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 An Observation   
 Author:  matt
 Dated:  Monday, August 04 2003 @ 05:07 AM PDT
 Viewed:  1602 times  
PoliticsHave you ever noticed that just about any law passed by the Congress that has a sound-byte friendly name at some level or another infringes on people's constitutional rights?

Since these are also the only names of bills that we're exposed to by the media, let me give you an example of what all the other bills tend to look like: "A bill concerning participation of Taiwan in the World Health Organization" (S.243) Doesn't quite fit into the run down at the head of the hour, does it?

So anyway, avoiding for the moment the discussion of whether Washington or the networks are to blame, let's run down the list of the five that I could think of off the top of my head (in roughly reverse-chronological order).

Before I get into this, I'd like to point out that, as we all know, the road to hell is paved with good intentions. It is not my contention that members of the U.S. Congress set out to take away anyone's rights, or were in any way bent toward some nefarious purpose. I understand the process enough to realize that there are unintended consequences to everything, and that even the intended consequences may be founded on bad information.

This is also not meant to be an indictment of one political party or another. Believe me, there's more than enough stench lingering to get into everybody's clothes.

That being said, let's talk about some of the side effects of these laws.

The Patriot Act
Just off the top of my head:
  • Numerous violations of the fourth amendment, including, but not limited to, hand searches of checked luggage by TSA screeners. The key phrase here is "but upon probable cause", without which no federal authority can legally search that which is not within plain sight. Here's an example of compounding a fourth amendment violation with a first amendment violation. Ain't life grand?

  • A not quite as well known provision in the act violates the eighth amendment by confiscating all assets of a person deemed to be a terrorist, even if that person is a U.S. citizen, regardless of whether the assets were gained through illegal activity, and also, according to some interpretations, regardless of whether or not the person is even convicted.

  • Though technically speaking, this is not a provision of the Patriot Act, per se, a Presidential Military Order from November 13, 2001 allows the Secretary of Defense to detain suspected terrorists of foreign citizenship, without regard to location or elapsed time in detainment. This is where that whole base in Cuba factors in. This is also the same power that the Attorney General lobbied for, and Congress gave him a severely limited (i.e. sensible) subset of. (There is a basis for that statement, but not having eyewitnesses available for interview at the moment, I'm tagging it as speculation.)

    So far, I'm ok with this. However, somewhere along the line, the "enemy combatant" language got reinterpreted, and we end up with U.S. citizens whose constitutional rights have been summarily revoked, regardless of whether they were apprehended on foreign soil. Don't interpret that statement or the link to mean that I'm a fan of Jose Padilla (he was born in Brooklyn, so you know he's a Yankees fan). If he's guilty, throw away the key. To find that out though, the government first has to charge him with a crime.

    As of right now (according to unsubstantiated sources), he's been in a military prison 485 days without being charged with a crime. If nothing else, this is a blatant violation of the sixth amendment.



DMCA
This one has been pretty well hashed over in the press, but one of the side effects of this legislation is a violation of the first amendment rights for people to publish their work. In this case, the work in question amounts to computer code that serves as a means of circumventing encryption controls put in place to protect copyrighted works.

While on the surface such "work" sounds downright shady, what people should realize is that it's not only quite common in the world of cryptology to try to break somebody else's cipher, it's usually encouraged. For example, the reason that cryptography professionals feel comfortable using the RSA algorithm is that people have been trying to break it for twenty years or so, and very little headway has been made. The logic is that because (with the exception of one-time pads), no encryption can be proven to be secure, a given algorithm is considered to be secure only after extensive peer review.

The DMCA makes the peer review aspect illegal to engage in at all, even in the absence of intent to harm. Just to give a little perspective on how far they're overstepping their bounds, I own a lockpick set. I'm not a locksmith, in law enforcement, or even a tow truck driver. There is no compelling reason for me to have a lockpick set, other than the fact that I enjoy puzzles and needed a new hobby. It is entirely legal for me to walk the streets with my picks in their leather case and the instruction manual that came with them, because in order for the tools to be illegal, intent has to be shown. There is no provision in DMCA for intent, and that's what makes it unconstitutional.


CDA
Granted, the Supreme Court struck this one down as a violation of first amendment rights, but the fact that it was passed in the first place is still scary.


Megan's Law
This is the one where I get hate mail from both sides of the political spectrum.

As much as I despise sex offenders, I believe that Megan's Law is in violation of the eighth amendment, possibly the fifth as well, but certainly Article IV, Section 1. The only argument I can make is a common sense one.

If a person is convicted of a crime, any crime, the judge and/or jury (depending on the district) decides on a sentence, which the person is then obligated to carry out. Upon successful completion of their sentence (including parole, etc.), the person is free to go about their business and justice is said to have been served. Theoretically, this is how the justice system is supposed to work.

So, with Megan's Law, regardless of whether the offender had some sort of registration as part of his or her sentence, they are never again allowed to have privacy about their past. No sex offender should ever have any peace, so it's so far so good, right?

Here's the problem. If that's what the justice system had intended should happen, it would've been part of the sentence. A municipality, state legislature or even the U.S. Congress has no right to subvert those powers solely bestowed upon the various judicial bodies. It's just that simple.


Unfortunately, as I mentioned in another post, I don't have any solutions to offer. I just wanted to make sure that we were all aware of exactly how tenuous our grip on the Constitution has been for the past few years.



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  • An Observation
    Authored by: Dan4th on Monday, August 04 2003 @ 09:32 AM PDT
    Well, I can't tell if I agree with you on Megan's law, since I'm not sure you expressed an opinion either way - so I'm not sure how you are going to get hate mail. Saying it's unconstitutional isn't necessarily saying that it's a bad thing, just that it's illegal. And last I checked, you weren't expressing blind loyalty to the constitution, just general approval of the principles expressed.

    anyway.

    I personally don't think sex offender registration is a good idea. Period. I don't think I would care that it's unconstitutional if I did think it was a good idea. I think the Roe v. Wade decision is sketchy, but I'm glad abortions are semi-legal.

    But to comment on the actual point of your post, if I gathered it correctly - well, of course the ones that are newsworthy are unconstitutional. They're the ones that are designed to accomplish big flashy things quickly. And the constitution is designed to keep government from doing anything quickly, which I think is a great idea... Hm. Thats a bullshit argument that has nothing to do with your point, but I really need to get back to work. *grin*