{Satire alert: The Specter of Patriot Act II is real, but I don’t support any such thing, nor do I think anybody on this site does, or would. However, that doesn’t mean the case of Dr. Tiller won’t be cited as the excuse or reason for Patriot Act II, which will probably be a judicial decision, as described below, but could also be congressional.}

In terms of political blowback, the murder of Dr. Tiller presents more than the “issue” of an act of "terrorism" happening on "Obama's watch," a fact that will probably be cited by a smirking Dick Cheney.

The emerging CW, as NOW, Keith Olbermann and other well-respected voices are saying, that we are dealing with "domestic terrorism," and/or an “assassination.” Even more, as the Boulder, Colorado late termination Dr. Warren Hern stated to the Colorado Independent and the LA Times:



Hern also told the LA Times that Tiller is the “fifth American doctor to be assassinated.” Hern told the Los Angeles Times he’s well aware of the dangers. “I get messages from these people saying, ‘Don’t bother wearing a bulletproof vest, we’re going for a head shot.’” The LA Times also points out that Dr. Hern “was targeted by violent extremists as well as principled opponents.”

The murder’s totally heinous nature, especially put into the context Dr. Hern mentions, got me thinking, and an idea popped into my head (warning, satire/irony ahead):

It seems the Patriot Act is not enough to protect us from such outrageous terroristic assassinations of politically controversial persons such as the late Dr. Tiller, whether or not by a “violent fascist movement.” But, I don’t want Patriot Act I -- much less Patriot Act II. Do you?

Let’s “connect the dots” shall we? For example, a disgruntled (or reasonable) ex-wife says “she divorced {Roeder} in 1996 because of his strong views against abortion. She says she kept their son away from his dad when he was a minor because she didn't want him to poison the boy's mind.” http://www.fox4kc.com/news/wdaf-scott-roed...

Shouldn’t such persons with such strong views be preventively detained BEFORE THEY COMMIT HEINOUS CRIMES?

May I suggest, ever so delicately, that there but for the grace of God goes many a person of strong views on the Left as well as the Right.

You see, if the game is “connect the dots” and the government MUST keep us safe, then whenever the government feels they can’t be 100% sure that someone’s level of political anger won’t erupt into violence, they’ll be sending the federal marshals to YOUR door.

Let me make it even more clear that the Patriot Act seemingly doesn’t go far enough (as some haters of freedom will no doubt soon argue):



The argument will be, of course, that if only the exclusionary rule of evidence didn't exist, this terrorist named Scott Roeder would have been in prison, instead of killing people in churches.

The argument against the exclusionary rule has always been that “guilty go free.” While this is not the case every time the exclusionary rule applies, up until lately American justice has always said that “Society wins not only when the guilty are convicted but when trials are fair (Brady v. Maryland)” and when police and prosecutors operate within the confines of the Constitution.

The big legal problem is: Just last week, the US Supreme Court reconfigured constitutional law AGAIN, and threw out the 6th Amendment rights of defendants to have their lawyer present during questioning outside of a Miranda “arrest” situation. In Montejo v. Louisiana, the US Supreme Court took the constitutional right, and “balanced” it against the state’s interest in, among other things, not “letting the guilty go free.” So, it was Bye bye 6th Amendment rights.

The 5-4 Supreme Court ruling, which Sotomayor’s presence won’t improve since Breyer was in the minority, decided that punishing the guilty outweighed the “prophylactic” effect of upholding a Supreme Court precedent over 20 years old written by Justice Stevens. In its 3-point test for whether the US Supreme Court needs to follow precedent (stare decisis), the 3rd point is, standing alone, enough to overrule ANY precedent the US Supreme Court doesn’t like:

3. Whether the decision is “well-reasoned.”

Don’t you find, as I do, that every time one disagrees with a decision one finds it not to be “well-reasoned?”

I expect to see heavy pressure to eliminate the Constitutional law based exclusionary rule. When it goes, there will be no deterrent to illegal searches if the evidence isn’t suppressed. What? Will the officers acting illegally be put on administrative leave or something? The late Seattle Post-Intelligencer reports that even cops who lie are rarely disciplined, despite what amounts an urban legend that lying is a “death penalty” offense for an officer. http://www.seattlepi.com/local/349169_lyin...

We have the makings of a Patriot Act, round II, to get rid of the exclusionary rule, which has long been a target, but is also the only real barrier to massive breaches of the 4th Amendment search and seizure rights.

THE CONSTITUTIONAL “AVOIDANCE” DOCTRINE

If a case can be disposed of on non-constitutional grounds, the “Constitutional Avoidance Doctrine” says that it should be. This doctrine was the core of the torture memos, which stretched the doctrine well beyond the breaking point in order to argue that a Congressional statute outlawing torture ought not to be read to apply to the Executive Branch because to do so would raise constitutional issues that ought to be avoided. For details, see http://writ.lp.findlaw.com/lazarus/2006081...

Courts are also only supposed to decide the issues as framed by the parties, not issues not briefed or litigated by the parties. Despite the fact that in Montejo v. Louisiana neither party sought to overrule Michigan v. Jackson, the US Supreme Court nevertheless asked for supplemental briefing on overruling this constitutional precedent, and then overruled it. http://www.scotusblog.com/wp/court-overrul... / After asking for supplemental briefing in March, the US Solicitor General weighed in with support for reversing Michigan v Jackson, an argument never made by the original parties in Montejo v Louisiana and Scalia authored the opinion you can read here: http://www.supremecourtus.gov/opinions/08p...

Constitutional avoidance, my ass. On the contrary, it sure appears to me that the US Supreme Court is hunting for rights to overturn, if they’re individual rights at least, and deferring to the separation of powers of a “coordinate branch” all too often if it’s merely a governmental interest at stake instead of a right. (The government doesn’t have “rights” only interests).

If that’s not enough for you, Scalia’s opinion says on “stare decisis” that precedent can be overturned if it is not “well-reasoned.” So, WHAT IS THE LAW? Whatever the US Supreme Court wants it to be, when it wants it to be that, regardless of whether the parties in a case are disagreeing about that law and litigating it, or not.

WILL PATRIOT ACT II BE A JUDICIAL DECISION THROWING OUT THE EXCLUSIONARY RULE?

When it comes to overturning the exclusionary rule, which arguably “protected” Scott Roeder, pro-choice advocates may find themselves in a difficult position on this issue now, given Roeder’s history. It will therefore be even easier for the US Supreme Court, or at the very least the court of public opinion, to move against the exclusionary rule as a whole than it was to nuke Michigan v. Jackson. If that happens, and the exclusionary rule has long been a target of the right wing, then the primary remaining deterrent to illegal searches goes out the window. (No time to discuss FISA, etc. here…)

What should one do? I can’t say for sure, but you deserve to know your rights, so I’ll “read” them to you, and adlib somewhat from the familiar approved text, in the interest of on-the-ground accuracy in light of the May 26 Montejo opinion and other context:




ALSO REASONABLY LIKELY IN THE NEAR FUTURE, THOUGH NOT EXACTLY THE CASE NOW, BARRING A CHANGE OF COURSE:



THE ATTACHMENT TO YOUR “STATEMENT OF RIGHTS” (above) ALSO CONTAINS: Certain Posts from DU that sound like the quotation from today’s news below, but instead substitute, oh, the proper first and last name of a “Right-wing media blowhard” or politician in the place of for “Randall Terry”

The Right wing will have little difficulty finding troublesome posts on places like DU and claiming a reasonable fear for their safety, no?

CONCLUSION:

I suggest we prosecute murderers to the full extent of the law.

I also suggest caution in playing the fear card,

I suggest caution in playing the terrorism card,

I suggest caution in playing the assassination card, or the fascist movement card,

not because these statements above can’t be argued or can't be justified to be applicable, – I don’t say they ARE, or they ARE NOT, because, quite frankly, I feel a chill to free speech about now.

That chill doesn't come from me but from the political circumstances and recent history of our country:

That chill comes from the known, demonstrated and proven catastrophic damage to the rights of all Americans that can and already has resulted from fear and terrorism arguments which has directly led to the deaths of many thousands of people -- all as part of the Government’s efforts to “keep us safe” from terrorists, and all those who “harbor them,” no matter where in the world they might be found. Even if the terrorists are not really there, like in Iraq.

“The only thing we have to fear is fear itself.” –President Franklin Delano Roosevelt

But I'll admit to slight trepidation at the specter of pointing BOTH BARRELS of the "terrorism" gun domestically, via the phrase "domestic terrorism." Why?

Well, the Government isn't supposed to just "connect the dots" and preventively jail folks on one side of the political debate. It must be fair and preventively jail both sides of the political debate.

"Domestic terrorism", justified or not as a charge, takes the Iraq/Afghanistan/Gitmo/Ghraib "guns" and points them at Kansas. And every other state, because we can't discriminate against Kansas.

It ain't Kansas any more, it's in toto.

As a guidestar for a way out of this pickle, I offer Thomas Paine's "First Principles of Government":