Tuesday, January 02, 2007

Top 10 Civil Liberties Violations of 2006

In the spirit of all those year-end top 10 lists (I know it's 2007, already--I was busy!), Slate's Dahlia Lithwick, my favorite legal commentator, published her top 10 list of the worst civil liberties violations of the year. Sadly, I don't have much hope that the list will be any shorter at the end of 2007.

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Anonymous Anonymous said...

Unfortunately, in order to round it out at an even ten, she took some leaps.

I don’t consider a specific position taken in court to be a violation of “civil liberties” unless the government continues doing it after a decision has been reached.

So, the Moussaoui death penalty issue isn’t really a violation of anyone’s civil liberties since 1) it was litigated in court; and 2) they lost. The result would have been the same if they had not sought the death penalty.

The ACLU subpoena issue probably was overblown, and the product of bad reporting and a government attorney that wrote a subpoena too broadly. Whatever the case, the government reconsidered its position, so I think it should be chalked up to being a mistake.

As to “slagging the courts” because the American people have decided to not pay attention to the activities of the courts (despite their opinions being available online), they need to rely on press releases from the litigants – and usually the loser. Therefore, the government is just doing what any loser would do. If the American people would read the complained-of opinions, then this wouldn’t be a problem, but, they don’t. Finally, the “courts” don’t really have civil liberties per se.

The “state secrets” doctrine was a position taken by the government – in court – so, it will ultimately be subject to judicial affirmation or rejections. Everyone, criminal defendants and the government, can make arguments before courts, and this one just one of them.

As to “government snooping,” the government could have asserted that the courts had no power to stop them from doing it, but they did appear in court and attempt to defend it. A true violation of civil liberties would include absolutely no appearance in court.

The MCA might be unconstitutional in whole or in part. I don’t think Lithwick even read it, so her opinion is almost worthless. It is a political act (passed by a democratically-elected government), which, in itself doesn’t have any import, except if it is actually used to deprive someone of said “liberty.” (The act excludes US Citizens, so, some definition of “civil liberty” is in order.) The government has defended it in court, and we will see if it will be amended or struck down in whole or in part.

Hubris isn’t a violation of anything, but a state of mind.

She makes some good points, but because she is writing for a lay audience she dumbs it down so much that non-lawyers don’t even understand what the underlying disagreements are. This is far more dangerous than any piece of legislation because it turns people into slogan-shouters.

1/02/2007 12:34 PM  

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