How the French Spy on Their Citizens

Interesting article on how the French utilize domestic spying as a counterterrorism tool:

In the French system, an investigating judge is the equivalent of an empowered U.S. prosecutor. The judge is in charge of a secret probe, through which he or she can file charges, order wiretaps, and issue warrants and subpoenas. The conclusions of the judge are then transmitted to the prosecutor’s office, which decides whether to send the case to trial. The antiterrorist magistrates have even broader powers than their peers. For instance, they can request the assistance of the police and intelligence services, order the preventive detention of suspects for six days without charge, and justify keeping someone behind bars for several years pending an investigation. In addition, they have an international mandate when a French national is involved in a terrorist act, be it as a perpetrator or as a victim. As a result, France today has a pool of specialized judges and investigators adept at dismantling and prosecuting terrorist networks.

Tags: , , , ,

Posted on January 24, 2006 at 6:25 AM • 67 Comments

Comments

Pork Soda • January 24, 2006 7:43 AM

If you ask me, it’s all part of the stifling of dissent in George Bush’s Amerikkka.

What’s that? France, you say?

Never mind then.

Guillermito • January 24, 2006 7:47 AM

I guess you want to make a point by comparing the french system with the one that the current US administration wants to use (“domestic spying” all over the news right now). As the article says, the wiretaps in France are ordered by judges, in full accordance with the law. Judges are independant from the government. The Bush spying program is about wiretaps decided without any warrant. The NSA will do it, and the NSA is not independant from the government. I guess that’s a huge difference. There is a cultural difference also, in the perception of what may constitute a violation of civil liberties, and the article hints a bit about it by chosing the example of the national ID card, that french people consider quite normal – even useful. [Disclosure : I’m a snail eater]

daajaa • January 24, 2006 7:48 AM

Except that “un juge ne peut pas se saisir tout seul” : an investigating judge can only start a probe at the written request of a republic’s prosecutor or of a limited number of various judicial instances.

sas • January 24, 2006 7:54 AM

“They can … justify keeping someone behind bars for several years pending an investigation”. This sounds a bit like detention without trial (though without knowing the full details it’s difficult to say). Additionally, the recent Paris riots suggest that not everyone is happy with the Government’s methods.

Thomas-Xavier MARTIN • January 24, 2006 8:03 AM

There are no falsehoods in the article, but it is misleading and relies essentially on a misunderstanding of the differences between the American and French criminal justice system. (Basically, American = accusatory, French = inquisitory)

(Background info : I am French, a lawyer and university professor, and a former police captain, but I never had to handle a terrorism case through my police carreer)

I fail to understand though what parts of the article led Dr Schneier to believe that the French are “spying” on their citizens.

All wiretaps (even the “administrative” type) described in the article are controlled and ordered by judges ; they are regularly reviewed for relevance by a distinct group of judges. Their maximum duration and number are severely capped. The relevant legal procedures are complex, demanding and precise, and I can attest that asking for a wiretap to be allowed is not something French detectives do for fun or on a whim…

How is this different than legal wiretapping in other democracies, including the USA ? How do these practices create a specifically French way of investigating terrorism ? I see no difference.

Sorry, I don’t have the time to go any further right now, but I will try to monitor the thread and answer any question on specifics of the French legal system.

Anonymous • January 24, 2006 8:15 AM

sas posted: “This sounds a bit like detention without trial (though […])”

Thomas-Xavier MARTIN, could you please elaborate on french rules about mandatory access to lawyer, and financial compensation when innocence has been established ?

forgeron • January 24, 2006 8:55 AM

@guillermito: huhu, is counter-terrorism very personal on you? 😉

@sas I don’t think, that Paris’s riot (very unreasonable denomination as compare to american standard of riots) has anything to do with french governement’s action. Besides that, I think they have cleverly handled the problem since nobody got killed by the police.
(I’m not eating snails (nor frogs), but I’m french too)

JD • January 24, 2006 9:43 AM

Bruce and others discussing these issues need to take more care in avoiding rhetorical excess. There is a fundamental difference between surveillance of terrorist networks (an essential duty of government) and “domestic spying” (e.g., targeted against political opponents of the current regime). The latter, if it occurs, deserves utmost condemnation regardless of the supposed legalities involved. To lump both categories under the same pejorative label of “domestic spying” undermines a necessary function of government while obscuring the gravity of the abuse.

It is like when the idiot Harry Belafonte accuses the Bush administration of “Gestapo” methods. The real offense is to distort the memory of what the real Gestapo was about.

Jarrod • January 24, 2006 10:07 AM

@Thomas-Xavier MARTIN:

I have a feeling you’re going to be a focal point of this discussion, and I’m going to add to it. 🙂

This may just be a result of my personal views of the separation of powers, but it seems to me that there is at least a possible conflict of interest when the judiciary investigates a case that is then turned over to prosecutors to be tried before the judiciary. Even though the same judge is probably not eligible to hear the case (I would hope, anyway), it would make me a little uneasy to have an investigative arm of the law also be the deciding arm. Can you perhaps clarify how this is handled?

Ed Hurst • January 24, 2006 10:09 AM

JD is quite right. I was very pro-police type for the simple reason I had a Military Police career ended only by physical disability. The bumbling Feds were checking possibilities of my involvement in a flight from justice and destroyed my credibility in a small town before they even spoke to me. By the time they did interview me to discover I had zero involvement in the case, it was too late to repair the damage.

I asked for a simply apology in writing so I could clear my name; they refused. I made some noise about it on my weblog, and my reward was surveillance for 5 years. Yes, as ex-cop it was easy to detect. You’d think they considered me some terrorist advocating violent overthrow of the government, which is ludicrous. They still have no clue who I really am.

I’ve known some French police. I seriously doubt there is any parallel as the article tries to suggest.

another_bruce • January 24, 2006 10:20 AM

presenting french domestic counterterror measures as something for america to emulate is a waste of time, the cultures are too different and none of that will be accepted over here. we were founded on overtly anti-statist principles, security of the individual against the power of the newly created authority; 220 years later we’re all rugged individualists with guns in our homes who view any collective power as a zero-sum subtraction from our own personal sovereignty.

Deathwind • January 24, 2006 10:34 AM

As a Frenchman, I consider that the current evolution is going to giving too many excessive powers to the police and judiciary.

That being said, I still consider a bit misleading what Bruce says about the spying on French citizens.

As others have pointed out, this is not wholesale surveillance and it is done within legal limits.

Of course, it is possible those limits are not respected by the police and secret services. It as happened in the past (the trial of illegal hearings under the request of the late French President Francois Mitterand ended not long ago).

But there are no known attempts by the police powers to launch undue, unmonitored surveillance of “normal” Frenchmen outside of terrorist investigations.

French people are spied upon only if they are the subject of investigations and not on the whims of a super secret organization that responds to no judicial power.

In this area, the French situation may be better than the American one in termes of respect of civil liberties.

There are more and more pressures from the police and secret service to weaken the protection of civil liberties, we must hope that we can contain them.

JD • January 24, 2006 11:19 AM

“220 years later we’re all rugged individualists with guns in our homes who view any collective power as a zero-sum subtraction from our own personal sovereignty.”

I trust the irony was intentional. Closer to reality is that a majority of us seem to expect the government to respond to whatever bothers us. The Constitution’s limits on federal power were pretty much overthrown around 70 years ago, and nowadays are cited only selectively when they happen to support political expediency.

So I am not so sure we fundamentally differ from the French. Maybe we just trail them by a few years in our evolution toward omnipotent government.

JD • January 24, 2006 11:20 AM

“220 years later we’re all rugged individualists with guns in our homes who view any collective power as a zero-sum subtraction from our own personal sovereignty.”

I trust the irony was intentional. Closer to reality is that a majority of us seem to expect the government to respond to whatever bothers us. The Constitution’s limits on federal power were pretty much overthrown around 70 years ago, and nowadays are cited only selectively when they happen to support political expediency.

So I am not so sure we fundamentally differ from the French. Maybe we just trail them by a few years in our evolution toward omnipotent government.

Brian Thomas • January 24, 2006 11:27 AM

Having no strong opinion on the matter, I will nevertheless point out that, from what I have heard, it was one such French judge who had put the FBI onto Bin Laden’s gang some time before the 9/11 attacks, to the extent that we may not have figured out who was responsible for months or years without the information he had been developing on them over the years. After the attacks, it is said his help was invaluable.

I was somewhat concerned about the powers he wielded, but in this case it was very helpful to us.

piglet • January 24, 2006 11:30 AM

“”They can … justify keeping someone behind bars for several years pending an investigation”. This sounds a bit like detention without trial”

Detention without trial wouldn’t be legal in France (only in UK, USA and Canada). However, France has been criticized for excessive periods of detention on remand:

“In November (1999) the European Court of Human Rights found that France had violated international norms on trial within a reasonable time in the case of one of the defendants, Ismael Debboub (also known as Ali Husseini). The Court found that Ismael Debboub, arrested in 1994 and released in 1999, had been questioned by an investigating judge only seven times during the entire period of preventive detention, and castigated the French courts for their lack of diligence.” http://web.amnesty.org/report2000/europe
As there is no mention in newer reports, I hope that this situation has improved in response to the ECHR ruling.

piglet • January 24, 2006 12:37 PM

@JD: “The Constitution’s limits on federal power were pretty much overthrown around 70 years ago… So I am not so sure we fundamentally differ from the French. Maybe we just trail them by a few years in our evolution toward omnipotent government.”

This a very “American” argument. Do you ever consider that the federal government was needed to abolish slavery, to abolish segregation, to introduce social security, to pass laws to protect the environment, etc? Would Americans really be “freer” if states were still free to practice racist discrimination, free to imprison homosexuals (which was in the criminal code of many states until in 2003, those activist power-hungry supreme court judges ruled it unconstitutional), free to lower environmental standards, free to outlaw abortion, etc.? Is it so difficult to distinguish between legitimate government action and power abuse?

The Bush administration’s power abuses are no reason to smear FDR’s new deal. Whatever you can say against earlier governments, none was so demonstratively in contempt of the constitution and individual liberty than Bush’s. How come that those rightwingers who cry the lowdest “small government” have the least scruples to abuse state power once they get it?

Davi Ottenheimer • January 24, 2006 12:44 PM

I find it most interesting that there has been a radical shift from the outrage in the early 1990s about French wiretaps to the passage of last December’s Sarkozy-sponsored video surveillance bill rushed through the French Parliament.

Remember when Mitterand used illegal wiretaps in the 1980s to monitor the press and the opposition party? When the wiretaps were uncovered his party subsequently lost a great deal of power, and French use of wiretaps was condemned by the European Court of Human Rights:

http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/0/173462395a2003e2c1256640004c1dd0?OpenDocument

“However the French law, written and unwritten, did not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. This was truer still at material times, so that the applicants had not enjoyed the minimum degree of protection, to which citizens were entitled under the rule of law in a democratic society.”

Fastforward from the outrage of the 90s to the recent news that “the French parliament Thursday followed Britain’s example and authorized a huge increase in video security surveillance.”

http://www.securityinfowatch.com/online/The-Latest/France-Authorizes-Major-Increase-in-National-Video-Surveillance/6849SIW306

Sarko, as a right-leaning idealist, has shown a tendency to want to mimic the Anglo-American relationship more than tie his country to the EU, so in that sense it’s no wonder that he would drive for far greater domestic surveillance and less freedom, while saying just the opposite:

http://www.economist.com/printedition/PrinterFriendly.cfm?Story_ID=3423418

“What does Mr Sarkozy really believe in? ‘Openness, suppleness, and letting citizens make their own choices’, is how he summed it up in ‘Libre’.”

Jeff • January 24, 2006 2:32 PM

I’m suprised no one’s mentioned this yet, but remember that (strong) encryption was illegal in France until recently. And no, I’m not talking about export controls being lifted in the US either.

This no doubt made “spying” much easier.

JD • January 24, 2006 3:04 PM

@ piglet….interesting issues.

Many or most of the federal government actions you mention are within the bounds of the Constitution. The basic pathology I see is the evolution of the government from an instrument of “general welfare” under the Constitution to an anti-Constitutional dispenser of boundless private benefits at public expense. This has been especially egregious the last 5 years and is the root of the current corruption scandals. Bush and the congressional Republicans are guilty of unprecedented excess, but FDR & Co. were the main culprits in disempowering the US Constitution and opening the way to the present abuses.

“How come that those rightwingers who cry the lowdest “small government” have the least scruples to abuse state power once they get it?”

Power corrupts, and the federal government under both political parties has usurped far too much of it…..

piglet • January 24, 2006 4:18 PM

“Bush and the congressional Republicans are guilty of unprecedented excess, but FDR & Co. were the main culprits in disempowering the US Constitution and opening the way to the present abuses.”

I don’t see that connection at all, and I’d like to see how you make that case. I think there are two mistakes in your reasoning:

  1. Federal power is typically met with suspicion, but why should state power be less corrupt? In fact, as I have argued above, federal power often needed to intervene to stop state power abuse, and this is why right-wingers hate it. Even today, there are those who believe that states should have the right to practice racial segregation. When they say “freedom”, they mean “freedom to oppress”. How come that so many naive libertarians are falling for that rhetorical trick is beyond me. It’s a dogma thing.
  2. Nostalgia for the “good old times” before the “disempowering of the US Constitution” is entirely misplaced. Once again, those good old times were the heyday of modern slavery (and later segregation), even some of the Founders were slave-holders, and nothing in your holy constitution prevented it! How can this be a model? I don’t deny that 200 years ago, this constitution was in some respects exemplary and progressive. However, I doubt that the founders themselves would ever have wanted it to survive almost unchanged for several centuries. Your unhistoric veneration of the constitution is almost as absurd as biblical literalism.

jammit • January 24, 2006 6:29 PM

If you haven’t guessed already, I’m a 100% pureborn inbred, cornfed redneck. I thought I’d send that out before I respond. There are two things that separate the French and the US (and no, it doesn’t involve Jerry Lewis):
(1) Even though the French have different laws, the French judges, police, etc. have followed those laws, except for a few who went commando and went off on a tangent.
(2) Unlike the US, the French have an actual terrorist problem, not just a fear threat. We had a terrorist attack on us just a few years ago, but that was it. The French have been fighting terrorists for quite some time and have adjusted their laws to help combat it.
The French leaders didn’t decide overnight to suspend and subvert their legal system for their own good, but here in the US our leaders are ignoring all common sense and trying to perform a “kill them all and let God sort ’em out” mentality on our legal process and our rights.

Steven. • January 24, 2006 7:13 PM

I’m not sure what to make of this article. As far as I can tell, the French are doing more or less the same thing as Bush is being criticised for: secret investigations, secret detention, widespread spying, judges who never say no. The only difference is, the French passed some laws making it legal, so it is all (supposedly) okay. What have I missed? Apart from the great big “LEGAL” stamp because the French legalised the surveillance, what is the difference?

The other issue is, we really are given no idea of whether all this spying and surveillance is worth the cost, both financially and human.

Davi Ottenheimer • January 24, 2006 7:35 PM

“Apart from the great big “LEGAL” stamp because the French legalised the surveillance, what is the difference?”

Wha? How could you set that difference aside so glibly.

That’s like saying “apart from the big TOXIC stamp on mercury, what is the difference from water — both liquid, right?”

Davi Ottenheimer • January 24, 2006 8:26 PM

Some more food for thought from the archives of the Guardian (Aug 9, 2002):

“Investigators say Mitterrand´s anti-terrorist unit was formed secretly in 1982. It began overstepping the mark the following year when lawyers acting for a suspected IRA cell in Vincennes were placed under illegal surveillance, and went wholly off the rails with the Rainbow Warrior affair. ‘It seems Mitterrand just became more and more paranoid,’ one source close to the inquiry said. ‘Anyone and everyone who looked like posing a threat to his public image had their phones tapped, against the law and against the express instructions of two successive prime ministers.’ […] The investigating magistrate, Jean-Paul Valat, battled against a political establishment determined to cover up the affair to the extent of hastily classifying mountains of documents as secrets of state. The former Socialist prime minister Lionel Jospin finally opened the archives in 1998, two years after Mitterrand´s death, allowing Mr Valat to complete his 400-page case, based in large part on 5,000 incriminating phone call transcripts left anonymously at his office in 1995. […] A general has accused Mitterrand of sanctioning torture during the Algerian war of independence while he was a minister. Alleged involvement in several party funding and other financial scandals.”

So I think Perelman misses the mark in his article on French surveillance (in terms of cause and acceptance) as well as its significance to current events. Maybe I’m just too much a history buff, but it seems important to me that the word itself comes from the time period called the “Reign of Terror” during the Revolution, which ultimately led to a new Constitution to protect people from abuse of executive powers. But I digress…

While I admit the FBI link he starts with is somewhat interesting, I have read the actual reason they invited Marsaud in ’88 was to learn more about the French extra-legal affairs and mistakes to understand how the public uncovered the covert bombing of GreenPeace, etc.. It therefore makes more sense to say America now wants to avoid Mitterand’s mistakes, rather than learn from the corrections that were put into effect by the judiciary afterwards.

Tank • January 24, 2006 8:48 PM

@ Davi Ottenheimer at January 24, 2006 07:35 PM

“Apart from the great big “LEGAL” stamp because the French legalised the
surveillance, what is the difference?””

Wha? How could you set that difference aside so glibly.
That’s like saying “apart from the big TOXIC stamp on mercury, what is the
difference from water — both liquid, right?”

Well whatever it is like it is worth noting the importance you place on the legality of the program as meaning something significant.
John Kerry yesterday said if this spying is what is needed then the law will be changed to make it legal.
So the question would then be are your privacy and civil rights any less violated now that it is legal ?
Were your privacy and civil rights any less violated when before 9/11 the NSA had foreign governments spy on all your calls ?

At some point you need to realise the only thing that has changed is that after 9/11 the NSA no longer trusted the Canadians to put the same amount of effort into searching for US-based sleeper cells as US agencies would.

Either way your privacy and civil rights are just as infringed now as they were then.

Davi Ottenheimer • January 24, 2006 9:36 PM

@ Tank

“Either way your privacy and civil rights are just as infringed now as they were then.”

Ho ho ho. Good one. Thank goodness someone invented logic.

legal != illegal
warrant != warrantless
speed != reckless abandon

Zaf • January 25, 2006 3:35 AM

@Steven.
What do you mean saying “secret detention”? Just like in Guantanamo? I have never heard of such jails in France… Oh, of course, they are secret!
About “Widespread spying”, it was almost as widespread as the riots at the end of last year. And if you believe CNN’s maps, these happened from West of France to Eastern Europe (which is still part of France as everybody knows).
Please do not believe all that CNN says.

piglet • January 25, 2006 8:34 AM

@Steven: “As far as I can tell, the French are doing more or less the same thing as Bush is being criticised for: secret investigations, secret detention, widespread spying, judges who never say no.” There is no secret detention; if there were, it would be illegal. And the article doesn’t seem to report “widespread spying”, what it says is that judges can order specific wiretaps.

“At some point you need to realise the only thing that has changed is that after 9/11 the NSA no longer trusted the Canadians to put the same amount of effort into searching for US-based sleeper cells as US agencies would.” That’s very funny, Tank. Except that it doesn’t make any sense. But I agree in part with Tank on the illegality issue. It does make a difference whether it’s legal or not, but bad laws legalizing bad stuff aren’t so much better than bad stuff being done against the law. I would even say, it’s worse to have bad laws.

JD • January 25, 2006 11:53 AM

@ piglet:

Your comments are wide of the mark. The 13th amendment abolished slavery and the 14th, once finally enforced, belatedly provided the end of racial segregation. So it’s totally false to assert that extra-constitutional intervention by the federal government is necessary to prevent states from re-instituting segregation.

State governments are certainly no less prone to corruption and abuse, but at least their reach is less. They are also constrained by the US Constitution (where it’s actually enforced) and their capacity to screw up is limited by the ease with which people and commerce can cross state lines.

another_bruce • January 25, 2006 11:54 AM

@piglet
jd’s “very american” argument reflects a greater understanding of the situation here than your response. in defense of a strong federal government, you cited:
1. abolition of slavery. slavery was actually abolished by a constitutional amendment 140 years ago, twice as far back as the 70 year interval cited by jd, and the impetus for this was abolitionist groups, not politicians.
2. social security. this concept started out great (just like your first mainline heroin fix) but the final chapter hasn’t been written yet, and i project that it will be bleak. the trust funds are totally depleted, their assets replaced with iou’s from the federal government, merely a promise, as yet unfunded, to repay this money in the future. the boomers are starting to retire and will not be denied their perceived entitlement. we can see that the bridge is out, but there is no political will to stop the train.
3. environmental laws. people get the environment they deserve, and the first cause of environmental degradation is too many people. it is unknown what environmental laws the states would have passed if left to themselves, absent federal pre-emption, the environment might well have been better off in some states.
4. decriminalization of homosexual acts. hooray! i support this too, at the same time i lament that the gays took over so much bandwidth in the 2004 election dialogue that dubya was able to get re-elected as the “values president”.
5. legal abortions. ah yes, a strong supreme court issued its fatwa in 1973, women have the right to an abortion! again, hooray! i support this right too, but it is not the same thing as supporting a strong federal government. we are on the threshhold of confirming what will be the fifth catholic to sit on this court at the same time. that’s too damn many catholics if you ask me, hope i didn’t hurt anyone’s feelings there. it is an express agenda item for our president and many members of congress to overturn roe v. wade and recriminalize abortion. what will you say when that happens?
can’t you see that the all-powerful, supposedly benevolent sugar daddy fdr created is the same entity that’s now running amok under gwb?

Davi Ottenheimer • January 25, 2006 12:02 PM

@ piglet

“I would even say, it’s worse to have bad laws.”

I think it’s a red herring. No law is perfect and that’s why laws should, by their very definition, provide an oversight and dispute mechanism rather than be set by a king.

France made their change in 1991 to help prevent further wiretap abuse by a ruler gone mad. Thus it’s worse to have a unilateralist in power who believes his/her word IS the law, without appeal, dissent, reason, etc..

You had a good point about the state/fed debate earlier. In fact, Bush always claimed that (as Governor) the state Supreme court’s decisions should stand and the feds shouldn’t meddle. But then when the Florida Supreme court did not rule in his favor during his attempt to take control at the federal level, he suddenly insisted that the state Supreme court should step aside.

Anyway, back to France and their spying:

http://www.privacyinternational.org/survey/phr2003/countries/france.htm

“Electronic surveillance is regulated by a 1991 law that requires permission of an investigating judge before a wiretap is installed. The duration of the tap is limited to four months and can be renewed. The law created the Commission Nationale de Contrôle des Interceptions de Sécurité (CNCIS), which sets rules and reviews wiretaps each year. From 1995 to 1999 the number of wiretaps granted annually was between 4,500 and 4,700. This number decreased slightly in 2000. There were 4,767 (4,625 in 2001) requests for wiretaps (3,138 new and 1,629 renewals) in 2002. In total, 4,654 wiretaps (3,082 new and 1,572 renewals) were authorized by the Commission in 2002 (4,515 in 2001). The number of identification requests of cellular telephone numbers has been estimated by the Commission to average 8,000 to 25,000 monthly.”

So there’s a law, and it establishes how warrants should be gathered. But what happens when this law fails or is abused (since it is bound to happen)?

“The European Court of Human Rights has ruled against France several times for violations of Article 8 of the Convention. The Court’s 1990 decision in Kruslin v. France resulted in the enactment of the 1991 law. Most recently, the court fined France FRF25,000 for wiretap law violations. There have been many cases of illegal wiretapping, including most notably a long running scandal over an anti-terrorist group in the office of President Mitterand monitoring the calls of journalists and opposition politicians. The CNCIS estimated that there were over 100,000 illegal taps conducted by private companies and individuals in 1996, many on behalf of government agencies. A decree was issued in 1997 to limit the dissemination of tapping equipment. In June 2001 the investigative weekly Le Canard Enchaîné reported that a prosecution judge was sued by a lawyer who was wiretapped at the judge’s request. The Court found that the wiretap was an unfair act against the lawyer. In France only Government interceptions requests are under review by the CNCIS. There is a separate control scheme for wiretap requests by the judiciary.”

Control scheme, indeed. No matter how you slice it, there should be additional controls added, not fewer, to protect liberty during conflict. Controls do not mean inefficiency, they mean less abuse and therefore greater efficiency.

Compare this with the current US Administration’s fundamentalist approach to the law. They consistently dispense with checks and balances whenever faced with a challenge — they want no limits to their unilateral influence and they refuse acknowledge that their view is not absolute.

Cowardly Nonperson • January 25, 2006 12:49 PM

@Guillermito: “judges are independant from the government.”

Really? So if I was an average private French citizen, I could issue warrants and subpoenas? Man, talk about empowering the public! France is cooler than I thought.

@JD: “fundamental difference between surveillance of terrorist networks (an essential duty of government) and “domestic spying” (e.g., targeted against political opponents of the current regime).”

That’s an awfully narrow definition of domestic spying that you’ve conjured out of something other than the definitions of “domestic” and “spying”.

@piglet: “Do you ever consider that the federal government was needed to abolish slavery, …”

While I do not dispute that state government has historically been somewhat easier to buy and sway than the federal, how do you figure the federal government was needed? Were the state governments somehow ill-equipped to deliver laws that reflected the will of the public? And what makes federal government infallible, whilst state government is clearly not so? Who shall govern the governers?

Clearly what we need is an infinite hierarchy of government, each level correcting the ails of the one below in accordance with vox populi at that level. And the double and triple jeapordy posed by laws involving violations of civil liberties, hate crimes, and whatever else is infamous at one time are just an extra bonus.

Premise: Some state governments are suboptimal.
Argument: ?
Conclusion: Expansion of federal powers needed.
QED.

@piglet again:
“How come that those rightwingers who cry the lowdest “small government” have the least scruples to abuse state power once they get it?”

Actually, Bush and his crew are not the small government republicans. They have hijacked the party and represent neoconservatism, which is markedly federalist when it comes to security and defense issues. It is also new-deal-esque by unprecedented deficit spending, so economically it’s big government too.

More detail:
http://www.house.gov/paul/congrec/congrec2003/cr071003.htm

I recall reading somewhere that every Republican president since N presidents ago has actually increased the federal budget, as adjusted for inflation. So maybe the “small government” thing is a politically expedient toy that is widely ignored once in power.

Perhaps it is a bit too cynical to suggest that most people don’t like others having power over them, but most politicians are interested in acquiring, expanding and retaining that power. That is, after all, what politicians do. It’s unfortunate that we can’t figure out a way to deal it out in inverse proportion to the desire.

@all: It seems like everyone is at odds over whether this is to be a normative argument or a legal argument. If legal, then following the law means no big deal. If OTOH we are arguing about what “should be”, then perhaps not all legal behavior is desirable.

I consider it a substantial achievement that we can debate these issues (law versus ethics, or proper constraint of the law) seperately.

piglet • January 25, 2006 1:31 PM

JD: “So it’s totally false to assert that extra-constitutional intervention by the federal government is necessary to prevent states from re-instituting segregation.” I didn’t assert that. read again: “In fact, as I have argued above, federal power often needed to intervene to stop state power abuse, and this is why right-wingers hate it.” There’s nothing about “extra-constitutional” here.

JD • January 25, 2006 1:36 PM

@piglet (cont’d)

Since you seem inclined to toss darts at “right-wingers” and “naive libertarians”, I’d like to add:

The apparent position of American left-wingers–that the Constitution must not impede what they view as progressive social action–disregards the fact that respect for the Constitution (such as it is) has historically been and remains the only barrier to assumption of unlimited power by the central government. If there is an outstandingly naive faith extant in the political environment, it is the trust of left-wingers that omnipotent government will be benign government.

You can’t have it both ways, folks. You either respect the Constitution as the supreme law of the land or you regard it merely as an optional source of data for political argumentation, to be cited and freely spun when expedient and disregarded when not. Does supporting the former position make me a right-winger?

piglet • January 25, 2006 1:51 PM

@another_bruce:
“slavery was actually abolished by a constitutional amendment 140 years ago, twice as far back as the 70 year interval cited by jd, and the impetus for this was abolitionist groups, not politicians.”
Agreed, but without the federal government, abolition could not have been enacted let alone enforced. You are right about the 140 years, but racial discrimination/segregation was abolished only 40 years ago. That’s nothing to be proud of for the world’s oldest democracy. Are you trying to argue, like JD, that Americans were a freer people 70 years ago? Try explaining that to an African American.

“it is unknown what environmental laws the states would have passed if left to themselves, absent federal pre-emption, the environment might well have been better off in some states.” The problem with that is that if the states are left to themselves, those states that enact strong environmental protection laws will be punished because businesses will go to other states where the standards are lower. I believe therefore that strong regulation on the federal level (if not on the international level, like in Europe) is good for the people even if it does restrict the “freedom” of some to poison the environment. The Bush administration nevertheless is working hard to weaken federal regulation in several domains, notably environmental protection, in order to please his corporate friends and donators.

“can’t you see that the all-powerful, supposedly benevolent sugar daddy fdr created is the same entity that’s now running amok under gwb?” No, I don’t see that, and neither you nor JD have cited any evidence for this claim.

JD • January 25, 2006 1:54 PM

“In fact, as I have argued above, federal power often needed to intervene to stop state power abuse, and this is why right-wingers hate it. There’s nothing about “extra-constitutional” here.”

“Extra-Constitutional” was either implied or the comment was irrelevant, since the thrust of your argumentation was that “veneration of the constitution is almost as absurd as biblical literalism.” I don’t like state power abuse any more than federal, and support the use of federal power–under the Constitution–to suppress it.

piglet • January 25, 2006 2:03 PM

“If there is an outstandingly naive faith extant in the political environment, it is the trust of left-wingers that omnipotent government will be benign government.”

You may call me a left-winger, yet I don’t believe neither in omnipotent nor in benign government – power must always be checked). What I regard as “naive libertarian” is the belief (or dogma) that “less government is always better”. This is as stupid as claiming “more government is always better”. Less government power doesn’t mean more citizen power, it usually means more corporate power. Without (democratic) government, you would certainly have much less freedom – unless you happen to be very rich.

piglet • January 25, 2006 2:10 PM

JD again: “”Extra-Constitutional” was either implied or the comment was irrelevant, since the thrust of your argumentation was that “veneration of the constitution is almost as absurd as biblical literalism.””

Let me remind you that you claimed that constitutional freedom was somehow subverted by FDR 70 years ago, implying that before FDR, there has been more freedom. If this were true, then we should indeed yearn for the good old days of slavery and segregation. Would you agree with that, or would you prefer to retract your earlier statement?

piglet • January 25, 2006 2:20 PM

@Cowardly nonperson: “Were the state governments somehow ill-equipped to deliver laws that reflected the will of the public?” No, their racist, oppressive laws did reflect the will of the public. That’s the problem.

“And what makes federal government infallible, whilst state government is clearly not so?” Nice try to turn my argument around. I don’t claim that any government is infallible, least of all the Bush junta. My argument was designed to refute the conservative/libertarian claim that the federal gov is the root of all evil (exaggerating only mildly). By refuting this claim, I am of course not making the opposite claim (that the federal gov is always right). Can I make this any clearer?

Davi Ottenheimer • January 25, 2006 2:20 PM

“You either respect the Constitution as the supreme law of the land or you regard it merely as an optional source of data for political argumentation, to be cited and freely spun when expedient and disregarded when not.”

I love the false dilemma fallacy.

Political argumentation about the Constitution means you disrespect it? Please. That’s nonsense. What do you call Amendments? And have you ever met a lawyer who doesn’t start their interpretation of the law with “it depends”?

Pat Cahalan • January 25, 2006 2:28 PM

@ piglet

What I regard as “naive libertarian” is the belief (or dogma) that
“less government is always better”. This is as stupid as claiming “more
government is always better”.

I’ll agree with that. Moreover, I’ll state that I believe that in any system containing human beings (or, presumably, any other intelligent and most likely somewhat self-serving entity), the lack of a power structure is only an opportunity for the creation of a power structure.

Nature may like entropy, but humans love order. The creation of any organization requires a centralization of authorization (“power”, for want of a better word).

If you don’t have a governmental system of power, some other system of power will take its place.

Optimally, to prevent abuse of “power”, you want several types of organizations that possess the capability of checking and balancing each other.

JD • January 25, 2006 2:52 PM

If you keep misrepresenting me and debating against strawmen, folks will think you’ve abandoned the argument and are trying to change the subject.

“Are you trying to argue, like JD, that Americans were a freer people 70 years ago?” and “…you claimed that constitutional freedom was somehow subverted by FDR 70 years ago, implying that before FDR, there has been more freedom.” False and false, but if we were to change the subject to relative freedom now and then, I’d say it’s a mixed bag. But no time for all that.

Anyway, I’ve enjoyed the debate and wish you well. Signing off now.

piglet • January 25, 2006 3:50 PM

JD, which part of “The Constitution’s limits on federal power were pretty much overthrown around 70 years ago” did I get wrong?

Thomas-Xavier MARTIN • January 25, 2006 4:01 PM

@sas and @Anonymous on detention without trial, access to a lawyer and financial compensation.

(Sorry to answer so late) It seems I was using the wrong terms for the different legal systems: France is inquisitorial, and the USA are adversarial (not accusatorial as I said previously, which is a bad transposition of the French word.)

For additional details, you may want to read wikipedia’s articles on the subject :

http://en.wikipedia.org/wiki/Adversarial_system
http://en.wikipedia.org/wiki/Inquisitorial_system

In the French system, investigation of a crime is handled by an investigating magistrate whose job is to seek out facts, both towards guilt and innocence of the parties.

Admission of guilt is legally worthless if it is not backed up by extensive (physical) evidence, so this removes the practice of police pressuring people for a confession.

Detention without trial can be sought by the investigating magistrate during the investigation. Another judge decides whether or not to grant it. Usually, people are being detained either when guilt is obvious or when it is judged necessary that they should be isolated from the ongoing inquiry. Such detention are reviewed regularly and can be appealed to higher courts. There is a strict limit to how long one can be detained, depending on the crime supposedly committed, the maximum is 3 years for murder, torture or rape.

Later, other judges decide the case. The accused when found guilty is usually condemned to the time served before the trial. If found innocent, another court decides on the amount of financial compensation.

French defense lawyers have a much smaller role than their American counterparts, and having access to a lawyer early in the case is not necessary to preserve the rights of the accused in a French criminal inquiry. (I understand that this is really weird for any sane American; please trust me on this, or ask more specific questions on this precise point)

In theory, the system works and preserves the fundamental rights of the accused parties. In practice, we tweak it every year to prevent known abuses. For example, the investigating judge used to decide by himself on detention, but this led to abuses where judges would pressure uncooperating parties by sending them to prison; a different judge now decides on detention. Financial compensations have long been symbolic, but in a recent pedophily case where the investigation was heavily botched, 7 accused that have been decided innocent have received compensations worth (each) around half a million euros. The same case is currently under review by a parliamentary commission and will most probably result in less powers for the investigating magistrate.

@sas: the recent “riots” have everything to do with economic problems, including the abysmal unemployment rate, and geographical and ethnic segregation in the French society, and positively NOTHING to do with the criminal justice system.

Thomas-Xavier MARTIN • January 25, 2006 4:08 PM

@Jarrod on separation of powers:

Yes, the investigating magistrate is obviously forbidden to sit in a case he has handled. On the contrary, he is called to testify in court on his investigation, and common practice in difficult cases is for the sitting judge(s) to be be critical of the way the investigation was handled by the magistrate…

There may be a misunderstanding on the role of the prosecution, but I fail to understand your point as it is stated. What kind of conflict of interest would arise ?

This is probably a problem with my understanding of English. Maybe you could expand and rephrase your question ?

Thomas-Xavier MARTIN • January 25, 2006 4:46 PM

@Cowardly Nonperson on judges’ independance from government:

French judges are not elected, they are career civil servants. To become a judge or DA, you need a French law degree and you go through a competitive exam to enter the Magistrate School.

You then rise through the ranks, essentially on seniority, but with some accelerated promotions for efficient and fair judges. Those accelerated promotions are decided these days by a board of senior judges.

DAs are an exception. French constitutional theory includes something called “politique criminelle” which means that we consider that the executive power should be able to influence courts in the way they punish crimes. (I said influence, not decide !) So DAs’ careers and promotions feature some government involvment, and the Secretary for Justice can order any DA to ask in a specific trial for a specific verdict from the sitting judges. But this must be done in writing; and the DA is always free to state verbally her personal views at the trial. DAs that are unhappy about their career may become sitting judges at will and thus escape this politically tainted career path.

This is what we mean by independance. Once again, the system is being tweaked every year, and only late in the XXth century did judges’ careers become really separated from the office of the Secretary for Justice.

So, if you are interested in issuing warrants and subpoenas (“commissions rogatoires” and “mandat d’amener” actually), all you have to do is get a passport from a European country (no, you don’t even need to be French !), obtain a French law degree or an equivalent foreign degree and go through the competitive exam. You might want to choose an easier career though : the pay is meager, the hours are long, and the burden is often crushing…

Davi Ottenheimer • January 25, 2006 6:28 PM

“You might want to choose an easier career though : the pay is meager, the hours are long, and the burden is often crushing”

Depends what you are trying to accomplish, no? The term “Radicals in Robes” (the book by Cass Sunstein) comes to mind, when looking at the easiest way to radicalize the US.

Sunstein’s study of Alito’s appeals court dissents apparently shows that this latest US Supreme Court nominee is 91 percent more conservative than other appellate judges, including appointees of Ronald Reagan, Bush senior and junior.

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/31/AR2005103101388.html

and

http://www.tnr.com/doc.mhtml?i=w060109&s=sunstein010906

“Alito’s dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. In his dissents, at least, he has been a conservative’s conservative”

He hasn’t dealt with the terror/spy question, it seems, but he did write in Doe v. Groody that a police officer couldn’t be sued for strip-searching a 10-year-old girl even though she wasn’t named in a warrant. I’m no lawyer, but the majority found the warrant was written to be specific to John Doe instead of “all persons” (which was added to an Affidavit). Somehow Alito made the odd conclusion that warrants are written in haste by non-lawyers, and the officers had many years of experience and knew what they were doing, therefore their mistake should be seen as a “good faith” attempt. But his logic seems contradictory. Why didn’t the officers, with all their relevant experience, write “all persons” into the warrant in the first place? Most likely because they knew it would be blocked as a violation of the 4th Amendment, so they tried to sneak in a broad-based exception on page two, no?

JD • January 25, 2006 7:46 PM

@piglet
“JD, which part of “The Constitution’s limits on federal power were pretty much overthrown around 70 years ago” did I get wrong?”

Basically it was the coup de grace for the Tenth Amendment — never repealed, but ignored ever since by all three branches of the fed government and both political parties. Otherwise we would not now have a federal government regulating the toilets and showerheads you can install in your bathroom (small example of loss of freedom, but one of countless). Unfortunately there is zero chance of it ever being resurrected, since it would mean eliminating about half of the federal bureaucracy and most of the taxpayer money and special favors Congress loves to hand out to buy job security for incumbents.

Davi Ottenheimer • January 25, 2006 9:13 PM

@ JD

“Otherwise we would not now have a federal government regulating the toilets and showerheads you can install in your bathroom”

Funny you should mention that particular example. The way I heard it was the President of the US (I think it was Arthur in reaction to Garfield’s alleged “suffering from sewer gas”) comissioned a study by a consultant who also happened to make porcelain toilets. The study concluded that not only did the gas need to be trapped but that steel toilets were unsanitary and spread germs. Arthur wouldn’t move into the Whitehouse until it was completely refitted at extensive cost with traps and porcelain toilets. The President thus said that porcelain was the only “sanitary” choice in America and to this day, ironically, almost all homes have some variation of porcelain-looking toilets.

I read about it many years ago, and so I could be a bit off with the details, but it just reminded me that the President’s opinions often influence the US in ways that regulations can only hope to achieve…

JD • January 25, 2006 10:15 PM

@Davi

The fiasco of the ultra-low-flush toilet, mandated by Congress in 1992 for all new home installations, is one of my favorite examples of the government at work to improve our lives. I have three of the damn things in my house with a plunger standing next to each, since they clog and overflow easily, causing floor and ceiling damage, not to mention unsanitary conditions. No longer can a toilet be flushed with confidence. You must monitor the process alertly and be prepared to react instantly to prevent a mess.

Davi Ottenheimer • January 25, 2006 10:48 PM

@JD

Well, that’s actually a good example of how the market sometimes needs help to make more holistic choices and get related innovation off the ground. If you have poorly engineered toilets you should move forward to a better design, rather than back to the old wasteful ways. Have you tested a Toto Drake or a Mansfield Quantum (>900 grams @ 1.6gpf)? A builder/plumber who understands the importance of a 3in drainline at 2% slope also helps.

another_bruce • January 26, 2006 12:27 AM

@piglet
you say “without the federal government, abolition could not have been enacted, let alone enforced.” in fact, half of the states were free states when the civil war began, the other half would presumably have evolved, albeit more slowly. the only place slavery still exists in the world today is, yes, africa. you say segregation and discrimination were abolished here 40 years ago. have i got news for you! discrimination is alive and well and walking and talking, it exists among all races but the only institutionalized form left is called “affirmative action”. the liberals’ use of “discrimination” as an evil bogeyman justifying any means against it is similar to the use by other perspectives of bogeymen such as “child pornographer”, “drug dealer” and “terrorist”.
i acknowledge some environmental benefits from federal action, but there is a countervailing detriment so far unmentioned: the current incarnation seems bent on expanding corporate power and diminishing corporate accountability; it’s actually the corporations more than the government which degrade the environment, and i believe that weaker corporations that had to get state-by-state permission to foul the nest might not foul it quite so fast. china has a strong central government and just look at the shit that’s happening over there, 100 tons of nitrobenzene in the river, yuck!
@cowardly nonperson
ron paul is my favorite member of congress.
@jd
low-flush toilets are a scam. where does the saved water go? i’ll tell you where it goes, it’s re-allocated to new construction. it doesn’t go to frogs or fishies or ferns, it goes to houses, stores, plants not yet built. in much of the west, water capacity is the limiting factor in answering the question “can we build right up to the ridgeline?” i’ve heard of people smuggling the older large-capacity toilets in from canada.

Davi Ottenheimer • January 26, 2006 12:49 AM

“low-flush toilets are a scam. where does the saved water go”

funny. it doesn’t go anywhere if it is actually saved. the problem is that water is considered cheap and people tend to be capital-averse to the point of ignoring the signifance of long-term costs. waste is waste, regardless of who is being wasteful. at least some companies are starting to realize this and finding ways to cut their operating expenses by tens of thousands of dollars a year:

http://es.epa.gov/techinfo/case/michigan/michcs10.html

Davi Ottenheimer • January 26, 2006 1:13 AM

“i’ve heard of people smuggling the older large-capacity toilets in from canada”

maybe years ago, but canada also has low-flow regulations now (6Lpf?). i’ve read that some canadian cities found that up to 20% of their water use was from toilet flushes. if you really think toilet water waste shouldn’t be regulated, perhaps you also think that the water itself should be de-regulated so quality controls can be relaxed too?

http://www.salon.com/wire/ap/archive.html?wire=D8EK6PL8B.html

water waste and contamination are infrastructure threats and therefore a serious security concern.

piglet • January 26, 2006 9:48 AM

@another_bruce: “i acknowledge some environmental benefits from federal action, but there is a countervailing detriment so far unmentioned: the current incarnation seems bent on expanding corporate power and diminishing corporate accountability;”

The “current incarnation” is working hard to weaken existing regulations to the benefit of corporate power and to the detriment of the people. Mind you, if there were no federal regulations, they wouldn’t have to weaken them! Expanding corporate power is the logical consequence of deregulation, which is what libertarians call “small government”. QED.

JD • January 26, 2006 9:59 AM

One area where you would think left-wingers and right-wingers and everyone in between can find some common ground is a right to privacy: What we do in our own bathrooms is none of the government’s damn business.

If government has the authority to regulate the flow rate of water through my showerhead, supposedly in the interest of conserving the water that I pay for, what logic prevents them from next asserting authority to regulate how long I choose to stand in the shower, except lack of technology so far to do that? After all, lower flow rate means environmentally-insensitive louts like me who value personal hygiene will just need more time to shower.

JD • January 26, 2006 10:15 AM

I was wrong — technology is not an obstacle. Stand by for the next great leap forward for water conservation: A mandatory timer installed in your shower limiting its use to x minutes per day. Each household member will be provided a smart card and PIN to enable them to use their personal time quota…….Why didn’t anyone think of this before?

JD • January 26, 2006 11:17 AM

@ piglet
“The “current incarnation” is working hard to weaken existing regulations to the benefit of corporate power and to the detriment of the people.”

Depending on which regulations you have in mind, the opposite is often true. Government economic regulation (as distinct from environmental, health, and safety regulation — separate subjects) generally exists for the benefit of established corporations by imposing more burdensome obstacles on their potential competition. Eliminating such regulations along with other forms of corporate welfare (subsidies, special tax breaks, tariffs, sweetheart contracts) would cause local pain but benefit the public at large. The best economic regulation is provided by the impartial discipline of the market, not the government, which is too concerned with selling special favors to those who can politically pay for them.

piglet • January 26, 2006 11:54 AM

“One area where you would think left-wingers and right-wingers and everyone in between can find some common ground is a right to privacy: What we do in our own bathrooms is none of the government’s damn business.”

Unfortunately, this common ground doesn’t exist: according to three conservative supreme court judges, states do have the right to regulate what kinds of consensual sexual conduct you can legally engage in (in your bathromom or anywhere else); a majority (“liberal activist judges”) ruled that this is none of the government’s business. http://www.cnn.com/2003/LAW/06/26/scotus.sodomy/) You may want to read the judgement and the dissenting opinions, maybe this will soften your anger about building regulations.

JD • January 26, 2006 1:30 PM

Well, I guess every segment of the common political spectrum has its odd bedfellows. On the supposed “Right” we have various flavors of libertarians (because the traditional opponents, socialists and other big-government statists, cluster on the left) in uneasy company with “social conservatives” who seek to impose their biblical dogmas on everybody else. Left-right and liberal-conservative don’t begin to cover all the dimensions, and you and I both ought to get away from such confining stereotypes.

Davi Ottenheimer • January 26, 2006 3:56 PM

“If government has the authority to regulate the flow rate of water through my showerhead, supposedly in the interest of conserving the water that I pay for, what logic prevents them from next asserting authority to regulate how long I choose to stand in the shower, except lack of technology so far to do that?”

Well, actually, they could just allow the price of water to rise to more natural levels. Their capital investments are the reason you probably have cheap water to begin with, so dergulation might lead to a long shower becoming cost prohibitive.

“After all, lower flow rate means environmentally-insensitive louts like me who value personal hygiene will just need more time to shower.”

I’m not sure it’s really an environmental consideration as a simple infrastructure security and cost concern. You might think burning money in a wheel-barrow generates sufficient heat, but it’s not sustainable and puts you at far greater risk of losing heat than investing the money into a heatpump system with a far higher rate of efficiency.

I come from a land where conservatives used to want to ensure policies were fiscally sound, rather than find ways to spend money foolishly in a brash demonstration of absolute power. So I agree with you that the terms can become virtually meaningless. I think Eisenhower’s son, a lifelong Republican and traditional conservative, had a fine article to that effect when he explained why he voted against Bush in 2004:

http://www.snopes.com/politics/soapbox/eisenhower.asp

  1. bloating federal budget deficits
  2. unilaterally invading Iraq
  3. infringing on personal liberties

piglet • January 26, 2006 5:25 PM

Davi is quite right, leaving it all to “market forces” would mean that you would have to pay much more for your water in the near future. Maybe this wouldn’t be so bad (except for those who can’t afford water any more), but even then, this “solution” wouldn’t work without additional regulation – otherwise the heavy water consumers would just drill their own wells so that they can deplete the water supply and pay nothing. And while they are at it, they
might remember dumping their sewage into the next river. In general, market-based solutions can only work if external costs are forced on the consumer/polluter. I am sorry but you can’t do that without enforcing some regulation which will inadvertently restrict some people’s freedom. And since problems like pollution and resource depletion tend to have consequences far beyond the local or regional level (btw this is a factor that may not have been so obvious to the founders in the 18th century) and simply can’t be addressed effectively on the local level, I conclude that in many (but of course not all) cases, regulation on at least the federal level is appropriate and in the best interest of the people.

This, of course, is a general argument and doesn’t apply to the case when the federal government is a bunch of greedy incompetent ideologues screwing up everything they get into their hands.

Leave a comment

Login

Allowed HTML <a href="URL"> • <em> <cite> <i> • <strong> <b> • <sub> <sup> • <ul> <ol> <li> • <blockquote> <pre> Markdown Extra syntax via https://michelf.ca/projects/php-markdown/extra/

Sidebar photo of Bruce Schneier by Joe MacInnis.