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August 8, 2004 - They do wonder about us...

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The Anticipatory Search Warrant is something new, and another fellow says Americans really aren’t divided at all…  Americans aren’t all torn apart and angry and frightened.



Tuesday’s Guardian (UK) – as left as it is – provides its usual clear prose, and the text for this particular sermon.

First up? George Monbiot on how the War of Terror is destroying out freedoms. The usual, right?

A threat to democracy
Basic freedoms to protest are being systematically undermined by anti-terror legislation
George Monbiot, The Guardian (UK), Tuesday August 3, 2004

His opening is classic – a model of effective prose style (with British spellings) – and a bit scary …


If we have learned anything over the past 18 months it is this: that the first rule of politics - power must never be trusted - still applies. The government will neither regulate itself nor be regulated by the institutions which surround it. Parliament chose to believe a string of obvious lies. The media repeated them, the civil service let them pass, the judiciary endorsed them. The answer to the age-old political question - who guards the guards? - remains unchanged. Only the people will hold the government to account.

They have two means of doing so. The first is to throw it out of office at the next election. This works only when we are permitted to choose an alternative set of policies. But in almost every nation, a new contract has now been struck between the main political parties: they have chosen to agree on almost all significant areas of policy. This leaves the people disenfranchised: they can vote out the monkeys but not the organ-grinder. So voting is now a less important democratic instrument than the second means: the ability to register our discontent during a government's term in office.

Applying the first rule of politics, we should expect those in power to seek to prevent the public from holding them to account. Whenever they can get away with it, they will restrict the right to protest. They got away with it last week.

The demonstrators who have halted the construction of the new animal testing labs in Oxford…


No, readers here don’t much care about the British examples. None of that.  Click on the link if you want details of what, in England’s green and pleasant land, bothers this fellow.

We have our own examples – see You won't see Dick, unless you say the magic words... and Keeping the Press in line... and other such items for domestic examples.

Such items are not hard to find.

At both of the political conventions protesters are confined to fenced-in “free speech zones” where, behind the chain link fence, they can say anything they want.  No one wants trouble.

Only the people will hold the government to account?  The people - from their pens?  Well, we should expect those in power to seek to prevent the public from holding them to account, and these cages will do.

But I don’t know what to make of this item.  Things are getting tighter.

Orin Kerr over at the UCLA law blog The Volokh Conspiracy notes this -


I have read a lot of Fourth Amendment cases over the last few years, but today I learned something new: several courts of appeals have allowed the government to obtain and execute "anticipatory" search warrants. According to these cases, the government can get a warrant even if their case for probable cause hinges on some future event. If the future event occurs, the warrant becomes operative and they can execute the search. If the future event does not occur, then the warrant is not yet operative and they cannot execute the search.


Kevin Drum in The Washington Monthly has this to say -


… the problem with this is that a "future event" isn't necessarily a simple, clear-cut incident. It might be something that's unmistakably black-and-white, but it also might be something based on the suspect's behavior that's a bit of a judgment call.

And that's disturbing. The whole point of a warrant is that it prevents police from making their own judgment calls and requires them to make their case to a neutral judge if they want to execute a search. I wonder how long this has been going on and how common it is?


In the comments to Kevin Drum in The Washington Monthly Matt Davis posts this -


This sounds really bad in the abstract, but if the concrete manifestations are limited by normal legal standards of "reasonable" behavior, it might not be that bad.

Think of it: Policeman wants warrant to search when the impending meeting with Mendoza takes place (you know, when the drugs will still be there). Is it so wrong to give it to him? And to trust him to recognize that a meeting with Mendoza has (finally) taken place?

It's certainly not more epistemological discretion than we already grant our police, although we might want to reconsider.


Another comment – "Gee, prior restraint used to be unconstitutional."

Anticipatory search warrants.  A curious notion.  I’m note sure these are a direct result of the War on Terror as much they are just the result of a growing sense that we really must give the police more freedom in these dangerous times.  That would make the rise in the issuance of anticipatory search warrants only an indirect result.  Our worldview has changed – the zeitgeist has changed, the paradigm has shifted – choose your pretentious words here.  Folks be scared.  What will you give up when you’re scared?

Well, life is safe in a police state – if you behave yourself.

Martin Kettle, on the other hand, is almost cheery. Americans aren’t all torn apart and angry and frightened.  That’s all been blown way out proportion.

On both sides of the Atlantic, progressives could be braver
Americans are less polarised than their politicians would have us believe
Martin Kettle, The Guardian (UK), Tuesday August 3, 2004

He does a riff on Alan Wolfe -


Six years ago, the American sociologist Alan Wolfe published a strikingly important book. Entitled “One Nation, After All,” and subtitled “What Middle-Class Americans Really Think About,” it is an essential text for understanding the pulse of modern America. What makes it both important and essential is that Wolfe painted a picture radically at odds with the exaggerated perception, both in the US and abroad, of America as a nation of entrenched and embattled ideological extremes.

In fact, Wolfe argued that middle America was not so much a land of culture wars as of cultural pragmatism. "I have found little support for the notion that middle-class Americans" - a category within which three quarters of all Americans define themselves - "are engaged in bitter cultural conflict with each other over the proper way to live," he observed.

"Reluctant to pass judgment, [Americans] are tolerant to a fault," he concluded. "Not about everything - they have not come to accept homosexuality as normal and they intensely dislike bilingualism - but about a surprising number of things, including rapid transformations in the family, legal immigration, multicultural education and the separation of church and state. Above all moderate in their outlook on the world, they believe in the importance of leading a virtuous life, but are reluctant to impose values they understand as virtuous for themselves on others; strong believers in morality, they do not want to be considered moralists."


Oh really?

Well, Kettle interviews Wolfe and find the guy still maintains this view, and gives this summary -


The essence of Wolfe's case is that the great wedge issues of the late 20th-century culture wars have simply shrunk in significance. The most important of these, as always, is affirmative action on race, where the supreme court has managed to strike a sensible compromise. Nor, he argues, does abortion still have the divisive potential of the past, though if a re-elected Bush attempts to nominate a supreme court dedicated to overturning the landmark pro-abortion Roe vs Wade judgment of 1973, that could change. Having won the political argument over what it calls partial birth abortion, though, Wolfe reckons the right is less angry than it was.

There's much about America in 2004 that bears this out. Over the past couple of months, the president has spent $50m on campaign ads designed to promote his opposition to gay marriage. As Wolfe's original research found, gay equality remains one of the issues on which middle America remains to be convinced; yet you would have to search long and hard to find many people who believe that gay marriage is the great dividing issue in America. At the margins, Bush's advertising may help to motivate some social conservatives to vote Republican, but mostly it has sunk without trace.


Yes, Rick Santorum and fellow who worries about box turtles aside, no one much cares about gay marriage. We all have gay friends. What’s the point? Live and let live.

Disclosure – this writer, along with gay friends, also has more than a few morose friends.  (Sorry – couldn’t resist.)

So what’s the problem?  Why this apparent great divide?  Kettle’s conclusion …


A possible explanation is that the polarisation of 2000 and 2004 is simply untypical - most US presidential elections are not nearly so close as the last one was and the next one promises to be. In that case, some special factor - the disabling effect of the Clinton scandals on the Democratic cause in 2000, perhaps, or the mistrust towards Bush's Iraq policy and his tax cuts this time around - may have made these two contests more impassioned than they might otherwise have been.

A second is that the practices of modern campaigning and media - giving voters a relentlessly inaccurate picture of the choices they face, presenting their own candidate in an unbelievably favourable light and their opponent in an equally unbelievably negative light - conspire to create a polarised contest between core electorates and to drive down participation. As US journalist Jack Germond says in his new memoir, the Republicans do not have a monopoly on such tactics - they just seem better at it.

There is, of course, a third possibility: that Wolfe's "one nation" theory is just wrong.


Yes, that is quite possible.

I am tired of my conservative friends shouting at me that the world is newly and uniquely dangerous - and that a modified police state run by Ashcroft for the Bush administration is they only thing that will keep us from all being killed by the swarthy, nefarious Islamic radicals – THE CONSTITUTION IS NOT A SUICIDE PACT! – and that I should, basically, just shut up.

But I so enjoy stirring the pot.  Perhaps I shouldn’t.  Everything changed since 9/11 – as we have all been told.

No it hasn’t.

Or am I living in the past – a world that no longer exists?   Damn, I kind of liked that free-press / say-what-you-want / ask-for-a-warrant-before-you-let-them-in world.  Oh well.

Alan Wolfe? He sees no really big divide.  He’s wrong.

The divide is not about gay marriage or abortion.  We can settle that stuff.  The divide is right on the line between granting fairly limitless power to the current authorities in trade for a bit more security, and claiming freedom of expression, freedom of movement, basic personal privacy and that other quaint stuff – knowing there are risks but accepting those risks.

Nothing new there – Austria 1938 or Kent State in 1970 or… find your own example.  Here in California we just elected a governor, a charismatic German-speaking Austrian curiously enough, who wants to get rid of the state legislature – make them part-time advisors, no more – so he can get some things DONE, damn it!  He is tremendously popular.  He’ll get this.

We are just being asked to choose, one more time.  Freedom or security.

Of course you can work out ways to have bits of both, or a lot of both.  We managed that for quite a while, on and off.

But no one is talking compromise any long.  Bush says you are with us, or with the terrorists.  Kerry and those running against his administration are saying no way, George – we think you’ve done a lousy job and, by the way, we don’t like the terrorists at all.  We have other ideas – and on the economy and the environment and lots of stuff.  Bush and his crew are saying that just cannot be so – why do you folks hate America – do you want the terrorists to win?

Alan Wolfe?  He sees no really big divide.  He’s wrong.


Footnote –

In the discussion of George Monbiot's ideas above I mentioned England's green and pleasant land.  The phrase comes from this – Blake wanting to make things better, idealist that he was.   Yeah, the famous “dark satanic mills” words, and those Chariots of Fire, come from this.

(From 'The Preface' to 'Milton')
William Blake (1757-1827)

And did those feet in ancient time
Walk upon England's mountains green?
And was the holy Lamb of God
On England's pleasant pastures seen?

And did the Countenance Divine
Shine forth upon our clouded hills?
And was Jerusalem builded here
Among these dark satanic mills?

Bring me my bow of burning gold;
Bring me my arrows of desire;
Bring me my spear; O clouds, unfold!

Bring me my chariot of fire!

I will not cease from mental fight,
Nor shall my sword sleep in my hand,
Till we have built Jerusalem
In England's green and pleasant land.


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
for the purpose of illustration and commentary,
as permitted by the fair use doctrine of U.S. copyright law. 
See the Details page for the relevant citation.

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