Squaring the Culture

"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

04/06/2010 (12:31 pm)

Repeal HCR: The Tyrant Revealed… In the IRS

A large number of Americans objected that the Obama health care regime constitutes tyranny, and is not legitimate law. I wrote earlier that by John Locke’s definition of law, health care reform (“HCR” in this article’s title) is not law, and demolishes the rule of law.

Yesterday we saw the first, clear indication that this distinction has practical consequences, when Obama’s Commissioner of the Internal Revenue Service declared that citizens who fail to comply with the health care mandate will lose their tax refunds. (By the way, you might want to defer looking up that link until tomorrow; the site appears to be getting crushed by an unanticipated number of visitors.)

Individuals who don’t purchase health insurance may lose their tax refunds according to IRS Commissioner Doug Shulman. After acknowledging the recently passed health-care bill limits the agency’s options for enforcing the individual mandate, Shulman told reporters that the most likely way to penalize individuals that don’t comply is by reducing or confiscating their tax refunds.

Speaking at the National Press Club on Monday, Shulman downplayed the IRS’s role in enforcing the recent overhaul of the health insurance industry by claiming the agency would not aggressively target individuals who don’t purchase coverage. He noted that the health-care bill expressly forbids the agency from freezing bank accounts, seizing assets or pursuing criminal charges, but when pressed said the IRS would most likely use tax refund offsets to penalize those that don’t comply with the mandate. The IRS uses refund offsets to collect from individuals that owe the federal government a delinquent debt.

“These are not the kinds of things we send agents out about,” Shulman said. “These are things where you get a letter from us. Congress was very careful to make sure there was nothing too punitive in this bill.”

The key to the affairs rests in the fact that this enforcement mechanism does not appear to exist in the bill. I searched the pdf copy of the bill (you can find the text of the bill here) and discovered that the only reference to the IRS comes in the portions creating a notification for the failure to comply with the mandate. I was unable to find the actual penalties. American Pundit echoes Business Week in positing a $325 per-person fine beginning in 2015, with an increase to $695 per person the following year.

When the law consists of the desires of a single man or the whim of a bureau, liberty does not exist. When the government can exact penalties for a positive failure to perform a specific act, it can compel anything at all. This law must be repealed, or a new nation must be formed.

Repeal of this act will not be enough, however. We need, at the least, a constitutional amendment clarifying the limits of the commerce clause, to correct the out-of-control expansion of allowable government meddling.

02/25/2010 (10:31 am)

Two Videos We All Need to Watch

I’ll do the easiest one first.

Democrats are contemplating unmaking Senate rules allowing for filibuster, because the Republican minority has been using the filibuster effectively to impede the progressive agenda in Congress. Naked Emperor News produced a superb video reminding leading Democrats of the things they said back in 2005, when they were the minority and the Republican majority was considering a similar rule change. The topic then was Democratic obstruction of Bush judicial nominations. Republicans decided, for whatever reason, not to change the existing Senate rules. Let’s hope the Democrats decide similarly.

The key point is made by, of all people, Sen. Joe Biden, at around the 3:42 mark. “You may own the field right now, but you won’t own it forever.” He then prays that Democrats won’t make the sort of power grab that Republicans were contemplating but did not make. Wonder what he’s praying now?

This next video is a bit more troubling, because it involves sober consideration of civil disobedience, and it does so at a point where the danger of the governmental action is not immediately obvious — the census. An accurate count of citizens is mandated by the Constitution, and is essential for proper apportionment of representatives. However, the 2010 census asks for a flood of personal information for which the government has no Constitutionally-legitimate need. Given the hyper-partisanship of the Obama administration, and given his apparent proclivity for asserting government’s power to control individual decisions, it is crucial that we ask precisely what he intends to do with the information, and that we refuse to comply if we do not like the answer. And by the way, the information is said to include the GPS coordinates of your front door — whether you want them to have it or not.

There exist reasonable-sounding explanations for the census as it is being done in 2010. The questions to which this video refers occur in the American Community Survey, ACS-1, which is not directed to every citizen, but rather to 1 out of 10. The information is the sort that people give out to pollsters and researchers, and sometimes publish on facebook. I can see a reason why the local Fire Department might like to have the GPS fix on my address. The government needs valid statistics for the sake of regulation-making and policy evaluation.

However, all of these facts, which I’ve heard or read in defense of the current census, speak of information given voluntarily to those who have legitimate need of the information. The ACS-1 is information gathered by force of law, with statutory penalties for non-compliance, by an entity that has no legitimate need for it beyond the Constitutionally-mandated head count. If the government needs survey data for regulation-setting purposes, they can commission a survey that does not have the force of law, that can be answered anonymously, and with which citizens can choose whether or not to participate. The census is the wrong place for this sort of data-gathering.

So I’m saying, listen to Jerry Day’s questions, consider them carefully, and take the time to decide in advance whether you’ll cooperate with the ACS if you’re chosen to answer it.

There exists a separate question regarding President Obama’s attempts to bias the census in order to create a perpetual Democratic majority. That’s actually a separate topic. It occurs to me that by refusing to participate in the ACS, we could actually be aiding that effort; what if the Census Bureau decides to discard counts from houses that refuse to participate? Haven’t we self-selected a conservative cadre to be removed from apportionment considerations? I think it would be a violation of Census Bureau procedure to discard counts for that reason, but I would not put it past the progressive-activist volunteers that the government has commissioned to help with the census this year; in fact, I have to imagine that that’s the very reason he partnered with all those activist groups. We need to be on the watch for indications of fraud and mishandling of data with respect to the census.

A tip of the cap to Cal Twitty, a friend and one of my readers, for bringing the Jerry Day vid to my attention.

06/09/2009 (3:32 pm)

Obama Admin Argues That It's Above the Law

Not that no Executive branch has ever tried to argue that the Court has no authority over it before, but this year’s variety came before the US Supreme Court just yesterday — and lost (see also here.)

The bankruptcy court had decided that Chrysler’s sale to Fiat could move forward, over the objections of three pension funds from the state of Indiana who objected to the Chrysler sale because their claims for satisfaction of loans to Chrysler comes behind those of the United Auto Workers, but shouldn’t. Apparently a portion of their argument claims that Chrysler is not entitled to receive funds from the Troubled Asset Relief Program (TARP) to execute the deal, because Chrysler is not a financial institution. Complaints also arose from individuals raising product liability and personal injury claims, who argued that the bankruptcy filing essentially puts Chrysler beyond their reach and denies them their right to satisfaction.

The Solicitor General’s office argued in reply, among other things, that since the bankruptcy court did not rule on the use of TARP funds, and since federal courts traditionally will not rule on matters on which the lower court did not rule, that no federal court has jurisdiction to settle the question about the TARP funds.

Supreme Court Justice Ruth Bader Ginsberg, who handles emergency appeals from the 2nd Circuit, granted the plaintiffs — the Indiana pension funds — a temporary stay of the Chrysler deal, apparently to give the Court time to consider the matter further. Whatever the Solicitor General’s Office claims, the Supreme Court apparently has enough authority to do that.

The Obama administration has engaged in a series of Constitutionally questionable practices aimed, according to them, at stabilizing the US economy. A number of us have wondered how they’re getting away with ignoring the Constitution. The answer seems to be that nobody with the financial wherewithal to sue, has standing to sue. So, unless the Democrats in Congress decide they’re tired of the Chief Executive of government being a duly elected Dictator, it appears that the Obama administration will get what it wants. This strikes me as an indication that the Constitution lacks a proper enforcement mechanism; although it seems odd to me that it’s taken 230 years of US history to reach the point where the lack of a proper enforcement mechanism becomes clear.

05/08/2009 (6:50 am)

Polling Secession

regionchartsecessionIt’s a sign of the times that anybody is even asking the question, but a sign of political reality that I have to read leftist activists to find out what conservatives are thinking.

Wednesday, Washington Monthly published the results of a Research 2000 poll conducted for the Daily Kos, asking (among other things) the question: “Do you think the state that you live in would be better off as an independent nation or as part of the United States of America?” They did this in the wake of stories from several states — Texas, Oklahoma, Georgia, South Dakota — passing resolutions calling for President Obama to cease and desist violations of the US Constition, and a return to limited federalism.

Four out of five Americans are certain they’d prefer to remain part of the US, but there’s a huge spike among Southern Republicans that aren’t quite so sure. Thirty percent of respondents in the southern US expressed that they’re not sure whether they’d be better off staying with the US, and almost 10% are sure they’d prefer to leave.

Now, these are not numbers that indicate a revolution anytime soon. Quebec is still a province of Canada, and the Quebec sovereignty movement has at times pulled almost 50% of the vote there. But this is a clear indication that people in the south (mostly Republicans) are waking up to the fact that what’s going on in Washington today is far afield from what they signed up for.

In the meantime, four separate state legislatures have made an attempt to blow the whistle on the Democrats in Washington, DC, and so far, only the lefties are writing about it. Maybe the Republicans are too distracted by their own desire to survive politically to notice how elements their own base are beginning to think about starting a new nation.

They can count on at least one vote from Massachusetts. That would be me. I’ve been favoring secession since I saw the inevitability of the leftward drift of the US back in the 1980s.

Credit NewsOK with the story of Oklahoma’s House of Representatives passing their resolution calling for federal Constitutional conformity over the veto of their Democratic governor.

03/30/2009 (9:12 am)

President Obama Fires President Wagoner (Updated)

The Obama administration today fired GM’s Chief Executive Officer Rick Wagoner in what it’s calling a last-ditch effort to save the ailing automaker from bankruptcy. Federal auto industry czar Steve Rattner, former investment banker, said that the recovery plan submitted by GM was not sufficient to restore the company’s viability.

The move is probably right, and the reason also probably right. However, it comes too late and from the wrong direction. I’m wracking my memory, and cannot discover anywhere in the US Constitution the authority for the executive branch to operate take over and operate private companies.

The violation of American Constitutional government took place 6 months ago, during the last days of the Bush administration. The government has loaned GM some $13.4 billion for operating capital since then, apparently believing that the economic impact of allowing GM to declare bankruptcy was too great for the nation to sustain. That fear was poppycock at the time, and remains poppycock; GM is the victim of long-term, lousy management decisions, bad engineering, weak marketing, and union bullying. But crock or not, the operation of private corporations is among the powers reserved to the states or to the people in the 10th Amendment.

The automaker should never have asked for government assistance. It should never have been granted government assistance. The decision to oust President Wagoner should have been made by GM’s Board of Directors. The oversight of GM’s recovery plan should have been performed by GM’s Board of Directors. The choice to continue operation or declare bankruptcy should have been made between GM’s Board of Directors and the banks that held GM’s operating loans — and none of those banks should have been the federal government.

What I’m saying is, the unconstitutional nationalization of American industry is a Bush-Obama collaboration. Today’s decision merely slams home the reality — we are well on the way to becoming a socialist nation.

Sooner or later one of the private corporations accepting TARP funds is going to grow a testosterone factory and challenge the coercive Obama administration in court. They should win, as the Court recognizes the limits of executive authority. Some banks are already working very hard to escape the TARP trap. Wagoner is not the guy to do it, though, since he asked for federal funding and is as much at fault in GM’s demise as anybody else.

UPDATE: A fairly rude fellow from Sadly, No! objected to the sentence in my second paragraph, in which I stated that I could not discover from the Constitution authority for the executive branch to operate private companies. This is, in fact, muddled. I’ve corrected the sentence.

I said in the comments, below, that there are two, separate violations of the Constitution in this act: first, the executive branch does not have the authority to create private companies, and second, that neither the Congress nor the President has the Constitutional right to take over private companies owned by private citizens. I believe this was closer, but still not precisely correct.

In 1952, President Harry Truman attempted to seize the Youngstown Sheet and Tube Company in an effort to head off a strike by the United Steel Workers that would have damaged the country’s war effort in Korea. The Supreme Court in Youngstown Sheet and Tube Co. v Sawyer (1952) upheld an injunction by a lower court preventing the President from doing so. The Court declared that the President had no authority to seize a private company without either specific authorization under Article II of the Constitution or a specific act of the legislature.

This suggests that while Obama’s act is, in fact, unconstitutional in that the executive has no authority either to create a private company or to operate one without specific legislative approval, it might be constitutional for Congress to declare a private company subject to federal control due to national emergency, and when that’s been done, the President could in fact operate a private company. I really need the opinion of a constitutional scholar to explain under what conditions Congress could properly establish federal control over a private corporation, and it’s possible that the question has never really been settled.

02/14/2009 (10:54 am)

The American Form of Government

Here’s another installment in my continuing effort to educate us all regarding what it is we’re losing as America becomes a socialist oligarchy with meaningless voting rights, so that when we explain it, it’s clear, and when we get the opportunity to rebuild it, we build the right thing. It’s roughly 10½ minutes long. Watch:

The video argues that in point of fact, America must choose between a limited, constitutional republic and an oligarchy. The argument is basically sound, given that both anarchy and pure democracy tend merely to be short-lived transitions leading to oligarchy. His claim that pure monarchy is never truly government by one person is a bit of a stretch — there certainly is such a thing as a personality cult government, and names like Kim Il Sung, Mao Zedong, and Fidel Castro come to mind — but he’s at least correct in observing that such a government is merely a special case of “high control” government.

His political spectrum classification is absolutely correct, profound, and essential to keep in mind. The distinction between “far left” and “far right” governments is artificial, distinguishing only between the reasons they offer for a few men controlling the lives of all other men. The real, meaningful distinction lies in the degree of control and power granted to a government, not in the reasons they offer to achieve it.

His claim that a certain, limited amount of government is essential to defend liberty is also correct. That level is arguably something like a tenth to a twentieth of our current government’s size and power, based on the success of earlier America with a government that small.

Hat tip to Wimp.com, and thanks to Neil Mammen for bringing it to my attention.

01/17/2009 (4:39 am)

Exclusionary Rule Not Reversed

A few days ago, I wrote that the Exclusionary Rule had been reversed when the Supreme Court announced their decision in the case of Herring v US. After reading the decision, it’s apparent that the Exclusionary Rule has survived to ruin another day.

Herring v. US involves a defendant who was a known trouble-maker who came to the precinct to get something of his from a car that had been impounded. While he was there, police checked their own county records (Coffee County) to see if there were outstanding warrants for his arrest, and called the next county (Dale County) to see if they had any outstanding warrants on the guy. Dale County said there was, so the police detained him, searched him, and found drugs and an illegal firearm (Herring is a convicted felon who is not permitted to own a weapon). After they searched him, the clerk from Dale County called back and said, “Oops, the warrant was reversed five months ago, we forgot to update the computer.” Coffee County prosecuted Herring anyway for the drugs and the gun. He appealed his conviction, complaining that the search was in violation of his 4th Amendment rights (which prevent the government from performing unreasonable searches.) The 11th Circuit upheld the conviction, saying that the Exclusionary Rule — the one that says evidence gathered in violation of the 4th Amendment cannot be admitted in court — only applies when it’s deterring police misconduct, and there was no misconduct in this case. Dale County was negligent, said the 11th Circuit, but not reckless or deliberate in serving the improper warrant.

Justice Roberts wrote the decision upholding the decision of the 11th Circuit Court, saying that there exists in case law surrounding the Exclusionary Rule a “good faith” rule that basically says that if the police acted in good faith the evidence they gather need not be excluded. The basic idea is that the Exclusionary Rule exists to punish the police for violating peoples’ rights. When the cops break down your door with no reason, the courts want to make sure the police don’t benefit, so they exclude the evidence (I know, it makes no sense. They should prosecute the police and make them pay for your door.) If the police are not deliberately trying to violate your rights, but instead are acting as any reasonable officer would to adhere to the law, then there’s no reason to exclude evidence. Roberts made it clear that he’d consider it bad faith if Dale County consistently made errors in their warrants database, but that didn’t seem to be the case.

Justice Ginsberg wrote a dissent (joined by Souter, Breyer, and Stephens) basically saying “The Exclusionary Rule is the defendant’s only protection, and it’s important to punish Dale County’s clerical flub.” She wants the Exclusionary Rule to apply further than it historically has, and demands perfection. It strikes me that Justice Ginsberg forgets the purpose of the criminal justice system, namely to protect the people from criminals. Instead, she thinks the police are there to create a Constitutionally pristine system. They’re not; that’s her job, not theirs. Their job is to protect the people. Ginsberg wants to sacrifice the good of the people for the sanctity of the law. She reminds me of the librarian in the town library where I grew up, who wanted so badly to protect the books that she hated lending them out. Legalism always sacrifices the people for the sake of the law, forgetting that the law exists to serve the people.

Justices Breyer and Souter added in a separate dissent that previous cases distinguished between court clerical errors and police clerical errors, and that this case involved police clerical errors. They’re correct about the previous cases; Roberts agreed, but said there was no misconduct to deter, so the Exclusionary Rule need not apply. I agree with Roberts, but this dissenting opinion was more reasonable than Ginsberg’s.

It was a sensible decision, but not a major change in law. I’ve corrected my previous post on the subject to reflect this.

12/04/2008 (9:12 pm)

Natural Born Citizens and Birth Irony (Updated Twice)

Tomorrow the US Supreme Court gets to consider the question of whether they will accept for review a lawsuit addressing, among other things, the question of whether Barack Obama was eligible to run for President. Nine justices will consider whether to include on the docket the case of Donofrio v Wells, a request for emergency stay of the 2008 Presidential election to consider whether three of the candidates are qualified to run for President. If four justices agree to hear the case, they will schedule arguments.

I suppose there’s some irony to the Court waiting until Christmas season to consider the birth circumstances of The One. Ok, forget I said that, and let’s be serious.

I’ve been putting off writing about this for a long time, for several reasons. First, I hate being branded a conspiracy theorist, and the fluff over Obama’s Certificate of Live Birth posted on Daily Kos had the strong smell of that (though I did, at one point, contribute my expertise as a laser printer engineer to a discussion about whether certain visual anomalies might have been a printer error.) Second, I thought the lawsuit would just quietly vanish, and that would be that.

But here’s my concern at this point: what happens if the lawsuits are successful?

I’m not talking about the legal ramifications, although those will be sticky enough. Does anybody really imagine that the Obamatoons will grimace, snap their fingers in dismay, and say “Oh, doggone it, we were that close?” To this day, large numbers of BDS-addled Democrats refer to President Bush as “selected” as a result of the 2000 election’s Florida kerfuffle, a claim that’s so laughably wrong that making it immediately earns the speaker long-term “ignore” status. What if the Court now declares that Obama was not qualified to stand for election? They’re still not selecting the President, they’re just enforcing the law, but it’s a lot closer to selecting the President than was the 2000 decision, and Obama is a lot more popular. Hell, it’s a month after the election and we’re still reeling from the Prop 8 demonstrations. Strike Obama’s election and Obama supporters could literally go berserk. There may be riots. There may be violence. I’m not ruling out civil war, even. And can you imagine the level of hostility and the sabotage a President McCain would face if he won office this way? The Bush years were full of such subtle undermining; this would be worse.

The law is the law, and I’m all in favor of citizens’ cases being heard expeditiously. However, nobody sane should be hoping that the election be overturned; the practical outcome of that decision is not in any way clear, and none of the plausible outcomes are pleasant.

That being said, we do have to take this as a serious case.

Let’s deal with the cases they’re not hearing, first.

The original lawsuit by Philip Berg, Esq., a Hillary Clinton supporter from my old stomping grounds in Philly, demanded that Obama produce the evidence that he’s qualified to hold office. Berg’s lawsuit was dismissed because he lacks standing. For those who have no legal knowledge, the basic issue is that in order to sue, a citizen has to prove that he’s directly affected by the actions of the defendant; if my friend Joe is harmed by his neighbor’s dog, I’m not permitted to sue on Joe’s behalf, Joe has to sue for himself. I think the court was wrong about Berg’s standing: if the citizen has no legal standing to sue regarding the fitness of a candidate to hold office over him, who does? But that particular lawsuit seems doomed. I wasn’t going to touch it because I assess Berg to be somewhat of an idiot. Today, Berg’s case resides somewhere in a grey, shadowy legal limbo.

There is a second case that has not appeared in court yet, filed by candidate Alan Keyes in the state of California. Keyes, being a candidate for America’s Independent Party on the ballot for President, has clear standing to sue. His suit is against Debra Bowen, California Secretary of State, and also against Barack Obama, Joe Biden, and all of California’s electors. His suit demands that Obama produce proof that he is a natural born citizen of the US before the electors’ choices be certified, and not a citizen of Great Britain, Kenya, or Indonesia (Obama and his mother may have been naturalized as Indonesian citizens when she married and moved there, and it is known that Obama traveled to Indonesia using a passport claiming Indonesian citizenship when he was 20.) Likelihood that Keyes’ case will make it to a major court strikes me as high.

There are, as far I know, 17 cases filed in federal or state court attempting to settle the question of Obama’s qualification to run for President.

Obama’s team has three law firms — that’s three firms, not three lawyers — working hard to prevent any court from ever hearing these cases. You can’t take that as proof of guilt, though. Obama has won prior elections by removing opponents through legal challenges, some of them challenges with no merit against perfectly legitimate candidates. Naturally he’s going to take legal challenges against his own candidacy very seriously, even if those challenges are nonsense. He will fight these suits at every possible level just on principle. And let met just say now that if Obama does lose this election by being declared disqualified, it will serve karmic justice in a manner that should satisfy us all.

Now, let’s talk about the case they are hearing.

The lawsuit that’s being considered tomorrow is by one Leo Donofrio, a retired attorney from New Jersey and by my assessment of his work, a much, much better attorney than Philip Berg. Donofrio’s lawsuit was a great deal more clever than Berg’s, and based on much better law. You can read Donofrio’s blog about the case here. It’s full of interesting detail, if that’s what you like.

There’s very little question he has standing: his suit is against Nina Mitchell Wells, Secretary of State for New Jersey, and it’s for a Writ of Mandamus — essentially, a writ forcing her to do her job. As a citizen of New Jersey, he has every right to ask her to do that. The job he’s asking her to do is to properly vet the candidates on the ballot, and he’s questioning the qualification of three of them to stand for President: John McCain, Barack Obama, and Socialist Worker’s Party candidate Roger Calero.

On Calero, there’s no question: he’s a resident alien from Nicaragua, and not qualified to be President. John McCain was born to a military officer stationed in the Panama Canal Zone; since both of his parents were American citizens, and law exists clarifying the status of citizens born in the Canal Zone, he’s probably in the clear.

Donofrio’s basis for challenging Obama’s qualification has nothing whatsoever to do with his birth certificate or where he was born; the news reporting on this has been inaccurate. Donofrio claims that Obama was born a British citizen by virtue of his father’s citizenship, and as a consequence does not fit the legal definition of a “natural born citizen” as required by Article II, section 1 of the US Constitution. That Obama was both a British citizen and a US citizen at the time of his birth is actually supported by FactCheck.org. Donofrio claims that dual citizenship at birth does not fit the definition of “natural born citizen” per Article II.

Donofrio’s case has been saddled along the way with numerous mishaps, the type of mishaps we’re now used to seeing happen to those who dare to question The One. The most serious was a deliberate mishandling of his case by a stay clerk at the Supreme Court named Danny Bickell that prevented the case from being heard before the popular vote on Nov. 4 (Donofrio has since filed an official complaint of misconduct with Chief Justice Roberts.) Donofrio reportedly found a case that supplied precedent for his complaint against Bickell — and mysteriously, every link to that case has disappeared off the internet. Donofrio’s blog site at Blogger incorrectly warns everybody browsing there that the site has been flagged as spam (Blogger is owned by Google, which is apparently deliberately scrubbing anti-Obama content.) Donofrio has another complaint of official misconduct filed against an Appellate Court judge who allegedly created a fraudulent case file, omitting official documentation from the file.

Donofrio has responded to each of these with professional grace, making no accusations that he cannot support in court. Good for him. Allow me to make the unprofessional accusation for him: Obama supporters seem commonly to believe they are above the law. Welcome to the Progressive United States, a third world corruptocracy.

Allow me also to remind us all that technically, the election is not over until the Electoral College has met and voted. Donofrio hopes his request for emergency stay will be heard before that happens. It has not taken place yet.

There’s a pretty nice summary of the issues surrounding Obama’s citizenship here; don’t be put off by the apocalytic-sounding language on the blog, the article is pretty sane. There’s also a nice hub page with pointers to related information here, although they seem to be focused on birth certificate issues, which is pretty much silliness.

It should be over, but the election of 2008 still continues to entertain like no other. Amazing.

UPDATE 12/5: As of end of business Friday, the Supreme Court had issued a memo indicating a grant of certiorari for two cases, and Donofrio v Wells was not on the list. A grant of certiorari means the Supreme Court will hear the case. Some reporters claim the absence of Donofrio from the memo means certiorari was denied, but Donofrio himself thinks they’ll release their decisions on the rest of the cases Monday. Short version: it looks like the Court said “No,” but we’re still waiting.

UPDATE 12/8: It’s official. The Supreme Court has turned down Donofrio’s request for a stay, without comment. There are lots of disparaging comments from both sides of the aisle, most notably from conservative firebrand David Horowitz.

In a vaguely related issue, Andrew Sullivan’s research assistant has weighed in on the Trig Palin conspiracy that poor Andrew simply cannot let go, and agreed that his boss is chasing a unicorn for no apparent reason. As Michelle Malkin has been snarking, “Troofers to the right of me, troofers to the left of me…” Fifteen snob brownie points to anyone who recognizes the phrase as a reference to Tennyson’s poem, The Charge of the Light Brigade.

09/05/2008 (5:05 pm)

Biden Verifies the Witch Hunt

Joe Biden was reported by the UK Guardian to have said that he intends to prosecute the Bush administration when he takes office. The video is below. Listen to it carefully:

Ed Morrissey at Hot Air thinks there’s nothing here to get agitated about; he observes that what Biden says is correct, that nobody, not even the President, is above the law. I agree with that particular statement, but I disagree with Morrissey otherwise. There’s a great deal here to get agitated about.

Recall Biden’s comment in the video that Waxman, Conyers, and Leahy are gathering documents and “going through everything with a fine-tooth comb.” Which President’s administration suffered this sort of scrutiny without some prior, clear indication of criminal activity? Which suffered it even with some indication of criminal activity? Where, exactly, does Biden evince a proper role of Congress to carefully scrutinize millions of documents looking, hoping for some indication that a crime has been committed?

This is not legitimate review, no matter how carefully Biden attempts to wrap it in non-committal language. This is a witch hunt. It’s obsessive. It’s deranged. And, even if it’s not strictly unconstitutional, every signer of our Constitution would regard it as gross dereliction of duty on the part of Congress.

We’ve seen this before from the Democrats. Back in the 1990s, Newt Gingrich correctly identified House Speaker Jim Wright’s (D, Tx) illegal avoidance of gift and contribution restrictions (the sort that are intended to prevent bribery); the ensuing ethics complaint forced Wright to resign from the House. Then Gingrich became Speaker in 1994 when the Republicans won the majority in the House. David Bonior (D, MI) proceeded to file 76 separate ethics complaints against Gingrich over the next 2 years. All but one were found by the Ethics Committee to be without merit; on the one remaining issue, they fined Gingrich $300,000 because a single document prepared by his attorney had an inaccurate statement about a college class he’d taught. The complaint was that he’d allegedly violated finance rules by not declaring as a campaign contribution remuneration he received for teaching the course. Three years later, the IRS ruled that no violation of the law had occurred, so in actual fact, all 76 charges were without merit. This was a clear and deeply troubling abuse of government power by Democrats. It is similar to the current irrational rage against Bush in that like the assault on Gingrich, the current rage follows a Democratic presidency that was racked by genuine scandals and which was properly and appropriately investigated by Congress, and like the assault on Gingrich, this assault turns proper governmental oversight mechanisms into weapons for partisan oppression.

Apparently Democrats think they’re entitled to take tit for tat, even when their own are committing real crimes and their opponents are not.

Aside from missing the malignancy of the effort, though, Morrissey nails it with this:

…Democrats have controlled Congress for almost two years now, and they have conducted investigations into these allegations. What have they found? Nothing. The 110th Congress has abdicated all of its other responsibilities to focus on witch hunts, hoping to find a Holy Grail of Bush Derangement Syndrome. Despite wasting thousands of hours and millions of dollars, they’ve come up with a big nothingburger.

The real outrage here is either that the Democrats are so deep into the tinfoil hat brigade, or that they are so incompetent. Neither of those options speak well to keeping them in leadership roles.

Some Republican operative needs to calculate the amount of money wasted on these efforts, since the normal Democratic Party response to any investigation of real crimes by Republicans is a tally of how much it cost — as though there’s a price tag on honest government. But that’s a minor point.

The major point is that the Democrats have no regard for the rule of law. There’s been plenty of oversight, plenty of litigation, plenty of properly-formed legal complaints against what Democrats regard as violations of the Constitution. They’ve lost just about all of them, though they’ve won some. The point is, they’ve used the system that’s designed to exercise checks and balances, but that does not satisfy them. They want more.

I wrote earlier that this could eventually constitute a cause for civil war. If the Democratic party is so deranged that they think it’s appropriate to dig through literally millions of documents hoping to find some grounds for prosecution, which Republican politician will ever be safe?

07/15/2008 (1:02 pm)

How I Learned to Stop Worrying and Love Wiretapping

Dr. Strangelove, or How I Learned to Stop Worrying and Love the Bomb, was a 1960s liberal lampoon of the Cold War that was both funny enough and incisive enough to gain permanent, bipartisan recognition as a great comedy. Stanley Kubrick jazzed up the plot from a post-Cuban-Missile-Crisis scare novel by George and Bryant entitled Red Alert, and made a surreal comedic classic. Concerns about nuclear weapons are sensible, so I don’t mind my pragmatic tolerance of them being tied to George C. Scott’s insanity or Slim Pickens’ glee at riding the bomb to its destination; there’s a level of insanity tied to the very idea of nuclear war.

I feel the same way about wiretapping. As my long-lost but recently reacquired comment nemesis “darkhorse” observed, we’re dealing here with a national self-perception — we’re the land of the free, how can we tolerate “Big Brother” listening to our phone calls?

My last, lengthy post regarding legal immunity from lawsuits for the telecommunications companies in the latest update to FISA (the Foreign Intelligence Surveillance Act) led me to revisit the entire subject of wiretapping people living inside the US for national security purposes. I’ve spent the last few days reviewing the history of the surveillance program, and trying to grasp how it came about, what it was, and how it affects civil liberties. Despite the fact that I recognize the importance of civil libertarian concerns, my research has left me astounded at the mindless ill will of some of the President’s critics. It’s not just that I think he’s on solid legal ground for the program as it stood in 2005, though I do think that. It’s that the President’s actions in this matter have been so careful, so cognizant of existing law and Constitutional guidelines, and so restrained, that the charges that he’s “shredded the Constitution” and that the liberties of the nation “are in grave danger” constitute grossly irresponsible conspiracy theorizing, with the nation’s security the victim. I know that sensible legal minds disagree over whether the President’s surveillance program stayed within legal guidelines or stepped over them; but even those who think he’s stepped over the line have to acknowledge that he’s made a serious attempt, not only to protect the nation from real dangers, but to respect the legal boundaries of his office. To say otherwise is irresponsible and unacceptable. This is not an Executive power grab in any reasonable sense.

The Wall

To understand what happened, we need to step back in history to the Clinton administration, and even further back than that to the early operation of FISA. I don’t believe it’s very well understood that the deliberate disconnect between foreign intelligence and domestic law enforcement, the infamous “Wall” blamed (a bit inaccurately) on the Clinton administration, was actually an interpretation of FISA, and is a huge part of this wiretapping discussion.

FISA was passed in the wake of the Church Hearings in the Senate, a set of hearings reviewing the use of surveillance tactics against domestic political enemies during the Vietnam war and the Nixon administration. It attempted to bring clarity and some oversight to the question of what sort of surveillance the Executive was, and was not, legally permitted to do in the pursuit of national defense. Though the law itself seems fairly clear, case law surrounding FISA soon imposed restrictions that were not really present in the law — namely, that foreign intelligence data could not be collected for the purpose of domestic criminal prosecutions. This “primary purpose test,” which courts constructed before the Clintons took office, was famously codified by the Clinton administration’s Deputy Attorney General, Jamie Gorelick, as an official policy of keeping foreign surveillance separate from domestic law enforcement in order to protect citizens from potential oppression by the Executive. Andrew McCarthy explains this pretty clearly in this review published in the National Review online in 2004.

The effect of the Wall is widely understood by now, and correctly. We were at war but did not know it, and the nature of warfare had changed. The Wall, created with intent to protect citizens, prevented domestic law enforcement agents from recognizing and foiling a plot to attack the World Trade Center using hijacked aircraft. This highly revealing confession by Stewart Baker, former legal counsel to the NSA, opines that it’s probable that their efforts to protect citizens from theoretical civil liberties violations prevented US agents from stopping the 9/11 attacks.

We couldn’t find al-Mihdhar and al-Hazmi in August 2001 because we had imposed too many rules designed to protect against privacy abuses that were mainly theoretical. We missed our best chance to save the lives of 3,000 Americans because we spent more effort and imagination guarding against these theoretical privacy abuses than against terrorism.

Let’s pause here to recall that the political Left, which today is touting its civil libertarian bona fides, at the time blamed the President for his failure to prevent 9/11. In particular, after the revelation of a military data mining operation called Able Danger that had identified some of the 9/11 hijackers as possible targets for investigation, these leftists argued that the specific information produced by foreign intelligence data mining should have been used by the President, and that his failure to do so constituted near-criminal negligence (see this site for an example of how they viewed it). In the light of recent cries of dismay regarding the beleaguered Fourth Amendment, the absence of Leftist libertarian concerns about Able Danger is revealing. Of course, Able Danger, by virtue of the inherent limitations of data mining, was incapable of producing anything other than a name to keep an eye on; however, it did involve the sifting of a massive amount of domestic internet access records that are not different in any meaningful way from the private data the Left has been asserting are inviolable since the passage of the Patriot Act. As is so often the case, the Left’s application of civil liberties principles is selective, and subservient to the much more important goal of embarrassing the President when the President is Republican.

In re Sealed Case

The Patriot Act made an attempt to correct the problem of separate domestic and foreign intelligence by creating a means by which agencies could trade information. However, when the Attorney General’s office wrote guidelines to implement the Justice Department’s interpretation of the Patriot Act, they ran into a wall. In November of 2001, the FISA Court had adopted Gorelick’s 1995 guidelines as its official standard of review to apply in all cases before the court. When Justice submitted their procedures to the FISA Court in March of 2002, the FISA Court accepted them with modifications, and the modifications specifically re-erected the wall between foreign intelligence and domestic crime investigation. Contrary to the inaccurate sound bites of leftist activists, obtaining a warrant under FISA during this period was burdened by Clinton-era restrictions that the Patriot Act had attempted to eliminate, and as a result, the FISA court required more than 170 warrant requests to be modified in a manner that enforced Gorelick’s wall, a level of scrutiny that had not been applied before the Bush administration. This obstruction may have been due to the activism of a single, Bush-hating judge, a Clinton appointee famous for judicial activism.

The Bush administration appealed the FISA Court’s ruling through a mechanism that had, until then, never been used — a secret FISA Review Court. That court met in September of 2002, and issued its decision in November of the same year. If you have not read this decision, called in re Sealed Case, you are not equipped to understand the legal issues surrounding domestic wiretapping. You can read the decision here, or you can read Byron York’s simpler explanation of the case in National Review Online.

The decision basically acknowledged that as long as the government has a legitimate foreign intelligence reason to be investigating a US person as an agent of a foreign power, there’s no real restriction on gathering evidence of criminal conduct; the one justifies the other. In effect, this makes surveillance of suspected foreign agents within the borders of the United States completely legal under FISA. The court noted that the Fourth Amendment “probable cause” limits applied under domestic law enforcement warrant cases do not apply to foreign intelligence cases, so long as there’s reason to believe the target is working on behalf of a foreign power, like al Qaeda. Also, the FISA Court acknowledged the inherent Constitutional power of the Executive to engage in surveillance of foreign agents without a warrant.

Legal Alternative to Protect the Nation

In the wake of in re Sealed Case, however, it became increasingly obvious that the FISA process was too cumbersome to react with the speed necessary to provide intelligence data in some cases. The 9/11 Commission noted the case of Coleen Rowley, the FBI agent who tried to get a FISA warrant on Zacharias Moussaoui, the 20th hijacker. Ms. Rowley produced a 13-page memo detailing the difficulty, and the 9/11 Commission noted that the problems noted had not been solved. Byron York reported the 9/11 Commission’s acknowledgment of the problem:

“Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow,” the commission said. “Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process.”

It was in the wake of these revelations, and the growing accusations against the government for its failure to protect the American people on 9/11, that the President ordered the existing program of the NSA setting up mechanisms to respond immediately to requests for access to domestic communications with foreign powers.

The Attorney General issued a legal brief in January of 2006, explaining the legal basis for his actions in the wake of unauthorized publication of classified details of the NSA program by the New York Times. There’s some valid disagreement among legal scholars whether his argument is correct or not; however, I don’t think there’s any valid claim that the President was not acting in good faith, in accordance with what he believed to be powers to which the Constitutional entitled him. The arguments he raises are at least plausible. The Authorization to Use Military Force, passed a week after the WTC attacks, constitutes a clear declaration of war, as Hamdan v Rumsfeld confirmed. There’s a bunch of case law about surveillance that sidesteps the question of Executive privilege to surveil foreign powers acting within our borders, taking for granted that such power exists and is not within the court’s jurisdiction to impede. In re Sealed Case confirmed it; so did Truong and Keith, two decisions frequently cited in constitutional analyses of wiretapping cases. Surveillance of military enemies has consistently been a part of the conduct of war throughout military history. Protecting the US against attacks by foreign powers is clearly, constitutionally the President’s job.

There are excellent analyses of the President’s legal case to be found on the internet. Perhaps the best, and most balanced, I’ve read was the analysis presented before the Senate Judiciary Committee in March of 2006 by David Kris, formerly of the Dept of Justice and currently legal counsel to Time-Warner. I also like Baseball Crank’s legal analysis, although he’s more obviously partisan. My own sense is that this is a no-brainer; so long as the origin of the call is plausibly a hostile foreign operative, tapping the call meets the Fourth Amendment “reasonableness” standard, falls within the President’s legitimate war powers, and does not require a warrant. I personally like the “border crossing” argument raised in Kris’ brief, but not being used by the government. Kris observes that based on the “reasonableness” standard, it’s legal without a warrant to search the property of any individual crossing into the US from a foreign nation, simply by virtue of the fact that he’s crossing the border. Why shouldn’t the same standard apply to phone calls and emails?

Regardless of where you fall on the legal issues, however, to refer to a disagreement over the legitimate extent of Presidential war powers as “breaking the law” is clearly an exercise in ill will and tendentious language. President Clinton raised nearly a dozen, obviously spurious Constitutional challenges to Ken Starr’s subpoenas, and nobody with the slightest intellectual integrity thought they had any merit; yet, nobody thought of accusing the President of “breaking the law” by stalling the subpoenas in this manner; he has a right to raise legal challenges. President Bush has a defensible legal argument for his surveillance program; argue the legal details as much as you like, but his defense is far more defensible than Clinton’s stalling, and far more deserving of our recognition of his intent to operate within the law. Even if some court settles the issue and decides the government’s case is not legitimate, they’re not “breaking the law” in any meaningful sense.

And for the record, the decision of the Eastern Michigan district court in ACLU v NSA back in 2006 does not constitute settling the issue. I’ve never seen such widespread derision for a court decision; even those who firmly believe the President’s program was illegal, recognize that Judge Taylor’s decision in this particular case was devoid of legal reasoning, and an embarrassment to the legal profession. The government obviated the need for further litigation by giving in and advocating changes to FISA beginning in January of 2007, the result of which was the recent update to the law; but the matter remains unsettled by legitimate court ruling.

Suicide Pact

At the heart of the Left’s agita over “illegal” wiretapping is the testimony of Mark Klein, an AT&T employee, identifying a locked room run by NSA into which run switches from various parts of the world. The claim by Senator Dodd, based on Klein’s testimony, was that the NSA had access to every call and every email made by every person in the US. That’s probably exaggerated — there’s no way you could prove that based on Klein’s testimony alone — but it serves to illustrate why there’s so much contention about this issue.

The problem is that immediate access to an identified foreign call really does require this sort of broad-based access on the part of the government. Wiretapping is not what it used to be; it used to be a physical tap into a hard wire that was solid and stationary, and usually a different wire for every target. Today, calls are digitized and routed as packets through any number of possible avenues. Some calls go across the internet as VOIP (“voice over Internet Protocol”) calls. Others go through cell towers; terrorists seem particularly fond of prepaid cellular phones that can be obtained without ID, used once or twice, then thrown in the dumpster. If the NSA is going to be able to respond to a tip quickly and catch a call in-flight, it has to have precisely the sort of access that Klein’s report says was constructed at his site in San Francisco.

Is this really a threat to civil liberties? Potentially, yes, but actively, no. Phone traffic amounts to billions of individual messages per day. Nobody has the capacity to digest and understand that volume of data; it has to get scanned and stored by machines. Circuit judge Richard Posner made this case in a well-known Washington Post article back in 2005. Personally, I don’t feel threatened by a machine scanning my phone calls for keywords.

The real threat occurs when the definition of the keywords gets colored by questionable political motives. If the wrong people decide it’s a threat to national security to permit religious meetings in homes, for example, then suddenly a number of my phone calls will get flagged by machines, and people will start reading the transcripts. It becomes a problem if ordinary activities get outlawed. So long as the process for making law does not get co-opted by bigoted partisans who want to stamp out what I stand for, I feel safe enough with machines scanning my calls. Taking that to the case at hand, so long as the calls they’re looking for are limited to those plausibly connected to foreign powers, there’s a legitimate reason for surveillance, and a legitimate reason for a machine to scan all the traffic.

This is where a surprisingly banal complaint I read on Daily Kos becomes relevant. I actually couldn’t believe I was reading this at first, but the more I thought about it, the more I realized that this might explain roughly 80% of the Left’s animation about surveillance. A Kos commenter called jello5929 posted this under the title, “FISA and Phone Sex: Your freak is free game:”

It’s easy to think that changes to FISA won’t really impact average Americans. But in the global economy, you are doing a lot more international communication than you realize.

And now all that international communication can be wiretapped or intercepted without a warrant.

Including your phone sex calls.

I honestly couldn’t care less about jello’s perversions; seriously, I don’t want to know. However, I can understand why guys like him might be extra edgy about the government having the ability to listen to their calls. Who knows what he’s doing, and with whom? I hope he gets help, but there aren’t words to describe how little I care if his “privacy” gets ruffled a little. I do acknowledge, though, that there are more serious concerns in the fire.

Thomas Jefferson noted that national security actually trumps privacy as an essential right. The famous line (which Jefferson never actually said) is that the Constitution is not a suicide pact. The Wikipedia article that appears under that line contains this remarkably sensible observation from Mr. Jefferson, reported by Brest, et al, the authors of the 2006 book Processes of Constitutional Decisionmaking: Cases and Materials:

Thomas Jefferson’s ambassadors to France arranged the purchase of the Louisiana territory in conflict with Jefferson’s personal belief that the Constitution did not bestow upon the federal government the right to acquire or possess foreign territory. Due to political considerations, however, Jefferson disregarded his constitutional doubts, signed the proposed treaty, and sent it to the Senate for ratification. In justifying his actions, he later wrote: “[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”

So long as the government is focusing on stopping al Qaeda from destroying domestic targets, and not focusing instead on suppressing their domestic political enemies, I’m content with modern technology monitoring my calls. The means to ensure that this remains the case is worth debating; but I haven’t seen any reasonable indication that we’re there yet. In the meantime, Jefferson’s assessment that the safety of the nation supersedes the need for scrupulous adherence to the law buttresses the already strong case that the Bush administration, acting in good faith, is working on the side of the angels while diligently defending the country against clandestine attacks.

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