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June 23, 2009

When Guns Are Outlawed
Posted by Jim Macdonald at 10:20 AM *

[Note: This is not the place for the Gun Control Argument, nor for the What Would You Carry? dick-measuring contest.]

I read on CNN under the scary headline “People on terrorist watch list allowed to buy guns” that

From February 2004 to February 2009, 963 background checks using the FBI’s National Instant Criminal Background Check System “resulted in valid matches with terrorist watch list records; of these matches, approximately 90 percent were allowed to proceed because the checks revealed no prohibiting information,” the GAO report says. About 10 percent were denied.

“Under current law, there is no basis to automatically prohibit a person from possessing firearms or explosives because they appear on the terrorist watch list,” wrote the GAO’s director of homeland security and justice issues, Eileen R. Larence.

“Rather, there must be a disqualifying factor (i.e., prohibiting information) pursuant to federal or state law, such as a felony conviction or illegal immigration status.”

That is to say, to be denied the right to buy a firearm you had to be crazy or a criminal. I’m good with that.

However, that isn’t good enough for Senator Frank Lautenberg, (D-New Jersey):

In a statement Monday, Lautenberg said, “this new report is proof positive that known and suspected terrorists are exploiting a major loophole in our law, threatening our families and our communities. This ‘terror gap’ has been open too long, and our national security demands that we shut it down.”

The statement said Lautenberg is introducing legislation that would give the U.S. attorney general “authority to stop the sale of guns or explosives to terrorists.”

Which is pure moonshine. It’s proof positive that the Terrorist Watch List is fatally flawed. 865 individuals (per the story) got their firearms and yet there have been no terrorist attacks with them.

First, we already know that nothing whatever is required to get onto that list: whim, error, and accident seem to be as important as any other source for a name to go on the list. There is no judicial oversight or review.

Second, there is no mechanism for an individual to be informed that he/she is on the list.

Third, there is no mechanism for an individual who discovers he/she is on the list to challenge it.

If there are known terrorists out there, why haven’t they been arrested and tried? If convicted, then the current mechanisms click in and everything’s fine. If someone is merely suspected … well, I suspect Lautenberg of being a terrorist. Let’s put his name on the secret list.

[Note: This is not the place for the Gun Control Argument, nor for the What Would You Carry? dick-measuring contest.]

Comments on When Guns Are Outlawed:
#1 ::: Ken Houghton ::: (view all by) ::: June 23, 2009, 10:37 AM:

Hey, if it keeps Ted Stevens's wife Cat from buying a gun, I'm all for it.

But she'll probably just go to a gun show and pay cash.

False reasoning: there have been maybe two dozen terrorist attacks in the U.S. in the past almost-eight years (counting Anthrax as one, not multiple). So unless there are fewer than two dozen people who intend to be terrorists in the United States--which would defy the odds, though it wouldn't be surprising--those 865 may just be biding their time.

(Collateral argument: a good investigation of them might get those 865--or at least 860 of them--OFF the list. In fact, it would be good to check out those 865 to get a decent baseline estimate of how screwed up the list is. Calling all sociologists...)

#2 ::: Larry ::: (view all by) ::: June 23, 2009, 10:46 AM:

I see no problem with people being placed on that list being denied guns. The problem is more fixing the list than anything. If you have a list of people who are considered "high risk" then denying them the ability to act out on that in some manner may be a good idea. So, let's fix the list not just ignore it.

#3 ::: Xopher ::: (view all by) ::: June 23, 2009, 11:05 AM:

Since as Ken points out you can get on the list by having a name rather similar to someone else who's on the list, it's wrong and probably (IANAL) unConstitutional to deny anyone legal rights based on merely being on it. While I don't object to young children being prevented from buying guns, this is not the way to go about it.

Larry, I disagree. I think the terrorist watch list should be discarded in its entirety, and a new system devised. No one can prove that they're NOT a terrorist, and Staatssicherheit Homeland Security isn't going to take people off just because there's absolutely no evidence of their involvement in anything illegal.

But then I think the whole Homeland Security thing was a mistake, and that the USA PATRIOT act needs to be consigned to the ashheap of history, so call me a leftard if you want.

#4 ::: albatross ::: (view all by) ::: June 23, 2009, 11:08 AM:

Larry:

I agree. I propose that, in order to add someone to this list of known dangerous people, we follow some process like this:

a. A prosecutor convinces a grand jury to indict them for a felony.

b. They have a chance to defend themselves from the accusation of having committed a felony before a jury, with a lawyer representing them.

c. If they plead guilty or are convicted, then we should add them to the known-dangerous-people list.

This is a process we know how to do, and though it's subject to abuse, we can probably do a reasonably good job of it. (Similar processes work for declaring someone not mentally competent.) On the other hand, some kind of opaque secret list which mysteriously forbids you from buying guns, flying on a plane, getting a passport, etc., seems like a massive open invitation to abuse the system to screw over people you don't like. (Sort of like those antiwar activists who somehow, mysteriously, were added to the no-fly list.)

#5 ::: Laertes ::: (view all by) ::: June 23, 2009, 11:09 AM:

I'm with you, Larry. I've got no problem with people on the terrorist watch list being denied guns. We should, however, fix the list first, and then after it's fixed start acting like it means anything.

#6 ::: katre ::: (view all by) ::: June 23, 2009, 11:15 AM:

Actually, I'd love for this to pass. It does finally give you a way to prove you're on the terrorist watch list.

Step 1) Try to buy a gun.
Step 2a) If you can, yay! You're clearly not under any suspicion from the feds.
Step 2b) If you can't, boo. Tell your cell leader to send someone else to buy a gun for you.

#7 ::: James D. Macdonald ::: (view all by) ::: June 23, 2009, 11:31 AM:

Step 2b) If you can't, boo. Tell your cell leader to send someone else to buy a gun for you.

Or, better, tell your cell leader by some secure means (chalk mark on a park bench?) that you're compromised, and walk away. You never contact any of your old comrades again, they don't contact you, and a possible vulnerability is cleaned up.

#8 ::: Niall McAuley ::: (view all by) ::: June 23, 2009, 11:39 AM:

Based on katre's new subversive use for the list, I propose that the authorities should keep a new list of people who ask to buy a gun but then change their minds when they are told that they can, meaning they are not on the terrorist watch list. This would be the Watching The Terrorist Watch List List.

Anyone who appears on the Watching The Terrorist Watch List List should be watched, as they might be watching the Terrorist Watch List because they are themselves terrorists who want to know if they are being watched, but putting them on the Terrorist Watch List would give away the fact that the authorities are keeping a Watching The Terrorist Watch List List, which would be telling, so perhaps a new list should be issued to everyone who needs a Terrorist Watch List except the gun sellers who spot people who need to be put on the Watching the Terrorist Watch List List: the Terrorist Watch List For Use By People Not Responsible For Inputs to the Watching The Terrorist Watch List List, which means the Watching the Terrorist Watch List should be renamed the Watching the Terrorist Watch List For People Who Are Responsible for Inputs to the Watching the Terrorist Watch List List, and the Terrorist Watch List For Use By People Not Responsible For Inputs to the Watching The Terrorist Watch List List should then be renamed the Terrorist Watch List For Use By People Not Responsible For Inputs to the Watching the Terrorist Watch List For People Who Are Responsible for Inputs to the Watching the Terrorist Watch List List.

Who's with me?

#9 ::: Michael Roberts ::: (view all by) ::: June 23, 2009, 11:44 AM:

I'm with you... At least, I'm pretty sure I was with you about 38% of the way through that.

#10 ::: Laertes ::: (view all by) ::: June 23, 2009, 11:47 AM:

That was awesome. Whatever it was, I agree with it too.

#11 ::: Niall McAuley ::: (view all by) ::: June 23, 2009, 11:49 AM:

See, this is what Powerpoint was invented for. Mods, how come we don't have Powerpoint in comments?

#12 ::: Chaos ::: (view all by) ::: June 23, 2009, 12:03 PM:

James @7: heh, that explains the scatter-shot approach to the watch list then - they're hoping that they tag all the terrorists, so they all walk away...

And Niall, I am definitely in! Any plan too complicated to understand must be a good one, right?

#13 ::: Larry ::: (view all by) ::: June 23, 2009, 12:08 PM:

@#3 Xopher

I do agree that the whole DHS thing is mostly dumb and the Patriot Act horrible. But, and this is not about gun control per se, I see no problem with keeping an eye on those who may do something violent. I am thinking of the two recent attacks we've seen.

A list of known terrorists is not a bad thing but you damn well better make sure it is accurate, there is a defined process to add people to it, and there is redress in the case of abuse. Once that is done you can use it in a meaningful way.

#14 ::: katre ::: (view all by) ::: June 23, 2009, 12:12 PM:

@#13

As Albatross pointed out in #4, there is a defined process for determining that someone is dangerous to society.

It's called a trial.

If someone is such a dangerous person, and yet there is no proof that will stand up at trial, how do you know they're really dangerous?

#15 ::: David Harmon ::: (view all by) ::: June 23, 2009, 12:12 PM:

Bruce Schneier has discussed such lists before -- he "called the no-fly list a list of people so dangerous they cannot be allowed to fly under any circumstance, yet so innocent we can't arrest them even under the Patriot Act." (The link goes to the middle part of a 5-part interview with Kip Hawley, then-head of the TSA.)

katre #6: That's called a Carnival Booth technique. (For more discussion of the issues, just do a search on Schneier's blog.)

To me, it seems that this "terrorist watch list" represents a basic confusion of purposes. Some people focus on the "watch list" part, and recognize that there are some people who LEOs really should keep an eye on, but who have not actually demonstrated criminal intent, much less acts. And then, there's the folks who don't read past the word "terrorist", and demand "well, if you know who they are, why are they still running around?"

#16 ::: Jason ::: (view all by) ::: June 23, 2009, 12:12 PM:

Being on the list doesn't mean a thing. My uncle, a former Wayne County prosecutor, with a very common name, is on the watchlist. It's just security theater.

Jason

#17 ::: David Harmon ::: (view all by) ::: June 23, 2009, 12:26 PM:

OK, my trailer above was somewhat exaggerated.

The subtext to "why can they buy guns/fly at all/be allowed near children/etc is more like "if you know who they are, why don't you just stop them" -- but there's a definite assumption that if they're on the list, they're known criminals, and probable-cause be damned. And that just ain't so!

#18 ::: Ginger ::: (view all by) ::: June 23, 2009, 12:27 PM:

Niall @ 8: Yes.

#19 ::: Kate Baker ::: (view all by) ::: June 23, 2009, 12:30 PM:

#13

Larry,

My question is: Who gets to decide the criteria? Who chooses and flags the originating actions that plunk people down on this list? Is it as simple as being treated for anxiety or depression? Or is it faith-based racial stereotyping? Maybe both?

There are certain people on both sides of and in the middle, who I wouldn't want making these types of policy changes.

The only way a complete and unbiased terrorist watch list would work is if the criteria for placement were compiled by an impartial body, not directly related or swayed by public opinion or lobbying dollars.

Yeah, the word, impossible comes to mind doesn't it?

#20 ::: Niall McAuley ::: (view all by) ::: June 23, 2009, 12:38 PM:

Kate says: The only way a complete and unbiased terrorist watch list would work is if the criteria for placement were compiled by an impartial body

I nominate the judicial arm of government, they could hold "trials" to decide who is and is not a "terrorist".

After someone defines "terrorist" for everyone. I nominate the legislative arm of government for that job.

Hey, this Executive Arm stuff is easy!

#21 ::: jim ::: (view all by) ::: June 23, 2009, 12:38 PM:

Maybe it's a way of getting the right to vote for gun-control.

Step 1. Terrorists shouldn't be able to get guns (right agrees).
Step 2. Suspected terrorists are nearly as bad as terrorists (right agrees).
Step 3. Pass legislation banning people on the terrorist watch list from buying guns (with right wing votes: bipartisan, even).
Step 4. Put everyone on the terrorist watch list.

#22 ::: Steve C. ::: (view all by) ::: June 23, 2009, 12:42 PM:

The nightmarish end to this is a completely surveilled society that we voluntarily accept because we've been taught to be afraid.

#23 ::: Dave Bell ::: (view all by) ::: June 23, 2009, 12:49 PM:

Niall @8

Perhaps if you expressed yourself in Latin?

#24 ::: Craig R. ::: (view all by) ::: June 23, 2009, 01:07 PM:

I think using the "watch list" as a criteria to ban the purchase of a gun is absurd.

And I am really freaked out that that means I am actually agreeing with a public, political statement made by the NRA.

Really, really freaked.

And doubly annoyed.....

#25 ::: Niall McAuley ::: (view all by) ::: June 23, 2009, 01:08 PM:

America est omnis divisa in partes tres, quarum unam incolunt Terroristae, aliam Neoconsarahpalinpaleoconae, tertiam qui ipsorum lingua Trekii.

#26 ::: Keith K ::: (view all by) ::: June 23, 2009, 01:09 PM:

“Under current law, there is no basis to automatically prohibit a person from possessing firearms or explosives because they appear on the terrorist watch list,”

I'm sure someone else has mentioned this but it bears repeating: our Terrorist Watch List is overstuffed with false positives to begin with. Nuns and peace activists and ten year olds. That this bloated watch list happens to also overlap with a list of people who have requested permits to buy or carry guns is no surprise.

Also, what sort of damn fool terrorist would apply for a permit?

"Well, of course I'll blow up those women and children and shoot everyone I see, but first I'd best make sure my paperwork is in order."

#27 ::: Nightsky ::: (view all by) ::: June 23, 2009, 01:14 PM:

Larry and Laertes--

The terrorist watch list is one of those ideas that sounds great but completely falls apart when put into practice. It's flawed in a number of ways, but first let's look at what it means for your right to petition the government for the redress of grievances. From what we know of the terrorist watch list (hereafter TWL), the Feds are casting a pretty wide net. Sitting congressmen have turned up on the list. So have two-week-old infants. Or people whose only offense is that, while at a Greyhound station in 1994, they came within 10 feet of a known terrorist's third cousin. Now, there is currently *NO* way to:
1. find out if you're on the TWL
2. get the government to take you off the TWL.
We can see that this is a pretty serious case of not being able to petition the government for a redress of grievances, right? If you're on the TWL, you can't fly, can't buy a gun, and I'm guessing you automatically flunk employment pre-screening. Those are some pretty serious grievances the government has afflicted you with, and there's nothing you can do about it.

On to the technical problems with the TWL.

"Wait," I hear you cry, "We'd fix the TWL so it only gets the real crazies." Alas, life just does not work that way--and I say this not as an observation on bureaucracy or human nature or anything, but the solid fact that there *is* no way to fix the TWL so it only catches terrorists. (I'm a CISSP, by the way--a computer and network security professional--so I'm somewhat qualified to comment. Or so I like to think.)

In security, we talk about error rates--specifically, the false positive rate (you're on the TWL and you shouldn't be) and the false negative rate (you're not on the TWL but you should be). It turns out that you have two options:
1. Minimize the false negative rate: make it so easy to qualify for the TWL that everyone who has ever looked cross-eyed at a cop is on it. As you might suspect, do this and your false positive rate goes through the roof. Think the lines at the airport are bad now? Imagine them if *everyone*'s on the TWL. Less frivolously, note how easily Senator Frank Lautenberg, above, made the leap from "on the TWL" to "ipso facto suspected terrorist." A society in which *everyone* is in a class of quasi-citizens already presumed to have broken the law is a police state.
2. Minimize the false positive rate: only add Osama bin Laden. The problem is that, well, you only catch Osama, not the Holocaust Museum guy or any other certifiables.

A moment's thought ought to make plain that you can only minimize one of these at a time. The best you can do to minimize both of them is to find the point where they're equal--and, for the purposes of detecting terrorists, this point still has way way *way* too many false positives to be acceptable. This is because terrorists are extremely rare. Even a very low false positive rate is mathematically guaranteed to snag more innocent people than terrorists.

So... not only is the TWL an affront to a society that purports to be a free and open democracy, but it doesn't work. And not only does the TWL not work, it can't work.

#28 ::: Audrey ::: (view all by) ::: June 23, 2009, 01:15 PM:

#16 Jason
Being on the list doesn't mean a thing. My uncle, a former Wayne County prosecutor, with a very common name, is on the watchlist. It's just security theater.

The thing that scares me about the list is that it does mean something, but you have no idea if it will affect you until you're, say, at the airport being turned away from a flight. Even if the purpose of the list is security theater, it still has a real effect on people's lives. The problem with a secret list is the government can put anyone on the list. I have no problem with government. What I have a problem with is a government without transparency, without any mechanisms in place for people to be informed that they are on the watch list at all. This is what Jim was saying above, but if we keep talking about it, maybe things will change. I hope things will change.

#29 ::: Niall McAuley ::: (view all by) ::: June 23, 2009, 01:26 PM:

Audrey says I hope things will change.

Write to your representatives.

#30 ::: Xopher ::: (view all by) ::: June 23, 2009, 01:31 PM:

I forgot to mention that to me, as a resident of New Jersey, this means Lautenberg has got to go. Anyone know a New Jersey Democrat of sufficient stature who isn't a complete bozo?

Niall 25: You forgot about the indomitable ones, who presumably live in New Hampshire or someplace.

#31 ::: James D. Macdonald ::: (view all by) ::: June 23, 2009, 01:44 PM:

The Indomitable Ones indeed live in New Hampshire, where we drink Moxie, carry huge glacial erratics around, and think the Free Staters are a bunch of lunatic/losers.

#32 ::: Lee ::: (view all by) ::: June 23, 2009, 01:47 PM:

Craig, #24: I had the same reaction. But you can reliably count on the NRA to fight any proposition that results in fewer guns being sold, so in this instance I wouldn't worry about it.

Dear Senator Lautenburg:

GET OFF MY SIDE, YOU'RE MAKING ME LOOK STUPID.
More to the point, if you're going to make Republican arguments, go join the friggin' Republican Party already.

#33 ::: Niall McAuley ::: (view all by) ::: June 23, 2009, 01:48 PM:

These Canadians are crazy.

Right, Berliozix?

#34 ::: Caroline ::: (view all by) ::: June 23, 2009, 01:50 PM:

The terrorist watch list makes a stupid reason to ban anyone from doing anything. In fact, the terrorist watch list is, itself, one of the most stupid things to come out of the last eight years -- and when you think about the last eight years, it's up against a whole lot of stupid things.

For one thing, you could probably flip a coin every time someone comes through airport security or applies for a gun permit (etc.) and do better. For another, if the coin was flipped in their presence, at least they'd know what was going on.

The whole concept of "people so dangerous that they must be treated like criminals, but with so little evidence against them, or evidence that is so secret it can't be stated aloud, that they can't be tried" is one of the most un-American things I can think of. See also Guantanamo. Secret lists, secret crimes, secret evidence. I am right fed up with the failure of the people in power to change this yet.

#35 ::: Niall McAuley ::: (view all by) ::: June 23, 2009, 01:55 PM:

Caroline says: I am right fed up with the failure of the people in power to change this yet.

Yo, Homeland Security. Excessive Britishness in phraseology or typography: two years on The List.

Next.

#36 ::: John L ::: (view all by) ::: June 23, 2009, 03:28 PM:

There was a photographer down in Texas recently that got added to the Terrorist List just for walking out on an airport tarmac to take pictures of a WWII B-24.

He had permission to do so but didn't have an escort, so the airport security confronted him with guns unholstered when he stepped into the "no public allowed" area.

Even though he wasn't arrested or charges pressed by anyone, he was ordered off the airport property and was later told he was added to the list as a routine procedure.

#37 ::: Julia Jones ::: (view all by) ::: June 23, 2009, 03:28 PM:

Niall @35: It's conceivable that something close to that is why I'm on the list of people who are allowed to fly but who will be pulled into the "random" line for extra searches every time they go through a US airport. The most likely reason I can think of for that is that I routinely and legitimately fly on two passports, and am equally legitimately entitled to a third.

#38 ::: lightning ::: (view all by) ::: June 23, 2009, 03:46 PM:

The "watch list" is purely political. If there were a real "watch list", the law enforcement types would be very careful to make sure that the people on it never realize they're being watched. Watch where they go, who they meet, what they buy, etc, etc.

For this to work, law enforcement has to be all over the watchee like cat hair on a sweater. It's *very* labor intensive; you don't do it unless you're really sure you have a Bad Guy.

#39 ::: albatross ::: (view all by) ::: June 23, 2009, 03:49 PM:

It's very hard to get rid of any alleged antiterrorism program which might conceivably catch a terrorist. If you get rid of that program, and a terrorist attack happens which could conceivably have been prevented by that program (even if preventing it would have required the authorities to have unlimited resources and knowledge and power), your support for getting rid of it will be used against you in the next election.

The same thing applies to removing anyone from the watchlist who isn't absolutely obviously no threat. Do you want to remove the devout Muslim Pakistani engineer who is known to read the wrong stuff on the internet and to go to the same mosque with some other suspected potential terrorists? If you remove him from the list, and he is somehow involved in a terrorist attack, your career is probably over.

IMO, this dynamic explains a great deal about the Obama administration's unwillingness to get rid of various scary and stupid antiterrorism programs.

#40 ::: Niall McAuley ::: (view all by) ::: June 23, 2009, 03:56 PM:

Sounds a lot like "chicken" to me.

Aren't leaders supposed to be brave?

#41 ::: abi ::: (view all by) ::: June 23, 2009, 04:35 PM:

Nightsky @27:
That's an admirable analysis, but it's missing one factor: false positive matches.

The government defends its watchlist by saying that there are no two week old babies, nor six year old boys like my nephew, nor senators, congresspeople, or other members of the establishment. And they may well be telling the truth.

It's entirely conceivable that every name on the list represents a known and well-considered threat to American security. (Unlikely, from the stories one hears, but conceivable.)

Unfortunately, what that defense misses is that the information on the TWL is sufficiently sparse that many people match the parameters on it. In other words, my nephew isn't actually on the list; some specific adult with his name is. But without better information, the jobsworths* in security just pull over everyone who fits the parameters on the list‡, because their job incentives all cut that way.

-----
* British term† for someone who says, "It's more than my job is worth to take the risk of doing the sensible thing.
† Aaaand that's me on the list.
‡ Which is pretty much just the name, not even the date of birth.

#42 ::: Lynn ::: (view all by) ::: June 23, 2009, 05:06 PM:

I'll agree that the TWL is far to messed up to be used to suspend what is a basic right in the US.

...at the same time, I do see the point about Tiller's killer.

The man was caught a decade ago with explosives in his car. He got off on the basis that the cops had no right to search the trunk since they were pulling him over for replacing his license plates with the word 'Sovereign'

...and thus was able to buy a gun in 2009.

#43 ::: Caroline ::: (view all by) ::: June 23, 2009, 05:35 PM:

Niall @ 35: British? I noticed myself slipping into Southern U.S. English, which I do when irritated. Is "I'm right [adjective]" a British phrase too?

albatross @ 39, oh, I agree completely that's why it's so slow to change -- political reality being what it is. Damn it all, though.

#44 ::: Earl Cooley III ::: (view all by) ::: June 23, 2009, 06:15 PM:

The situation seems ripe for entrepreneurial scammage, in the form of "Get Off The Watch List Quick" and "No Fly Bye Bye" offers, where the black hats take all the personal information plausibly needed to investigate your (supposed) false positive watch listing, then instead use it for identity theft. (shudder)

#45 ::: Lee ::: (view all by) ::: June 23, 2009, 06:28 PM:

Caroline, #43: Southern and British English share some turns of phrase. How much of it depends on just where in the South you are. The pronunciation differs, of course. :-)

#46 ::: Jules ::: (view all by) ::: June 23, 2009, 06:35 PM:

Caroline @43: yes, although a somewhat old-fashioned one.

It's worth noting while on the subject of stupid measures to attempt to control terrorism that the UK House of Lords has recently decided that our (far more disturbing) equivalent of the terrorist watch list, Terrorist Control Orders, are a violation of their subjects' right to a fair trial -- as they can't effectively appeal against them due to the evidence used to put them under a control order being secret.

#47 ::: Niall McAuley ::: (view all by) ::: June 23, 2009, 06:48 PM:

Caroline: Typing "I'm right fed up" into Google gives a load of hits on Gracie Fields, followed by lots of stuff from other folk oop North.

So yes, you sound like someone from Lancashire.

#48 ::: Terry Karney ::: (view all by) ::: June 23, 2009, 08:12 PM:

Lynn: I'll take the 4th amendment over it's removal, any day, every day.

Otherwise what good is it? Yes, Tiller was a bad man. Yes, he ought to have been in jail. Yes, those cops screwed up.

And if more cops were held to account for bad searches, there would be fewer of them. Right now, it's got to be egregious for a cop to have evidence tossed (acted in good faith, is the magic phrase). It's got to be criminal for said cop to be sanctioned.

Want to bet there aren't cops/DAs, etc. who wouldn't use the arrests; even if later tossed out for being done improperly, to get some people stripped of things like the right to bear arms (I am brought to mind of all the people arrested and charged with various acts of terrorism in relation to the Republican Nominating Convention in 2008).

Nope, convicted is one thing. Not convicted is something else altogether.

#49 ::: Xopher ::: (view all by) ::: June 23, 2009, 08:24 PM:

Terry, it was Tiller's killer, not Tiller himself, who was a bad man. I'm sure that was just a fumble on your part.

#50 ::: Terry Karney ::: (view all by) ::: June 23, 2009, 08:32 PM:

Xopher: Crap@!!!!!

Yes, yes it was. Oh my stars, that was SO not what I meant to write.

#51 ::: TomB ::: (view all by) ::: June 23, 2009, 08:37 PM:

I don't want a terrorist watch. My credit card company said I could buy an atomic watch for $24.95 but it looked really cheap and the glowing hands are not reassuring, especially for a watch that says "atomic" on it. I bet a terrorist watch would be even cheaper and scarier. It isn't like you could wear it on the plane. "Oh yes, sir, this is my terrorist watch. I ordered it over the internet from Afghanistan. See the band is made with real goat hide." Not a good way to make your flight. And what does this have to do with guns? Is it a collect the set thing, where you get your AK-47 and your watch and your black T-shirt all with matching terrorist logos? I could understand some people being concerned about it, but these things pass. Just wait and giant LED digital watches will come back in style (along with bell bottoms) and folks will not want to be seen in their terrorist watches unless it's Halloween and then you can easily find junk terrorist watches for fifty cents at the thrift shop, unless you're crafty and make your own out of construction paper.

#52 ::: Ginger ::: (view all by) ::: June 23, 2009, 08:51 PM:

You could make a list of reputable sources for your watches. A terrorist watch list, say, and publish it for those who need a reliable yet cheap terrorist watch, not one of those rolex knock-offs found everywhere in NYC.

#53 ::: Xopher ::: (view all by) ::: June 23, 2009, 08:54 PM:

You can tell terrorists because they tend to list to one side. You gotta watch 'em, or they fall over.

#54 ::: Serge ::: (view all by) ::: June 23, 2009, 08:55 PM:

When puns are outlawed, Ginger and I will wind up on the no-fry list.

#55 ::: Lynn ::: (view all by) ::: June 23, 2009, 09:03 PM:

How do you feel about restraining orders and their effect on gun ownership?

I really don't have an answer myself, but I was thinking that was a case where someone has shown intent to harm without necessarily criminal charges.

#56 ::: Nightsky ::: (view all by) ::: June 23, 2009, 09:05 PM:

I dunno... wouldn't a terrorist watch be sorta useless? I mean, it would just count down to zero.

#57 ::: Ginger ::: (view all by) ::: June 23, 2009, 09:08 PM:

Serge @54: But -- I thought we'd be safe as long as our clothing was in decent shape. I'm not a-frayed!

#58 ::: Serge ::: (view all by) ::: June 23, 2009, 09:17 PM:

Ginger @ 57... I'm not a-frayed!

Especially with Homespun Security in charge of strings... I mean... things.

#59 ::: TomB ::: (view all by) ::: June 23, 2009, 09:22 PM:

Lynn @55: You're right. The people we should worry about buying guns are the ones where there is a reasonable fear they may become violent in the near future. I don't believe in taking away people's rights unless we really have to, so the restraining order should be temporary, but it should be real, including a hold on gun purchases. That doesn't take care of the case where the guy already has a gun, but in a lot of cases it could help keep a guy from doing something he'd regret for the rest of his life.

#60 ::: Joel Polowin ::: (view all by) ::: June 23, 2009, 09:23 PM:

TomB @ 51: Just wait and giant LED digital watches will come back in style

With Mooninite designs?

#61 ::: Rob Rusick ::: (view all by) ::: June 23, 2009, 09:40 PM:

albatross @4: On the other hand, some kind of opaque secret list which mysteriously forbids you from buying guns, flying on a plane, getting a passport, etc., seems like a massive open invitation to abuse the system to screw over people you don't like. (Sort of like those antiwar activists who somehow, mysteriously, were added to the no-fly list.)

Ah, but by current art, if you are a protester you are a terrorist.

#62 ::: TomB ::: (view all by) ::: June 23, 2009, 09:50 PM:

Joel Polowin @60: Oooh shiny. Now I wants one.

#63 ::: jsgbs ::: (view all by) ::: June 23, 2009, 10:56 PM:

I rather suspect the kind of people who are gung-ho for the DHS's watch list programs (there's more than one) would change their tunes quickly if the watch lists were actually used against high risk individuals.

The main supporting constituency for watch lists is the right wing. The right wing is quite happy with the watch lists as long as they're used to harass anti-war activists, Democratic politicians, Muslims, and innocent people. Put the watch lists to use against /real/ domestic threats--the white Christian extremists who kill 'liberals,' kill doctors, and not so coincidentally make up the Republican base--and political support for the watch list state would evaporate very quickly.

#64 ::: Erik Nelson ::: (view all by) ::: June 23, 2009, 11:09 PM:

The thing to worry about is not whether guns are outlawed but whether laws are outgunned.

#65 ::: Lee ::: (view all by) ::: June 23, 2009, 11:33 PM:

jsgbs, #63: Well, yes. But there we come back around to the whole "this isn't recognized as terrorism" thing, and we're back where we started.

#66 ::: Terry Karney ::: (view all by) ::: June 23, 2009, 11:40 PM:

Lynn/TomB: There is a law (the Lautenberg Amendment) which bans those convicted of misdemeanor (or greater) Domestic Violence from own guns.

If someone is convicted s/he has to surrender all guns (or give them away; not to someone who shares a residence with them), or they are charged with a felony.

If they work in a job (cop, soldier, security guard) where a gun is required, they can't do the job. It's a felony for them to be in possession of a weapon. It's a felony for their boss if they knowingly issue a weapon to such a person.

Persons subject to a restraining order, for domestic violence, are also not allowed to keep, nor purchase firearms, for the duration of the order.

#67 ::: Randolph ::: (view all by) ::: June 24, 2009, 12:21 AM:

Roeder apparently committed several crimes at Dr. Tiller's clinic which were not pursued by the FBI before he murdered Dr. Tiller. There was apparently good reason to keep him under surveillance, only no-one did. And, therefore, he's not an applicable example of what a TWL could do. In fact, since we don't have a single example of what the TWL has done, it seems pointless to assume it's protecting us.

#68 ::: Terry Karney ::: (view all by) ::: June 24, 2009, 02:15 AM:

Randolph: Those crimes are part of the way the domestic terrorists manage to blend it. Abortion clinics, to use this example, are the target of so much petty violence that Roeders' crimes were just part of the background noise.

#69 ::: Randolph ::: (view all by) ::: June 24, 2009, 03:09 AM:

Terry, you've surely looked at Roeder's history. He actually served time in 1997 and 1998 for having bomb-making equipment. The conviction was ultimately thrown out because of an improper search, but there's no doubt he had the equipment. There was every reason, when he started his petty crimes against Tiller's clinic, to start watching Roeder.

From my viewpoint, the problem of anti-terrorist policing in the USA is that real leads are ignored, and instead bizarre, useless devices like the TWL are deployed. If the police spent 1/10 the effort pursing people known to be violent that the police spent pursing pot smokers and pacifist lefties, we'd probably have no domestic terrorism problem at all and almost no stalking murders.

In some abstract sense I know the motivations of the policy-makers and police that lead to this situation. I understand the public fears that make it possible. Somehow, though I have never become resigned to it--the outrage never fades.

#70 ::: heresiarch ::: (view all by) ::: June 24, 2009, 03:49 AM:

katre @ 6: Another way to find out if you are on the no fly list is put out a piece of raw meat and stand near it. Do any flies land on you? No? Then you're clearly on the no fly list.

#71 ::: ajay ::: (view all by) ::: June 24, 2009, 05:13 AM:

It's obviously all a huge case of mishearing. The list probably consists of hundreds of thousands of foreigners with imperfect command of English who have arrived in the US and simply confused "terrorist" with "tourist".

I, personally, am a former tourist. I have conspired with others to enter the US on an authentic passport and engage in acts of tourism. My fellow tourists and I researched and planned tourism-related activities around several major landmarks in New York.

Agree with jim #21... very elegant.

#72 ::: Rob Rusick ::: (view all by) ::: June 24, 2009, 06:17 AM:

ajay @71: That also explains the tendency to conflate photography with terrorism.

#73 ::: Angiportus ::: (view all by) ::: June 24, 2009, 09:30 AM:

My pants have an elastic waistband, the pull-on type. Does that mean I'm on the no-fly list?

#74 ::: Ginger ::: (view all by) ::: June 24, 2009, 09:56 AM:

Serge @58: Maybe...maybe knot.

#75 ::: Serge ::: (view all by) ::: June 24, 2009, 09:59 AM:

I wonder if I'm on the no-rye list.

#76 ::: abi ::: (view all by) ::: June 24, 2009, 10:09 AM:

Serge @75:

That's because you're no-to-rye-ous.

#77 ::: Ginger ::: (view all by) ::: June 24, 2009, 10:21 AM:

75, 76: There's naan better than Serge!

#78 ::: Serge ::: (view all by) ::: June 24, 2009, 10:23 AM:

abi @ 76... I wonder if that's because they know I'm sympathetic to terrier tactics.

#79 ::: Serge ::: (view all by) ::: June 24, 2009, 10:23 AM:

I bet you I'm also on the no-lye list.

#80 ::: Niall McAuley ::: (view all by) ::: June 24, 2009, 10:57 AM:

I, too, am on the Terrierist Watch List.

#81 ::: Ginger ::: (view all by) ::: June 24, 2009, 11:57 AM:

Alas, I am on the terroirist watch, for all my wining.

#82 ::: Serge ::: (view all by) ::: June 24, 2009, 12:04 PM:

Are those who know Terry Karney on the Terry Watch List?

#83 ::: Xopher ::: (view all by) ::: June 24, 2009, 12:12 PM:

I don't know, Serge, but as I subscribe to Terry's viewpoints on a lot of things, I'm definitely a Terryist!

#84 ::: Paula Lieberman ::: (view all by) ::: June 24, 2009, 12:19 PM:

The US Government has been -promoting- the domestic terrorists, not acting to deter them....

Elaine Donnelly's crowd promotes values that the domestic terrorists are executors of--that is, while Donnelly won't directly herself carry out the murders and abuses that the terrorists perpetrate, her attitudes and values are what the terrorists are propagating by violent action....

The US Government keeps funding that @(^#@#!$@ Elaine Donnelly and her completely bogus pretends-to-be-a-think-tank [as opposes to a bigoted propaganda/screed mill...]"Center for Military Readiness" scam... bottom line, the Fed and the burrowed in neocon misogynist fascists (Donnelly is a Queen Bee and gets handsomely remunerated and deferred to for promoting Patriarchy and abrogating rights of any woman with the temerity to not play Patriarchy-women-are-SUBMISSIVE lipservice--hypocrisy lives in that universe....)

Um, relevance--the Federal Government of the USA is NOT supporting "We the People." It's supporting the neocon theocrats and their minutes (Feith, etc., are the same sorts of slime as Donnelly--Feith and the other neocon Court Jews occupy tokenist quisling roles, of supporting institutionalized policies which discriminate agasint and abhor in general the classes they belong to--they get special perks and recognition and egoboo and financial rewards... talk about slimeball hypocritical traitors.... lying to themselves as least as much as lying and being deceitful publically. The delusion level is something that is a natural enemy of anyone with much training and conformation to true scientific methodology.....)

Translation
The Credo sorts controlled the US Government outright in all branches in 2001-2008. The Congress they controlled from the time Newt the hypocrite adulterer Gingrich was Speaker of the House, until very recently--and they still have control in the sense that they can -block- whatever they feel like exerting themselves to block/impede/water down/sideline indefinitely/distort/adulterate. They have a majority on the Supreme Court and most of the rest of the federal court system. They control the workings internally of the US Department of Justice. They own the upper ranks of the US military--Boykin SHOULD have been cashiered and busted down to colonel at most in retirement, instead he was promoted. The likes of James Dobson had free reign in the White House and at the Air Force Academy and of other military institutions, proselytizing and promoting proselytizing and in effect pushing state religion which marginalized non-evangelical Christians, ostracized women and non-Christians, and discriminated substantiatively based on religion and gender, up to and including abusiveness.

The burrowed in sorts infest the entire federal bureaucracy, and the US military--the court system, the federal contractors and suppliers, the chaplain corps of the military is completely compromised--a female chaplain at the Air Force Academy who was Christian, even, who objected to the evangelization, was essentially driven out of the military... meanwhile the military services ADDED lots more of the intolerant bigot evangelizing types, increasing the size of the chaplain corps loading up on the types of preachers who align with James Dobson and/or the preacher at that church that Sarah Palin notoriously was attending services at....

#85 ::: Terry Karney ::: (view all by) ::: June 24, 2009, 12:24 PM:

I've been punned.

Y'all pray for me. seminar is in two days. I am first off the mark on Fri. I have no idea what I'm going to say for 10-12 minutes.

Saturday ought to be easier. I'm making a handout from the Palo Alto Weekly's comment section. The trick there will be staying inside the hour.

#86 ::: eric ::: (view all by) ::: June 24, 2009, 12:35 PM:

I'm certainly on the watch for terroir.

#87 ::: Serge ::: (view all by) ::: June 24, 2009, 12:51 PM:

Terry Karney @ 85... My best wishes ion your presentations. Regarding the trick of staying within one hour... I know how that feels. I just finished the first draft of my FiestaCon talk about past steampunk movies, and I'll definitely need to do some editing so that there's time left for the other person to talk about the future. Besides, if I took the whole hour, boredom might set in, even though the talk will be accompanied by a profusion of photos. Alas, I have only one photo of a naked Pat Boone getting intimate with a sheep.

#88 ::: Niall McAuley ::: (view all by) ::: June 24, 2009, 01:01 PM:

Serge says I have only one photo of a naked Pat Boone getting intimate with a sheep.

Journey to the Centre of the Earth, yes?

#89 ::: Serge ::: (view all by) ::: June 24, 2009, 01:15 PM:

Niall McAuley @ 88... Yup. The GOOD version of the story, with Gertrude the duck, giant mushrooms, huge iguanas, and where the Earth protests when Boone uses his accordeon one time too many.

#90 ::: Niall McAuley ::: (view all by) ::: June 24, 2009, 01:29 PM:

Serge writes: the Earth protests when Boone uses his accordeon one time too many.

Well, that eldritch piping, it does kind of grate on the nerves, especially when you're as old and rugose as me.

#91 ::: Craig R. ::: (view all by) ::: June 24, 2009, 01:30 PM:

Randolf (#67)
From the TPM article:
"Pederson saw Roeder supergluing the front and back door locks to the clinic -- preventing anyone from entering or leaving "

The next step could well have been incindiary devices thrown through windows that would have been needed for egress.

But it is true -- the Cheney administration was consitently allocating resources away from investigation and enforcement of federal laws specifically designed to target those who themselves target abortion service providers.

And I, personally, do not think it was "just" because more emphasis was placed on "protecting us" in the "war on terra"

#92 ::: Keith K ::: (view all by) ::: June 24, 2009, 02:11 PM:

Serge @ 87: I just finished the first draft of my FiestaCon talk about past steampunk movies

Oh that sounds like fun! any chance it'll be available to those of us not attending FiestaCon? My next book is steampunk and I'd love to hear your talk.

#93 ::: Serge ::: (view all by) ::: June 24, 2009, 02:27 PM:

Keith K @ 92... I don't know if the con will be recording the panel. If so, I'll let people know. I'm planning to post the talk on my blog, with photos, later this summer when this is all over - provided I haven't perished from acute embarassment.

#94 ::: Bill ::: (view all by) ::: June 24, 2009, 07:36 PM:

Eric@86, on one of my terroirist reconnaissance missions in eastern France, I noticed that those crafty French persons plant their grapevines in rows that go up and down the hillsides, as opposed to the way we plant them in Northern California, which is parallel to the hillsides. Apparently they're trying to get rid of water while we're trying to keep it. It was strangely disorienting while we were travelling around, kind of like having the ocean on the wrong side when I moved out here to the Left Coast.

#95 ::: Linkmeister ::: (view all by) ::: June 24, 2009, 08:20 PM:

Serge @ #93, Hey! Presidential speech transcripts are pre-released as "prepared remarks." Why shouldn't yours be released early as well?

#96 ::: Serge ::: (view all by) ::: June 24, 2009, 08:51 PM:

Linkmeister @ 95... I'm holding off for a good reason. It's a work still in progress. Which is a way of saying I definitely am not done and probably will go on until the last minute. Besides, if I post this early, what will be the incentive for people to suffer thru even 30 minutes of hearing me speak?

#97 ::: Rob Rusick ::: (view all by) ::: June 24, 2009, 09:36 PM:

Erik Nelson @64: The thing to worry about is not whether guns are outlawed but whether laws are outgunned.

I got nothing. I just wanted to repeat it.

#98 ::: LMB MacAlister is intrigued! ::: (view all by) ::: June 24, 2009, 09:55 PM:

Terry Karney @ #66:

That's well and good, if there are specific, nation-wide criteria for domestic violence complaints. But all that's left to the states (as it should be, IMO).

So, in Texas, to be convicted of domestic violence, you have to actually physically assault your domestic partner. Although, if you can afford a lawyer, that bar is set at an assault resulting in a hospital stay, where if you can't, you get to plead guilty to DV for being seen slapping your partner.

However, in Colorado, where I spent most of last winter, it's possible to be charged with DV for being "verbally abusive." So, if a life-long hunter (you see lots of those up there) calls his/her partner one of a few selected words, and someone else hears it and complains, there's a DV complaint, and, usually, conviction. And a subsequent court-ordered sale of hunting rifles and even family heirlooms, along with (possibly) a new dependence on store-bought meat for the family.

I'm not saying that it's okay to engage in a slap-fest with your equally-angry partner, and I'm not saying that "cunt" and "bitch" are appropriate names to call during a shouting match, but I am saying that those are behaviors that don't warrant having one's rights to own guns abrogated, in this gun-loving country.

#99 ::: Lila ::: (view all by) ::: June 24, 2009, 10:05 PM:

Serge: Besides, if I post this early, what will be the incentive for people to suffer thru even 30 minutes of hearing me speak?

Speaking only for myself: your accent. Not that I think your speech will be dull even in written form.

#100 ::: Serge ::: (view all by) ::: June 24, 2009, 10:43 PM:

Lila @ 99... Thanks. The main thing I'll have to remember is to slow down the speed at which I normally speak.

#101 ::: Terry Karney ::: (view all by) ::: June 25, 2009, 12:18 AM:

Linkmeister: I happen to think the Lautenberg amendment is bad; not so much because I am supportive of DV, but because it make a misdemeanor equal to a felony; in this one case.

The restraining order aspect is also interesting, and one of the side effects has been a greater tendency for cops to pressure complaintants to retract, esp. for cops and soldiers.

That, I think, can't be good.

#102 ::: Linkmeister ::: (view all by) ::: June 25, 2009, 01:47 AM:

Terry @ #101, are you sure that should be addressed to me? I don't think I've expressed an opinion in this thread at all, other than my joke @ #95 about Serge posting his speech in advance.

#103 ::: Nancy Lebovitz ::: (view all by) ::: June 25, 2009, 09:02 AM:

"Every organization appears to be headed by the secret agents of its enemies."

It would seem that there's someone who wants to destroy the Republican party and was willing to do massive damage to the US if necessary, but whose primary target wasn't the US since they keep going after the RP even after it's out of power.

This is based on the premise (which I actually find somewhat dubious) that people intend the consequences of their actions.

Unfortunately, I can't seem to come up with anyone with *that* big a grudge that's so specifically targeted. Any suggestions?

#104 ::: albatross ::: (view all by) ::: June 25, 2009, 09:50 AM:

Nancy:

It's worth remembering that, while the results of the last couple years have been disastrous for the Republican Party, that doesn't mean they've been bad for all factions within the party. Limbaugh, for example, seems to be considerably more important and powerful now than ever before in his life, partly because the people who are left in the party are, for various reasons, not nearly so likely to roll their eyes at the sort of crap he says every day.

#105 ::: Serge ::: (view all by) ::: June 25, 2009, 09:56 AM:

Nancy Lebovitz @ 103... Every organization appears to be headed by the secret agents of its enemies

That was the premise of one episode of Get Smart, in which Max and Agent 99 infiltrate a KAOS branch, only to find that all members of the inner council are from various spy agencies, but none of them knew that the others were too.

#106 ::: Serge ::: (view all by) ::: June 25, 2009, 09:57 AM:

Maybe THRUSH Limbaugh is the mastermind behind the GOP's problems.

#107 ::: Nix ::: (view all by) ::: June 25, 2009, 07:05 PM:

Serge@#105: sounds like an imitation of Chesterton's immortal _The Man Who Was Thursday_, in which every single member bar the chairman of the central anarchist's council turned out to be an undercover police officer investigating the others. (Anarchists, the terrorists of their day, who actually succeeded in killing several governmental figures and royals and, oh yes, a decade or so after they'd become passe, possibly starting World War I. I doubt the terrorists will ever do anything so impressive.)

#108 ::: Xopher ::: (view all by) ::: June 25, 2009, 07:20 PM:

Serge 106: Maybe THRUSH Limbaugh is the mastermind behind the GOP's problems.

No, he's just a nasty opportunistic infection.

#109 ::: Ginger ::: (view all by) ::: June 25, 2009, 08:14 PM:

Xopher @108: Let's be Candida-bout this; after all, we're very lucky that thrush is treatable.

#110 ::: chris ::: (view all by) ::: June 25, 2009, 08:34 PM:

#69:

Terry, you've surely looked at Roeder's history. He actually served time in 1997 and 1998 for having bomb-making equipment. The conviction was ultimately thrown out because of an improper search, but there's no doubt he had the equipment. There was every reason, when he started his petty crimes against Tiller's clinic, to start watching Roeder.

20/20 hindsight notwithstanding, IMO we can't allow our government to start acting against people on the basis of thrown-out convictions. It undermines the whole point of throwing them out and holding law enforcement accountable to the law in the first place.

As Justice Brandeis said 81 years ago:

When these unlawful acts were committed they were crimes only of the officers individually. The government was innocent, in legal contemplation; for no federal official is authorized to commit a crime on its behalf. When the government, having full knowledge, sought, through the Department of Justice, to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers' crimes.
....
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means--to declare that the government may commit crimes in order to secure the conviction of a private criminal--would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.

Olmstead v. United States, 277 U.S. 438 (emphasis added). We've seen too much of that prophecy fulfilled already in recent years, if you ask me. We don't need to see any more.

#111 ::: Lee ::: (view all by) ::: June 25, 2009, 08:43 PM:

chris, #110: Well said. The government, with its level of resources, must be held to the highest standard of behavior. Incidents such as this should be held up, not as proof that we should let shoddy procedures carry weight, but that the default level of procedure should be higher. Not "if we'd paid attention to that thrown-out conviction," but "if that conviction had been clean enough not to be thrown out."

#112 ::: Serge ::: (view all by) ::: June 25, 2009, 09:50 PM:

Nix @ 107... That may not be a coincidence.

#113 ::: LMB MacAlister ::: (view all by) ::: June 25, 2009, 09:51 PM:

Ginger @ #109: As opposed to Rush, which seems to be totally incurable.

#114 ::: Terry Karney ::: (view all by) ::: June 26, 2009, 02:07 AM:

Linkmeister: You are correct. I meant to address that to LMB MacAlister.

#115 ::: Raphael ::: (view all by) ::: June 26, 2009, 02:30 AM:

chris @110, 20/20 hindsight notwithstanding, IMO we can't allow our government to start acting against people on the basis of thrown-out convictions. It undermines the whole point of throwing them out and holding law enforcement accountable to the law in the first place.

Given that the main practical effect of "throwing them out" seems to be a) various ordinary sociopaths to avoid trouble and go on doing their stuf, and b) to allow demagogic right-wing sociopaths to have political careers; and that, if the whole point is to hold law enforcement accountable, that doesn't seem to work out so well (how accountable is law enforcement?); I'd say good riddance to that practise.

As Justice Brandeis said 81 years ago:

That was 1928, right? I think it was pretty rich for someone in 1928 to speculate hypothetically about what would probably happen if the government would get into the habit of breaking the law, and what kinds of things would breed contempt for the law.

#116 ::: Randolph ::: (view all by) ::: June 26, 2009, 03:53 AM:

Chris, #110: No, no, I'm not talking about knocking down his door and arresting the man (on what evidence, pray?); I'm talking about surveillance. Not on the basis of a thrown-out conviction, on the basis of previous violent conduct, even if it can't be used as evidence in a trial, and on the basis current criminal activity, which you yourself point out could have turned into something much, much worse. I think the police may reasonably watch someone who shows actual signs of planning a terrorist act.

#117 ::: Dave Bell ::: (view all by) ::: June 26, 2009, 06:07 AM:

Episode #29 of Numb3rs, "Protest", seems particularly relevant. (It was shown on TV in the UK last night.)

In particular, the old-time FBI agent who, it emerges, nf srrqvat n "greebevfg" tebhc gur vafgehpgvbaf ba obzo-znxvat, and seems to have a very poor discrimination between protest and terrorism. 35 years later, there's a copycat attack, which might be by the man the FBI have been hunting for 35 years.

Don is a lot less inclined than the old-timer to jump to a conclusion.

#118 ::: Craig R. ::: (view all by) ::: June 26, 2009, 06:38 AM:

Randolph (#116) --
I would have no problem with that, providing that a warrant be obtained, upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.(*)

The kind of observation you are describing is all to liable for abuse. The standard for "reasonable expectation of privacy" is already too loose as it is. And I am *not* one of those who subscribe to the view that "if you haven't done anything wrong you don't have to worry."

I heartily agree with the sentiment expressed upthread -- the police need to take more care in their collection of evidence and other actions -- if police officers know that an action they take may be itself illegal, they need to be prepared for an alternative action that is not against the law, or otherwise impermissible, that achieves the same ends, be it continuous observation, collection of evidence or seizure of person.

And it is part of their job to know what is, or is not, permissible. As some people like to claim, "ignorance of the law is no excuse."

(*)At some point during the 1990s there was debate in a congressional committee on new laws that would loosen the exclusionary rule for evidence, the committee minority members (Democrats) attempted to introduce what was classed as a "substantial amendment" to the bill under discussion. The full text of the "amendment" was "and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The sponsor of the bill was outraged and claimed that the amendment wording would "gut" his bill. The amendment was voted down.(**)

(**)Yes, the GOP members of that Congressional committee had voted to exclude the 4th Amendment of the U.S. Constitution.

#119 ::: Lee ::: (view all by) ::: June 26, 2009, 10:00 AM:

Raphael, #155: And who among us may not be given the appearance of a scoundrel by mishap, circumstance, or malice? In fact, why are you even making this argument after the examples of the past Administration? The ones who deserve your opprobium are rightly those who did such a sloppy job that the conviction was thrown out in the first place.

Dave, #117: Yeah... I wrote a fanfic about that guy. The episode has a commentary track, but I haven't been able to make myself watch it again.

#120 ::: Lee ::: (view all by) ::: June 26, 2009, 10:02 AM:

Oops, not awake yet... that was obviously supposed to be directed to Raphael at 115.

#121 ::: Terry Karney ::: (view all by) ::: June 26, 2009, 12:40 PM:

Raphael: Are you arguing the truth of the argument is based on the freshness of the thought? Because the Constitutional question on which that argument was based, is older than that.

Miranda was, what...almost fifty years ago, perhaps we ought to look at tossing it out.

I think, for me, I will stick to an even older quotation:

He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.

Thomas Paine, in 1795.

#122 ::: SamChevre ::: (view all by) ::: June 26, 2009, 01:33 PM:

RE: the Lautenberg Amendment

As to deciding "who's a risk for committing a murder" goes, domestic violence is probably a better predictor than most--still a pretty poor predictor, but almost certainly better than "got caught with pot".

The thing that made the Lautenberg Amendment really egregious was that it was retroactive; having been convicted of a misdemeanor, the penalty went up to felony penalties EVEN IF THE CONVICTION PREDATED THE LAW.

#123 ::: Terry Karney ::: (view all by) ::: June 26, 2009, 02:20 PM:

There are other problems with Lautenberg.

It raises the stakes. A prosecutor who wants to can make a pitch for a felony DV charge, so as to back down to a misdemeanor, et voila... the punishment is there.

The problem is hard to explain (because I am not defending DV, but rather protesting the present system). I'd like to see a more effective system of going after DV, and a more toothsome enforcement of restraining orders. This isn't a good response to the problem, as it takes the more unstable DV perpetrators, and adds one more "grievance" to their list of stimuli for abuse.

#124 ::: David Dyer-Bennet ::: (view all by) ::: June 26, 2009, 04:15 PM:

Randolph@69: Just what did "bomb making equipment" actually consist of? People were arrested in Minneapolis (before the RNC convention last year) for having equipment to make Molotov cocktails. That is, they had empty glass bottles and a (proper) container of gasoline in their garage, and some rags. Do you know anybody who doesn't?

#125 ::: Joel Polowin ::: (view all by) ::: June 26, 2009, 05:17 PM:

DDB @ 124 -- Well, anyone who (like me) doesn't own a device with a gasoline engine is unlikely to keep a container of gasoline handy, or even a container for gasoline. I'll happily grant that that's probably a minority of North Americans. (And IIRC, I've seen a jerry can sitting out beside one of the local businesses, so I don't think I'd have any great trouble bringing some gasoline home if I wanted to.)

#126 ::: Vicki ::: (view all by) ::: June 26, 2009, 05:26 PM:

Meanwhile, the FAA has just been informed by a tiny company in Mineola that six people kept aviation licenses despite post 9/11 laws requiring that those licenses be revoked. Two of the six have, in the intervening time, been on the ten-most-wanted list (which, to be fair, means they are likely flying, if at all, under aliases). One of the six is a Libyan who was convicted in the Lockerbie bombing. Basically, the FAA appears unable to check its database well enough to identify convicted terrorists.

The company found this out in the course of testing its algorithms for data-scrubbing. No mention in the story of whether they found, or would be able to identify, false positives as well as these false negatives.

Aviation licenses in this context includes mechanics and flight dispatchers: close to a million, or 1 in 300 American adults. So, a significant number of people, but a small database by anything like current standards.

#127 ::: Dave Bell ::: (view all by) ::: June 26, 2009, 05:50 PM:

When your grandfather was taught about molotov cocktails by an uncouth-seeming Spaniard accompanied by Tom Wintringham and "Yank" Levy, you begin to wonder whether you really want to come anywhere near Minneapolis.

#128 ::: Dave Bell ::: (view all by) ::: June 26, 2009, 05:50 PM:

When your grandfather was taught about molotov cocktails by an uncouth-seeming Spaniard accompanied by Tom Wintringham and "Yank" Levy, you begin to wonder whether you really want to come anywhere near Minneapolis.

#129 ::: Vicki ::: (view all by) ::: June 26, 2009, 05:53 PM:

Trying again, because I messed up the HTML the first time (and the software kindly warned me):

Meanwhile, the FAA has just been informed by a tiny company in Mineola that six people kept aviation licenses despite post 9/11 laws requiring that those licenses be revoked. Two of the six have, in the intervening time, been on the ten-most-wanted list (which, to be fair, means they are likely flying, if at all, under aliases). One of the six is a Libyan who was convicted in the Lockerbie bombing. Basically, the FAA appears unable to check its database well enough to identify convicted terrorists.

The company found this out in the course of testing its algorithms for data-scrubbing. No mention in the story of whether they found, or would be able to identify, false positives as well as these false negatives.

Aviation licenses in this context includes mechanics and flight dispatchers: close to a million, or 1 in 300 American adults. So, a significant number of people, but a small database by anything like current standards.

#130 ::: Randolph ::: (view all by) ::: June 26, 2009, 06:02 PM:

Craig, #118: whoa, whoa. I was suggesting monitoring Roeder's public conduct, not searching his home or tapping his communications.

D D-B, #124: according to the police reports, the explosives found in Roeder's card were "a pound of gunpowder and a homemade fuse." NYT.

#131 ::: FungiFromYuggoth ::: (view all by) ::: June 26, 2009, 06:03 PM:

David Dyer-Bennet asks @124 Just what did "bomb making equipment" actually consist of?

Google says:

A car he was driving on April 16, 1996, was stopped by a Shawnee County sheriff's deputy, and law enforcement officials found a one-pound can of black powder, a crude electrical circuit, an electrical blasting cap and a fuse in the vehicle.

Officers also found a military rifle, a gas mask, mask canisters, two boxes of rifle ammunition, 20 rounds of pistol ammunition and a sheath knife.

I am not aware of any lawnmowers that run on black powder. There's probably at least one out there somewhere, but I wouldn't recommend using it. The abuse of police power against protesters is, I would say, entirely separate from pulling over some guy with a customized NUTJOB license plate, what could safely be described as "bomb-making equipment", and the odd gun & ammo.

If the FBI had access to the information about Roeder's overturned conviction, they might have taken the vandalism seriously. But they should have taken it seriously anyway, given the history of violence surrounding abortion clinics in general and Tiller in the specific.

#132 ::: David Harmon ::: (view all by) ::: June 26, 2009, 07:04 PM:

Terry Karney #121: Miranda was, what...almost fifty years ago, perhaps we ought to look at tossing it out.

Digression: Most of the regulars here surely know that was sarcastic, because they know your positions from prior discussion. However, the statement is otherwise unmarked, even though it's contradicted by the following quote. Dunno, maybe I'm just being paranoid.

Certainly I agree with your position -- new isn't always better, old doesn't mean useless. In both cases, the only way to decide is to actually look at the effects of both the status quo and the proposed change. Basic principles such as those in the Brandeis quote provided by chris #100 -- those are not something to be tossed aside lightly.

#133 ::: chris ::: (view all by) ::: June 26, 2009, 09:13 PM:

@124: I live in a condo apartment; neither I nor any of my neighbors has a garage. Since the condo management takes care of yard work, probably at least half of them don't have cans of gasoline, either. (But several do have grills, which means lighter fluid, which probably works just as well, although I haven't tried.)

Everyone has clothes that could be torn into rags at a moment's notice, though, and probably most people have glass bottles, even if they don't keep any *empty* ones; the full ones can be emptied in a few seconds, if you feel like it. The whole *point* of Molotov cocktails is that they don't take much in the way of special materials to make; it's the same principle as martial arts based on agricultural implements.

When gasoline is outlawed, only outlaws will drive.

#134 ::: Terry Karney ::: (view all by) ::: June 26, 2009, 09:25 PM:

David Harmon: Context. The comment was in reply to a stament that Justice Brandeis comment was 80 years old.

It was bookmarked with a defense of one older document, and a contrary quotation of older provenance.

I trust the reader to figure it out.

#135 ::: Earl Cooley III ::: (view all by) ::: June 26, 2009, 10:25 PM:

Craig R. #118: Yes, the GOP members of that Congressional committee had voted to exclude the 4th Amendment of the U.S. Constitution.

Did the GOPists at least get smacked around a bit at the time once it was revealed what they had done, or did the Democrats allow them to remain totally oblivious?

#136 ::: LMB MacAlister ::: (view all by) ::: June 26, 2009, 10:28 PM:

Terry Karney @ various, esp. #123:

I agree that the Lautenberg amendment is bad; it epitomizes knee-jerk legislation, and its enhancement effect (misdemeanor to felony) make me question its constitutionality. It's arbitrary, especially because it affects and builds on laws of the states which are very different.

I tend to be of the belief that federal law is only appropriate when it addresses acts against the nation as a whole, or where (i.e.: the civil rights acts) it is needed because the states, or some of them, refuse to act. But the laws against domestic violence vary so much from state to state that the law's effect is to take far different thresholds of behavior, depending on the state in which it occurs, and elevate the penalty to the that of a felony. The feds are content to let each state define domestic violence for itself, and to (outside of firearm possession) set the penalties for same, and to otherwise determine the threshold for granting restraining orders, along with deciding how aggressively to enforce them. So why have they set one particular penalty to apply to everyone who has violated each of those very different laws? If there were one group of federal laws that applied to domestic violence no matter where it occurred, set a hard and fast national standard as to what behavior is actually criminal, not just inappropriate or unacceptable to some, and a simple and unvarying set of penalties for that criminal behavior, it would be a completely different situation. But that's not how our government is set up, and I don't believe it should be.

On the other hand, the failure of the federal government to apply its basic anti-terrorism statutes uniformly, or to write those statutes specifically enough not to be able to apply them to stifle constitutional protest, just galls my ass. (Sorry, no eloquence there.)

#137 ::: Raphael ::: (view all by) ::: June 27, 2009, 12:29 PM:

Lee @ 119 And who among us may not be given the appearance of a scoundrel by mishap, circumstance, or malice?

I'd say that problem is the reason why there are things like presumption of innocence, (ideally) independent courts, opportunities to defend oneself and be defended by pros, appellate courts etc.

In fact, why are you even making this argument after the examples of the past Administration?

Are you saying that the past Administration somehow proved that the Brandeis decision is effective at making sure that the government respects the law?

The ones who deserve your opprobium are rightly those who did such a sloppy job that the conviction was thrown out in the first place.

When someone declares facts to be officially irrelevant, and then makes a dangerous or harmful decision based on having declared those facts officially irrelevant, I don't see why I shouldn't blame him or her for that.

Terry Karney @ 121 Are you arguing the truth of the argument is based on the freshness of the thought? Because the Constitutional question on which that argument was based, is older than that.

No, I'm arguing that, while I wouldn't agree with that decision no matter when it was made, I find it especially funny that someone would talk about the government becoming a lawbreaker and this or that breeding contempt for the law as hypotheticals in the USA of the late 1920s. Weren't half the key government figures back then and there, depending on where they lived, either good buddies with the main local lynching organisers, or in the pay of the Mob, or both? As far as I can see, the main way how government institutions in the USA back then were involved in lawbreaking, oppression, and exploitation was not that they were overzealous with prosecuting people, but that they were not prosecuting and getting convictions for people who should have been prosecuted and convicted. I'd say in that time and place, talking about how this or that would lead to the government breaking laws, or would lead to contempt for the law, was a bit as if today, people would argue that something they oppose would threathen the current great success of the economy.

I think, for me, I will stick to an even older quotation:

He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.

I'm all for guarding everyone from oppression. I just don't think this requires tossing out facts. But there's probably not much of a point in arguing about this, because it's too much about basic assumptions. When it comes down to it, I simply don't think that people should ignore, let alone be legally required to ignore, some or all of the facts of a matter when making a decision about that matter; legal principles or no legal principles. People simply aren't entitled to their own facts. And when laws- even constitutions or major legal precedents- require tossing out facts, I think that's pretty close to those 19th century state legislators who wanted to legislate the value of Pi.

#138 ::: David Harmon ::: (view all by) ::: June 27, 2009, 03:27 PM:

Terry: Yeah, context. I was thinking in terms of Googlebait, and out-of-context quotes.

Raphael #137: The problem is the slope there is not only slippery, but steep. That is, both the police and prosecutors have a strong and intrinsic agenda toward getting convictions however they can. Once police misconduct can be dismissed as "harmless error", all sorts of abuse get much easier for the police.

An officer who blows a case through misconduct should get their ass handed to them by their own superiors, and to make that happen, you need the "bright line" saying that if cops don't follow the rules, they don't get their conviction.

#139 ::: Raphael ::: (view all by) ::: June 28, 2009, 04:27 AM:

David Harmon @138, An officer who blows a case through misconduct should get their ass handed to them by their own superiors, and to make that happen, you need the "bright line" saying that if cops don't follow the rules, they don't get their conviction.

Any evidence that this is effective? I mean, for how long have you done that, and what signs are there that it has the effects that you describe? How well-behaved is your police? Or your federal government? I have the strong impression that you're talking about a steep, slippery slope without noticing that you're already down in the valley. Why continue doing something that you've done for a long time, when there's no sign that it ever had the intended effect?

And how many investigations are there where all the evidence used while the investigation is still going on is officially admissible under your rules, anyway? If an investigation involves dozens or hundreds of hints and bits and pieces, than it's simply mathematically certain that even if the people involved take very great care to keep everything clean, at least some bits and pices will be questionable. Not to mention that many major investigations involve different countries, where standards for how evidence can be collected aren't uniform to start with. Therefore, under your rules, the only convictions are probably those where either a) the case was extremely simple from the start, so there weren't that many opportunities for the authorities to mess up; or b) the case would have been thrown out if your rules had been applied strictly, but the defense lawyers weren't careful or clever enough.

(And that's, by the way, where the whole thing becomes a class issue; people with a lot of money are, of course, more likely to have lawyers who are careful and clever enough to find that one piece in any prosecution against anyone that allows for the prosecution to be thrown out. Is that why it's so rare that rich people get convicted of anything in the US?)

But when it comes down to it, I simply don't think that any law or even any constitution has the right to declare facts nonexistant, or that any decision-making process should exclude facts about the matter that the decision is about.

#140 ::: James D. Macdonald ::: (view all by) ::: June 28, 2009, 08:15 AM:

#139: Any evidence that this is effective?

Yes.

And tons of evidence that the converse is horrible.

#141 ::: Raphael ::: (view all by) ::: June 28, 2009, 08:59 AM:

For instance?

#142 ::: David Harmon ::: (view all by) ::: June 28, 2009, 09:02 AM:

Raphael: And how many investigations are there where all the evidence used while the investigation is still going on is officially admissible under your rules, anyway?

Straw man -- inadmissible evidence is still useful for the investigation, and can help lead the police to evidence they can use in court. And IIRC, the standard is distinctly lower (sometimes maybe too low) for obtaining a warrant, or even an indictment.

And yeah, richer people naturally have more resources to defend themselves. That's the reason for providing public defenders for the poor, which at least moderates that imbalance.

Bluntly: The evidence rules are there to help prevent the cops from simply picking a suitably unpopular "perp" and framing them. The number of times the cops get slapped down for trying exactly that anyhow, makes a pretty good case that the rules are needed, badly.

And then, there's the prevalence of "a black man diddit" accusations, in cases where the parent or husband of a missing child or wife... turns out to be the actual perp.

#143 ::: James D. Macdonald ::: (view all by) ::: June 29, 2009, 09:07 AM:

Straw man -- inadmissible evidence is still useful for the investigation, and can help lead the police to evidence they can use in court.

Sometimes. Hearsay may help you find the places to look or the persons to ask who know things of their direct knowledge. But see also the fruit of the poisonous tree: "...evidence is also excluded from trial if it was gained through evidence uncovered in an illegal arrest, unreasonable search, or coercive interrogation."

#144 ::: David Harmon ::: (view all by) ::: June 29, 2009, 04:18 PM:

James D. MacDonald #143: Thanks for the clarification. Raphael, note that the rule James describes, is meant to prevent abuse of the strategy I described.

#145 ::: Terry Karney ::: (view all by) ::: June 29, 2009, 08:22 PM:

Raphael: In LA, in the '80s there was a unit, as I recall the title it was the "Special Surveillance Unit".

This was under the aegis of Darryl Gates; who once said that drug dealers didn't deserve a trial, they ought to be taken behind the station house and shot.

So, the SSU's brief was to keep track of violent offenders on parole, and some who were actually done with their sentences altogether.

This was to proactively make sure they weren't being recidivist. The Unit was broken up (sort of, some of them ended up in Rampart), when it came out that they had been letting the convicts commit crimes, and then shooting them, rather than arresting them.

What got the ball rolling was a parolee (armed robbery) who had been opening a new account at a bank. He went in and talked to them, went home to get some needed paperwork, and they shot him in the back as he walked toward the bank again.

It turns out this sort of thing had been going on for years.

Cops have too much power. They are accountable only to themselves; so long as what they do doesn't grab attention, as with Amadou Diallo, or this guy they assassinated.

I don't want to encourage them, and telling them, "well this guy beat the rap, so keep an eye on him," is an invitation to that sort of vigilante corruption.

#146 ::: Raphael ::: (view all by) ::: June 30, 2009, 04:31 PM:

Terry Karney, yes, cops have too much power, but the policy of declaring that people must act as if specific facts wouldn't exist ("throwing out evidence") apparently limits the power of courts rather than cops, and cops don't seem to wait for an invitation to abuse their power anyway.

Besides, your example is from a time when that policy had already been in effect for a while; and some other countries that are less strict about disallowing evidence don't seem to have more police abuses than the US. Frankly, this might be like a (much less harmful) left-wing version of the Drug War- people keep saying that the policy is absolutely necessary to prevent certain bad things from happening, and those bad things keep happening anyway, with few signs that the policy really reduces them by much.

#147 ::: albatross ::: (view all by) ::: July 01, 2009, 08:42 PM:

Raphael:

I'm no legal expert, but I think the practical reason why rules of evidence are used to require better police behavior is that rules of evidence are something that the courts (and in particular, the Supreme Court) have a lot of power over. If the SC wants to prevent the police getting evidence and confessions with a rubber hose, they have relatively little real power to do anything about it in most areas. The SC can say that police ought not to do those things, or can uphold huge judgements against police who do those things, but neither is likely to be all that effective.

But they have a *lot* of control over rules of evidence. They mostly can't keep the police from breaking out the rubber hoses, but they can refuse to accept any evidence that comes from that, even indirectly. The result is that there's far less incentive for the police to beat confessions out of people, because they know the evidence they get won't hold up in court.

Note that this is an ongoing battle--there's been resistance in many states to requiring police to videotape all interrogations. I assume this is because the police know that many of the ways they get confessions or testimony would not lead to a conviction, if it were seen by the court.

#148 ::: Terry Karney ::: (view all by) ::: July 03, 2009, 03:23 PM:

Raphael: This is probably a difference of worldview.

I was a Human Intelligence Collector for 16 years. I was required to do some of the things you are advocating (at least in theory). Intelligence Oversight (IO) was briefed every year.

We had some very specific permissions, and denials, in what we could collect, how we could collect it, how we had to keep it, and when we had to destroy it.

Why? Because information is power. Roeder is an easy case. He was obviously a "bad man". Or not.

I don't allow consensual searches of my car, my home, my person. Why? Because a cop who wanted to could probably lock me up. I have knives, I have chemicals. I keep the means to make a bomb in my trunk (most of the time).

I do that because it makes me safer to have a camp-stove, the fuel for it, a couple of highway flares and bottles of water.

I've been known to drive on expired plates.

Should the cops spend effort tailing me? The tail only works if it's 24/7. When do they decide it was a wasted effort. How many people should be tailed? What are they looking for? Any violation... spit on the street and get the night in jail?

Jaywalk and get cited? That pretty quickly becomes harrassment. That lead to lawsuits. Do you want to hear the cops saying, "We didn't trust him, so we decided to make him an object lesson,"?

It may seem (I am sure it does) that I am being over the top. I'm not. They have the power to do lots of that, even now (I had a student once, who was a deputy sherrif, I quote, "We have to lock up some innocent people, because so many guilty one's get away." I quizzed him on it.

He meant it. He was arguing that so many guilty people get away with things that some innocent people need to be locked up, pour encourager les autres.

I am wiling to accept the Roeders of the world, to avoid that.

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