June 4, 2007

Eric Alterman tries to talk his way out of getting arrested for criminal trespass...

... fails and keeps talking in self-justifying email to various bloggers. At the scene of the New Hampshire debate, there was some confusion about where he, as a journalist, was supposed to wait and...
A guy came over and asked me who I was and I told him I was a colmunist for The Nation and he told me I had to leave. I thought he was kind of rude, so I asked him his name, thinking it might go into Altercation the next day. He refused to answer me I asked again. He refused again. But I was following him out when he went to get a cop. The cop told me to leave the room and I did. We left the room, past where the people were handing out badges to go into the reception and I figured the entire drama was over. But the cop kept yelling at me to leave. I didn't understand. I thought I had left. I asked him to stop yelling, I had left. He kept telling me to leave. In retrospect, I guess he was kicking me out of the building and I didn't understand, but it was really mystifying and annoying and I told him I wanted to speak to his commanding officer.

We went over to the commanding officer and I, calmly and politely, sought to explain that I didn't know why this cop was continuing to hassle me. The first cop kept interrupting me as I tried to explain myself and finally I turned around and said, "Can I please finish a sentence here?" That's when the first cop decided to arrest me. He handcuffed me behind my back and took me outside....

Anyway, I never refused to leave and the only time I raised my voice was when the first cop would not let me explain what I had thought was a massive misunderstanding to his commanding officer.
"I never refused to leave" seems to mean "I never said I was never going to leave." Can it possibly be the generally applicable rule that a person can stay put and discuss -- however politely -- whether the demand to leave makes sense? Missing from the account is whether Alterman was asked to show his press ID. Anyone could claim to be a columnist (or "colmunist") from The Nation, and the police had the responsibility to secure a building where the presidential candidates were going to appear. This is a serious matter. I can't understand why Alterman would want to make this difficult work any harder for them, and a display of belligerence would, I think, from their perspective, make him look more suspicious.

Here's the New Hampshire statute:
I. A person is guilty of criminal trespass if, knowing that he is not licensed or privileged to do so, he enters or remains in any place....

III. Criminal trespass is a misdemeanor if:...
(b) The person knowingly enters or remains:..
(2) In any place in defiance of an order to leave or not to enter which was personally communicated to him by the owner or other authorized person....

ADDED: More here.

70 comments:

Sloanasaurus said...

Maybe Alterman was hoping the cop would get out his baton and start beating him so he could write a story on police brutality - we are no differnt than Saddam!"

Isn't it great how so many reporters try to be the news rather than report the news.

Simon said...

"Belligerent jackass with sense of entitlement arrested. Film at 11." Failure to leave when ordered to do so by the police and able to do so would very much seem to be a constructive refusal to leave, dictated both by common sense and, it seems, applicable law.

AllenS said...

He'll get a story out of this. Another example of the police state that has happened under Bushitler.

Tim said...

Clearly this is not Alterman's fault. Every journalist knows the law doesn't apply to them - just ask them.

Besides, the fact there were presidential candidates in the building doesn't change matters either - Alterman was obviously the most important man in the room. Pity the debate functionary and the local gestapo didn't recognize that.

Much mocking in The Nation is sure to follow. These poor folks have no idea what they're in for.

Bruce Hayden said...

It should be interesting. I would suggest that if his side of the story is accurate, and if he gets a really good attorney, he can possibly beat the rap. What he is arguing here is lack of the required intent (scienter). The reason that having a good attorney will be important is that when the cop testifies as to what he said, he will do it without shouting.

This is a he says/ he says sort of thing, except that judges usually listen to cops a lot more than defendants in this sort of situation.

SteveR said...
This comment has been removed by the author.
SteveR said...

I mean gee, we know its ok to publish classified information that is "illegaly" leaked. No big whup.

When ever a cop tells me to do something I don't think is right or I don't understand, I don't hesitate to argue or seek clarification. Yeah pulling out that "let me talk to your supervisor" thing always works.

Next headline: Eric Alterman Seen Staring at the Sun

Simon said...

AllenS said...
"He'll get a story out of this. Another example of the police state that has happened under Bushitler."

I got the impression from the story that these were state cops. Unless that's a misunderstanding, surely even Alterman has too much integrity to try something so utterly fraudulent.

AllenS said...

Ok, Simon, let's say they were state cops. That's an indication that they were directed by KKKarl Rove and his state associates.

AJ Lynch said...

I hope the cops gave him a nice old-fashioned wood shampoo.

Christy said...

He is full of it. Or simply a boor. Did he think the Open bar was for everyone just hanging around? Certainly goes to his sense of entitlement. Hmmm, Perhaps theft is a more appropriate charge?

Sloanasaurus said...

Maybe Alterman is just shocked that he was booked for something as petty as tresspass. Afterall, many of his colleagues have leaked national defense secrets and they are hailed as heroes.

MadisonMan said...

So who was the guy who originally asked Alterman to leave? That's the unanswered question that gets lost in the subsequent non-story involving the police. Rudeness all around and a failure to communicate.

Naked Lunch said...

Clearly, asking if it's an open bar makes you a communist with a sense of entitlement and pure lust for a nanny state.

Simon said...

MadisonMan said...
"So who was the guy who originally asked Alterman to leave? That's the unanswered question that gets lost in the subsequent non-story involving the police."

Functionally, does it matter? Once the police asked him to leave and he constructively refused to do so, wasn't he ipso facto within the statute's definition of trespass?

Simon said...

AllenS - I didn't know we had state cops in our control too. I'll bring it up as a point of order at the next meeting of the Vast Right Wing Conspiracy. ;)

Doyle said...

This is a serious matter.

Would you like to see the terror threat condition upgraded to Orange? Or will it take the invasion of another country before you sleep well again?

MadisonMan said...

Simon, I just want to flesh out the whole story. The original person who asked Alterman to leave could be someone delegated by Karl Rove, it could be someone from the network, it could be someone who supplies hardware and thought Alterman looked like a crook. It could be someone with a headache who's fed up with dealing with media prima donnas. Any possibility colors how I'll interpret the subsequent entanglement with the police .

hdhouse said...

ahhh yes and of course i hate to bring up a campaign stop by mr. bush when i showed up to hear my president in a public place and then ordered to leave because i had a "gore really did win didn't he" t-shirt on and refused to sign a loyalty oath pledging that i was a republican and such as well as turn over my SS# to some nitwit with a clipboard.

i was about an inch from being arrested. this kinda stuff has got to stop...from both sides and as it is being willynilly applied to all people/citizens.

and of course Sloan had this to say:
"Afterall, many of his colleagues have leaked national defense secrets and they are hailed as heroes."

Hey Sloan...can we get Jeff Ganon to do an on the spot interview...I'm sure he can get a white house press pass and pass it off in NH...he was legit too right? Talon newwwwwwwwwwwwwwwwws...woohoo.

Roger said...

The open bar explains it all.

Mike said...

Apparently the cop didn't know he was dealing with the policeman of the blogosphere. Alterman out ranked him.

Fen said...

Would someone on the Left please link to what they consider to be Alterman's best work? I'm just curious about his style, and what I've googled so far is disappointing.

Pogo said...

His explanation seems somewhat plausible. Since he was in fact telling the truth about who we was, the next question is whether he did actually have a right to be where he was. If he had credentials to be there, he should not have been removed. If he did not have the appropriate credentials, it was the correct decision to remove him.

Whether or not he received adequate explanation for the directive to "leave now" is also open to interpretation. Some policemen do employ the heavy hand of arrest rather easily.

But in this case serious protection issues arise, as candidates for President are meeting. The recently uncovered terror plots should give anyone pause, and yield to security concerns should prevail.

But I sense on the left a degree of disbelief about these plots, or at least they find unacceptable for any accomodation made for these threats to impinge on them directly.

Fen said...

And background question: how would something lik this play out with your editor? Would your boss be ticked at you for getting tossed out of your assignment or would he happy with the jackbooted thugs angle?

Just wondering how much of Alterman's version is cya for his audience at The Nation.

Simon said...

MadisonMan - But why does any of that matter? If one accepts that the police had authority to ask Alterman to leave, surely it follows that regardless of what transpired before, they nevertheless did ask him to leave, he failed to comply, and that makes the arrest squarely within the parameters of the statute, right? I don't see why it colors the entanglement with the cops, which arises from Alterman's refusal to follow a direct order from the police. He acted like one of these idiots who get themselves shot because the cops order them to get on the ground and they think they're being invited to a debate club. If you think they're in the wrong, file a complaint later, but in the immediate moment, if you fail to comply, you do so at your own risk.

Simon said...

Pogo:
"But I sense on the left a degree of disbelief about these plots."

Yeah, I get that feeling too... Listening to NPR's coverage, they seem to practically drip skepticism. It's just a feeling, I could be totally off, but it seems like there's a subtext that the MSM thinks these are unserious threats that are being blown out of proportion for propaganda purposes.

Doyle said...

there's a subtext that the MSM thinks these are unserious threats

The MSM did it's absolute best to get everyone watching cable this weekend to wet their pants over the JFK plot.

It's good that these things get discovered and broken up early, but to claim that the MSM has been DISMISSIVE of these knucklehead plots is absurd.

Pogo said...

Re: "wet their pants over the JFK plot"

Thanks, Doyle, for proving my point.

AJ Lynch said...

Doyle said:
"The MSM did it's absolute best to get everyone watching cable this weekend to wet their pants over the JFK plot."

I disagree Doyle. This story was on page 2 of the Philadelphia Inquirer on Sunday.

Page 1 included a story and photo about whether or not Duck's liver should be legal.

Is that laughable or what?

Ann Althouse said...

Obviously, these debates are terrorism targets! You have to be an idiot not to see this. And quite apart from terrorism, there have to be concerns about assassination. I remember when Bobby Kennedy was shot. Some of you people are really out of touch with reality.

"Last week, Barack Obama received Secret Service protection--the earliest protection ever given to a candidate during the stages of a presidential race. (As the spouse of a president, Hillary Clinton has had Secret Service protection since 1992.) This underscores the very real threat that black candidates still face from a domestic terrorism network made up largely of white supremacist groups."

And I'll bet those of you who think it was ridiculous to question Alterman would also scream and yell if the police did something that looked like racial profiling.

Doyle said...

Pogo your points are so crazy that they defy proof.

No one "disbelieves" that there are potential terrorists out there. But there's a whole range of freaking out about it that can be done.

You seem to think that these guys from Guyana, with their "not technically feasible" plot to blow up fuel lines at JFK, should have had some bearing on whether or not Eric Alterman should have been arrested at a debate in New Hampshire.

That's just batshit crazy, as any number of Republicans would probably tell you, or would if they weren't so desperate to get your vote and that of people like you.

Doyle said...

I remember when Bobby Kennedy was shot.

Well then it's impossible that you're overreacting to this thing.

Pogo said...

Re: "That's just batshit crazy"

Doyle, I believe you have already provided sufficient proof that some on the left are unserious about terrorism. Now you've given that proof a belt with its suspenders.

To call "crazy" the idea that a terrorist would hope to kill a Presidential candidate is defiantly dumb. What? That would never happen!

But you can't win. Arrest Alterman for not having the right papers at a Presidential debate, and you have a police state, and people are just wetting their pants about "threats" (a claim merely encouraged by Bush). But had someone actually pulled off such an attack, the left would be decrying incompetence, lack of planning, and conspiracy, just like 9/11 and Iraq.

Heads they win, tails, you lose.
Such a serious lack of imagination they have.

PatHMV said...

Simon, the problem is that we really don't know for sure whether this cop had the authority to order Alterman to leave or not. Alterman's initial request, that the unknown person telling him to leave identify himself, was entirely reasonable. He may or may not have had any legal authority to control who entered that space at that moment.

After that, it was a misunderstanding between the cop and Alterman. The initial demand from the unidentified stranger was to leave the room, and Alterman left the room. Then the cop kept telling him to leave. Alterman thought he had already complied, as he was entitled to be in the part of the building he was in at the time. Knowing cops, I suspect that this particular cop just kept saying "I told you to leave," rather than amplifying by saying "no sir, I am instructing you to leave the entire building." There are some bad cops out there who would do stuff like that.

Assuming Alterman's telling the truth about his later conversation with the police at the booking station, this sounds to me like an over-zealous cop from a neighboring town, brought in to work extra duty, who had a miscommunication with a citizen.

The only part I find unusual and wanting of more explanation is the actions of the first cop in arresting them while he was in the act of talking with the commanding officer. I'd like to hear from the commanding officer on that.

PatHMV said...

And Ann... in response to your last comment, I certainly don't think there was anything wrong in the police coming up and questioning Alterman. My concern for the police conduct was in arresting him after he had already moved from the place where (apparently) he wasn't supposed to be (which was not marked as controlled access, according to Alterman) to a room in which Alterman was entitled to be, and while he was in fact talking with the commanding officer.

Troy said...

It is an easy question. In the most favorable of circumstances when the nice police man asks you to move along, you move along. If you had a right to be there -- you sue the crap out of him, the city, or whatever. If there is no 1983 suit forthcoming from Alterman, well, there it is. Throw in the extra security at a presidential debate (a la RFK -- the right analog) and the fact that 98% of the people in the US have no idea who he is, much less what he looks like you have the makings of an easy case.

MEMO to MSM -- a press pass is not a badge, a government ID or a get out of jail free card. You are subject to arrests, citations, jail, prison, subpoenas, terrorist beheadings, kidnappings and all other sorts and levels of bad stuff from all sorts of folks who couldn't care less about your Columbia School of Journalism pedigree.

NSC said...

I note that Alterman mentions that the officers did not read him his "Miranda" rights and then wonders if it will matter. One would think a journalist of his experience would know it wasn't legally required if they weren't questioning him while he was under arrest. So, no, it doesn't matter.

Doyle said...

To call "crazy" the idea that a terrorist would hope to kill a Presidential candidate is defiantly dumb.

Except that isn't what I said. I merely said the risk of a terrorist attack from a journalist at the Dem debate was not heightened by the JFK plot, as you seem tho think it was.

We should catch people who want to blow stuff up. We should realize that some people are going to try anyway, and that most of them are not going to be successful, that we might get on with our lives and not totally shred the remnants of the Bill of Rights.

Simon said...

Doyle said...
"[T]hese guys from Guyana, with their "not technically feasible" plot to blow up fuel lines at JFK ..."

Where's that a quote from? All the accounts that I've read suggested that they lacked money and resources, two things that can be obtained, not that the underlying plot would not have been "technically feasible" with or without said obtainable resources.


"We should ... not totally shred the remnants of the Bill of Rights."

That you suggest - apparently with a straight face - that the Bill of Rights has somehow been reduced to mere "remnants" of its full scope is a measure of how seriously you ought to be taken. It seems to me that quite the converse is true: in light of cases like Crawford and Apprendi and its progeny, the trend has been precisely the opposite, in the direction of repairing lapsed protections.

Doyle said...

CNN reported the "not technically feasible" assessment, but subtly so as not to mitigate the excitement.

Putting aside the Bill of Rights, how 'bout if we just insist that terror-fighting operations conform to statutory law? So that if FISA is unduly restrictive (which it isn't), it can be changed rather than just, ya know, broken.

Simon said...

(Which is to say nothing of the ever-expanding reach of the Eighth Amendment, BTW, or the recent D.C. Circuit ruling placing the Second Amendment on more secure footing. And where the Bill of Rights has contracted - the First Amendment, for example, it has been liberals leading the charge in cases like McConnell. I somehow doubt you're cheering for the "remnants" of the First Amendment in WRTL, though, Doyle.)

Doyle said...

BTW I've segued to larger freedom-safety issues that are in no way related to Alterman's arrest, which I stipulate he probably had coming.

Doyle said...

Simon -

What are you talking about?

- Doyle

Simon said...

Doyle said...
"CNN reported the 'not technically feasible' assessment, but subtly so as not to mitigate the excitement."

A single, quote from unidentified "Homeland Security sources" isn't really all that impressive a piece of evidence - although it was so subtle as to merit placement in the opening paragraph of the story. So your point fails on both levels! ;)


"Putting aside the Bill of Rights, how 'bout if we just insist that terror-fighting operations conform to statutory law? So that if FISA is unduly restrictive (which it isn't), it can be changed rather than just, ya know, broken."

I'd agree with that, and I've said before that I have concerns about the construction of Article II that lead me to subscribe to the Youngstown framework. Of course, that assumes that FISA is constitutionally valid, which I'm willing to stipulate for the time being.

Simon said...

Doyle said...
"What are you talking about?"

In which comment? My 12:30 PM was an addenda to my 12:27 PM, continuing the same thought, which was that your suggestion that the Bill of Rights has been reduced to "remnants" of its former self is preposterous.

Ben Masel said...

I'm soon going to trial in Ann's neighborhood on a somewhat similar tresspass charge.

Collecting signatures to get on the ballot for US Senate a year ago on the terrace behind the Memorial Union at UW, I was ordered to leave by management. 1969 caselaw from the state Suppremes holds the campuds sidewalks public fora. the Union, however, contends they're private, except when they want funds or services from the State.

Doyle said...
This comment has been removed by the author.
Too many jims said...

Here's a bit more than a single quote about how the plot was unlikely to succeed. (This is not to say that I don't think that it should be taken seriously.) Of course, one would expect those in charge of the pipelines and security for the pipelines to say this.

Doyle said...

Simon - How much evidence do you need that the plot was not technically feasible? These guys were idiots. They thought crippling the airport would bring the US economy to its knees.

And just so we're clear, we agree that the Bush admisistration is monitoring US persons phone calls in violation of the law but you don't see this as maybe being a 4th Amendment issue?

Pogo said...

"unlikely to succeed"

"One [anonymous] Port Authority official ...said that while it would be extremely difficult to cause a catastrophic explosion by attacking the fuel system, the damage to the airline industry could have been substantial. “No airline except American could survive any sustained drop in ridership,” the official said.

As the article states, it would have crippled the US airline industry, but not killed all the people in Queens.

Half a loaf, it would appear. Hardly a "failure".

Doyle said...

Well Pogo, thanks to the thick blanket of safety that only a Republican administration can provide, we'll never know how much damage the attack would have caused.

But the affect on the airline industry in that section you quote appears to be predicated on the unlikely event of the fuel line attack causing a catastrophic explosion.

Ann Althouse said...

Good luck, Ben.

Here's background on Ben Masel's case:

"...Masel was gathering signatures on July 3, at the Memorial Union in a restricted area of the terrace. Masel, 51, was gathering signatures in his effort to get on the Sept. 12 Democratic primary ballot. When told he was in violation, Masel challenged the policy, was pepper-sprayed and then arrested."

Pogo said...

Doyle, you're wrong; the Port Authority speaker said it was instead the more likely scenario, since a catastrophic explosion would have been "extremely difficult to cause".

I find it hard to stomach that your reaction is one of "what's the big deal, just a non-catastrophic explosion by a jihadist at one of the world’s busiest airports, where more than 1000 planes land and depart every day.

And why exactly should I be inspired with confidence that a Democrat so inclined would do a better job against these enemies than the right?

Doyle said...

Okay Pogo. You win. I thought long and hard about how close we came to massive catastrophe, and I pooped my pants. I'm ready to evaluate candidates on the basis of how many people they're willing to torture, and for how long. I realize now that the Constitution is a quaint document, singularly ill-equipped to deal with 21st century Guyanans.

Which way to Romney HQ?

Simon said...

Doyle said...
"Simon - How much evidence do you need that the plot was not technically feasible? These guys were idiots. They thought crippling the airport would bring the US economy to its knees."

That they overestimated the effect of the attack is not an argument that the attack wasn't technically feasible or that it would not have been effective to one extent or another.

"And just so we're clear, we agree that the Bush admisistration is monitoring US persons phone calls in violation of the law but you don't see this as maybe being a 4th Amendment issue?"

There are two programs to come to light, involving monitoring of one sort or another: one of which involves actual wiretapping of international calls, and the other involves datamining of metadata of internal calls (i.e. which number connected to which other number and when). The former, involving content-based monitoring, might raise Fourth Amendment concerns, but while it's established that wiretapping can constitute a Fourth Amendment search or seizure, Katz v. United States, 389 U.S. 347 (1967), it's also well-established that searches at the border are per se reasonable, United States v. Ramsey, 431 U.S. 606 (1977), a principle which extends to the "functional equivalent" of the border, Almeida-Sanchez v. United States, 413 U.S. 266 (1973). Thus, although content-based monitoring of purely domestic calls would raise Fourth Amendment problems, in my view, because these were trans-border calls, they fall within the border search exception. As to the datamining operation, I adhere to my position of last year: "[t]his program involves the reciept by the government of various data given to it - as it turns out, illegally - by various telephone companies. The Fourth Amendment is not implicated in this program .... Whose Fourth Amendment rights are being violated? How? By whom?" Thus, I don't see a Fourth Amendment issue with either program, and one has to assume that if there had been a serious Fourth Amendment point to make, Judge Taylor would have included it in her opinion. I think the data mining program may well have induced the participating TelCos to violate the Stored Communications Act. So at a minimum, I'd agree that the programs might violate statutory law, although I wouldn't go so far as to say that they do.

Doyle said...

So for those of you who take these foiled plots "seriously": Do we need new laws to be passed in response? Do we need existing laws to be scrapped?

I mean it's not that I don't appreciate that there are dangerous people out there but aren't we supposed to catch them?

You talk about having it both ways. You use the absence of a major terrorist attack since 9/11 as evidence that the Bush administration's radical policies are working, and then use these thwarted "major" terrorist plots as evidence that we need those radical policies more than ever.

Simon said...

"You talk about having it both ways. You use the absence of a major terrorist attack since 9/11 as evidence that the Bush administration's radical policies are working, and then use these thwarted "major" terrorist plots as evidence that we need those radical policies more than ever."

Where's the contradiction there? There's no tension between saying that the administration's policies have helped prevent terrorist attacks since 9/11 and saying that a terrorist attack that was foiled (i.e. prevented) operating under said policies evidences the need for those policies.

Doyle said...

These guys were apprehended by legal means, yes?

It shows you don't have to break the law to prevent terrorism.

Doyle said...

Also, the increase in the number of people interested in launching terrorist attacks on America owes a lot to Bush's invasion of Iraq, Abu Ghraib, Gitmo, etc.

Naked Lunch said...

There are two programs to come to light, involving monitoring of one sort or another: one of which involves actual wiretapping of international calls...

LOL

Simon said...

Doyle said...
"These guys were apprehended by legal means, yes?"

I have no idea what means were deployed to catch these folks. Do you? From what source?

"It shows you don't have to break the law to prevent terrorism."

Even if that's so (and as mentioned above, that entails an assumption about how they were caught) it shows only that it wasn't necessary in THIS case.

Doyle said...

Simon: Do you think it's okay for the President to order illegal surveillance programs?

Doyle said...

I have no idea what means were deployed to catch these folks.

Exactly my point. You're comfortable with not knowing if there are any limits on goverment power, or even knowing that there are no such limits. That's the difference between you and someone with a basic familiarity with the American system of government.

Pogo said...

Re: "the increase in the number of people interested in launching terrorist attacks on America owes a lot to Bush's invasion of Iraq"

1. I thought Iraq had nothing to do with terrorism.

2. You still don't get it. They don't hate Bush. They don't want anything from us. They simply us dead. They have been quite explicit about this.

3. The run-and-hide-and-apologize stance hasn't kept Spain free of similar threats, so then what?

4. Lincoln, Wilson, and FDR thought it was okay for the President to order illegal surveillance programs.

Pogo said...

They simply want us dead

blake said...

It strikes me that flying a plane into one of the world's largest buildings in the hopes of taking it down was pretty unfeasible, too, especially since fire can't melt steel. But I guess they didn't really think they could knock the building down.

Truth is, we don't know what we're dealing with. Our systems weren't really designed for people to deliberately, overtly try to break or use as weapons.

It's not that there's a connection between a specific foiled terrorist attempt and a Presidential candidate debate, but it is naive to expect security at the former to be lax in the wake of the latter.

sonicfrog said...

Before it actually happened, it was ""not technically feasible" to fly two jumbo jets into the WTC and cause them to collapse... Oh, I forgot. Rosie O'Donnell proved that it was the government that made the buildings come down. My Bad!

PS. Damned you Blake! You robbed me of my point.

PPS. Weren't we talking about Alterman on this post?

Simon said...

Doyle said...
"Exactly my point."

Then your point's changed in the space of an hour or so. The point you offered above was that "[t]hese guys were apprehended by legal means," in support of the argument that "you don't have to break the law to prevent terrorism." So do you know the full back story of how these folks were caught or not? For that point to survive, they have to have been caught by undisputedly legal means, and it seems as though you're admitting that you're not in a position to say that with certainty either. I'm not disclaiming interest in how they were caught, merely confessing that I haven't obtained a detailed picture of how the investigation was carried out - a situation it seems we have in common.


"Simon: Do you think it's okay for the President to order illegal surveillance programs?"

No. However, as I'm sure you'd be the first to point out with regard to, say, the Patriot Act, "legal" doesn't mean "within the laws passed by Congress." No legislation passed by Congress (nor any executive order or agency rule) can authorize a violation of the Constitution. That principle applies both to laws infringing rights-bearing provisions and laws infringing structural provisions (cf. Printz v. United States, 521 U.S. 898 (1997)). Thus, a law that infringes upon inherent Article II powers is no law, just as a law imposing cruel and unusual punishments is no law. The hard question, though, is figuring out the boundaries of those implied powers, and I think that's about the hardest questions in Constitutional law, for the reasons given in the post linked above. (As a general rule, I'd maintain that "when we dive in murkier waters, where the [Constitution's] command is less plain, we should be guided by the ropes of the unenunciated structures and principles that undergird and are presupposed by the Constitution, and by the lights of our forebears: by tradition, and by precedent[,] []the latter being tradition given sharper teeth[]," but that isn't dispositive in this sort of question.)

So in the abstract, as a debating point, that's an easy question, but legal questions aren't (or shouldn't be) definitively resolved in the abstract, particularly the important ones. They should be resolved in the context of specifics.

Tim said...

All this chit-chat about terrorists raises the obvious question:

Why does Eric Alterman hate us?

Relatedly, it doesn't take even half a second to imagine the blame the nutroots would ascribe to the Bush Regime should terrorists actually ever attack a gathering of Dem candidates at debate.

As to why they might ever attack their de facto allies, vis a vis Iraq, is a different matter altogether, but few assert the wisdom of our enemies.

hdhouse said...

boys and girls - chill

Ann is right about the potential for having a catastrophe with all candidates present. Those consequences should be considered and were. Was the policeguy a bit over the top. Yup. Was Alterman contentious. Yup.

Now as the JFK/NYC terrorist "plot", the thing was followed by NYPD and associated personnel for a year. Could the loonies have pulled it off? Once they were tumbled upon NO CHANCE. It wasn't crack law enforcement that found them out but a drug dealer making a deal for a lighter sentence...that was the guy who infiltrated the group based on his own personal knowledge and bringing to the cops to cut a better deal for himself.

Bush's policies had zip to do with it other than for the past 6 years NYC has been on stage 4 alert (whatever color that is...funny that we don't have warnings and warnings anymore isn't it...).

Don't take credit where credit isn't due...and don't forget to take an ounce of prevention when you can.