
Judge Rules Terrorism Watchlist Violates Constitutional Rights - jbegley
https://www.nytimes.com/2019/09/04/us/politics/terrorism-watchlist-constitution.html
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yardie
Good riddance. It only took 16 years longer than it should have. A secret
government list that the public can't audit, has no means of due process, and
prevents you from going about your life has no business in a free society.

~~~
auiya
It doesn't mean the list is going away, it just means people proven to be US
citizens will be expunged (rightfully so). Anyone NOT proven to be US citizens
(and located outside the US), and thus not protected by US Constitutional
rights will likely remain on the list.

~~~
aqme28
I've commented on this before. It's a myth that the US constitution only
protects citizens.

The constitution explicitly delineates between rules that apply to "people"
and rules that apply to "citizens." Some rights apply to one group and some
both.

~~~
phalangion
From the article:

'A federal judge ruled on Wednesday that a federal government database that
compiles people deemed to be “known or suspected terrorists” violates the
rights of American citizens who are on the watchlist'

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exabrial
* watch lists

* red flag laws

* no fly lists

All well intentioned. All ripe for abuse. All unconstitutional. All rights
require due process before they can be be removed.

~~~
devoply
I see nothing wrong with denying anyone guns for a limited period of time
because their state of mind is in question. I don't see who is losing out when
this happens.

~~~
mikekchar
Personally I don't see anything wrong with denying people guns. <\- that's a
full stop ;-) _However_ in the US it is your constitutional right to bear
arms. This has been widely (virtually universally in the US) regarded to mean
that it is your right to _not_ be denied a gun (without due process).
Questioning someone's state of mind is not due process. It really doesn't
matter if we are talking about guns or we are talking about hamsters _: if you
have a right enshrined by your constitution it 's pretty darn important that
you don't have that right stripped away simply because someone levels an
accusation at you.

_ It would be pretty weird to have a right to bear hamsters...

~~~
mjburgess
> However in the US it is your constitutional right to bear arms.

Only established by the supreme court in 2008.

Abortion is a "constitutional right" likewise. And the american right see no
issues with extreme restrictions.

There is no amendment saying either people have an individual right to possess
a firearm, nor an individual right to have an abortion. These are inferences.

What the second amendment says is that _because_ the US needs defence (given
_no contemporary standing army_ ), the right to bear arms is necessary in
general.

An individual right in the time of standing armies is _not_ written anywhere
in the constitution and was derived, by interpretation, only in 2008.

My point is that what counts as a "constitutional right" is a matter of
history, precedent and agreement -- they are _conventional_ not just written
in some stone tablet. And it is quite reasonable to contest these conventions.

~~~
oh_sigh
Were individual gun ownership restrictions or even considerations of
restrictions ever done in any manner in colonial America? Not that I've ever
heard. Which makes me believe the 2nd amendment was not about individual gun
ownership as you say.

~~~
jki275
Yes, colonial British subjects had restrictions on ownership of weapons. They
had soldiers quartered in their homes. They had taxes without representation.
They had their right of free assembly restricted. They had their religious
freedoms restricted.

The founding fathers wrote the bill of rights specifically to cover these
things that British rule had done to the people who left Britain.

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pimmen
"Files released by the F.B.I. in 2011 under the Freedom of Information Act
showed that the F.B.I. was permitted to include people on the watchlist even
if they had been acquitted of terrorism-related offenses or the charges are
dropped."

This sounds like an open shut case of abuse by the executive branch. It's the
judicial branch's job to determine guilt, to still effectively sentence
someone who's been cleared in court must be a huge overreach of the executive
branch.

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mnm1
Good. There is no excuse for treating citizens this way. None. Not 9/11\. Not
the Boston bombings. Not anything else. They are citizens. If the government
thinks they were criminals it should indict and put them on trial. Otherwise
leave them alone. And if another attack ten times worse than 9/11 happens? So
be it. The government should figure out another way that's not
unconstitutional and doesn't treat people like animals to conduct their
operations. Better thousands die under freedom than thousands live under
tyranny. After all, as others have said and we have seen especially since
9/11, those who are willing to give up freedom for security will have neither.

~~~
moate
I don't understand. What's "Freedom" and how do I, as a US citizen, actually
have it?

"Freedom" and "Liberty" are all great, noble words that make for great talking
points and sound bites. They're also just sort of vague concepts and opinions
more than absolute, specific things. You say this isn't what freedom looks
like. If 51% of the population disagrees with you, who's right?

Fact of the matter is, you can't have both "freedom" and "democracy" (or
really any government) in any real way. It's all trade offs.

Best bet isn't "freedom" or "liberty" since those are extremes that presumably
exist solely in a binary (it's either free, or it's not, no shades of gray)
and instead aim for "fair" and "consensus". At least those are possible.

~~~
didibus
These are the more abstract philosophical meanings of freedom and liberty:

> the state of being free within society from oppressive restrictions imposed
> by authority on one's way of life, behavior, or political views

> the absence of arbitrary restraints, taking into account the rights of all
> involved

> to be free is to be self-determining, autonomous

And the more concrete applicability is that of:

> "giving oneself their own laws", and with having rights and the civil
> liberties with which to exercise them without undue interference by the
> state

Fundamentally, it is the idea of rights. Things that you are allowed, and that
no one can take away from you, even if democratically ruled against by the
majority. Such as: the freedom of conscience, freedom of press, freedom of
religion, freedom of expression, freedom of assembly, the right to security
and liberty, freedom of speech, the right to privacy, the right to equal
treatment under the law and due process, the right to a fair trial, and the
right to life.

Democracy in that system isn't supposed to supersede liberty and freedom. What
happens is that free people can come together, and if they agree, they can be
governed by the rule of law, laws which must be clearly laid out, which can
not take away fundamental rights, and which are enacted fairly and with due
process. If the individual does not agree to this, they should be free to
branch out and have different laws to be governed under. That last part is the
idea of the states retaining power over themselves, with the possibility to
even decide to remove themselves from the US if they so wish.

All this is very much possible. Though some people argue it necessitates a
virtuous culture as a prerequisite. In the sense that it requires people to be
reasonable, rationale and of the same belief that freedom and liberty matters
most.

~~~
moate
There are exceptions put in place by the state against literally every right
you listed (except maybe "conscience" since IDK what specifically you're
getting at there, but it's not really important).

Democracy has to, by it's nature as a collective institution, impede the
freedom of individuals to do what they themselves want for the social good. If
it's a scale, and democracy is "more free" anarchy would be "most free" (not a
concept I believe in, again I'm posing that freedom is a binary concept, not a
scale itself).

My point is that when it comes to the governing of large groups, you cannot
have a free society. You cannot have freedom, and also have private ownership
and capitalism and all the things we currently have. You can pay service to
"liberty" all you want, but I can't "give myself my own laws" that allow me to
go against the state. The state will always serve as an impediment against
freedom and true self determination. And I don't think that's a bad thing (To
be clear, I'm a socialist not an anarchist, which is also why I think societal
requirements are more important than individual liberty).

~~~
didibus
There are fundamental rights, and they have to be black/white, because they
protect the minority against the majority. For everything else, it is decided
on by elected representatives.

If you operate in a political system where democracy can overrule all rights,
it is not a liberal democracy. The US is a liberal democracy, and that is why
the judge ruled that it was not constitutional, even though the democratically
elected representatives put in place the watch-list. So here is a great
example of liberty at play, even though the majority ruled to have a watch-
list, it was ruled out because it went against the fundamental rights of a
minority.

> You can pay service to "liberty" all you want, but I can't "give myself my
> own laws" that allow me to go against the state.

You can! You can freely renounce your citizenship and freely move elsewhere.
The state is not allowed to hold you back from doing that.

Now, when it comes to secession, it gets more complicated. Some people argue
it is a fundamental right, as per the constitution, that said, the wording is
very vague and unclear about it. So we could say the constitution doesn't
really guarantee that you are free to secede. That doesn't mean it shouldn't
be a guaranteed right though! Some people think it should, and if it isn't
there in the constitution, maybe it should be added.

> The state will always serve as an impediment against freedom and true self
> determination

That's the thing though. The state are just the powers that be. The idea of
liberty and freedom are moral, which is why it requires a culture of it. While
democracy is a system, not a moral. People who believe in liberty fight for
it. That's fundamental to preserve freedom. The freedom to "give myself my own
laws" should exist. Any person should be allowed to take their private
property and secede from the US, and make it a new self-ruled region. If
California wants out for example, they should be allowed to leave the union.
Such would dictate the idea of liberty. But, it would work similar to copy-
left open source licenses. In their new found independence, they need to
continue to uphold liberty. If they do not, then it is a fundamental right
that the newly governed should similarly fight for it until they have it.

So you see, it is much more an ideology. __People should not be allowed to
restrain your freedoms, unless what you are doing is forcing theirs to be
restrained. __

And this can work quite easily within a democracy. Basically, people assemble
for all kind of matters, and decisions and rules are put in place in agreement
with the majority, with the idea that it will benefit most. Once in a while
though, it affects an individual negatively. It is that person 's right to
come forward and say that their liberty is being restrained from the ruling of
the majority. If true, then the ruling should be abolished, even though it was
beneficial to most people.

~~~
moate
We disagree fundamentally on basically every point you've made. I do not have
the time or energy to debate you on any of this. You have no convinced me of
the existence of liberty or freedom actually existing outside of the minds of
men, and have continued to show what I believe to be the logistic contortions
needed to continue to believe in these concepts actually being implemented in
the real world. None of this makes you a bad person, and I wish you well in
life.

~~~
didibus
Hey, no hard feelings whatsoever. By the way, I'm not saying that that's the
right or best ideology. I'm just saying that there's a definition issue. You
take freedom at face value, as in, I can do whatever I want without anyone
trying to stop me. But people who support freedom and liberty aren't saying
that. They're saying that liberty trumps all, even the rule of the majority.
That there are no good reason to justify taking away someone's freedom except
to protect someone else's. And that this rule is above the rule of democracy.
Democracy is used only to decide on things that don't affect people's
freedoms. If it does, it is overstepping its bounds, and the courts are there
to judge on that. And if the system fails to uphold the liberty of its people,
that the people should fight to have it back.

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SamuelAdams
Here's a direct link to the ruling. This is a PDF.

[https://int.nyt.com/data/documenthelper/1689-terror-
watchlis...](https://int.nyt.com/data/documenthelper/1689-terror-watchlist-
ruling/75cd50557652ad0bfa2a/optimized/full.pdf#page=1)

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davidmoffatt
Hopefully we are now following the UK's lead and starting to face our demons.
Finally, a judge with an iota of common sense! Why did it take so long to call
the government out on something which is, so clearly, a violation of due
process? Let's get this judge on the supreme court, he or she clearly knows
how to do the job!

~~~
MaxBarraclough
> Hopefully we are now following the UK's lead and starting to face our
> demons.

The UK passed a law to make bulk surveillance legal. It took a European court
to object to it.

[https://www.theguardian.com/world/2016/nov/19/extreme-
survei...](https://www.theguardian.com/world/2016/nov/19/extreme-surveillance-
becomes-uk-law-with-barely-a-whimper)

[https://www.theguardian.com/uk-news/2018/sep/13/gchq-data-
co...](https://www.theguardian.com/uk-news/2018/sep/13/gchq-data-collection-
violated-human-rights-strasbourg-court-rules)

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pessimizer
The cynical view of this would be that a large number of online domestic white
people have reached the threshold that had been used to add people to the
terrorist watchlist, or that there's an anticipation of pressure in this
direction. If incel reddit has to be added to the terrorist watchlist, a lot
of people from what are considered very nice families would be getting turned
down at the gate.

Nothing has changed in the arguments against the watchlist during the period
it has been in existence.

~~~
body12
Perhaps, the NRA has been already declared a domestic terrorist organization
by San Francisco. I think everyone wants to avoid TSA agents questioning
passengers when the last time they had sexual intercourse was and pulling out
a taser and handcuffs if it's too long.

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stjohnswarts
Hope it sticks. The patriot act that inspired this list is also anathema, I
can't wait until it stricken from the law books as well.

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Simulacra
Likely to be reversed on appeal. Good or bad, I don’t think it’s going away
any time soon.

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JulianMorrison
Took them long enough.

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SEJeff
Yes, because non-citizen residents still pay sales taxes. Many of them have
jobs and pay income taxes. One of the core tenants of the US experiment in
democracy is no taxation without representation. This holds pretty true unless
you happen to live in Washington D.C. or in Puerto Rico where they have no
voting powers in congress.

~~~
stjohnswarts
That's nonsense, no where in the bill of rights does it stipulate "if you pay
taxes..."

~~~
jessaustin
The bill of rights doesn't mention anything about citizenship either. Lots of
people at the time it was written wouldn't even have recognized that as a
valid concept.

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JTbane
2nd amendment being an absolute guarantee of freedom is up for interpretation.

What well regulated militia are you a part of?

~~~
rayiner
It’s a “debate” created for political reasons. If the right to bear arms was a
right people like Larry Tribe believed in, they’d never engage in the
contortions they do with the text.

If I say “for X purposes, do Y” I’m telling you to do Y. You can’t do Z just
because you think that serves X purposes better.

And even if you believe the right must be connected to militias, those aren’t
necessarily formal organizations. The Minutemen, for example, where self-
organizing independent militias that were composed of just whoever brought a
gun with them. They comprised 1/4 of the militias that fought in the
Revolution. Many of the state militias, too, were BYOG. You think the framers
just forgot how they won the war they had just fought? The point obviously is
to protect the possibility of such militias being formed by preventing the
government from disarming ordinary citizens.

Now, if you’re a “living Constitution” guy and think that the constitution
means whatever you want it to mean in the present time, that’s fine. But then
you don’t need to rely on the tortured reading of the “militia” phrasing. Just
say it’s an outmoded right that we are not going to enforce.

~~~
fnord123
>Just say it’s an outmoded right that we are not going to enforce.

Just remove it.

~~~
some_random
Ok, then do that instead of trying to subvert it.

