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Learned Nothing, Forgotten Nothing

Andy McCarthy says that Barack Obama is the September 10th candidate:

The fact is that we used the criminal justice system as our principal enforcement approach, the approach Obama intends to reinstate, for eight years -- from the bombing of the World Trade Center until the shocking destruction of that complex on 9/11. During that timeframe, while the enemy was growing stronger and attacking more audaciously, we managed to prosecute successfully less than three dozen terrorists (29 to be precise). And with a handful of exceptions, they were the lowest ranking of players.

When an elitist lawyer like Obama claims the criminal-justice system works against terrorists, he means it satisfies his top concern: due process. And on that score, he's quite right: We've shown we can conduct trials that are fair to the terrorists. After all, we give them lawyers paid for by the taxpayers whom they are trying to kill, mounds of our intelligence in discovery, and years upon years of pretrial proceedings, trials, appeals, and habeas corpus.

As a national-security strategy, however, and as a means of carrying our government's first responsibility to protect the American people, heavy reliance on criminal justice is an abysmal failure.

Obama is going to be pounded on his appalling historical ignorance throughout the campaign. "Auschwitz" was just the beginning.

[Update at noon]

Apparently the McCain campaign thinks that this is a major vulnerability for Obama:

As the war of words between the two presidential campaigns is escalating, McCain advisers and surrogates unleashed some of their harshest language yet in describing Obama.

On a conference call with reporters, former CIA chief James Woolsey and others said Obama's policy regarding the handling of terrorism suspects would create an opening for more attacks like those on Sept. 11, 2001.

Randy Scheunemann, McCain's foreign policy adviser, said Obama represents "the perfect manifestation of a Sept. 10 mindset."

"If a law enforcement approach were accurate, then you wouldn't have had Sept. 11," Kori Schake, a McCain policy adviser, said.

I think it's going to be 1972 all over again. The reason that the "superdelegate" concept was come up with was exactly to prevent this. It would seem that they're not doing their job.

Of course, it's still several weeks until the convention. If I were the McCain campaign, I wouldn't actually be pounding Obama this hard until he is safely the nominee. It probably helps Hillary! more at this stage than it does them, particularly since the public has a short attention span, and isn't necessarily going to remember this by November.

[Mid-afternoon update]

Another history lesson for Obama:

Yasin fled the United States after the bombing to Iraq, and lived as Saddam Hussein's guest in Baghdad until the invasion. He is still free, and wanted by the FBI.

Picky, picky, picky.

Anyway, it can't possibly be true. As everyone knows, Saddam had absolutely no connection to terrorism, or World Trade Center bombings.


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Jardinero1 wrote:

Terrorism isn't and never has been a meaningful threat to life and property in this country, even with 9/11. There is no existential threat to the United States by any terrorist or terrorist group.

If we had one 9/11 per year it would still represent only one eleventh the number of people killed on the road, one sixth of those killed from flu or flu complications, one fifth of those who die in garden variety murders, one twenty eighth of those who die in household accidents and one half of those who die of AIDS. If we had two 9/11's per year you would barely beat AIDS as a cause of death but would still be left in the dust by the other causes. Get real, if you are not worried about any of those things then you really shouldn't give up your basic liberties because of terrorism.

I will take the criminal justice system approach and keep habeas corpus, due process, and the bill of rights. I would prefer to live free or die than to surrender my freedoms for some citizen's bogus phobia. The ultimate defenders of liberty in a free society are its citizens. That's why we have the Second Amendment. You start giving up the other rights because of some bogey man and you will eventually give up your Second Amendment rights as well.

Rand Simberg wrote:

There is no existential threat to the United States by any terrorist or terrorist group.

It's not "existential," so I guess it's all right if they murder a few thousand of us (or a few hundred thousand of us, if they get their hands on a nuke) occasionally?

I would prefer to live free or die than to surrender my freedoms for some citizen's bogus phobia.

I'm scratching my head wondering how your freedom is surrendered by not granting habeus corpus to illegal foreign combatants.

Carl Pham wrote:

There are a few logical flaws in your argument, Jardin, viz.:

(1) Your first sentence is illogical. Terrorism is certainly a threat to life and property. Lives and property have been lost, right? So you're wrong. What you probably meant to say is that terrorism is less of a threat to lives and property than, as you point out, ordinary domestic crime, accidents and disease.

(2) However, this line of argument is weak and unconvincing. Murder kills about one fourth as many people as car accidents, and only 2% as many people as heart disease. Should we stop considering murder a threat to life and property, because it's a much smaller threat than car accidents or heart disease? Not many would follow you down this road. Most people feel we have sufficient mental flexibility to respond to multiple threats, of varying levels of importance, simultaneously.

(3) You suggest the present -- let's call it Bush -- modality for responding to terrorism involves "giving up your basic liberties." This goes beyond rhetorical exaggeration into the realm of a disconnect from reality. Pray, what basic liberties have you been forced to give up? Life? Been drafted into the military lately? Well, no. Liberty? Been subject to arbitrary arrest and detention lately? Constrained as to where you can live, or at what job you can work, or on what you can spend your money? Ha ha. Free speech? Were you required to run your blog post past a censor? Does the nightly news report only what the government wants you to know? Do you suspect important facts are being distributed only on a "need to know" basis? Not unless you're a tinfoil hat wearing doofus, you don't.

Really, anyone with a speck of historical understanding would be astonished at how very little constraint the "war on terror" (or more plausibly the real shooting wars in Iraq and Afghanistan) have impacted American society. The constraints on liberty are far smaller than in any other war in history, if not essentially nonexistent. No draft, no huge taxes, no war bonds, no rationing, no Federal war boards directing industry, no restraints on movement, no restraints on the press, no official secrecy acts with dire consequences for violation. If your "basic liberties" are under attack, I invite you to post any personal experience you have of it. Go one, let's hear some facts, son, instead of mere vaporous paranoid fantasies.

(4) Finally and most importantly, you ignore the practicality issue. People might well prefer the Bush Doctrine approach to terrorism, instead of the Carter/Clinton/detente Doctrine, because the former works and the latter does not. We know from twenty-five years experience (e.g. from the Munich Olympics to the 9/11 attacks) that a "law enforcement" approach to terrorism does not prevent it, and indeed the problem metastasized in those years. The contrast to the results over the last eight years of the Bush Doctrine could not be clearer.

This is not to say that there aren't elements of the "war on terror" that aren't ludicrous and pointlessly frustrating of individual liberty. The most obvious is the TSA and the security theater at airports. This is absolute nuts, and something up with which a free people should not put. I don't know why we do. Maybe because our media have brainwashed us into thinking that air travel is a such a complex complicated activity that we unwashed masses can't understand all its nuances, and should in general just stand patiently in line while Our Betters decide exactly how to do it, and how to keep our pretty little heads safe during it.

Karl Hallowell wrote:

As I see it, the problem with a law enforcement approach is that terrorists can hide in countries that either have ineffective law enforcement or actively support the terrorist group. Either case means that law enforcement fundamentally won't work as long as those conditions continue. There are many cases throughout history where law enforcement fails because the criminals had a safe refuge which couldn't be touched by what passed for law enforcement.

At the same time, the groups actually causing trouble for the US and its citizens are small, at least at this time. There's no reason that we should be altering our society and laws to the extent we have. As I see it, the fundamental problem isn't law enforcement versus military approaches nor that our government agencies need additional powers in order to carry out their duties. But rather that significant portions of the government tasked with stopping terrorist activity simply aren't working.

For example, the CIA has been blamed for the intelligence failures leading up to the Iraq invasion. What has been done to fix those problems? The FBI and INS (USCIS now for some reason) were implicated in the failure to catch the 9/11 attackers. I guess my concern here is that there seems to be no indication of improvement. These agencies may be more powerful now or subsumed into a larger bureaucracy like the Department of Homeland Security, but how are they better at what they're supposed to be doing?

Jardinero1 wrote:

Carl, in my preamble I used the word, meaningful as a synonym for significant or statistically significant. You overlooked that.

"What basic liberties have you been forced to give up?"

The Fourth Amendment is the one that has been trashed. This has affected me personally, and it affects you. As an example, I work in the brokerage industry where you no longer have any Fourth Amendment rights with regard to your financial records. Every broker has been press ganged, using an unlawful Writ of Assistance, into reporting to the government any client activities which are "suspicious", not illegal activities, just suspicious. Brokers are prohibited from letting their clients know they reported them, even if they ask. Brokers can be jailed if they do tell them. Brokers can be jailed if they don't report them or exhibit willful blindness. If a federal agent walks into my office and demands to see a customer's account records or wants to question me about said customer I must comply, even without a warrant or subpoena. If I don't comply, I can be jailed. I think that's a pretty significant infringement, Carl. For more info, look up the the Bank Secrecy Act, the PATRIOT Act and Suspicious Activity Reports, FINCEN, Fourth Amendment, and Writ of assistance.

With regard to habeas corpus. The Bush administration still maintains that US Citizens are not entitled to habeas corpus hearings if the President designates them an unlawful enemy combatant. If you had followed the Jose Padilla case closely you would know that the Supreme Court was not given an oportunity to fully adjudicate the issue. So, for the moment, Rand and Carl, the president can designate you an unlawful enemy combatant, lock you up and prevent you from having your day in court.

What you really should be asking is not whether my rights have been infringed, but whether these infringements have enhanced anyone's safety by preventing another terrorist attack? I doubt it. The Bush Administration cannot point to any single instance where a Constitutional infringement prevented or subverted a terrorist plot. Don't you think they would if they could, to justify their actions. If you go to the FINCEN homepage where they keep track all the Suspicious Activity Reports. They state that they have collected ten of thousands of reports. How many prosecutions have occurred as a result of all this reporting. A handful, none related to terrorism.

Brock wrote:

Karl hit the nail on the head. The criminal system can work OK, but only where individuals are subject to the rule of (US or similar) law. It seems pretty clear that terrorists operating freely out of Tehran, Riyadh or London are beyond the reach of any rational law enforcement.

Rick C wrote:

Further, 9/11 can only be considered a "minor" event in terms of lives lost if you ignore the fact that most people got out of the building. Imagine a similar attack that manages to drop a building of comparable size immediately. Suddenly 50,000 or 100,000 people die (what was the average population of the WTC 1 and 2 buildings?) and there's no meaningful way to trivialize the event. Further, the loss of a couple of million feet of prime office real estate isn't exactly trivial, either. I'm not really comfortable with writing off a couple of skyscrapers a year to score cheap rhetorical points.

Larry J wrote:

And let's not forget the economic impact of 9/11 - estimated to be a trillion dollars or more. Suffering that kind of damage every year would have a lot more impact on people than the claimed reductions in their civil rights.

Carl Pham wrote:

Jardin, I suspect debating you is pointless, because I think you have reasoned from your conclusions to the data that support them, and not, as would a good empiricist, the other way around.

I began in the 1980s and 1990s agreeing with the conventional wisdom, which you here espouse, that terrorism was best dealt with on a case-by-case, "law enforcement" style. Based on the evidence of what actually happened then (steadily increasing terrorism) and what happened after Bush took an alternate course (no terrorism at all) I changed my mind. Results count, and this President has achieved them, while none other ever did. That's a bottom-line "take it to the bank" fact, and all your artful reasoning can't change it. So it doesn't matter how clever or persuasive your reasoning is. The facts say you're wrong, and that's that.

Care to debate that? Point to the evidence for increasing (or even nondecreasing) terrorism against US citizens over the last eight years. Until you can do that, all your logic doesn't mean squat. Measurement trumps theory, every time.

On the finer and less-important detail:

I used the word, meaningful as a synonym for significant or statistically significant.

So? "Statistically significant" means "can be distinguished from the noise" or equivalently "can be proved to exist." Unless you want to take the ludicrous position that we can't actually prove that people have died from terrorism, you're still wrong.

As an example, I work in the brokerage industry where you no longer have any Fourth Amendment rights with regard to your financial records

OMFG! You mean if I short $10 million of airline stock on September 10, and an FBI agent notices the transaction and wants to know my name and home address, you're forced to tell him? Gosh, can the prison camps and closed-circuit TVs in every bedroom be far behind???

Give me a break. If this is the worst evidence of civil liberties being compromised, life's a beach. I'm not thrilled about the government knowing my financial affairs, but they already know pretty much all the important stuff, courtesy of my being forced to fill out an IRS form 1040 every April 15, on which I must list every source of income and the exact amount I earn from it. The fact that the FBI can demand information from you just means they can get this information faster and easier than rummaging around in my IRS records, where it's all listed anyway.

If you want to make a libertarian case that the government shouldn't be prying into my finances at all, I'm with you, and I'm willing to man the barricades and march on the Treasury with pitchforks and torches. But you're all big on the relative "significance" of threats, right? Well, the threat to my financial privacy from the basic tax code is far more "significant" and intrusive than any Writs of Assistance delivered to my broker.

Anway, this has zip to do with the Fourth Amendment. You're apparently under the mistaken but common impression that the 4A says you or your property or records can't be searched without a warrant. Nope. It just says you can't be searched without a reason. That's why if, when a policeman approaches you during a traffice stop, you furtively and frantically stuff something into your glovebox, he can make you open it to look. If a policeman comes to your door and hears muffled screams coming from your closet, he doesn't need a warrant to enter your house and search the closet. And so forth. There are cases where the Supreme Court has decided that a warrant is needed for a search, but they are generally cases where the reason for the search is sufficiently subtle and weak, and/or the invasion of privacy is so large, that careful oversight by a judge is necessary.

The Bush administration still maintains that US Citizens are not entitled to habeas corpus hearings if the President designates them an unlawful enemy combatant.

Right. He's the Commander in Chief. It's his job to make decisions like that. In the context of war, he exercises extremely broad powers under Article II of the Constitution. Those powers cannot, by the way, be constrained by law (e.g. act of Congress), nor by the Bill of Rights, which only constrains Congress.

And why do you imagine I would have a problem with that? Do you imagine the President would call be an enemy of the United States for trivial or illegitimate reasons? Because he doesn't like my face, my politics, my haircut? That's paranoid lunacy. If you feel that way about the President, you need to emigrate.

If you had followed the Jose Padilla case closely

I have. He's a nasty shit, with a record as long as my arm. When he was finally given his "day in court" the jury of his peers convicted his sorry ass and he was sentenced to 17 years in the pokey. Apparently the President called it right with this guy. You need to find a case where the President called it wrong.

you would know that the Supreme Court was not given an oportunity to fully adjudicate the issue.

Say what? The Supreme Court "adjudicates" anything it damn well pleases. They're not subject to any higher authority. Who failed to give them the opportunity, eh? And how?

the president can designate you an unlawful enemy combatant, lock you up and prevent you from having your day in court.

No, really? Not only that, but any random policeman on the street can open fire and kill me, just like that. Should I worry? Of course not. Policemen don't usually open fire without reason. Similarly, I do not think the President would designate me an enemy combatant without reason. Prove differently, that he's acted capriciously and bizarrely, and I might think differently.

As for getting my "day in court"...pfui. What's to prevent the judge in the court from being just as capricious and unreasonable as you imagine the President might be? Look, friend, I'm as suspicious of power as the next guy -- maybe more so -- but if I am going to have to choose to whom to give power to, I'd just as soon take my chances with a guy (the President) who (1) must run for re-election, and (2) is Constitutionally forbidden from holding power more than 8 years anyway, over a guy (a judge) who holds a lifetime appointment and doesn't ever need to run for re-election.

What you really should be asking is not whether my rights have been infringed, but whether these infringements have enhanced anyone's safety by preventing another terrorist attack?

Nonsense. That's an interesting question for philosophers and historians of the future, but not to me. If whatever the President has done has prevented another terrorist attack -- which it has -- and if my civil liberties feel intact -- which they do -- then I'm happy. I've got more interesting things to do than puzzle out exactly which actions of the President did the trick, and which were actually useless window-dressing, and figure out if there's some fine-tuning that could achieve the same effect with even less annoyance.

Especially when there's some brain-dead Harvard lawyer without a lick of real-life experience (or common sense) who proposes, on the basis of theories that sound good, to return the nation to a set of disastrously naive policies that were tried, and found wanting, when he was 10 years old (and presumably not paying attention).

Jonathan wrote:

Jardinaro1 wrote:
There is no existential threat to the United States by any terrorist or terrorist group.

The 9/11 attacks confirmed what a lot of people had suspected, which was that advanced societies are highly vulnerable to determined small groups using WMD. The fact that we haven't yet lost any cities or suffered a man-made epidemic does not mean that the threat does not exist.

Risk analysis is partly the analysis of what has already happened, an assessment of probabilities based on experience. But it is also in part a forward-looking attempt to assess the odds of events that have not occurred. WMD technology is spreading. We would be foolish to ignore the possibility of WMD attacks at home, including the possibility of multiple simultaneous attacks or of consecutive attacks on multiple cities.

Carl Pham wrote:

I thought of something to add to my (excessive) post above, which is relevant to certain ignorant comments on the whole "illegal combatants denied civil rights eek eek eek" theme.

It's frequently said in that discussion that "not even the President is above the law." Wrong. When the President is acting as Commander in Chief he is above the law, in the sense that he is not obliged to follow any law enacted by Congress regarding those powers.

The reason is the ol' Supremacy Clause, which says the Constitution is the supreme law of the land. Since the President's wartime powers come directly from Article II of the Constitution, when he exercises them he is co-equal to Congress and the Supreme Court and neither may interfere, for the same reason that the President cannot order Congress to pass or not pass an ordinary law, or the Supreme Court to reach a certain decision.

Scary, huh? This is why the Republicans (the old ones, led by Thomas Jefferson) thought Madison was out of his God-damned mind when he wrote those sections of the Constitution. Unfortunately Jefferson was in Paris fucking French countesses and penning them artful love letters during the summer of 1787 and unable to lend the to their opposition, so the Federalists got their way.

The moral of the story is that a Presidential election should be taken seriously. Do not elect someone to Feel Your Pain or Be A Symbol Of Reconciliation. Elect someone with whom you would trust your life, because you may have to.

Leland wrote:

In Jardinero's mindset, the loss of freedom of Jose Padilla and 270 enemy combatants detained at Guantanamo is meaningful, and the lost of 3000 lives is meaningless.

Let's keep in mind that Abdullah al-Muhajir (aka Jose Padilla) was tried and convicted by jury in a US Federal court for conspiring to murder, kidnap and maim civilians overseas. His petition for Habeas Corpus was reviewed through the federal judicial system by the:

Second US Circuit Court
Fourth US Circuit Court
US Court of Appeals
US Supreme Court

So much Judicial review of the US Administration is no where near an existential threat to the US Constitution. However, none of these people got so much consideration before having their lives taken. But hey, Jardinero used the word "meaningful".

Jardinero1 wrote:


Correlation is not causality. The administration's actions may or may not have prevented terrorism in the USA.

There is nothing in Article 2 or the Supremacy Clause which elevates the presidency above any other branch of the government. It does not delegate any lawmaking power to the president even in wartime. According to Article 1 Section 9, Habeas Corpus may only be suspended by the Congress "unless when in Cases of Rebellion or Invasion the public Safety may require it" that's it.

With regard Jose Padilla - if you really had followed the case you would know that his habeas corpus case had not been fully adjudicated. The feds finally cobbled together a criminal case, unrelated to the reasons for his original confinement. Once, the criminal case went to trial the habeas court case became moot and the administration's position on the matter still unresolved.

With regard to the fourth amendment issues I mentioned earlier. The level of snooping and reporting in the brokerage industry is much more egregious than you would imagine. For instance, if you deposited an amount of $10,000 into a brokerage account today and withdrew it tomorrow, that would meet the government's standard for a suspicious activity and require a suspicious activity report. If you asked me to invest in a CD today and then a week from now called me up and asked to sell it to invest in something else, that would require the filing of a suspicious activity report. If you purchased an annuity and then transfered it to another brokerage house that would require a filing. None of these activities are illegal, but if a broker doesn't make the filings he can be prosecuted.

Finally, everyone here seems to miss the essential point I make which is that the response should be commensurate to the threat. I submit that the threat of terrorism is much less than other threats we face in our everyday lives. We do not need to subvert the Constitution to deal with terrrorism any more than we need to subvert the Constitution to deal with AIDS or auto fatalities.

Karl Hallowell wrote:

Those powers cannot, by the way, be constrained by law (e.g. act of Congress), nor by the Bill of Rights, which only constrains Congress.

No Carl, some articles of the Bill of Rights make that distinction (for example, the First Amendment). Most do not, and apply to all branches of the US government and even state and local governments. For example, the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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.

Josh Reiter wrote:

Jardinero1 wrote:
"For instance, if you deposited an amount of $10,000 into a brokerage account today and withdrew it tomorrow, that would meet the government's standard for a suspicious activity" "......They state that they have collected ten of thousands of reports"

Hmmm, for such minuscule amounts of money you'd think there would be a lot more then just tens of thousands of reports. How many transactions take place a day, what percentage are suspicious, and is there a threshold to which a transaction could qualify for a report.

Already, the facts that you present seem suspicious when put up to scrutiny. You presented the facts the onus is on you to detail them so they are clear.

Finally, I understand that it is not entirely possible to quantify exactly how effective any of the current homeland security measures are at preventing future attacks. Just remember, doing nothing is no choice.

Leland wrote:

Finally, everyone here seems to miss the essential point I make which is that the response should be commensurate to the threat. I submit that the threat of terrorism is much less than other threats we face in our everyday lives. We do not need to subvert the Constitution to deal with terrrorism any more than we need to subvert the Constitution to deal with AIDS or auto fatalities.

9/11 wasn't a threat, but an actuality. You are trying to marginalizing by comparing the risks to those who lived.

You claim of errosion of the Constitution is primarily based on some notion that Jose Padilla was denied rights. The issue of Habeas Corpus did become moot when he was convicted, but prior to that, it was reviewed on appeal to the US Supreme Court. After SCOTUS rejected appeal, the only ajudication left was to get Congress or the States to pass an Amendment for him. It's unlikely the President would have provided a pardon.

You're argument about $10,000 transfers is in regards to a law enacted in 1970 and last modified in 1996. The law was created to track attempts to launder large sums of money and not as a result of terrorism. Perhaps you should look into the Commerce Clause of the US Constitution. Hint, it's not in the Bill of Rights.

So you trivialized the death of 3000 people as meaningless, claimed a convicted conspirator to murder was denied protection of the US Constitution eventhough his appeal was heard in 4 different US Courts including SCOTUS, and incorrectly suggest a 36 year old law is some how related terrorism and is existential threat to the US. Tell us again how we are to take you seriously?

Jardinero1 wrote:

Leland, yes, the origins of the law do date back to 1970. The reporting requirements have been updated significantly since 9/11/2001. The examples I quoted are actual examples promulgated, since 9/11, by the feds and used in training to meet firm element licensing requirements. It seems absurd, but the most mundane financial activities have become suspect. It illustrates how far the feds have gone to make everyone a potential suspect and anyone who fails to report an accomplice.

Karl Hallowell wrote:

Incidentally, if we had one 9/11 a year, I'd say that would justify a similar level of expenses to traffic deaths (which receives in prevention and mitigation a considerable amount both from government and its citizens). There are several reasons. First, someone is benefiting from killing people and destroying property. That is a much greater threat than equivalent harm accidental or negligent death because it can be expanded. One 9/11 a year is quite tolerable compared to other sources of harm we tolerate, but 100 9/11's a year is not, that's on the order of the greatest causes of death like cancer or heart attacks. We put greater efforts into countering and punishing deliberate acts of harm because that keeps those acts from being repeated on a frequent basis.

We also ignore that such terrorist attacks are designed to cause harm. They will tend to be more damaging than an accident with equivalent body count. Such attacks are also designed to change the society in some way favorable to the terrorist. I very much doubt that someone who kills thousands of innocent people in a 9/11 type attack really wants to change society in a beneficial way.

Finally, a less proactive approach to terrorism is going to give the initiative to the terrorists. That is a losing strategy.

Leland wrote:

The reporting requirements have been updated significantly since 9/11/2001.

No, they were updated significantly in 1996. It's just more noticeable today since the economic situation is such that more people can transact more than $10,000. I agree, the law needs to be updated in terms of raising the value. I've had to deal with the nonsense a few times. But other than terrorist laundering money, the law really has nothing to do with the war on terrorism (more often used on the war on some drugs).

I beat you up on your early comments, because I think what you wrote was very cavalier and callous. I think I understand your passionate concern for protecting individual rights. But seriously, the monitoring of commerce is a responsibility of Congress, and not an invasion to an unwritten right to privacy. And again, it doesn't have to do with the GWOT. Your comments about 9/11 are just absurd, the threat was/is very meaningful. The WTC towers weren't attacked out of convenience.

I can agree the initial treatment of Jose Padilla is a concern. He wasn't on the battlefield, so it is chilling to pick up civilians and remove some protections. However, it is not unprecendented (FDR did far worse), and the proper oversight was given in his case. Padilla is truly scum.

As for the 270 detainees... I do think it is extraordinary to provide civilian protection to enemy combatants captured on the battlefield. Does it weaken the US to give them such protections? No. However, how habeas corpus is handled in terms of enemy combatants and soldiers in the field really need to be worked out. This is where trying to run a war, and warriors, like law enforcement is irrational. You can't pull a soldier off the frontline for every POW captured to provide habeas corpus. The SCOTUS didn't provide this structures, so it will have to be figured out. The answer isn't putting the burden on Secretary of Defense either, as Jose Padilla's lawyers tried to do.

Jardinero1 wrote:

Leland, I appreciate your comments, but I work in the brokerage industry. Are you suggesting you know more about it than I do? You keep referring to the $10,000 limit which relates to Currency Transaction Reports. I am referring to something altogether different - Suspicious Activity Reports. The reporting requirements changed significantly after 9/11.

Leland wrote:


Wow, so you work for the brokerage industry, and you still don't know that the Suspicious Activity Reports became law on April 1, 1996?

Both my points stand, regardless of what industry you work. SARs are not a product of post 9/11 over reaction, because they became law prior to 9/11. SARs were created to track money laundering. SARs are not some violation of the Bill of Rights or any other part of the US Constitution.

If you want to explain how the Patriot Act forced compliance to reporting SARs on the brokerage industry, I hope you plan on explaining how the clearly defined "senior foreign political figures" are protected by the US Constitution. If you are going to push for fighting terrorism as a criminal problem, exactly what do you have against Congress creating laws to regulate commerce and placing safeguards against money laundering?

Jardinero1 wrote:

Leland, I never said the law doesn't predate 9/11. I keep telling you that the reporting requirements changed after 9/11. See, there's the law and then there's all these federal agencies tasked with enforcing the law and they have a high degree of discretion and issue administrative orders as to what is proper execution, Leland. The brokerage industry is subject to the jurisdiction of more more than one of these federal agencies and several SRO's. The definition of suspicious became more all encompassing after 9/11; so all encompassing, per the examples I cited, that little old ladies get SAR's filed on them.

I started down this path with the SAR's as an example of how rights are being subverted in the post 9/11 era. Yes the law existed prior to 9/11. It was an infringement then. With increased reporting of ever more mundane and legal activities it's more of an infringement now.

I stand by my assertion that SAR's are a violation of the 4th amendment and my forced compliance with the reporting requirement is an un-Constitutional Writ of Assistance and a violation of my due process. Why should anyone be forced to spy on anyone and report non-criminal activities? SAR's have nothing to do with reporting crime or criminal activities. I have no problem with reporting a crime when I see one. Personally, I won't do business with people whom, I don't believe, act legally or ethically. But I have big problems with being told I will lose my license and go to jail if I don't turn in some little old lady who changed her mind on a trade or decides to move her annuity to a different broker, to cite two examples used by the feds.

Leland wrote:

I stand by my assertion that SAR's are a violation of the 4th amendment and my forced compliance with the reporting requirement is an un-Constitutional Writ of Assistance and a violation of my due process.

Fine, then stand up to your principles, but I don't think you'll do well if you are lucky enough to get to the SCOTUS. Again, this law has been around for awhile, and is not an over-reaction to 9/11 as you implied. If you think it is now a 4th Amendment violation has occurred because since 9/11, the Patriot Act required emphasis on the SAR on "senior foreign politcal figures", then again, I ask you to explain how these people have 4th amendment protections.

Frankly, it seems you are whining about some government burden you don't like. No problem, several people who see this can provide a long list. However, this seems like a sad issue for you to trumpet the alarm after claiming that 9/11 is not meaningful.

Jardinero1 wrote:

I give up Leland, you must know more about the brokerage industry and financial regulation than I do. I have only worked there for nine years, after all.

Just be careful out there. Your broker and your banker are watching you. They are taking notes and reporting you. And they can't even tell you.

Leland wrote:


I find it amusing that you brag about being in the brokerage industry. What exactly does such credentials bring to whether or not SARs are an over-reaction to 9/11? Yeah, you could have more insight in how they effect your industry, and how it is undue burden on the industry by "Big Government".

To be clear, I'm no fan of SAR's. I said it earlier that I find the law outdated at best. I would likely be indifferent to a repeal of the law. My issue with your comments has nothing to do with the brokerage industry (BTW, what does your knowledge of brokerage industry bring to the discussion of Jose Padilla and habeas corpus?). My issue is your claim of over-reaction to an event that you claim is not meaningful. Seriously, you're the first person I've ever personally met to make a claim that 9/11 isn't meaningful. You can bet I'm going to challenge a person who makes such a claim.

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This page contains a single entry by Rand Simberg published on June 17, 2008 7:51 AM.

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