sought by the government here.
Okay, let's even go a step further. Let's say this is a civil case involving lost profits or some type of accounting. I would probably include a request for production of documents listing "all invoices for book purchases between 19XX and 20XX." If it was relevant to the case, I'd certainly get the documents (likely with some type of protective order, but I'd still get it).
Doesn't that chill commerce just as much as sending a subpoena to Amazon does?
I understand if the general public, which is largely ignorant of the lengths that both the government and private litigants can go to secure information, think that the judge made the right decision. The rest of us "in the know" so to speak are left to scratch our heads.
"These could (depending on how I completed the invoice) list their addresses, banking information, book purchase, and every other piece of information sought by the government here."
Yes they could. But this is not required. I can walk into a store, pay cash and stay anonymous. Except for the ubiquitous security camera.
Had the defendant run a cash-based business, proof of tax evasion and how much was evaded would be much harder.
Still, that hasn't kept prosecutions from succeeding in the past. Could the evidence have been procured less intrusively? Of course. Investigator: "You spent $10.000 purchasing books, yet the shelves are empty. Oh, you burned them. Sure! ..."
The subpoena did not limit itself to purchases by the suspect because that wasn't what they wanted to prove. If I read the summary of the case right, the suspect was suspected of *selling* books and not paying tax on the resulting income. If you want to prove that someone sold books, then information that that someone purchased books is not sufficient. I am rather confident that there are plenty of people who have bought books on Amazon but never sold one on Amazon.
It is standard practice in our world that private individuals are required to provide certain information to the courts to show the truth or falsity of a crime. For example, if a person in Colorado was acccused of murder, and they said you could provide an alibi for them for the time of the murder. You may well be required to be a witness in court as to whether you can provide an alibi, and that would almost certainly mean discussing what you were doing during the time of the murder. The idea is that it is your duty as a citizen to assist the courts in reaching the right decision. The requirement on citizens to do witness duty in work may be a bad thing, but it is far older and more widespread than the particular case of books being sold on Amazon. And I am not sure how you expect courts and the justice system to operate without being able to find out information from private citizens.
Type "TJX settlement" into google. Or "data breach lawsuit". Maybe you're being facetious, but everyone expects some privacy when their information is handed over to an online vendor. If YOU don't, then you won't mind telling us all your social security number and credit card information, right?
Instead of scratching your head, why don't you read the cases the judge cited? Or the ones Solove cites in footnote 196 of his article (which Orin cited in the other post)?
I mean, I can understand Orin's first post that he didn't know of any cases where the First Amendment is weighed against the subpoena power, but he hadn't read the opinion, the judge cites at least 1. Solove cites at least 3. You can argue that each of these circuit courts have it exactly wrong, but I'm not clear how you can continue to scratch your head.
As to your hypothetical I give you: 701 F.2d 115. Even in a brick and mortar store, you might not always get the information.
MLS makes a good point, but I think the appropriate legal standard does require an analysis of how trustworthy the government is seen and the nature of the information sought. In Lamont v. Postmaster, the result surely would have been different if the government required signing a list for receipt of Sears circulars rather than Communist propaganda. And it surely would have been different if the law had been enacted in an era where the reading of Communist propaganda had been viewed by the government as a good thing. In that hypothetical, there would be no fear that reading the material might prevent school teachers from getting tenure or any of the other inhibitory effects the court cites.
Amazon apparently suggested a single-blind process asking for volunteers, which would satisfy the legit Grand Jury request for proof that actual sales were made (notwithstanding the abundant, seemingly admissible evidence already provided by Amazon).
I don't see how the generic claim that "we trust judges to balance all the time" -- nor the vague comment in Branzburg about the First Amendment not being irrelevant to the grand jury -- is responsive to my concerns. The first is an abstract principle, but concrete cases are not decided based on grand abstract principles. The latter runs into the problem that the law does not appear to call for judges to conduct a general "balancing test" of this sort in this setting. My criticism is much more specific: What are the cases when judges relied on the perceived public misperception of their own rulings to say that something that was constitutional was made unconstitutional?
The judge happened to throw in some rhetoric which isn't always the best way to rationalize a decision, and it may not even have been appropriate, but it doesn't really undermine the judge's decision.
So add me to those who have no idea what need there was for the subpoenas. Which makes even a fairly weak argument by the magistrate judge = sufficient to quash.
When the feds want to intrude on privacy for no apparent reason, then they shouldn't be allowed to do it. Chances are they're either overreaching out of habit, or else trying to secretly do something under a pretext.
Branzburg doesn't explicitly call for this test, although it does say that there are some checks on grand jury power when the First Amendment is involved. That check (combined with the concurrence in that case which said that each case should be evaluated on a case by case basis) has been extended by at least four Circuit courts to mean that a balancing is performed. I've cited some, Solove cited some, the judge cited some. (The judge cited In re: Grand Jury Subpoena to Kramerbooks &Afterwards, Inc., 26 Med. L. Rptr. 1599 (D.D.C. 1998), In re: Grand Jury 87-3 Subpoena Duces Tecum, 955 F.2d 229, 232 (4th Cir. 1992) &In re: Grand Jury Subpoenas Duces Tecum, 78 F.3d 1307, 1312 (8th Cir. 1996)) So, at least in some jurisdictions, the law does call for a balancing of this sort in this situation. In fact, given the law in the neighboring Eighth Circuit, you should probably be grateful he didn't impose a compelling interest standard on the government!
That's a different question than you've presented before, whether there are any cases where the First Amendment trumps a grand jury subpoena (there are) if he could have written it in such a way as to avoid misinterpretation (he probably could not).
I don't know if misperception of one's own ruling has factored into a chilling effect analysis, but that wasn't the only factor going into the First Amendment analysis, was it? The whole first paragraph cited above dealt with non-self-referential reasons. Also, as a point of clarification it appears to be the fear of the subpoena being misperceived, not his opinion: "Fiery rhetoric quickly would follow and the nuances of the subpoena (as actually written and served) would be lost as the cyberdebate roiled itself to a furious boil." I do know that misperception of government action is a key part of chilling effect analysis. The government didn't really want to keep kindergarten teachers from teaching if they read Communist propaganda (they said), but it was the fear of that effect that made their actions unconstitutional.
So, if there is an expression here that the opinion would be misperceived, you can excise that from the decision and still get a burden on the First Amendment that is not trumped by the need the government had for the information. If the fear is that the government action would have been misperceived, that is the heart of chilling effect jurisprudence and is anything but novel.
I misspoke: What are the cases when judges relied on the expected public misperception of a government investigation to say that an investigative step that was constitutional was rendered unconstitutional?
In this case, the constitutionality of the law was decided, in part, on the perceptions or misperceptions of those who might have sensitive positions.
Are you saying that chilling effect analysis should only work outside the criminal investigation field?
From the NUTS grand jury case, 705 F.2d 115:
In this case, the 10th Circuit said that the perception of the effect of the investigative technique could implicate First Amendment concerns and if it was found that they chilled associational rights, a compelling interest in the information sought would be required.
I'm sorry, but chilling effect is always about the indirect impacts a law will have, and if it's proper to use that analysis, as at least four circuit courts have said, then it must look at how that law or action is perceived. You can see LaFave on Criminal Procedure at 8.8(d) pp. 444-446 for more about the challenging of grand jury subpoenas on grounds of chilling effects.
I'd laugh about this, but it's pretty sad actually.
Since the issue is tax evasion, I assume they are interested in not only the fact that money was transferred, but what goods were transferred in exchange, as a cost reference for determining what the magnitude of the evasion actually was. There's less profit on a bag of golf clubs, typically, especially after shipping costs are factored in.
OTOH, they can get that from Amazon's records transfer, too, so I'm not sure what the witness subpoena was supposed to prove. And speaking as someone who has made numerous purchases fromm Amazon Marketplace, and has seen postmarks on those purchases from all over the country, I certainly don't want to be magically called on the carpet in some distant jurisdiction without an exceptionally good reason. "Chilling effect" is a very good way of describing it: if the risk of that increases, the odds of my Marketplace purchases declining in quantity also increases.
It's all so ... evil, isn't it?
"I misspoke: What are the cases when judges relied on the expected public misperception of a government investigation to say that an investigative step that was constitutional was rendered unconstitutional?"
I'm not sure you've established this as the basis for the judge's decision. The proposition you put forth is in a paragraph which begins "Taken a step further...." This sounds a lot like dictum. A sufficient basis for the judge's decision is in the paragraph BEFORE the one on which you're harping, which states (without the hyperbole) that a rational consumer already HAS a firm basis to fear an infringement of his or her First Amendment rights, even in the absence of internet discussion.
Your selective quote from the opinion has not yet established that the judge is clearly out on a limb, or has fallen off it. Greg, on the other hand, has pointed out quite well that the presupposition in your first post was erroneous. Why not this one, too?
No, they're just all hypocrites.
I should add: banning handguns, banning fireplaces, and "hate speech" to the list too.
The notion that they might have had to call actual buyers to prove they transferred money is laughable. First, they apparently had the guy's computer which had most of this information (so even if they needed names, they didn't need them through a subpoena). Second, their supposed justification is even more laughable. Can anybody who has done criminal work, prosecutor or defense, imagine a judge allowing the State to call all 22,000 some odd people who brought books? There's no way.
But those items in the list that don't sharply restrict personal liberty, are those that are based squarely on theft. And theft, as we were all taught, is evil. No matter how much someone makes light of the dated old concepts of good and evil.
It's the right to belong to groups that espouse ideas like this (the 16th Amendment is theft) that the National Unconstitutional Tax Strike Committee (NUTS) was fighting for in In re Grand Jury Subpoena to First National Bank, 701 F.2d 115 (1983).
Here's an article about how the government, with the complicity of federal judges had "been actively engaged in a coordinated, nationwide campaign to silence all people who have been openly asking the government to answer tough questions about the origin, authority, and operation of the income tax system."
See, it's not just leftists that fear the over-intrusive reach of government.
Ok, leftists and the insane.
NUTS. The most appropriate acronym ever.
Hear, hear!
Thank you, sir.
I think a potential purchaser of a book might decide not to purchase because it's possible the government will find out what the book is. Maybe not if he really knew the only use for the information was the financial value of the book in a tax evasion trial, but the purchaser has no way to know this, since once the government subpoenas the records for use in a tax evasion trial the government can then use them for any other purpose it wants.
Nonsense.
1. The government apparently would have been delivered a complete list of records for every book and purchaser associated with that buyer. In other words, here's an empty bag, and that thing racing for the hills there is a cat.
2. Once on the witness stand, the government prosecutor can ask the witness any relevant question s/he wants. Asking the witness "did you ever buy a book on Amazon Marketplace from user ID ___" is weak when you're asking the court to believe that the buyer purchased "some book" out of a list of thousands. Asking the witness "Did you purchase book title ___ from user ID ___ on Amazon Marketplace, on or about the date of ___", and then receiving confirmation, is stronger.
However, this information should be irrelevant to the case at hand, assuming the prosecutor is competent. Either the defendent made a truckload of money selling books without paying taxes on the income, or he didn't. The Amazon sale records ought to be sufficient proof of that, yes? Whether or not John Doe purchased The Anarchist's Cookbook or Jane Smith was into the Kama Sutra is none of the government prosecutor's business, and to have that on the public record might be embarrasing or even result in unnecessary future difficulties in personal, political, or career life.
Not all, maybe not many, but certainly a non-trivial sub-group of the 20,000 purchasers will undoubtedly be chilled. I won't be chilled, I'll just be pi**ed because another bit of my liberty has been stripped away. Give the government enough time and enough lawyers and your only freedom will be the thoughts in your mind.
Government prosecutor can't ask either of the questions you posed. Not allowed to lead except on cross.
You're welcome. And when the program goes bankrupt, and/or taxes are raised and benefits are cut, you'll probably do the same.
it's not just leftists that fear the over-intrusive reach of government.
The problem is, they don't. Oh, they prentend to when Republicans do something, but given their broad support for federal regulations and an endless amount of laws restricting liberty, it's all bluster.
I find this very puzzling. But first let me see if I have this straight. The government wants to subpoena purchasers of books to provide testimony to show that the book publishers received income it should have paid taxes on. So this intrusion on liberty is justified to nail tax evaders. (I thought that libertarians almost universally condemn taxation as theft?)
The magistrate's argument is that this subpoena power chills freedom of speech. And he throws in an policy argument about how this would affect online book sales. And what business is it of the government what people are reading?
This sounds plausible to me. It also seems to effect a more libertarian decision. The First Amendment means what judges want it to mean. I don't understand why being a libertarian you wouldn't want the first amendment to mean a libertarian outcome in this case. That is, unless you subscribe to some sort of 'plain meaning' or 'originalist' interpretation of the constitution or something like it. If that is what you believe make an argument for that way of looking at the constitution.
I'm confused. Explain to me how you could support constitutional precedent that is clearly based on some non-textual and non-orginalist basis, but then exclude some further non-textual and non-orginalist basis for a constitutional decision? If those non-textual and non-orginalist decisions are law then why wouldn't a further one also be. Or are you saying that they are not law? So, I as citizen am bound by the constitution as the law of the land to obey what is 'clearly' stated in it, even if I disregard the decisions of the Supreme Court. What is the textual authority or originalist basis for judicial review anyway? Aren't we back to where we started: law means what judges say it means. If that is the case, why not prefer judges declaring the constitution to be more libertarian?
Nice, isn't it?
Another,
The hypocrisy is breathtaking.
I don't get it. Call me stupid, but I don't get it. I don't think that your examples qualify as the "over-intrusive reach of government." Wiretapping, indefinite detainment, waterboarding, yes, banning wood fires, fining parents for depriving children of childcare, no. There is a huge difference.
Listening to conversations on a public-owned or company-owned medium is horrible, but going into the rooms or staring down the chimney of every family to make sure they're not making nasty smoke is perfectly acceptable?
I suppose it helps that you are sure -- SURE -- that the former must only be used to crush the opinions and viewpoints of normal citizens, while the latter option is only there to stop horrible rich bastards from flashing their wealth and dropping smoke down the throats and into the eyes of poor Black and Hispanic citizens...
I like that your worldview states that three uses of torture authorized only against known terrorists is an over-intrusive and reaching government, while peering through the medical records of an entire group of citizens, forcing them to use their money in a method they may or may not believe to be useful, and fining those who don't play the government's fiddle, that's just a perfectly fine way to protect the children.
Of course you don't, your a leftist.
Wiretapping
Uh, how is it "intrusive" to wiretap?
indefinite detainment
As if this has never happened in war? Read a history book.
waterboarding,
I love how you leftists define this as "torture" If waterboarding is torture then words no longer have meaning.
banning wood fires, fining parents for depriving children of childcare, no. There is a huge difference.
So the state telling you whether or not you can have a fireplace isn't "intrusive" now? The state telling you that you must have government healthcare isn't intrusive?
Again, in liberal land words simply don't have meaning.
Things like this are used on top al Qaeda targets, enemy combatants. This hardly seems like a case of "government intrusion" unless of course you don't want to engage the enemy.
Of course, you have to trust that the government is only doing it on "known" terrorists, and that they haven't made a mistake in identifying the terrorists (or the $10,000 bounty they were offering for terrorists in Afghanistan wasn't encouraging people to rat out "known" terrorists who were just people they didn't like).
That's a LOT of trust for a government you think is engaging in comprehensive theft every time they take a cut of your paycheck.
I mean, the government has to go before a judge and prove they have probable cause to get a warrant to search the house of a known drug king-pin, but you trust them to just be right when they're talking about "known" terrorists. This is the same government, the same CIA, that didn't know that the Soviet Union was going to collapse, that didn't predict the fall of the Shah, that tried to kill Castro with a poison cigar. The government where in the FBI only 33 agents speak Arabic and none work in counter-terrorism and the CIA is turning away Arabic speakers if they have any family in a foreign country. These guys you trust?
Did you know the US government prosecuted Japanese interrogators for war crimes, for torture, for performing waterboarding on American GIs. Ask Yukio Asano, sentenced to 15 years of hard labor, whether it is torture, or better yet, ask the GIs he tortured.
John McCain, a HUGE leftist, called it "very exquisite torture." (He repeated in tonight's Republican debate that it was torture!) Of course, being a HUGE leftist, he thinks EVERYTHING the North Koreans did to him was torture. What a Baby!
If John McCain, who was tortured, thinks waterboarding is torture, then words truly have no meaning!
That doesn't make him right. "Argument by authority"
Now why do you think you're doing that?
he thinks EVERYTHING the North Koreans did to him was torture. What a Baby!
Issue conflation.
Now why do you think you're doing that?
By the way, McCain wasn't waterboarded and was actually tortured.
Oh, really?
Not your use of "GI's" plural. He "tortured" no GI's. And you're ignorant.
Using this "logic" we then can conclude the government can't do anything because it has been wrong before.
Of course you don't use examples of federal agencies not being able to tell OMB where there money is spent, Medicare/Medicaid/SSI fraud, IRS abuses and all the rest.
So you're for limited government now, right?
First to point out that it's not just the "leftists" who think that it's torture (to put the lie to your statement: I love how you leftists define this as "torture" If waterboarding is torture then words no longer have meaning). Second, you don't seem to care for logical arguments, that it simulates drowning, is excruciatingly painful and that we've convicted people of war crimes for doing it before.
can't do anything
Using this "logic" we can conclude that there should be checks and balances on the government because government, being government, is fallible. Something the Founders knew when they instituted the Fifth Amendment which requires probable cause to search someone's person, house or possessions. They also enshrined the concept that a person is innocent until proven guilty, beyond a reasonable doubt.
And you're ignorant.
And you're ugly. Tonight, I'll read a book and become less ignorant, but you'll still be ugly!
Boy, name calling can be fun!
So you're for limited government now, right?
There are government checks on spending. OMB being one of them. Congressional approval being another. Judicial review being a third. What checks do you propose in this situation?
Oh, yeah, that's right. The government that can't tell OMB where its money is being spent should be trusted to "know" that the terrorists it is torturing are actually terrorists with NO checks.
Yeah. I'm ignorant.
Wow, you found a Republican. And a not very conservative one at that.
Second, you don't seem to care for logical arguments, that it simulates drowning, is excruciatingly painful and that we've convicted people of war crimes for doing it before.
You haven't presented a "logical argument" and you have no idea if it is "excruciatingly painful."
Using this "logic" we can conclude that there should be checks and balances on the government because government, being government, is fallible
Funny, but you leftists aren't for any "checks" when it comes to social programs or environmental regulations.
The more the merrier.
Something the Founders knew when they instituted the Fifth Amendment which requires probable cause to search someone's person, house or possessions
Hilarious,
Yeah. I'm ignorant
No kidding.
Boy, name calling can be fun!
I'm not "calling names" I'm making factually correct statements. You don't know the difference between the 4th and 5th Amendments and are claiming that GI's were "water boarded" when they were not. That's ignorance.
There are government checks on spending. OMB being one of them. Congressional approval being another
Huh? How is "Congressional Approval" a check on spending?
We have a 9 trillion dollar debt and counting.
You need some logic lessons.
You got me! I was a whole amendment off! Dang! That means there is no requirement for a warrant, doesn't it! Because if I make a typo, that invalidates the Constitution. Since I misidentified the Fourth Amendment, which says:
that means no one ever has to get a warrant to search someone's person, house, papers and/or effects.
I didn't realize my typos had such power. Sorry America, I've killed the Constitution! My typos are all powerful! Actually, this is sort of cool. Fear my typos! Mwa-ha-ha!
I wonder what would happen if I misspelled something?
are claiming that GI's were "water boarded" when they were not.
Washington Post
You're right. No American Soldiers were tortured. Just American Airmen and only one at that, right? Well, actually, maybe more than just the one:
I guess we still can't say soldiers were tortured. We only have a single airman and unidentified military personnel. They could still be just Navy and Air Force personnel. Then I'd still be ignorant for saying GIs.
By the way, here's the summary of charges against Yukio Asama. Note charge 1: "Did willfully and unlawfully mistreat and torture PWs." Plural. Even if we assume that PW means civilian, I got the plural right the first time.
Anyway, I'm not sure how it's torture if applied to a civilian but not if applied to a soldier.
Here's a soldier who has had it done on him:
Funny, but you leftists aren't for any "checks" when it comes to social programs or environmental regulations.
Let's assume that I'm a "leftist." (As you correctly point out, there's no such thing as a non-leftist who opposes torture.) If you don't like an agency action or regulation, there checks even there. Among them: (1) petitioning the agency; (2) suing the agency in court alleging an arbitrary/capricious decision making process; (3) suing to stop the agency enforcement alleging that it is un-Constitutional; (4) electing a President who will appoint regulators who will do what you want.
How is "Congressional Approval" a check on spending?
Each year, Congress has to approve a budget, which is then signed into law by the President. This budget is made public so that we can read it. If Congress doesn't like a budget, they can vote it down. If the President doesn't like it, he can veto it. If YOU don't like it, you can vote against your member of Congress or the President.
That it doesn't work the way you want doesn't make it not a check. (And how does the fact that the checks don't work make it MORE likely that the government is right when it says these are "known" terrorists?)
If I'm going to get logic lessons, it won't be from you.
What is "over-intrusive"? Before we have defined what that means to alleged hypocritical person all charges of hypocrisy fail. Yes, people disagree.
Moreover, I seriously doubt that police are allowed to break into people's homes to police their fireplace use. It seems much more likely that neighbors (would if the ordinance is passed) report offenders. Police do the much easier thing of viewing the chimneys for evidence of violation.
The Ace
In liberal land, we may have different views on what intrusive is. But the fact that we have different views from conservatives doesn't make us ipso facto wrong. Would banning the use of marijuana be intrusive? Many Liberals say yes, Many conservatives say no. Does this mean that banning pot is not intrusive?
FYI, I never said that waterboarding was torture. I said that I believed that was an example of the "over-intrusive reach of government."
We can disagree but perhaps we should not play semantic games, but rather make rational arguments about our policy views.
Tbnaks
I noticed another of your logical parries that I have frequently observed: "Tu quoque". It seems to say that one is absolved of guilt by the guilt of the charging party. You've modified this somewhat by charging the opposing party with hypocrisy. "Well you say that our political party has committed wrongs but how can you say that since your party has also committed wrongs. You hypocrite!" even if Bush &Co have been "over-intrusive" so have the "leftists"... So they are hypocrites to object to Bush &Co's possibly "over-intrusive" actions. This seems to shift the whole debate from 'was Bush &Co "over-intrusive"?' to 'are "leftists" hypocrites?' But obviously if it is wrong for "leftists" to behave "over-intrusively" it follows that it would also be wrong for Bush &Co to do so. So, fine, just for the sake of argument, "leftists" are hypocrites, they have also done wrong things, should be punished etc. but THIS DOES NOTHING to absolve Bush &Co from wrong-doing.
I bring this up merely to say that such a line of reasoning is never going to persuade. It might distract, but it will not persuade.
Who's ready for the Third Amendment? Give the government no quarter.