----- Original Message ----- From: "Justin Schwartz" <jkschw at hotmail.com>
>
> Your point? The USA Patriot Act is an insult and an attack on
liberalism.
> And if you reject the liberal commitment to due process, what will
you
> oppose arbitrary detention with? We liberals oppose USAPA in the
name of
> liberal values. You opposeit in the name of what?
============= And the attack on it -liberalism- was made from within the very discourse of liberalism itself. What's up with that?! Or, paraphrasing Bill Clinton, is there "nothing wrong with liberalism that can't be fixed with what is right about liberalism"? I'll be the first to suggest that if I were the President, Ashcroft would be parachuted onto the Arctic Tundra fully clothed with a three week supply of Brussels Sprouts and an agreed upon pick-up time. Would that experience be enough to change his mind on the preciousness of due process in the service of liberty?
************* ABA Leadership
Statement of Robert E. Hirshon President, American Bar Association November 9, 2001 The American Bar Association is deeply troubled by the U.S. Justice Department's newly released administrative rules that would permit the government to listen in on conversations between lawyers and clients in federal custody, including people who have been detained but not charged with any crime, if there is "reasonable suspicion" that an exchange of information may occur about future acts of terrorism.
We certainly understand the necessity to take all steps necessary, consistent with our Constitution, to prevent terrorist acts. But these new rules run squarely afoul of the Fourth and Sixth amendments to the U.S. Constitution.
No privilege is more "indelibly ensconced" in the American legal system than the attorney-client privilege. The Sixth Amendment guarantees a right to counsel. The new rules clearly violate that privilege, and therefore seriously impinge on the right to counsel. If the government has probable cause to believe criminal activity is occurring or is about to occur, it can ask a judge to approve the type of monitoring proposed by these regulations. But prior judicial approval and the establishment of probable cause - the standard embodied in the Fourth Amendment - and not "reasonable suspicion," are required if the government's surveillance is to be consistent with the Constitution and is to avoid abrogating the rights of innocent people.
***********
"Ah, but a privilege is not a right, just as driving a car is a privilege and not a right", I can hear Ashcroft say. How come no mass Elliot Richardson type of resignations from Justice department staff in protest over the Patriot Act? Nothing is worse than when lawyers go into cynical and Machiavellian mode when they argue with one another and their fellow citizens [yes, rape, murder, child abuse are worse, but you know what I'm getting at]. So when is the ABA going to mobilize the thousands and thousands and thousands and thousands of lawyers in Wash DC in a Ghandian and MLK mode of collective action and shut down Congress, the White House and the Supremes the way citizens have been mobilizing against the Bretton Woods institutions? Before or after the Supremes render there opinions? Really, I want to know when the legal factions in the US are going to get their shit together and realize the litigious approach to social problems has reached the point of diminishing returns. Or have they, like Holmes, learned to refrain using the term justice after reading certain bits of case law or after appearing before the Bar? Don't tell me there are good lawyers, I know that, but right now they're the exceptions that 'prove the rule.'
> As for your puerile idea that lawe is just a bunch of philosophical
> abstractions backed up with guns, what are you trying to say?
====== The assertion stands. You know exactly what it means. Just because you disagree does not justify the use of derogatory language. Or are you falling prey to the adversarial fetish?
>Austin and
> Hobbes articulated a sophisticated defense of law as enforceable
commands,
> which, however, is untenable--see Hart's devasting attack in The
Concept of
> Law.
======== And in the Hobbesian-Austinian paradigm the commands are ultimately backed up with? The larger problem is why some people are in love with the idea of giving commands that have no justification -- yet are law -- and others are dumb enough to follow them. Even if we hold to a minimalist notion that some enforceable commands are necessary to social life, if enough citizens disagree with the content of those commands and engage in non-violent collective action until the State turns it's guns on them, then what? Are lawyers the ones who have a monopoly on determining when political revolution is justified? The legal theorist's & lawyer's quest for nice, neat, monistic explications of normative-ethical certitude for the sake of adjudicating competing claims is Cartesian folly in a pluralistic society. Just what is the ultimate tool of enforcement when the incommensurability over the manner of justifying commands fails? If law and philosophy were enough, there'd be no weapons. Would Joe Lieberman or Joe Biden reading Hart make them better legislators? If everyone on the planet read Hart's essay would the problems of violence associated authoritarianism, paternalism, racism, sexism and their expression in laws disappear because we all understood the law better?
>But I think your reductionsim is supposedto be dismissive of law.
> That's foolish. We need enforceable rules for social conduct, or are
you
> suggesting that society should not require those who make promises
of a
> certain sort, e,g., to pay when you do something for them, to keep
those
> promises?
=========== Has the State kept it's promises? I'm not dismissing law, I am criticizing the notion that utlimately it is founded upon a content-neutral structure of rationality which is capable of solving all social-philosophical conflicts and when citizens get fed up with the laws and engage in action to the point where the State feels itself threatened, the state will claim the law legitimates it's use of violence against it's own citizens. At that point, the distinctions between legality/alegality/illegality as well as the theories of justification which are part and parcel of legal theory are epistemically shattered, 'tis all in pieces, all coherence gone.' Show me a State that doesn't assert it's own immortality vis a vis it's subjects or other States and won't do whatever it takes to secure it.
>Should we just cluck disapprovingly when the authorities kill and
> steal, or should we be able to call on--ultimately--guns to stop
stop them?
>
> jks
===========
One need simply look at Chomsky's favorite example: the US vs. Nicaragua. Has Nicaragua not been reduced to clucking? If citizens are unjustifiably constrained from challenging the State's monopoly on violence with their own assertions backed with guns when all other avenues for securing their liberty and safety or instantiating their shared norms of what is constitutive of justice aren't they just reduced to clucking? It took a war to end slavery in the US yet we still have debt peonage and other varieties of indentured servitude in the US, *still*, thanks to the legal profession and the law. We won't even go into the amount of slavery still existing in other parts of the world, all indirectly sanctioned by non-Western notions of law. You think having non-Western lawyers read Hart, Holmes etc. will solve the problem on it's own? Will citizen's lawsuits to stop the bombing of innocent people in Afghanistan have any effect on the US government? Institutionalized violence exposes the tragic limits and paradoxes of justification in philosophical-legal discourse even as, in many cases, legal-philosophical discourse drove agents to institutionalized violence. We've yet to see a solution heh? What's the one true theory of law?
Ian