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Patriot Act Final Conference Report:
The text of the latest conference report on the Patriot Act — 219 pages of fun statutory text — is available here in .pdf format.
AverageLawyer (mail):
That's too long. Do you really think I'd read this? Just give me your opinion: Is the new version the greatest thing since sliced bread, or does it give the government the power to subpoena the contents of my head?
12.14.2005 4:30am
Loyal Reader (mail):
If you'll excuse a slight hijack . . .

This blog has been nominated for the Best Legal Blog of 2005. Eugene (ever modest) hasn't pushed this but I think this blog's loyal readers should speak up. We owe all of the authors here a debt of gratitude. So please go to the link below and make your vote count. You can vote once per day through December 15!

http://weblogawards.org/2005/12/best_law_blog.php
12.14.2005 6:23am
Roger (mail):
Averagelawyer. As a lawyer, you should be aware of the dishonor you bring to the profession by commenting on a statute or case without reading it. While Professor Kerr might be honorable himself, by not reading the Patriot Act (or the final conference report), you harm the country far more than the harms that it is supposed to prevent.

If it is too long, you should consider getting a job as a professional sit-com watcher.
12.14.2005 8:08am
Smithy (mail):
I am not a lawyer, just someone who is very concerned about the growing influence of the ACLU, both in terms of their anti-Christian acitivity and their efforts to undermine the war effort. My question is this: could the Patriot Act be used to shut down the ACLU? At this point, most of the members are, in effect, enemy combatants.
12.14.2005 10:09am
Anon1ms (mail):
Smithy: Your concerns are misplaced. Christians don't need a plastic manger scene at a shopping mall to sustain their faith, and the Bush adminstration is doing a fine job undermining the war effort all by itself.
12.14.2005 10:17am
Smithy (mail):
I beg to differ, Anon1ms. They have created an atmosphere in which people are afriad to wish Merry Christmas to each other. And their lying about treatment of detainees is downright treasonous. This is just the sort of thing the Patriot Act was designed to stop.
12.14.2005 10:20am
taalinukko:
Smithy,

If they are creating this atmosphere of fear then it is only the result of the ignorance of the fearful. It is really simple the GOVERNMENT cannot promote ChrisKwaHanaFestivus but every body else can do what they please.

Pity, so much energy wasted on a manufactured non-issue.

Merry Christmas!
12.14.2005 10:34am
NorthWstPhd (mail):
I concur with Smithy, I think there is far too much activity from the ACLU to be considered the norm for them. I think their constant attack on Christmas and Christianity at this particular time is a coverup to hide a more sinister background operation to undermine the war effort.

As disgusting as torture is, actually making it a law that it is illegal won't stop its necessary use in the war on terror, nor the war in Iraq. Its need is plain to see for all that arn't trying to turn the US over to Islamists.
12.14.2005 10:36am
Anon1ms (mail):
Smithy: Are you afraid to say Merry Christmas? I'm not.

In fact I don't know anyone who is "afraid to wish Merry Christmas to each other."

Now I probably wouldn't wish someone who is Jewish a Merry Christmas, but that is not fear, it's respect and good manners.
12.14.2005 10:39am
PersonFromPorlock:
Er... Patriot Act? No nuts and fruitcake when it's too early for a glass of Port, please.
12.14.2005 10:58am
ALarry (mail):
This thread is hilarious. Orin Kerr, who is usually quite intelligent, posts a link to an important document. He admits that he hasn't read it, but figures that other like-minded people will read it.

Then, a lawyer admits to not reading it, and wants Orin Kerr to digest it for him, figuring that Professor Kerr will use his mad analytical skillz to analyze it.

Then Roger tells people that they should read it, and concludes that Americans who talk about things they don't read are worse than terrorists. At first I thought this was over the top.

Then, the classic wingnuts come on board and start talking about the ACLU! What does this have to do with anything. These people think that the ACLU has prevented Americans from wishing each other "Merry Christmas." They don't cite any cases. They just make stuff up. Then they repeat it.

Remember, this thread started with a posting of some source material by professor Kerr.

Then, people say that the ACLU has too much "influence." In society. This is strange. For an organization whose main function is to change laws via the democratic process (which includes litigation), it is difficult to see how it has a disproportionate amount of influence in society. Any litigation or lobbying goal they succeed in attaining is because they convinced a legislature or a court that their proposed interpretation of the constitution or policy goal was the correct one. If "society" disagrees, it shouldn't be too hard to amend the constitution or to change a statute.

Ironically, there have been few serious attempts to amend the constitution, to say, make Christianity, the national relation, and allow Christians to spend taxpayer money on converting people or force schoolchildren to attend Scientology Classses (a friend of mine told me that Scientology or Fictionology might soon be a majority religion in the US). The last serious attempt at a constitutional amendment -- involving homosexual marriage -- failed. The last amendment ratified seemed to be supported by everyone (regarding Congressional pay raises.)

But what does this have to do with the Patriot Act? Nothing. Instead, people who lost in Congress or the courts are grousing about how they were unable to convince people that they were correct, and they are too lazy to convince people to change the constitution.
12.14.2005 11:46am
Kent Scheidegger (mail) (www):
ALarry, some of the comments above yours are, indeed, a little strange, but none as strange as your assertion that the ACLU exists to change the law through the democratic process. Most of the ACLU's litigation efforts are to convince courts to say that the Constitution says things that are not in it and the people never intended when they adopted it or its amendments. This effort is antidemocratic to the core.
12.14.2005 2:03pm
Alarry (mail):
Well, you say that they are "not in it" but other people differ as to what is "in" the constitution, and in the US, it is for the judiciary to determine what is "in" it, but those decisions can be abrogated by the states and Congress though the amendment process. While, of course, I sympathize with the fact that you lost before the courts, and your unfilled desire for the government to do certain things (since the constitution does not bind individuals), in the US, the arbiter of what is"in" the constitution is, is the courts. This court be changed, but no effort has been made to amend the constitution to allow the executive to have supreme authority over constitution interpretation.

Also, you make an allusion to what was "meant" to be in the constitution. Again, reasonable minds might differ as not only whether original intent is relevant, but rather what is was.

Finally, it is worth noting that there are many counter-majoritian checks in the constitution itself. For example, the president is not elected by popular vote, vetos allow him considerable power, not everyone has a constitutional right to vote (such as foreigners and babies), politically unpopular religions (that worship undisputable false versions of Jesus) are allowed to practice, etc. The fact that any individual can argue that certain legislation is unconstitutional, and some judges of this, is but one of many countermajoritian features of our constitution.

Finally, because you have not provided specifics about what arguments the ACLU asserted (from its briefs), I suspect you have no idea about what they actually argued, and instead are relying on slogans and TV campaigns from the losers. In a post-9/11 world, Americans must support our country and never comment on a legal argument that they have not at least read and tried to understand. To do so, would be, in my opinion (and that of some others, it seems), worse than terrorism. But, if you can provide a quote from an ACLU brief which you disagree with, and then explain how in rejecting or accepting the argument, the courts did something that you disagree with, then you are on the true path to being a real American.
12.14.2005 2:24pm
Mikeyes (mail):
I am a little bemused by the remarks made here concerning a report that evidentally no one has read yet. I am working my way slowly through the tome and if I find a paragraph that authorizes the destruction of the ACLU, I'll let you know. Right now I am reading about the removal of barriers against donating equipment to fire departments, it might be in that section.
12.14.2005 2:45pm
Alarry (mail):
I know the non-lawyers want to grouse about the ACLU, because that is all they are capable of, but here are my initial thoughts.

Actually, there are a lot of positives about it. For example, on p. 12, the "non-disclosure" provisions are modified to specifically allow people to disclose any FISC order to their attorneys.
The FISC seems to have additional powers, but this converts, as I understand it, the administrative subpoenas to a warrant, which require the approval of the court. However, the question of what the court should scrutinize the applications for is a little vague, as it doesn't really resolve whether In Re Sealed Case was decided correctly. Also, and more importantly, p. 14 provides an actual way for people to challenge orders, but it doesn't clarify who has standing.

I have not worked my way through the substantive DP provisions yet.
12.14.2005 3:06pm
AverageLawyer (mail):
I agree with Smithy. I was a Christian before the ACLU made me start saying, "Happy Holidays!" Also, before gay marriage was made legal in my state, I was straight. The homersexuals have also converted me to a sodomite.

Is there some way to stop the ACLU?
12.14.2005 3:38pm
Kent Scheidegger (mail) (www):
Alarry, assuming that people who disagree with you must be ignorant is most unbecoming. In fact, I regularly cross legal swords with the ACLU, am well aware of what they actually argue, and usually prevail. An example of their attempts to abridge the people's right of self-government beyond anything justified by the text or history of the Constitution is Connecticut Department of Public Safety v. Doe, where they argued that "Megan's Law" is unconstitutional. The Second Circuit actually bought that argument, but the Supreme Court reversed and reinstated the law.
12.14.2005 4:40pm
Smithy (mail):
I agree with Smithy. I was a Christian before the ACLU made me start saying, "Happy Holidays!" Also, before gay marriage was made legal in my state, I was straight. The homersexuals have also converted me to a sodomite.

Ha ha. Is that how you argue, with mockery rather than reason? No wonder you guys lose elections.
12.14.2005 4:51pm
Roger (mail):
Since the Supreme Court decided in your favor, the issue was settled, but it seems that you are unable to understand how reasonable minds (in this case at least two judges that were confirmed by Congress) can differ. I don't know what the right of "the people" means, because I am more familar with the rights of individuals, which, like you, I think they should be limited because individuals are, as we can see, stupid. You should have explained exactly what the ACLU's argument was, and why the Second Circuit ageed.
12.14.2005 4:54pm
SimonD (www):
reasonable minds might differ as not only whether original intent is relevant, but rather what is was.
Point of order: I'm not sure how many reasonable minds differ as to whether the original intent of the framers is irrelevant. Indeed, most originalists - perhaps excluding the GOP footsoldiers who just use it as a buzzword - would reject the original intent as no less irrelevant and impossible to determine than you do.

Most people who are originalists in Constitutional matters are textualists in statutory interpretation. Why would such people use a theory like original intent - which runs utterly contrary to every basic principle of textualism? Answer: they wouldn't. By demolishing original intent, you are taking a castle which is not only indefensible, but undefended. It's a nice rhetorical flourish, and it might fool a few people who don't know better, but it doesn't actually mean anything.
12.15.2005 10:01am
Mary Katherine Day-Petrano (mail):
It is amazing this discussion has deteriorated into ACLU bashing, not that I am a big fan of the ACLU or anything. I just think there is a lot more important stuff people should be discussion like how about the significant changes under the "improved" Patriot Act to admiralty law and vessels. With these changes, I would think people wouldn't want to risk owning even a small pleasure craft anymore. And what happens to those people who in good faith think they are salvaging a vessel, and a court disagrees and holds them to be officious intermeddlers. Before these revisions, they would only be subject to potential civil liability for a wrongful arrest, but now it would appear that the mere finding they did not have a meritorious "salvage" claim would subject them to criminal Patriot Act penalties. Is this really good for maritime insureres like Lloyds of London to have people so darn scared of assisting, saving, and salvaging a vessel in marine peril that people will just let them sink? Or, in the case of Katrina and New Orleans, if a barge really did break loose, and someone could have rescued it before smashing the levies, who would want to get involved knowing that if a court disagreed they would end up criminally prosecuted? I agree the United States needs to enhance vigilence of the seaports and waterways, but these revisions could become a nightmare for maritime commerce of good intentioned people who become suspected of of being a "threat" when maybe they are not. Look at the FLorida "threat" reports coming out of the Pentagon about the anti-war meetings of the Quakers or whatever group that was. Just my thoughts.
12.15.2005 2:40pm
Mary Katherine Day-Petrano (mail):
And did anyone see the provision that adds the Secretary of Homeland Security in the Presidential line of succession? People have criticized Mr. Chertoff for giving up his life tenured Circuit Court of Appeals Judgeship to be Homeland Secretary, but maybe he made the right decision afterall given that somewhere down the line of succession he conveivably could become the President. My own opinion was he was a great judge, but maybe he would be a great President, too. Why are people talking about the ACLU?
12.15.2005 2:50pm
Mary Katherine Day-Petrano (mail):
Lets see, and now we have a Secret Service Uniformed Division operating as a police force carrying weapons that reports in the line of command directly to the Secretary of Homeland Security, and they are authorized to make unfettered warrantless arrests. Not that I am criticizing this in any way, only making the observation that now Mr. Chertoff commands his own police force authorized to make warrantless arrests on the basis of "reasonable grounds." Good thing the Mike Brown Katrina debacle is behind us ...
12.15.2005 2:59pm