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"Actually, I agree with Rusty and Fiat on this. I saw a lot of fearmongering around executive orders by the far right during the '90s and refuse to fall prey to similar fears a decade later. As near as I can tell, this EO doesn't constitute a fascist policy, largely because **any action by authorities is closely tied to acts of violence.**"
In point of fact, it is not closely tied to acts of violence.
I don't normally pull rank, but I am a lawyer, and I believe that both Rusty Shackleford and yourself, David, might be a little too sanguine about the limiter on this one. Both seem to take comfort in this governing clause:
"to have committed, or to pose a significant risk of committing, an act or acts of violence that have the purpose or effect of:"
On statutory interpretation there is room here that you could drive trucks through. Let's break it down:
"to have committed.... acts of violence that have the purpose or effect of."
Okay, that's one thing, there's a clear threshold that 'acts of violence' must be committed. If that was the end of it, we might be very concerned. But we might take some comfort.
But look at this:
"to pose a significant risk of committing... an act or acts of violence that have the purpose or effect"
Excuse me? What the hell does 'significant risk of' mean? This is an anticipatory clause. No act of violence needs to be committed. No act of violence needs to be imminent. No act of violence needs to be planned or conceived.
All that is required is an assessment that a person 'poses a significant risk of committing' an act of violence, and bob's your uncle.
Think about that. How does law enforcement rate and register threats and risk potential?
a) Personality profiling... remember what happened to Richard Jewell? A great deal of money is being sunk into statistical profiling models. Profiling, for better or worse, is a recognized investigative tool which is used to narrow or zero in on suspects. I believe that there may be cases where profiling has been accepted as probative evidence in criminal or civil courts in the United States.
b) Association directly or indirectly with persons known or suspected to have committed acts of violence... a potentially very broad net that encompasses not only family, neighbors and people at the workplace, but also potentially the charities you donate to, and the people who are writing in to your blog.
c) Certain political activities. For instance, suppose you intend to attend an anti-globalization demonstration. Those things have gotten a reputation for being unruly, windows get broken, jerks throw rocks, etc. The intention to attend a political rally where there may be an expectation on the part of the authorities of violence may be sufficient to trigger the pre-emptive power. This net can be cast very, very widely. Remember that it is documented that the police have conducted surveillance on and even infiltrated all sorts of peace groups, environmental groups, civil rights groups etc. Agents provocateurs are also occasionally documented and much rumoured. The anticipatory nature of this clause creates a situation where it becomes de facto risky to attend or participate in any event or process sponsored by these groups, even in a casual manner. I could anticipate a chilling effect on social activism of any sort.
Ultimately, the anticipatory nature of "significant risk of committing..." is terrifying in its scope.
Significant risk explicitly does not speak to a specific act planned or anticipated. Rather, 'significant risk' speaks to an assessment of potential.
Potential. Think about it.
Who makes the determination of significant risk?
In point of fact, it is not closely tied to acts of violence.
I don't normally pull rank, but I am a lawyer, and I believe that both Rusty Shackleford and yourself, David, might be a little too sanguine about the limiter on this one. Both seem to take comfort in this governing clause:
"to have committed, or to pose a significant risk of committing, an act or acts of violence that have the purpose or effect of:"
On statutory interpretation there is room here that you could drive trucks through. Let's break it down:
"to have committed.... acts of violence that have the purpose or effect of."
Okay, that's one thing, there's a clear threshold that 'acts of violence' must be committed. If that was the end of it, we might be very concerned. But we might take some comfort.
But look at this:
"to pose a significant risk of committing... an act or acts of violence that have the purpose or effect"
Excuse me? What the hell does 'significant risk of' mean? This is an anticipatory clause. No act of violence needs to be committed. No act of violence needs to be imminent. No act of violence needs to be planned or conceived.
All that is required is an assessment that a person 'poses a significant risk of committing' an act of violence, and bob's your uncle.
Think about that. How does law enforcement rate and register threats and risk potential?
a) Personality profiling... remember what happened to Richard Jewell? A great deal of money is being sunk into statistical profiling models. Profiling, for better or worse, is a recognized investigative tool which is used to narrow or zero in on suspects. I believe that there may be cases where profiling has been accepted as probative evidence in criminal or civil courts in the United States.
b) Association directly or indirectly with persons known or suspected to have committed acts of violence... a potentially very broad net that encompasses not only family, neighbors and people at the workplace, but also potentially the charities you donate to, and the people who are writing in to your blog.
c) Certain political activities. For instance, suppose you intend to attend an anti-globalization demonstration. Those things have gotten a reputation for being unruly, windows get broken, jerks throw rocks, etc. The intention to attend a political rally where there may be an expectation on the part of the authorities of violence may be sufficient to trigger the pre-emptive power. This net can be cast very, very widely. Remember that it is documented that the police have conducted surveillance on and even infiltrated all sorts of peace groups, environmental groups, civil rights groups etc. Agents provocateurs are also occasionally documented and much rumoured. The anticipatory nature of this clause creates a situation where it becomes de facto risky to attend or participate in any event or process sponsored by these groups, even in a casual manner. I could anticipate a chilling effect on social activism of any sort.
Ultimately, the anticipatory nature of "significant risk of committing..." is terrifying in its scope.
Significant risk explicitly does not speak to a specific act planned or anticipated. Rather, 'significant risk' speaks to an assessment of potential.
Potential. Think about it.
Who makes the determination of significant risk?
Total discussion here: http://dneiwert.blogspot.com/2007/07/that-...tive-order.html