Strengthening Constitutional Self-Government

No Left Turns

United 93

Last week, I was in New York City for a wedding, and my son was with me for what was his first trip to the city. Among our first stops was the World Trade Center complex. We walked around the fenced Ground Zero, and down into the Path Subway station, where, standing at the basement level, you can still see what little of the sub-basement girders remain. I tried as best as I could to reconstruct for him how the buildings had stood—what the place looked like before 9/11. I described briefly some details of the day that I thought that he did not know. It is an exercise in remembering that I recommend for anyone traveling to NYC.

Last night, I did a different kind of remembering. I saw the United 93 film, which tells the story of the flight that crashed on 9/11 in Shanksville, PA. The first thing that struck me was that there were no previews. I presume that this was a business decision by Universal Studios. Nonetheless, it was effective in creating a sudden, stark, almost jolting opening. Accustomed as I am to fifteen minutes of previews, United 93 begins with the sounds of the hijackers offering their evening prayers on what is the night before the hijacking, as images of bustling New York City streets are interspersed on the screen.

As the movie progresses, we are thrust immediately into the events of the day. The travelers are already traveling, the air traffic controllers are at work, and the hijackers are carrying out their plot. There is no extended character development—we do not know who the passengers are, what Todd Beamer does for a living (indeed, I had trouble telling who he was), or what brought the terrorist to this place. The one character the viewer gets slightly more detail about is Ben Sliney, National Operations Manager at the FAA, who, in one of the first scenes of the film, is welcomed to the command center for his first day in that lead position. I found the actor’s portrayal quite realistic—and it should be. The actual Ben Sliney played himself in this movie.

Giving additional realism, the fight scenes on the plane are chaotic. At times, it is difficult to tell what is happening. You are one of the passengers. Director Paul Greengrass used some of the jerky camera work that he, to my mind, overused in directing The Bourne Supremecy. I didn’t like the jerkiness there, but it worked here.

Some of the early reviews I have seen complain that the film creatively filled in too many gaps of events on the plane. As an initial matter, I don’t share that complaint. There are not a lot of new events added. The frenetic discovery by the passengers and decision to take action is done with very little dramatic elaboration. Indeed, the one substantive change I noted was that the famous, "Let’s roll," quote is actually downplayed, and made less dramatic by being uttered by what appeared to be a different passenger out of earshot of any phones.

The other complaint I presume will follow is that the film’s depiction of the hijackers praying and praising Allah as they carried out their terrorism is somehow anti-Islamic. The prayers may make some people uncomfortable, but the depiction is supported by the actual events. I will note that there is one particularly poignant scene toward the end, during which the lead hijacker is praying in the cockpit, and the passengers, who are about to storm it, pray the "Our Father."

Finally, there is the repeated complaint that the film was made "too soon." I disagree. For far too many of us, 9/11 has become a distant memory. For those at the ACLU, security issues are not to be taken seriously, but are the punch lines of fundraising letters. But for members of Al Qaeda, we are still at war—a war which Bin Laden has said even recently he will bring again to our shores. The only thing that has happened "too soon" is our attempt to put 9/11 behind us—to believe that we are, once again, an island away from the troubles of the rest of the world. We must not forget. If the complete silence in the theater as I exited is any indication, United 93 does an impressive job of helping us to remember.

Discussions - 40 Comments

"For those at the ACLU, security issues are not to be taken seriously, but are the punch lines of fundraising letters."

Could we have evidence for this snide remark? The ACLU, as far as I can tell, takes security issues very seriously. It also takes torture seriously. Mr. Alt is presumably saying that opposing and investigating torture, and insisting upon the rights of detainees, means that the ACLU does not take security issues seriously. But it does not follow. Many of us, civilian and military alike, believe that to protect the reputation of the Republic is to protect its security.

I have a few problems with this movie . . .



First, I think that there is no way to accurately recreate the events that happened on that plane. Sure, you can use the "black box" to sort of get an idea. But people have been talking about how the phone conversations with the passengers and relatives have made up a large portion of the storyline in "United 93". How in the world can we be completely sure that the phone conversations, as recalled by relatives, are accurate? Were they writing down notes as they spoke with their doomed loved one? You can try to claim it was extremely emotional (as I’m sure it was) so the person would be more likely to remember the conversation, but I think you’d also have to take into account the possibility that the emotion of the moment may have actually made it more difficult to remember. I suppose I think that hollywood is using the movie to incorporate shock value into an event that we really don’t need a movie about. I think "United 93" was produced to make a profit. If they were making it on the factual, hard evidence of the day, it’d probably be boring (since we really don’t know that much about it). That wouldn’t make much money, huh?



That brings me to my next problem with the movie: profits. I think all I’ve read (and tell me if I’m wrong on this) is that 10% of the profits are going to a memorial. As far as I know, that’s the only donation being made from the proceeds of the film. I think that Universal is just pulling some heart strings to make some cash, and that makes me sad.

You could thusly argue, Matt, that anyone’s recollection of anything important should be suspect and not used unless they can be substantiated as accurate or true.

Also, why is it bad or suspect for people to make this movie for a profit?

Where in the world is this line of thinking coming from?

Also, none of the trailers have stated anything about the movie donating anything to anyone.

However, it was publicly stated that the movie donated a portion of the intitial weekend’s profit’s to a memorial fund.

Matt, you are making something out of nothing.

Mr. Thomas:

The ACLU has raised a number of claims that it knows to be frivolous as a matter of law, including challenging portions of the Patriot Act (the sneak and peak warrant provision, for instance) that the Supreme Court found to be constitutional as long ago as during the Warren court years.

As for Mr. Mingus’s comments, most of the emotion comes from the emperical facts of the day. As I noted in my post, the movie does not overdramatize the actions of the passengers. It does not impute grand motives to them. Most of the key events portrayed in the movie could be discerned from the voice recorders, from the broadest interpretations of the phone calls, and from the events on the ground. The subject itself has the potential for your criticism, but had you actually seen the movie before you made your comment, you would know that your criticism is not borne out by the movie.

Dale -



Hmmm . . . why would it be bad for people to make profit off of tragedy? Maybe because it’s taking advantage of that tragedy for selfish reasons and motivation?



As for the comment: You could thusly argue, Matt, that anyone’s recollection of anything important should be suspect and not used unless they can be substantiated as accurate or true. I think nearly every decent historian I can think of would agree with that statement, Dale. What’s the first thing we do in history class when we read someone like Eusebius or Livy or Polybius? We ask: What was their motivation for writing this? What sort of biases would they have had? What other sources verify what they’re saying? So, yeah, I definately agree with what you’re saying there . . .



Mr. Alt,



I certainly hope my criticism is wrong and I’ll go see the movie as soon as I have the time (something difficult to find during finals week) and the money (something difficult to find anytime). I am simply worried about the problems you commented on. I can’t definitely say anything about it, since I haven’t watched it.

Steve:

That sentence in the post struck me as well, and Robert’s response wasn’t on point. Assuming that his characterization of the litigation is correct, it’s hard to imagine that challenges to the Warren Court - as such - should be evidence of anything at all, especially on the right.
But I suppose that politics makes strange bedfellows. . .

I have yet to see the movie, but I will. Everything goes out of the window for me except for the fact that it is as true to life as can be. It’s about time a movie was made that wasn’t slanted in some way.

Matt, if the movie was produced for the sake and glory of Allah, instead of the nasty profit motive would it be better? Three reasons for making the movie: 1) political propaganda for the right...remind people of Sept.11...(not an altogether fair characterization to call it propaganda) 2) The glory of Allah: so that terrorist abroad could relive the glory days of Jihad... 3) The film studio believed it could make a decent enough movie based on a recent epic event...that would probably yield them some money. Jeez I hope we don’t forget what the terrorists were attacking...at root the evil Zionist profit motive of capitalist amerika...World _____Center. Trade for what reason?

Here are two reviews from this past week. David Beamer supports this depiction and its attempt to refocus our attention on the real enemy. And also, Opinion Journal, whose author does offer that there is no "Why we fight" or "Mrs. Minever" to boost our morale in our current war. As a teacher many of my students were too young to understand the brutality and anger of that day in September. The sharing of these stories is important for the long term success in this war against the ultimate evil.

Mr. Mingus, to address your concerns about profit: I don’t know the studio’s true motives for making the movie, but I do know they did get permission from ever single family member of the passengers who died before they decided to make it. Could it be a dirty cover-up to make profit? Sure, but at least they cared enough about the families to ask their permission before deciding to make money. I think their actions speak to their intentions, which is an apolitical memorial of the passengers’ bravery. Honestly, I think your concern about making a profit is silly.

If Matt had his way we would not have any historic film except possibly dry documentaries that deal only with what is concretely known and would not deal with much, if any, persnonal dialogue.

A film can be historical even if we don’t have a signed affadavit swearing to the accuracy and validitiy of every word uttered or actioin depicted.

Mr. Lewis,



How could I have forgotten that simply because terrorists hate it, it must be good?



Andrew,



You wrote: I don’t know the studio’s true motives for making the movie . . . Okay. That’s fair. Me neither. I can tell you that they are definitely going to be making a killing off of it, though, and not really putting that money toward anything like a memorial fund (with the exception of 10% of opening weekend profits). I don’t think that’s right. Several other film makers, when creating these sorts of documentaries, don’t take any profits at all for themselves. I think that makes them good people. I think if you do profit from emotion brought on by injustice, you’re not a good person.



Hey Dale, thanks for telling everyone what I really think. That makes for really excellent, quality discussion. Why don’t you just get over movies and read a primary source (like the 9/11 Commission Report or something interesting and factual like that)? That is, if you can handle toning down the "entertainment" factor for a little bit . . .

Oh, you mean this report ...

"The cockpit voice recorder captured the sounds of the passenger assault muffled by the intervening cockpit door. Some family members who listened to the recording report that they can hear the voice of a loved one among the din. We cannot identify whose voices can be heard. But the assault was sustained.

In response, Jarrah immediately began to roll the airplane to the left and right, attempting to knock the passengers off balance. At 9:58:57, Jarrah told another hijacker in the cockpit to block the door. Jarrah continued to roll the airplane sharply left and right, but the assault continued. At 9:59:52, Jarrah changed tactics and pitched the nose of the airplane up and down to disrupt the assault. The recorder captured the sounds of loud thumps, crashes, shouts, and breaking glasses and plates. At 10:00:03, Jarrah stabilized the airplane.

Five seconds later, Jarrah asked, "Is that it? Shall we finish it off?" A hijacker responded, "No. Not yet. When they all come, we finish it off." The sounds of fighting continued outside the cockpit. Again, Jarrah pitched the nose of the aircraft up and down. At 10:00:26, a passenger in the background said, "In the cockpit. If we don’t we’ll die!" Sixteen seconds later, a passenger yelled, "Roll it!" Jarrah stopped the violent maneuvers at about 10:01:00 and said, "Allah is the greatest! Allah is the greatest!" He then asked another hijacker in the cock-pit, "Is that it? I mean, shall we put it down?" to which the other replied, "Yes, put it in it, and pull it down."

The passengers continued their assault and at 10:02:23, a hijacker said, "Pull it down! Pull it down!" The hijackers remained at the controls but must have judged that the passengers were only seconds from overcoming them. The airplane headed down; the control wheel was turned hard to the right. The airplane rolled onto its back, and one of the hijackers began shouting "Allah is the greatest. Allah is the greatest." With the sounds of the passenger counterattack continuing, the aircraft plowed into an empty field in Shanksville, Pennsylvania, at 580 miles per hour, about 20 minutes’ flying time from Washington, D.C.89

Jarrah’s objective was to crash his airliner into symbols of the American Republic, the Capitol or the White House. He was defeated by the alerted, unarmed passengers of United 93."

National Commission on Terrorist Attacks Upon the United States, July 22, 2004

You know, I graduated from college about 10 years ago, but, you know what, even with a degree I still enjoy movies, even ones that are generally historically correct, but may have some of the details mixed up or ommitted.

In other words, Matt, you don’t have to be in college to be educated or not in college to enjoy a movie.

I haven’t seen the movie, but my point is the same in regards to your very weird objections to the movie.

Go see the movie, maybe it will remind you that we are fighting a war, a war that is currently being waged in numerous countries all across this world with Iraq being one of them.

By the way, I did not tell anyone what you think, just what would it be like if we had to adhere to your ridiculously strict standards in regards to historical events and portrayal of the same on film.

By the way, some say even the 9-11 Commission got some its facts wrong or purposefully downplayed or ommitted others (Able Danger is one example).

Then again, Hollywood, patriotism, and even capitalism make easy targets.

Correction ...

In other words, Matt, you don’t have to be in college to be educated or in college to enjoy a movie.

Never mind about my last correction ... jeez, I need to stop posting at 4 or 5 in the morning.

Brett:

You fail to score even a debater’s point. My comment previously did not endorse the collective wisdom of the Warren Court, but noted that the frivolous arguments being made by the ACLU did not even gain legal support from the most liberal Court this country has ever known. Not strange bedfellows, just recognizing that the ACLU doesn’t even have friends among their most liberal legal ilk. The problem with the ACLU’s arguments is that they are not merely opposing new "infringements" on liberty; they are mischaracterizing well-established features of law (like the sneak and peak warrant authority) as somehow new and invidious, which it is not. They did not scream about that provision when it was used against drug dealers and mob bosses, but somehow they found it to be a good source for fundraising once the sneak and peak authority was expanded (and circumscribed) to terrorism. That strikes me as supremely unserious.

Matt:

You said: I think if you do profit from emotion brought on by injustice, you’re not a good person.

So, is Steven Spielberg a bad person? He made healthy amounts of money from Schindler’s List. While I imagine that he donated some to holocaust survivor projects (including the Shoah Foundation), I’m not aware that he set aside a flat percentage from the project. (Caveat: It is possible that he made contributions, but I am not aware of such contribution, and, I presume, most viewers who found the film important and well-made are not aware of it either.) If you like something dealing with a more recent event, is Ridley Scott a bad person for making Black Hawk Down? There are crass ways to present these themes, and there are respectful ways. Whether there is any profit does not seem to be a good per se determinant of the respectfulness of the project, or the moral quality of its producers/directors. In this case, the director worked closely with the families. To pick out just one area where they deliberately cost themselves money to be respectful: they did not use major stars at the request of the families. This is important, because the use of popular stars increases ticket sales. If they just wanted to make money, then we would have seen big box office headliners. In fact, after making the initial post, I learned that most of the non-flightbound cast (air traffic controllers, etc.) were, like Ben Sliney, playing themselves in the movie.

Mr. Alt:

Brett didn’t even score a "debater’s point"! You must have truly forced him from the field!!

Now perhaps you’ll focus on his point, and mine. The ACLU engaged, you say, in "unserious" legal argument (unserious because, you say, the argument had been rejected by the Warren Court), from which you infer that the ACLU can’t be serious about security issues. Like George H. W. Bush, you suspect they are liberals! (How dreadful.) And liberals can’t be serious about security? You seem to be saying that if one cares about torture and uncharted claims of executive power, then one is not serious about terrorists trying to destroy us. Why can’t we care about two things at the same time? Or do you have evidence that the ACLU’s efforts are making the Republic more vulnerable? Help us out here.

The only thing that has happened "too soon" is our attempt to put 9/11 behind us—to believe that we are, once again, an island away from the troubles of the rest of the world. We must not forget. If the complete silence in the theater as I exited is any indication, United 93 does an impressive job of helping us to remember.


Mr. Alt, I challenge you to find a single American above the age of eight who has "forgotten" about 9/11. I’m pretty certain we all remember what happened. It’s what we’re DOING

Oops, accidently hit "enter" before I meant to.

The only thing that has happened "too soon" is our attempt to put 9/11 behind us—to believe that we are, once again, an island away from the troubles of the rest of the world. We must not forget. If the complete silence in the theater as I exited is any indication, United 93 does an impressive job of helping us to remember.


Mr. Alt, I challenge you to find a single American above the age of eight who has "forgotten" about 9/11. I’m pretty certain we all remember what happened. It’s what we’re DOING about it now that actually matters. I don’t see what we’ve really changed- are our sea and airports any more secure? Instead of fighting pointless wars and wallowing in grief with movies like this, maybe we should focus on things that really matter.

To Mr. Thompson first: I fear that many people have forgotten not that the events happened, but the sense that we were vulnerable to these kinds of attacks in something more than an increasingly distant way. If you want to see the kind of action you seek in terms of security measures, then people need to realize that it is a priority.

As for Mr. Thomas: Perhaps you should re-read my last post: it is not that liberals are incapable of taking security seriously, it is that the ACLU is making spurious arguments that are contrary to well-established (even liberally recognized) law, which would, yes, have the effect of making us more vulnerable. It is possible to be concerned about civil liberties and security--something I make clear every time I debate them, when I note areas of the law which I think could be improved. But many of the ACLU’s arguments about the Patriot Act, for example, deliberately misrepresent the current state of the law and the changes made by the act. (Indeed, I have forced more than one ACLU debater to concede that there are in fact greater protections for civil liberties found in key sections of the Patriot Act than that which existed prior to its passage.) Nonetheless, the ACLU continues to put forward misleading arguments out of Mr. Mingus’s favorite motive--profits. You see, these exaggerations prove to be good fundraising techniques. To make these kind of arguments--spurious legal claims with no support even from the most liberal of courts--is not consistent with a serious approach to security. So, it is not that a mature approach to security and civil liberty cannot co-exist, it is just that the ACLU chooses not to take that path.

Mr. Alt: The ACLU is hardly alone in its fund-raising techniques; they appear everywhere on the ideological spectrum. They are a fact of life. You are more familiar with the specifics of the ACLU’s claims than I am, so I accept your clarification. Nevertheless, I suspect that in your original post "ACLU" functioned as an emblem for "liberals" - that is, those who are not serious about national security, those who contribute to (as you assert) national complacency. That got my attention. I could be wrong about your rhetoric, but I keep noticing that many bloggers, like guests at D.C. or Cambridge cocktail parties, seem to address themselves only to the like-minded and so cut corners.

Robert:

Section 213 of the Patriot Act does create new powers with respect to sneak and peek (delayed notice, greater power for courts to authorize seizure), and the powers are not limited to terrorism prosecutions. Where the earlier law was not clear on the authority for some of these powers, section 213 makes it clearer. I suppose you can quibble with whether or not clearly cofified and expanded powers are really "new," but as one learns in law school, procedure and substance are intimately intertwined.

Reasonable people can disagree about whether these newly codified powers are wise or in the spirit of the Fourth Amendment, despite whatever earlier courts may or may not have said about similar or analogous powers.

Brett:

Section 213 does not "create" anything new. Rather, it applies powers that already existed and had been used for years in drug prosecutions and mafia cases. The delayed notice provision is part and parcel of "sneak and peak" warrants, which was upheld in the case of Dalia v. United States (1979). Indeed, the court there found arguments, like those that are being proffered by the ACLU and presumptively by you in your post, to be "frivolous." The idea that sneak and peaks aren’t constitutional didn’t even pass the laugh test by a very liberal court in the late 70s, and these warrants had been used so regularly since then that they even made their way into pop culture (e.g., a sneak and peak warrant was used to place a listening device in Tony’s house on HBO’s The Sopranos before the passage of the Patriot Act). Accordingly, it is error to say that the power is created this authority.

Similarly, it is error to say that 213 gave the courts greater power to authorize seizures. Courts do not have greater authority post section 213 to issue sneak and peaks than they did prior to 213--a warrant is still a warrant, and must be supported by probable cause--no change there. The language regarding how the court should consider when requests for delayed notice track Supreme Court and federal appellate standards on the matter as well.

Your suggestion that s. 213 "expanded" powers is also erroneous. Prior to s. 213, there was no uniform standard on how long law enforcement officer were permitted to wait before nofifying the subject of sneak and peak that they had been on their property if no prosecution took place in the interim. Thus, in the 11th Circuit, for example, the rule was that if a judge gave you a sneak and peak warrant, that was good until the end of time--no notice was ever required. The Patriot Act originally required that any sneak and peak warrant issued provide for notice by a date certain (I believe it was within 6 months). The bill was modified in Congress to say within a reasonable period, subject to extension by the court for cause. The amendments to the Patriot Act provide for deadlines again. However, under either the original or the newly modified version, the courts and prosecutors are actually more restricted than they were prior to the passage of the act. Conveniently, the ACLU never mentions that sneak and peaks are actually more constrained after 213 than before.

The ACLU makes their argument disengenously without ever mentioning Dalia, or without confronting the law as it existed in 2001 at the time of the passage of the act. This is crass opportunism on an issue which is closely tied to national security--and therefore constitutes a mode of argumentation which, as I said previously, is not serious to the countervailing security concerns. (Why object here, but not in the mob cases?) And let’s be clear, the court previously ruled on the permissibility to execute warrants without notice and not, as you try equivocate, based on some question "analogous" to it. The case is directly on point. The ACLU has a view of the Constitution that even the most liberal court in US history found to be frivolous. That’s fine, in the sense that people are entitled to hold misguided opinions, but let’s not pretend that the Patriot Act caused this, or that civil liberties are being newly "infringed" by a view of the constitutionality of searches which did not previously exist. Not all legal arguments are equally meritorious or subject to, as you suggest, disagreement among reasonable people. They are free to believe that the Fourth Amendment is broader than it is, but it is manipulative and, yes, unserious to pretend that the law enforcement tool of the sneak and peak warrant is somehow new and unprecedented.

Robert:

Dalia was decided by the Burger Court, not, as you appear to imply, by the Warren Court, and if your readers look at the lineup in the case, they’ll see that the surviving members of the liberal wing of the Warren Court dissented. Arguing that dissenting views should still prevail shouldn’t be that foreign to readers of this blog, albeit in other contexts. If you’re calling everyone who refuses to take a Supreme Court majority opinion as the gospel truth "frivolous," you’ve just insulted a lot of your readers, even if you claim to be simply passing on the compliments of the Court itself.

Anyone who is interested can do the google searching themselves to see how the ACLU deals with Dalia. Suffice it to say that their interpretation of the pre-Patriot Act history is different from yours.

If you find the time limit on 213, please pass it along.

It’s always fun watching lawyers at work.

Blackmun dissented, did he? Huh, you must have a different copy of the Supreme Court reports than I do. Your statement to the effect that If you’re calling everyone who refuses to take a Supreme Court majority opinion as the gospel truth "frivolous," you’ve just insulted a lot of your readers, even if you claim to be simply passing on the compliments of the Court itself finds no support in my post, and is another tired attempt to score debating points. I made it clear that there are some arguments that are not reasonable, and this is one. That doesn’t mean that all dissenting arguments are frivolous. But if you are a liberal and you can’t get Justice Blackmun on your side, then you are treading on peculiarly thin ice. There is simply no support in the Fourth Amendment for this point of view.

As for googling the ACLU’s position on Dalia, I did not do it now, but I have debated the ACLU numerous times on the Patriot Act. I have never had them bring up the Dalia case, or the state of the law before the Patriot Act. They have always characterized the sneak and peak as if the tool was created ex nihilo from the Patriot Act. Furthermore, in preparing for the debates, I read everything I could from their web pages, including their special pages on the Patriot Act. They again consistently elided any mention of existing snake and peak law. I do hope that they have corrected that error, for it was an egregious one--and it was one which reflected poorly on their legal work. But any attempt to recharacterize this as an unsettled area of law where reasonable legal minds differ is simply a rewriting of history.

As for the time limit, the original "reasonable" time limitation was found at sub s. 213 (b)(3). The new presumptive 30 day deadline is found s. 114 of the amendments to the Patriot Act.

Robert:

OK, so the time limit in 213 is the statutory fixing of the outer bounds of the broad range of earlier practice, i.e., no time limit. Looks like an expansion of powers to me, but we apparently just disagree on that point. Given that the objectionable feature of the law is precisely its potential indefinite delay of notice, however, I’m not sure why you can’t see the reasonableness of discomfort with and objection to the provision.

Currently the ACLU doesn’t ignore Dalia; they just disagree with you on what it meant.

I suspect that we agree that if you want to impeach the credibility of the ACLU on this point, you need better evidence than dicta from Katz refracted through a non-unanimous 1979 Burger Court opinion that Blackmun joined.

Brett:

This point has been belabored beyond usefulness, but your last comment makes no sense whatsoever: a statute which changes a previous practice lacking deadlines for providing notice to one which imposes deadlines for providing notice somehow is an expansion of power? No reasonable construction supports that thesis. As you note, your big objection is the potential for indefinite delay in notice. A statute which provides some checks on that count, where the previous regime lacked any requirement for notice once the initial threshold is met doesn’t expand power. Period. Any attempt to say otherwise is simply the weakest of sophistry.

Despite your attacks on Dalia, which is clear and undisputed law, you have failed to provide any justification for the ACLU’s reading of the 4A, other than it comports with their, and presumably your, liberal notions. There is simply no textual support, and there is no caselaw support. So let’s bring this back to the original point of the conversation: the ACLU in its public campaigns has suggested that the use of sneak and peak warrants was a new attack on individual freedoms. We now know that even if you and the ACLU do not agree with Dalia, that the practice was well-established long before the time that the Patriot Act was passed. Indeed, a follow up from Dalia quickly establishes that this principle has never been in serious doubt. We know that the Patriot Act actually placed new limits on sneak and peak, and, contrary to your Orwellian view that imposing time restrictions expands power, that the Patriot Act actually restricts power. And we can add that notwithstanding the fact that you have cited generally to google evidence, that the ACLU has run major ad campaigns, featured arguments in debates, and composed large sections of their web site all aimed at creating the appearance that sneak and peaks are new and somehow impermissible. Again, they can have quaint views about the Constitution; but their view has no support in the text, no support in history, and no support in the relevant caselaw. Here, where there are serious national security issues at stake, it shows a lack of seriousness that they would be so misleading as to what the law is in order to shake down liberal donors. They have, quite frankly, been cynical and dishonest in how they represented the effect of the Patriot Act on this count. It is therefore no defense to say merely that they have a different--and, again, wholly unsupported view--of the underlying law.

Robert:

Your last post says that the "previous regime" allowed unchecked use of the searches as if that were a bad thing. I assume that you’re talking about the period between the passage of the Patriot Act in 2001 and the amended version in 2006, since before 2001 courts differed in their approaches, as you noted above: some were very restrictive (presumably because they had "serious doubts" about the practice), some were as limitless as the 2001 Patriot Act. I thought you were defending both the 2001 Patriot Act and the amended version. Aren’t you?

On another note, I’ll wait to see Flight 93 until exams are over. . .

No, I was referring to the period before the Patriot Act was passed in 2001. After all, the Patriot Act attached a requirement of notice (even if it was not a fixed date)--something that did not exist as a protection before the act. It was, from a civil libertarians perspective, an improvement over the previous system, in which no notice was required statutorily required, and where the courts did not uniformly require any form of notice. Maybe it did not go as far as you or the ACLU would like, but it is error to say that it expanded powers when it clearly restricted them: you could have no notice before, you cannot afterward. And, to correct your second presumption, the courts have not shown much concern over the use of these warrants. Why? Because a sneak and peak warrant has to be supported by probable cause (which is what it takes to get an ordinary warrant) AND a reasonable belief that giving notice would thwart the investigation. The ex ante protections are built into the warrant requirement. To given an example, any time that law enforcement officers need to place listening devices in a building, they need a sneak and peak warrant--after all, it wouldn’t do much good to announce that you were there to install the devices. And yet, again, if you watched the ads that the ACLU ran, they treated it as if the government could execute these warrants against anyone (no sense whatsoever that the ordinary probable cause showing before a neutral magistrate must be made to procure a warrant), and you would have no sense of the ordinariness or the utility of this law enforcement tool. When you have an organization that uses scare tactics as they have, and that plays that fast and loose in an attempt to 1) raise money and 2) undermine a legitimate law enforcement technique that is used to combat terrorist, then yes, it is fair to say that they use serious security issues as punchlines in fundraising letters. This is particularly egregious where, as here, the technique is only "debatable" within the ivory towers of acadamia. For real lawyers, there is no question that sneak and peaks are permissible. A claim that was too liberal and silly to be taken as anything more than "frivolous" before the 1979 Supreme Court is not even going to merit review now.

Robert:

You write

the courts have not shown much concern over the use of these warrants

Freitas:

The absence of a notice requirement in the warrant presents a much more difficult issue. While it is clear that the Fourth Amendment does not prohibit all surreptitious entries, see Dalia v. United States, it is also clear that the absence of any notice requirement in the warrant casts strong doubt on its constitutional adequacy, see Berger v. New York. We resolve those doubts by holding that in this case the warrant was constitutionally defective in failing to provide explicitly for notice within a reasonable, but short, time subsequent to the surreptitious entry. Such time should not exceed seven days except upon a strong showing of necessity.

We take this position because surreptitious searches and seizures of intangibles strike at the very heart of the interests protected by the Fourth Amendment. The mere thought of strangers walking through and visually examining the center of our privacy interest, our home, arouses our passion for freedom as does nothing else. That passion, the true source of the Fourth Amendment, demands that surreptitious entries be closely circumscribed.


[U.S. v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986) (citations omitted)].

That case has the virtue of being a pre-Patriot Act case where a court applied a tough standard that the Patriot Act did away with. Anyone can read the case and see what the Patriot Act did. No one is claiming that all courts did this, but some did, and the Patriot Act chose to ignore them. Wondering about whether that is a good idea is not something that is off the wall. But I fear that we just disagree on that.

Brett:

I am going to presume based upon this last comment that despite your previous allusion to what is learned in law school that you actually did not go to law school. 1) To the extent that the Ninth Circuit made its conclusion based upon the requirements of the Fourth Amendment, the Patriot Act cannot change it: a statute cannot modify a constitutional rule. Thus, your hyperbolic statement that the Patriot Act did away with the 9th Circuit standard is an error that a 1L would not make. In the Ninth Circuit, the notice requirements would need to comply with case law. 2) Even so, the original version of the Patriot Act does not even conflict with 9th Circuit’s rule, as you quote it. The Patriot Act required notice in a reasonable time and required a showing of need for any extensions; the Ninth Circuit applies a nearly standard and inserts a presumptive 7 day deadline for what is reasonable. While the Ninth Circuit’s decision is clearer on this count, there is no conflict in the laws--they can be read harmoniously, with 7 days constituting what is "reasonable" for the purposes of both Freita and the Patriot Act in that circuit. The modified version of the Patriot Act does conflict insofar as it states a 30 day limit, barring exigency showing. If the Ninth Circuit found that the day limitation held constitutional import, then the 7 day rule would apply, and I can’t see where there would be any serious question about that. But is also worth noting that the Patriot Act may still be more protective here: It is not clear from the quoted language whether, upon an exigency showing, the state must petition for renewals by the court every 7 days, or at the discretion of the court. The court could even grant a blanket extension if the latter were the case. In the Patriot Act, extensions may only be for 30 days, and require cause for each extension. 3) This is only the Ninth Circuit’s rule, and does not apply throughout the country. In the 11th Circuit, there was no notice requirement EVER. If you live in the Ninth Circuit, you still get the benefit of that opinion. But after the Patriot Act, if you live in a jurisdiction that does not have that rule, then you get the benefit of the statutory protections of the Patriot Act, which provides greater protection. Nothing is taken away; new protections are given.

Finally, the Ninth Circuit is a very liberal circuit, and, despite the flowery rhetoric, they did cast a shadow of a doubt on the legality of sneak and peak warrants per se; they just tinkered about the timing for some future notice. The notice question raised is not an attack of the constitutional legitimacy of the warrants themselves as an investigative tool. The language that they used to describe their nominal concerns tracks very well with the doubts traditionally raised by courts against ordinary warrants. That doesn’t make ordinary or sneak and peak warrants illegal. Thus, even the Ninth Circuit began by recognizing that sneak and peak warrants are legal without much hand-wringing. However, the ACLU does not follow the reasoning of Frietas. They did not go dancing in the street when the Patriot Act was amended to provide the clearer and more restrictive 30-day notice. Rather, as best as I can tell from their public statements, they disapprove of the sneak and peak warrants period, regardless of the subsequent notice provisions, which is a position that finds no support in Ninth Circuit’s opinion.

In the end, the citizens in the Ninth Circuit have the same protections they had before the Patriot Act, and the citizens in the 11th Circuit have more protections. But that’s not something the ACLU is going to tell you.

If you don’t brush off the concerns of the Freitas court - constraints on delayed notification are important because of constitutional concerns about both the surreptitious entry and delayed notice itself- you’ll have an easier time understanding what the difference between 213 and the prior regime was and why some folks thought 213 set the standard too low.

Sure, a statute can’t override the constitution. (Blackmun wasn’t a member of the Warren Court, either, or a liberal on criminal justice issues until later in his career, but what’s a little historical revisionism between friends?)

You said that if I did not brush off the concerns of the Freitas court:

you’ll have an easier time understanding what the difference between 213 and the prior regime was and why some folks thought 213 set the standard too low.

Again, you seem incapable of recognizing that 213 set the bar higher than it was in the prior system--that the only *change* was a net increase in protections. That is one of those inconvenient things that we like to call "facts." The rationale in Freitas is contained within 213--both looked to reasonableness as the guide; Freitas just picked an arbitrary term of days which seems to be subject to infinite extension without review, while 213 left the initial deadline at the discretion of the neutral magistrate, and REQUIRED subsequent showing and substantive review. Nonetheless, all the protections that existed before the Patriot Act existed afterward, plus more in places like the 11th Circuit. And again, you mischaracterize the ACLU’s position: it is not that they wanted a fixed date rule like that which is in Freitas: they got that in the amendments to the Patriot Act, and that still wasn’t enough. No, they want to demonize the Patriot Act for fundraising purposes, and they seem to disagree with sneak and peak warrants PERIOD. While the Ninth Circuit noted concerns, it in no way endorsed that position. The ACLU is again putting forward a position on the law that has no support in the text, in history, or in caselaw, but just in their own liberal desires. Based on your inability to discern that a statute can’t trump a constitutional rule, I presume your error in deducing that 213 lowered the standard is based in ignorance, which out of path dependence you adhere to even after you were informed of your underlying interpretive error. But the ACLU knows better, which makes their error worse.

Robert:

You’re a civil guy, I’ll give you that.

The whole point of this discussion was to determine whether or not the ACLU was just scaremongering. We’ve already established that to say that The ACLU makes their argument disengenously without ever mentioning Dalia, or without confronting the law as it existed in 2001 at the time of the passage of the act rests on incomplete understanding of what the ACLU actually says. You cite prior experience with the ACLU and fundraising letters. Fair enough, but in other sources, the ACLU takes a more complete view.

We’ve also established that merely citing Dalia for the proposition that The ACLU has a view of the Constitution that even the most liberal court in US history found to be frivolous is overstating the case. Dalia is a conservative, Burger-court reading of Katz with which some members of the Warren court apparently disagreed, and whether Blackmun joined is a red herring. Plus, there are dissenters.

We’ve also established that one circuit raised serious doubts about the precise kind of practice that the Patriot Act authorized, despite your implication that doubts about the practice are unsupported by any authority whatsoever. You do a quick attempt to distinguish Freitas, but you ignore the underlying policy concerns regarding loose constraints on notice (or the absence of a time period for notice in the warrant itself). Saying that Freitas is about "tinkering" with such insignificant things as notice misses the point entirely.

So, one question remaining is whether 213 acted to protect privacy, on balance, or to harm it. You argue that there could have been no change in the 9th circuit because constitutional standards would trump statutory standards in the 9th circuit. Fair enough. What would happen in circuits that had declined to adopt the 9th circuit? Is it possible that some circuits would be more reluctant to do so in the face of the statute? Is it possible that some would be less reluctant? I don’t know. I’ll grant that if officers want to avoid a conflict with the 9th circuit, they’ll adhere to its standards. Did courts in the supposedly more lenient 11th circuit find the original 213 to be more constraining?

Which leaves us to the nub of the real question: was it a good idea for the original 213 to have omitted any presumptive time limit for delayed notification and made the standard by which applications for extension would be evaluated laxer than the 9th circuit standard? Your general agnosticism regarding the effect of different choices in this regard is not a particularly persuasive position to me, and I suspect it wouldn’t be to most people, but I could be wrong.

You did not establish that the ACLU has taken a broader perspective, and I did not rely on their fundraising letters. Rather, I relied on multiple debates with them, their television ad campaign, their Patriot Act special web site, their white paper on the topic proffered by the state ACLU, and their releases on the amendments to the Patriot Act. In none of that matter did they ever breath the word Dalia, or suggest that sneak and peaks existed prior to the Patriot Act.

The Burger Court was not a conservative one. If you don’t find Blackmun sufficiently liberal to meet the test, then how about Brennan? Brennan concurred in the court’s finding that a bar on sneak and peak warrants is frivolous. The most liberal jurist of the century doesn’t even buy the argument. And the justices who dissented did not do so on the grounds suggested by either you or the ACLU. Indeed, their concern involved the lack of judicial sanction in that case--something wholly distinguishable from a sneak and peak warrant supported by probable cause and approved by a neutral magistrate. There are no justices who support the ACLU’s position in Dalia--not even among the most liberal members of the court.

As for the import of Freitas, you focus on the day number, and not the rationale: the standard in the Patriot Act and Freitas are the same: reasonableness. But for our purposes, it doesn’t matter. The ACLU doesn’t want a day specific notice; they apparently want no sneak and peak warrants, because they expressly found that the day notice requirement in the Patriot Act’s amendment wasn’t enough. The reasonableness of the ACLU’s position is what we are debating, and they are not in line with Freitas. You also fail yet again to address the fact that Freitas does not require the kind of follow up that the Patriot Act requires. Come on, you can do it. I know you can. Set the ACLU talking points down, and admit that the Patriot Act provides more protections than the Ninth Circuit. I promise that it will only hurt for a minute.

As for the effect of the statute, yes, in the 11th Circuit, warrants issued after the Patriot Act were required to meet reasonable notice requirements; they weren’t before. That’s a change. Again, you can say it: it is a change that gave more protections. In other circuits, this was not an evolving area of law. Contrary to your suggestions, there was no clammering in the courts to curtail the usage of this. All the courts, including the Ninth Circuit, recognized that sneak and peak warrants are legitimate. The most liberal justice in this century signed on to an opinion calling rejection of the legality of sneak and peaks "frivolous." Your policy arguments from the Ninth Circuit about sneak and peaks are largely the privacy interests inherent in ordinary searches. We address them in the case of ordinary searches by judicial preclearance in the form of warrants based on probable cause, and we do the same with sneak and peak searches.

Your state that the rub is "was it a good idea for the original 213 to have omitted any presumptive time limit for delayed notification and made the standard by which applications for extension would be evaluated laxer than the 9th circuit standard." Of course, not withstanding your reliance on one circuit’s standard (should I be surprised that you have put all your eggs in the Ninth Circuit’s basket?) rather than on binding Supreme Court precedent, that is not the question. The time limit is not the issue. The ACLU was not satisfied when a time frame was added to the Patriot Act. Their objection as I understand it from my public debates with several high ranking members is with sneak and peak warrants as a whole. That is what the debate is about. And that is a position that is frivolous.

"For those at the ACLU, security issues are not to be taken seriously, but are the punch lines of fundraising letters." Crap, crap, sputter, sputter. CAUTION: slow minds stay to the right.

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