The Arrogance of Advocacy

Pat Ryan

Watching Washington Week in Review yesterday was another depressing (albeit predictable) run down the rabbit hole. The consensus seemed to be that post 911 sometimes you just have to get bad people off the street even if you can't make a legal case against 'em. The lovely Dana Priest of the Washington Post was slightly more concerned for the administration's public image when it comes to extraordinary renditions It seems that a worldwide network of plane spotters that catalogue all of this toing and froing by private jets doing CIA bidding, may give our earnest government functionaries a black eye among us less sophisticated citizens. Hopelessly naive, we are still caught up in the outdated idea that our Constitution should not be used as toilet paper by the ruling oil barons.

In Oregon, obvious terrorist sympatizers at the Mercury are asking questions about the ownership of these business jets, and of course that danged Randy Leonard and his buddy the Mayor are asserting that they need be accountable for the behavior of all of their employees and that they can't do that without access to all of the relevant information. I mean, get a grip.

There is also a statewide grassroots movement afoot. It seems that there are lots of folks out there who are arrogant enough to think that they have the right to peaceably assemble, speak freely to the issues of the day, and petition government for a redress of grievances.

And it doesn't stop there. These people also seem to think that they have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, unless the government can provide a warrant showing probable cause that a crime has been committed. They seem to think that if we turn into a police state, that somehow consitutes a victory for the terrorists. Now that's just crazy talk. Don't these bleeding hearts understand that 911 changed everything? We can no longer afford to be held to the rule of law. We're in a crisis here, people.

The Bill of Rights Defense Committee, working with the ACLU is pushing HB3259 in the Oregon house. The bill requires that Oregon law enforcement employees comply with the Oregon constitution.

Representative Terry Beyer (D-Springfield) and Representative Peter Buckley (D-Ashland) are carrying this bill. If you are one of the hopelessly anachronistic idiots that think that the police, the FBI, and all other law enforcement people should be required to obey the law, drop a line to reps Beyer and Buckley, and make that special effort to get your own legislator on board.

You can bet that this is an issue that conservatives, liberals, and libertarians should all get behind. It's your republic if you can keep it.


Comments

  • (Show?)

    Just so we're clear... The Portland Mercury is pretty late to the game asking questions about the Torture Jet.

    We were asking questions about it right here on BlueOregon back in January.

  • (Show?)

    The McLaughlin Group, which I watch because it follows Moyers Brancaccio, had an interesting segment recently, too. There, they were discussing affaire du Schiavo, assessing winners and losers, and someone (hadda be the appropriately named Blankley, though I can't verify that), declared the ACLU a loser and a terrorist organization. Because, obviously, they were defending the courts.

  • (Show?)

    Hmm, my strikeout didn't work. The word Moyers, above, was supposed to have a line through it. Imagine.

  • David Wright (unverified)
    (Show?)

    Um... I agree that our law enforcement personnel at all levels should be following the law.

    But if there's genuine concern that they aren't or won't, is the most effective way to deal with that situation... passing a law about it?

    Anyhow, this bill goes quite a bit farther than simply requiring law enforcement to follow the law, so support of the bill is hardly the "no-brainer" that was suggested by the post.

  • (Show?)

    Anyhow, this bill goes quite a bit farther than simply requiring law enforcement to follow the law...

    David,

    Please elaborate.

    <hr/>

    Kari thanks for the assistance to the blog impaired.

  • phriedom (unverified)
    (Show?)

    I read the summary, not the actual bill, but here is one little part that I'm torn about, and may be one of the things David was talking about.: "Prohibits state employee on official business from entering religious institution or political meeting for purpose of gathering information unless employee identifies self as state employee and specifies purpose of visit."

    The reason I'm torn about it is that I don't think there is a reasonable expectation of privacy at a public meeting. Not letting law enforcement observe public meetings seems like quite a burden.

    But on the other hand, I'm all in favor of this section:"The residents of Oregon have a right to be free from profiling, discrimination and searches and seizures without probable cause, and a right to judicial oversight and due process of law." Which sounds like part of the reason we might not want law enforcement surveiling religious and political meetings. I know I wouldn't want to be put on a list somewhere because I went to a political meeting.

  • LT (unverified)
    (Show?)

    As far as public employees in meetings in churches or elsewhere, there was a big problem in the 1980s about meetings held in church basements to protest Reagan's Central American policy. Is a church member attending such a meeting some kind of subversive? Esp. when there were contracted staff (not regular FBI) visiting the meetings without much supervision? Could FBI files be started on everyone in the room without the knowledge of civil authority?

    I saw on TV that this is the week Eric Rudolph goes on trial for the Olympic bombing in Atlanta and the murder of an abortion doctor. He calls himself "Christian" even though many think he has no clue what it means.

    Many think of "place of worship" in terms of the Bilal Mosque. But what if you knew a parishoner of a church Eric Rudolph once attended? Should they be subject to law enforcement people going in there not to worship but to observe the congregation to see if it were a terrorist organization?

    Answering that question might determine how you feel about this bill.

  • (Show?)

    This cited bit:

    Prohibits state employee on official business from entering religious institution or political meeting for purpose of gathering information unless employee identifies self as state employee and specifies purpose of visit.

    Likely is just meant to give teeth to ORS 181.575, which says:

    No law enforcement agency, as defined in ORS 181.010, may collect or maintain information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal conduct.
  • (Show?)

    Presumably, they would not have to reveal they are a state employee on official business if, in fact, the "unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal conduct" part of 181.575 is triggered.

    I suspect that if this bill moves at all, they are going to have to make that explicit.

  • David Wright (unverified)
    (Show?)

    Pat,

    I, like Phriedom, had initially only read the summary of the bill and not the text of the bill itself. Unfortunately, the summary of the bill is very misleading in this case, as several of the things which the summary claims are "prohibited" by the bill are only conditionally prohibited.

    So it's not quite as bad as I thought. But there are still some troubling aspects to it.

    First let me make clear that I do support most of the elements of this bill. But there seem to be two major "themes" to the bill, and your post only touched on one of them:

    1. We affirm our dedication to civil liberties and individual rights; and
    2. The federal government can suck it if they expect us to help them.

    OK, that second one is a bit tongue-in-cheek, but effectively this bill is not just about protecting the rights of Oregonians, it's also about not putting resources into cooperation with federal authorities unless we like what they're doing. Not just if what they are doing is unconstitutional, mind you, we also won't help out on some activities that may be perfectly legal and constitutional but which we claim are not our responsibility.

    Now, I'm no fan of the Patriot Act, and I honestly don't know enough about the Homeland Security Act to know whether it's mostly good or mostly bad. But FISA has been around since 1978, it's hardly part of the post-9/11 "security hysteria" (about which we should rightly be concerned).

    One of my main concerns is that this bill attempts to insert State oversight above Federal activities. Perhaps that's appropriate under certain circumstances, it's certainly a worthwhile topic for debate. But it's a much broader question than the one you stated of "the police, the FBI, and all other law enforcement people should be required to obey the law".

    For example, Section 4, part 4: "A state employee may not participate in the execution of a warrant issued under the authority of the Foreign Intelligence Surveillance Act of 1978 unless the employee has reviewed the application for the warrant and determined that its sole purpose concerns domestic espionage or terrorism." Now, as I understand it (please do correct me if I'm wrong) a FISA warrant is approved by a federal judge, and this section basically says that we don't trust federal judges so we expect a state employee to "check their work". We're saying that a FISA warrant isn't good enough, we need to judge for ourselves whether the warrant should have been issued in the first place. I think that's a pretty slippery slope.

    The bill also puts (I feel) undue blanket restrictions on state law enforcement procedures which should be left to the agency and not the legislature to determine. Section 3, part 7: "A state employee may not use a lethal or nonlethal weapon against a nonviolent person." That's an awfully broad statement. What counts as a nonlethal weapon? Who is considered nonviolent? And why is the legislature dictating Rules of Engagement to state law enforcement? They certainly have the authority to do so, but I don't think it's necessarily a good idea. Another decent topic for debate.

    As to the general non-cooperation with the feds, Section 1, part 2(d), in the statement of purpose for the bill: "Clarify the communication and enforcement relationship between the State of Oregon and the United States Departments of Justice and Homeland Security and other federal agencies with respect to the USA Patriot Act and federal immigration laws, specifically clarifying that the State of Oregon works cooperatively with federal agencies, but does not enforce federal immigration laws." Combined with Section 3, part 5: "Except to comply with subpoenas issued in accordance with the Oregon Constitution or to verify eligibility for employment in accordance with federal laws, a state employee may not use state resources for the purpose of detecting or apprehending persons whose only suspected violation of law is being undocumented or illegally residing in the United States."

    So, we "work cooperatively" with the feds, but we just won't do any actual, you know, work if it has to do with illegal immigration?

    I mean, that's still illegal right? 'Cause that's right in the name, illegal immigration.

    Again, it's a topic worthy of debate. Is immigration control strictly a federal issue? If we refuse to assist in the enforcement of federal laws, what other sorts of illegal activities will we step aside for? I suspect that your coalition of liberals, conservatives and libertarians might start to disagree on that point. <nobr>;-)</nobr>

    Or how about this, Section 3 part 6: "Where presentation of an Oregon driver license is customarily accepted as adequate evidence of identity, presentation of a photo identity document issued by the person's nation of origin shall also be accepted as adequate evidence of identity. A person who presents such a document as evidence of identity shall not be subjected to a higher level of scrutiny or different treatment than the person would have received if the person had provided an Oregon driver license." So now an official document with which law enforcement may not be as familiar as an ODL must be accepted at face value with no "higher level of scrutiny" received?

    Ever try to get into a bar with an out-of-state driver's license? You'll generally get a "higher level of scrutiny", with cause, simply because the authority (the bouncer) isn't familiar with your form of ID. There's nothing necessarily nefarious about that.

    Anyhow, my point was simply that your characterization of the bill as being something everyone should "get behind" because it makes law enforcement follow the law, wasn't telling the whole story. I think there's a lot of good stuff in this bill. Hopefully as it works its way through the process, the not-so-good stuff will be edited out.

  • (Show?)

    But FISA has been around since 1978, it's hardly part of the post-9/11 "security hysteria" (about which we should rightly be concerned).

    Except the post-9/11 PATRIOT Act changed FISA procedures (which, not so incidentally, appears to be the technicality the DOJ used to get the AP to publish a "correction" to their story that the PATRIOT Act had been used against Bradon Mayfield0.

  • David Wright (unverified)
    (Show?)

    Thanks b!X... could you explain how those procedures were changed, at least to the extent that such changes are relevant here? That would be most helpful.

  • Steve Bucknum (unverified)
    (Show?)

    Per the first comments of Phuiedom and LT,

    Since when is a religious service a "public place"? My read of separation of church and state is that these are private spaces, to be treated in the same manner as a private residence - at least in terms of law enforcement. There is no "public accommodation" requirement of a church - the members/leadership can throw out anyone they want.

    So, of course it is wrong for undercover law enforcement to go into a church, unless like with a private residence, they have a court's permission or supervision.

  • (Show?)

    I don't think that FISA is a done deal that all legal scholars unite behind. Rather it's been modified more than once since '78, each time providing more discretion to the administrative branch and less to the accused. Try googling "FISA,warrant, review" for an overview of this stinker.

    The whole check and balance thing in the Judiciary branch is dependent on the ability to appeal decisions to higher courts. Without that option, any so called court is nothing more than a Star Chamber

    As to the illegal immigrant ID thing, this may in fact be an overreach. Maybe it should be in a different bill.

  • David Wright (unverified)
    (Show?)

    Pat, fair enough on the FISA issue. The details have changed since 1978, though (I believe) the basic idea is intact. I'll be looking forward to b!X (or anyone else for that matter) providing details on the substantive post-9/11 changes to FISA.

    I agree with you on judicial checks & balances. But you said it yourself -- review goes to a higher court. And the state employee charged with carrying out (or whatever the appropriate terminology for such a thing would be) the FISA warrant is certainly not a higher court. That's my beef with that portion of this bill, trying to put a state employee above a federal judge. A state court on the other hand -- well, maybe, again it's a good topic for debate.

    As for the comments others made about surveillance of religious meetings -- that's another good topic for discussion. But it didn't jump out at me as a terrible thing because it's one of those "conditional" prohibitions, with pretty clear and (I feel) appropriate rules for when such surveillance would be allowed.

    Still, I think this healthy discussion demonstrates that there really are reasons (other than a desire to impose a police state) for not necessarily supporting this bill.

    I've got a question for the legal experts out there -- how are conflicts between federal laws and state laws (or constitutions) typically resolved? What has primacy?

  • (Show?)

    I've got a question for the legal experts out there -- how are conflicts between federal laws and state laws (or constitutions) typically resolved? What has primacy?

    Part of this depends who we're talking about. For example (since it's at issue in this bill), state law can't prevent Feds from coming into Oregon to wiretap or search Oregonians, but state law can prevent state or local police from participating in such things.

    (As for post-9/11 changes to FISA, I haven't gotten around to those searches -- so to speak -- yet, heh.)

  • afs (unverified)
    (Show?)

    A lot of people have a problem with the whole FISA court concept. The FISA court is responsible to nobody and reviewable by nobody because it slaps everything it does with a big fat "Top Secret" stamp. In all the warrant requests made to it through the years, it has rejected one warrant request.

    There's too many holes in all these requests for secrecy by the Bush Administration. So far, the Bush idea of secrecy policy is to classify anything that is politically damaging as a state secret.

    <h2>IMHO, anything anyone can legally do to throw up obstacles to legal issues being handled in a FISA court, and handled in the normal judicial system instead is a good thing.</h2>

connect with blueoregon