Tuesday, July 24, 2007

I'm still waiting

Although my attention has been distracted for the past few days, I did hear Sen. Russ Feingold interviewed on WTMJ regarding his opposition to the John Doe amendment. His comments were - and there is really no room for debate on this - flat out wrong. The amendment does not change the "criminal law" (it makes minor changes in the civil law), it does not grant "complete immunity" to those who report suspicious activity and certainly wouldn't grant it to people who merely report someone "they don't like" or who is simply "praying." The thing wasn't done at the last minute, etc.

I suppose I could say that Sen. Feingold is unable to understand the amendment's language, but that can't be true. It's fairly simple and, even if it were not, Sen. Feingold is a well trained lawyer (he was a year or two ahead of me at Harvard and, for the year or so that he practiced, was at the same tony law firm that I worked at for 16 years.) It could be that he hasn't read it, but that proposition is scary and, happily, implausible. Legislators often don't (really can't) read everything that they vote on, but this doesn't seem like a case where that would happen.

So I'm still at a loss to figure it out. Is there a political dynamic that says he needs to take the most extreme "civil liberties" positions possible even if they make little sense? Does he need to be seen as opposing anything that the GOP proposes on the war on terror or that makes terrorism seem like a serious threat? Is CAIR an important Democratic constituency?

I still don't know.


Anonymous said...

He has never failed to vote against legislation that would help catch terrorists. WHy the surprise this time?

Billiam said...

Also, why the surprise that he lied about it? After all, you know the old saying. How do you know when a politician is lying? His/her lips are moving.

Anonymous said...

I can't speak for Feingold, but I'll speak for myself (a generally liberal attorney). Here's the text-most people who are commenting have not reviewed the text):


(a) Immunity for Reports of Suspicious Behavior.--

(1) IN GENERAL.--Any person who, in good faith and based on objectively reasonable suspicion, makes, or causes to be made, a voluntary report of covered activity to an authorized official shall be immune from civil liability under Federal, State, and local law for such report.

(2) FALSE REPORTS.--Paragraph (1) shall not apply to any report that the person knew to be false at the time that person made that report.

(b) Immunity for Response.--

(1) IN GENERAL.--Any authorized official who observes, or receives a report of, covered activity and takes reasonable action to respond to such activity shall be immune from civil liability under Federal, State, and local law for such action.

(2) SAVINGS CLAUSE.--Nothing in this subsection shall affect the ability of any authorized official to assert any defense, privilege, or immunity that would otherwise be available, and this subsection shall not be construed as affecting any such defense, privilege, or immunity.

(c) Attorney Fees and Costs.--Any person or authorized official found to be immune from civil liability under this section shall be entitled to recover from the plaintiff all reasonable costs and attorney fees.

(d) Definitions.--In this section:

(1) AUTHORIZED OFFICIAL.--The term ``authorized official'' means--

(A) any employee or agent of a mass transportation system;

(B) any officer, employee, or agent of the Department of Homeland Security, the Department of Transportation, or the Department of Justice;

(C) any Federal, State, or local law enforcement officer; or

(D) any transportation security officer.

(2) COVERED ACTIVITY.--The term ``covered activity'' means any suspicious transaction, activity, or occurrence indicating that an individual may be engaging, or preparing to engage, in--

(A) a violent act or act dangerous to human life that is a violation of the criminal laws of the United States or of any State, or that would be such a violation if committed within the jurisdiction of the United States or any State; or

(B) an act of terrorism (as that term is defined in section 3077 of title 18, United States Code) that involves, or is directed against, a mass transportation system or vehicle or its passengers.

(3) MASS TRANSPORTATION.--The term ``mass transportation''--

(A) has the meaning given to that term in section 5302(a)(7) of title 49, United States Code; and

(B) includes--

(i) school bus, charter, or intercity bus transportation;

(ii) intercity passenger rail transportation;

(iii) sightseeing transportation;

(iv) a passenger vessel as that term is defined in section 2101(22) of title 46, United States Code;

(v) other regularly scheduled waterborne transportation service of passengers by vessel of at least 20 gross tons; and

(vi) air transportation as that term is defined in section 40102 of title 49, United States Code.

(4) MASS TRANSPORTATION SYSTEM.--The term ``mass transportation system'' means an entity or entities organized to provide mass transportation using vehicles, including the infrastructure used to provide such transportation.

(5) VEHICLE.--The term ``vehicle'' has the meaning given to that term in section 1992(16) of title 18, United States Code.

(e) Effective Date.--This section shall take effect on November 20, 2006, and shall apply to all activities and claims occurring on or after such date.

First problem: Note the effective date. This is private legislation at its worst. It has been made retroactive to an incident in which several Arabs were removed from a flight for "flying while Arab." For a federalist, you appear to be supporting sweeping legislation that on its face counteracts federal, state and local laws to respond to a specific incident. This is just wrong wrong wrong and very bad policy.

Second, it builds in an attorney fees clause AGAINST a person who brings suit alleging improper report and action taken against an innocent party. What does that mean in practice? The little guy first gets hauled off the flight and interogated for 12 hours. When proven innocent (because we're now using a standard of guilty until proven innocent), the guy has to shuffle along his merry way. When he decides enough is enough, he tries to find a lawyer willing to stand up for him. The attorney has to look at him and weigh teh chances of recovery which will not include attorney fees, from the chance of no recovery, which will include attorney fees. This is a ridiculous attempt to prevent anyone from standing up for themselves.

In terms of its impact on criminal law, that remains to be seen. It presents the potential that criminal cases will be built from anonymous tips that can't be tamed by threat of litigation. I agree that is a stretch, but I disagree that there are no sound reasons to sink this reactionary private legislation.

Dad29 said...

Anony, that's a nicely-documented and reasonable response.

So maybe the effective date should change--

But as to the fee question: whatever happened to "pro bono"?

There are a lot of white-shoe folks representing Gitmo detainees. Seems to me that a couple of them could take on these cases, as well.

Anonymous said...

Esenberg knows full well that no defendant will ever succeed at dismissal through this provision.

He's just playing dumb and pandering to his little constituency of wingnuts.

Anonymous said...

The above was a different anonymous, but I still await Rick's response to an explanation of why "liberals" object to this legislation.