Good News for Justice

A judge has ruled that the White House claim of Executive Privilege to prevent Harriet Miers, Josh Bolten and others from testifying before Congress is without legal merit, according to the Associated Press (reported everywhere, here's one linke from England's Guardian).

Perhaps we'll finally get to the bottom of what exactly happened at the Justice Department. There's been plenty of news about it in the last few days, like the list of questions Monica Goodling would ask potential employees, such as my favorite "What is it about President Bush that makes you want to serve him?" (the Justice Department is not supposed to serve the President, they're supposed to serve Justice).

But the thing I really find interesting is where the White House will go from here. They're really in a bit of a pickle, in my view. The common wisdom is that they will appeal this result, but if they do that, they run the very real risk that the case is settled for good just before the election, allowing for the testimony at just the wrong time for Republican chances (who really needs testimonial proof of eight years of misdeeds on voters minds as they go to the polls?).

Worse yet, if it takes until after the election to settle, there's the very real chance of repercussions for them. I strongly believe that the only thing keeping the Democrats from impeaching Bush and Cheney is the fear of a backlash a la Clinton, who carried some of his strongest approval ratings at the height of his own impeachment. Once the election is over and settled, there will be no such issue, and if impeachment proceedings were brought, that would negate Presidential pardons for all involved (Presidents can not pardon people for crimes related to an impeachment proceeding).

So I'm guessing that unless they're quite certain that there are skeletons in the closet they simply can't afford to have come out, the White House will grit its collective teeth and allow Miers, Bolten and the rest to testify. Perhaps they will try to negotiate a deal whereby those two testify but Rove doesn't, we'll have to see if that flies.

But in my view if the White House decides to appeal this ruling, it means one of two things: Either they are so afraid of something that might come out that they're willing to take even that risk in the hopes of avoiding publicity, or President Bush is as petulant and childish as I sometimes suspect, refusing to be told "no" for as long as he can manage to avoid it.

McCain is Really Reaching

John McCain has released three negative ads in a row (after having strongly promised to run a clean, issues-based campaign), and most of them have been demonstrably false or at the very least, misleading.

But there are two examples that really make me wonder what he's thinking.

First, there's been a lot of play recently over the McCain ad slamming Obama for having cancelled ONE of his trips to see troops while overseas. Never mind that in the ad itself they show footage of Obama visiting with troops earlier in the same trip, and never mind that the trip was canceled when the military decided at the last minute to inform Senator Obama that he could only bring Senatorial staff, not campaign staff, with him, after the senatorial staff had all left. And never mind that Obama had not planned to bring any press with him on the visit, even as McCain claims he decided not to go "when he learned he couldn't bring cameras with him".

What's interesting is that it turns out the McCain campaign was all set with another script, slamming Obama for politicizing the military by making the visit, had he gone.

From Business Week: What the McCain campaign doesn't want people to know, according to one GOP strategist I spoke with over the weekend, is that they had an ad script ready to go if Obama had visited the wounded troops saying that Obama was...wait for it...using wounded troops as campaign props. So, no matter which way Obama turned, McCain had an Obama bashing ad ready to launch. I guess that's political hardball. But another word for it is the one word that most politicians are loathe to use about their opponents--a lie.

What this teaches us is that we can't really believe anything McCain says, because he'll spin anything Obama does in the most negative fashion. Just politics, you say? Yes, but still, if the pre-ordained result of ANY action that can be undertaken is that it will be spun as something the candidate did wrong, it calls into question every assertion of wrong-doing by the candidate.

The second recent "huh!" moment for me was the McCain camp reaction to an Obama line that he's been using for months. Several articles have referred to the line being one he's used "since June", but I clearly remember hearing him say it when I heard him speak here in NH, back before our primary. That line is "You know what they're campaign is going to say. He's got a funny name. And he sure doesn't look like all the other Presidents on the front of our money".

Suddenly, lacking anything of any real substance to say, John McCain and his campaign have decided that this is "playing the race card" and feigning disgust. In a televised interview, McCain was asked Was that a fair criticism, for [McCain spokesman] Rick Davis to say 'The Obama campaign is playing the race card.'?

McCain responded, in the most solemn voice he could muster It is. I'm sorry to say, but it is. It's legitimate. And we don't... there's no place in this campaign for that. There's no place for it, and we shouldn't be doing it."

You have to see the video, the tone McCain takes is so somber it's like Obama had sold his own mother to al Qaeda militants in order to finance his campaign.

Once again as in the Democratic primary, we have one candidate trying to stay positive and on the issues, and the other candidate projecting their own bad behavior onto the well-behaved candidate.

And it really makes me wonder, does McCain have anything at all? His policy statements are a mess, a combination of "psychological" plans that won't have any real effect (such as the "gas tax holiday"), unfunded spending (if he does everything he's promised and doesn't raise taxes, he'll make the Bush deficits look like the Clinton surpluses) and flip flops (he no longer supports the "McCain Kennedy bill", which he now refers to as "the Kennedy bill", and his position on new taxes is absolutely there won't be any if you ask about taxes, but payroll tax increases are on the table if you're talking about fixing social security).

The choice between these two could not be more clear, no matter what your politics. At this point, given that these are the only two viable options, the choice absolutely could not be more clear.

Liam.

P.S. The biggest laugh of the week had to be when Rick Davis, campaign manager for McCain (in response to being asked about McCain's statement that raising the payroll tax to fix social security was still on the table) "John McCain does not speak for the McCain campaign." No, seriously, he said that.

Sy Hersh is Back Again

ThinkProgress has this:

Seymour Hersh, the New Yorker's Pulitzer-winning reporter, spoke recently at a journalism conference, and revealed that the Bush administration has been trying to drum up ways to justify an assault on Iran, and mentioned that a number of ideas were considered and rejected.

When pressed, he gave one such example, which was to build a few ships that look like Iranian PT boats, staff them with Navy seals dressed in Iranian military garb and a lot of weapons, and have them start shooting at U.S. ships.

The idea was rejected, because they decided they couldn't have Americans shooting at Americans (although whether this was because of any scruples or because they didn't think it could be kept secret, who knows), but it's instructive into the thinking that goes on in the White House.

They really aren't comfortable just following the rules and only going after the people who are ACTIVELY acting against us, they're trying to find a way to justify another unjustified war.

In the end, from watching the new, it looks like they've settled on trying to incite Isreal to attack, on the theory that once Iran attacks back, the American public will support our running to the rescue of our allies, the Israelis.

We'll see how it works out.

More News Fun

The Rand Corporation recently undertook a study of terrorism and how to battle it, and has concluded several things.

First, that the most successful campaigns against terrorist groups across history have been carried out by local police or intelligence agencies, or because the terrorists decided to begin negotiating with the authorities and working from the inside, but rarely was military force found to be a significant factor in defeat of a terrorist group.

So essentially, while the Bush administration talks a big game, and derides the Clinton administration for not doing enough, the Rand Corporation says that the way Clinton handled the fight against terrorism was far more likely to succeed than the Bush way.

The second conclusion that I find interesting is that "Calling the efforts a war on terrorism raises public expectations -- both in the United States and elsewhere -- that there is a battlefield solution. It also tends to legitimize the terrorists' view that they are conducting a jihad (holy war) against the United States and elevates them to the status of holy warriors. Terrorists should be perceived as criminals, not holy warriors."

So apparently, the Bush administration is batting zero for zero on this (and that doesn't even count forcing out Richard Clark, considered to be one of the highest experts on terrorism in this country).

Who are the Rand Corporation? A nonprofit global policy think tank, generally known for rigorous, non-partisan analysis and policy recommendations, according to several sources (that particular phrasing comes from Wikipedia), also often seen as pro-military. Clearly not some left-wing lunatic fringe organization.

Liam.

Fun With the News

This is fun... You probably read the news in the last couple of days that we had, on Monday, killed an al Qaeda chemical weapons expert along the Pakistan / Afghanistan border. Fairly routine, we hear these sorts of stories occasionally. However, if you dig down, the man is named, one Midhat Mursi al Sayid Umar, also known as Abu Khabab al Masri.

One little problem, according to the White House, we'd killed him in January 2006. Which apparently means that al Qaeda has perfected resurrection technology. That's pretty scary!

Also, in the "They'll just say anything, won't they" category, the Secretary of Energy Samuel Bodman on Fox News was asked this question: Has technology improved so dramatically that [off-shore] drilling can now be done in a way that protects the environment?

He answered: I believe that it can. When we had Katrina and Rita, the two worst hurricanes in — at least in recent memory, in ‘05, some three years ago, there was not one case where we had a situation with oil or gas being spilled in the environment.

Um... Lying? Or inept at his job? Because according to various sources including the U.S. Minerals Management Service, over a hundred platforms were totally destroyed and there were 124 offshore spills for a total of over 740,000 gallons directly caused by one or the other of the two hurricanes.

So right now, they're pushing the idea that offshore drilling is the only answer to our national addiction to oil (an absurdity I've dealt with before), and in order to make us all think it's safe, they're blatently lying about the risks. They really do think we're that stupid.

(Thanks to Countdown with Keith Olbermann for alerting me to both stories).

More from the Liberal Media

Don't fall for this. Please.

The Washington Post (among others) have been repeating the idea that Obama is arrogant, and they're doing it based on a quote taken out of context.

"This is the moment . . . that the world is waiting for," adding: "I have become a symbol of the possibility of America returning to our best traditions."

This quote is getting a lot of play, even among the so-called "liberal" media.

But here's the quote in context:

"It has become increasingly clear in my travel, the campaign, that the crowds, the enthusiasm, 200,000 people in Berlin, is not about me at all. It's about America. I have become a symbol of the possibility of America returning to our best traditions."

The first part, about the moment the world is waiting for, is from a completely different section of the speech. And so they cut out the whole part where he says "It's not about me, I'm [just] the symbol", append in a meaningless "excite the crowd" campaign phrase from earlier, and voila, instant arrogance.

Just the kind of honest, positive campaign we really need in this country.

Grumble.

McCain

There's just so much this week that makes John McCain ill suited to be President, even if you agree with his philosophies...

First, there are the little things, the miscues and mis-speakings. Sure, they all have them, but he gets his facts wrong way too often.

1. Iraq does not have a border with Pakistan (link to video here).
2. The Anbar Awakening had nothing to do with the surge, it predated the surge
3. The surge did not help us keep a certain sheik safe, he was assassinated.
4. Iraq is NOT the first war since 9/11. (I'm willing to assume he was lumping Afghanistan and Iraq together into the "war on terror", but he did say "the Iraq war" was the first war since 9/11, not "the war on terror")

Then there's the regular attacks on Obama which are starting to sound tired. Attack Obama for not going to visit Iraq, and when he does, attack him for going. Call him a flip-flopper, completely ignoring that you've done so many 180s on so many issues that you can't walk a straight line.

And today, there's this appearance on CNN's The Situation Room with Wolf Blitzer, during which McCain repeated his assertion that Barack Obama would rather win a political campaign than win in Iraq.

During that interview, he also makes the startling assertion that he knows how to bring bin Laden to justice. Quote McCain "Look, I know the area, I've been there, I know wars, I know how to win wars, and I know how to improve our capabilities so that we will capture Osama bin Laden -- or put it this way, bring him to justice... We will do it, I know how to do it."

This brings a lot of questions to anyone who actually THINKS about it. Most importantly, if he knows how to get bin Laden, but he hasn't shared that expertise and knowledge with the Bush administration, does this mean that he'd rather win a political election than take down America's number one enemy? And if he HAS shared that information with the Bush administration and they've ignored him, why does he still speak so highly of the Bush strategy?

Another question is which wars, exactly, has McCain actually won? He's best known for having been shot down in a war, not necessarily his fault but certainly not a badge of accomplishment. And that was a war we lost. He was too young for any of the wars before that. And he finished fifth from the bottom of his class of almost 900 in the academy, which hardly indicates some strategic uber-genius.

McCain has lost sight of the fact that being a war hero for having withstood torture and having fought for our country does not imply any great military leadership skill any more than being the guy on the back of a crashed bus who is badly injured but still helps everyone else safely off the bus makes one a skilled bus driver.

John McCain is too old to be President, that's what it comes down to. Not physically but mentally. It has nothing to do with his chronological age, but to do with the extent to which he has aged in those years, and the fact is that he's making so many mistakes the John McCain of years past would never have made.

He's losing his faculties, and he hasn't yet spent even one day in the pressure cooker that is the oval office.

Oh, and by the way, although the latest meme from his campaign is that the media loves Obama and is out to get him, check out this video of an interview on CBS from a few days ago. CBS edited the interview, removed a semi-incoherent and clearly incorrect response regarding the timing of the Anbar awakening vs the surge and in its place edited in an answer to a later question, making McCain sound far better than he actually did. Your liberal media at work.

Liam.

A Break From Politics

This blog started out to be a place where I could talk about anything, and over time it has sort of evolved into "All Politics, All The Time".

However, today my son Liam did something notable that makes me very happy, and so I thought I'd take a moment to document it: He sang with me and matched my pitches.

Liam is a reluctant speaker, he speaks a lot of nonsense words, but generally only speaks in monosyllables (occasionally two syllables). "Bye". "Hi". "Stop it".

However, he'll often repeat back what we ask him to repeat. A common set is the alphabet, and when he doesn't wish to repeat back a new word, sometimes we'll make a game of it, A, B, C, D, Cow, F, G, H, Moo, ... etc. (That was an example from last week, when we were trying to get him to name a cow and answer the question "What does the cow say"). Another common one is to repeat back one word at a time "I love you Daddy".

So in the car today I decided to try an octave, mostly just hoping to hear different words from him (Do, Re, Mi, Fa, Sol, La, Ti, Do), but I noticed that he seemed to be matching my pitch as he repeated them back.

Of course, he's got an extremely limited range, so if I'm not very careful to start it at the right place he runs out of notes before we run out of octave, but the impressive thing is that when I'm within his range he's right on the note more often than he's not, which is unusual for a child this young (two and a half, for those who have lost count).

Does this mean he'll be some sort of vocal prodigy? Who knows. But I do hope it means that sooner rather than later he'll be singing along with me, and that's pretty cool.

Liam (the elder).

Today's News

Some news items I came across today that are worth looking at...

First, this from the Associated Press (posted on Huffington Post). President Bush has claimed executive privilege to deny Congress the right to see the FBI report into the leaking of Valerie Plame's name.

Why? What possible Executive Privilege could this possibly violate? The privilege to break the law with impunity? I'm pretty sure that's not a privilege extended to the President.

Some of the other recent cases of Executive Privilege have had at least a modicum of justification, the argument that if people can be compelled to testify to Congress, they might not feel as free to give the President full information. I don't think this should extend to cover law breaking, but at least the argument has the barest hint of respectability.

This one has no justification. The argument is that it's about protecting the separation of powers (which is Bush-speak for "I'm an Imperial President and you don't have any right to oversee me", an argument which is explicitly contravened by the Constitution) and the integrity of future Justice Department investigations into the White House. How much integrity do those investigations have when, in the end, no matter what they find no repercussions ensue for wrong-doing?


Second, as we've probably all heard by now, the "terrorist watch list" hit one million names yesterday (even with the much publicized removal of Nelson Mandela from that list). But don't worry, say government officials, that's not really a million people, that's really only about 400,000 people, with an average of one and a half aliases each (in addition to their regular name). So I'm sure we feel much better that only 400,000 people are ACTUALLY considered to be terrorists.


Third, apparently the Bush Health and Human Services, in a bow to the religious right, has released a proposal to allow any federal grant recipient to obstruct women's access to contraception, under the dubious redefinition of most forms of female contraception as abortion. This includes not only things like the "Morning After pill" and the IUD, which work by preventing implantation, but also methods such as the Pill and the shot, which work by preventing ovulation, and thus can not reasonably be considered to be an abortificant, but are nevertheless included on the list.

One wonders just what the Administration plans to do to help all of those women who, lacking access to contraception and abortion, end up carrying to term unwanted babies. Oh, right. Probably nothing.

(Yes, I know, there are still plenty of places from which a woman can still get her contraception. Still, it seems extreme to try to link contraception with abortion. I mean, clearly the next step is linking "turning down any man, anywhere, for sex", because obviously if he can't have sex with her, he can't impregnate her, and that prevents contraception.)


The last is something I've wanted to write about before, but could find no conclusive evidence about it... Now I have it, this video...



John McCain finished fifth from the bottom of his class at the Naval Academy, according to the video that's 894 out of 899 cadets. Now, as I understand it, pilots in the Navy are generally selected based upon their class standing and are usually in the top 10% of their class.

So, while I appreciate THAT he fought for our country, and I appreciate what he went through as a captive, but I'm getting really sick and tired of John McCain saying his military record is off the table... and then touting it as often as he can, when it turns out his military "hero" status is based on being near the bottom of his class and crashing a plane.

Five planes, actually, being shot down was only the last of a series. Apparently, had McCain not been the son and grandson of two famous four-star Navy Admirals, he would likely never have graduated flight school.

McCain himself confirms that he was, in fact, fifth from the bottom of his class, which confirms at least the part of the story that says had he been a normal cadet, he would never have been accepted into flight school to begin with.

And most of these facts are confirmable with a bit of searching on-line, which puts it one up on the "swift boating" of John Kerry. I've found confirmation of at least two of the crashes, and as I said now we have video of McCain himself admitting to being fifth from the bottom of his class.

Liam.

Drilling for Oil

They keep beating the same drum about how anyone who doesn't support despoiling the ANWR animal refuge with oil drilling isn't serious about solving our energy policy, and I've mentioned here before that I think solving our fossil fuel addiction by drilling for more oil is like solving our drug addiction by manufacturing our own crystal meth.

Nevertheless, in honor of President Bush's symbolic lifting of the Executive Order banning off-shore drilling (an Executive Order signed by his father, by the way) let's discuss again the reasons why it's all cost and no benefit.

First, there's the issue of timing. Even assuming that the oil companies were to immediately lease the land and begin fully making use of the resources, it would be 8-10 years before any oil was pumped from the sites and 15 or so before we started reaching anything like large volumes. Now, the counter argument to this one is valid, that we can't know what it'll look like in 10-15 years, and if we'd started drilling in these locations 15 years ago instead of putting the ban in place, we'd be getting that oil now.

Which brings us to the second point, the price of oil is not local, all oil is sold on the world oil market, and the amount of additional oil we could pump compared to the total sold on the world market would be a drop in the bucket. People smarter than I (and who know the industry better) have said that the effect on the world price of oil if we could dump all of that oil into the supply instantaneously would be negligible. The fact is that companies are in business to make money, and if they can make more money selling that oil to China than locally. We simply are not a country that would pass laws requiring that a corporation be required to sell locally what they drilled locally, even if such laws would help. Heck, we're not even a country that can understand that stopping the huge subsidies that we give to the oil industry, now that they're raking in profits hand over fist isn't a penalty, it's the way government SHOULD run. Remember that, next time one of your friends tells you that big government is the problem and we need to stop spending money on programs that either don't work or once the need for them has passed: these are probably the same friends who insist that it would be un-American to hit the oil companies with a windfall profits tax to get back from them some of the subsidies we've been giving to them, even though clearly this is a government program whose need is not current.

The third reason why more area available for leasing won't help the oil situation is that the oil companies are already sitting on millions of acres of lease rights that they're not exploiting, some of them in the same basic areas that we're now being told are vital to our energy policy. If there's really lots of oil to be had under Alaska, why aren't we drilling in the areas that AREN'T ANWR, which reportedly have about an equal chance of finding (and equal difficulty to get to) oil? If your problem is not having enough milk in your fridge, the solution isn't to get your grocery store to order larger supplies, the solution is to go and get some of the milk that's already at your local store. Ordering more supplies at the store is only a solution if you've already bought out their full supply and still need more.

But the newest reason (or at least, the one I hadn't heard before) is that our problem isn't the amount of oil, it's the size of our pipeline, in the form of refineries. Apparently, U.S. refineries are operating at or near 100% of capacity. Which means that more oil wouldn't solve the problem.

Suppose you're a firefighter, but when you arrive at the fire you discover that the only hose you have with you is a garden hose. So you start fighting the fire with that, because it's the only tool you have available, but it's clearly very slow going and not working as well as you'd like. Arguing that we need to drill for more oil is like that firefighter arguing that we need to up the pressure at the fire hydrant. All the pressure in the world isn't going to turn into gasoline any faster if we're already using the full capacity of the hose we have.

What we need at this point is for someone to suggest a REAL energy policy, something that gets us off of fossil fuels entirely, and in the interim if you want to solve the problem while still using oil, let's look at building additional refining capacity, and perhaps throwing a "use it or lose it" clause on all of those leasing rights the oil companies already hold and aren't using.

Or at the very least, before we start drilling in one of the comparatively few places in our country that we've set aside for the wildlife that we displace everywhere else we go, let someone explain to us how it's actually going to be better than the sites a few hundred miles away that they already have rights to but aren't drilling in, and how more oil into an already fully saturated pipeline is going to translate into any more gasoline (and thus, any downward pressure on the price of a gallon of gas).

Liam.

On Rights and Wrist Tasers

[UPDATE: I read through one of the articles more fully and found a link to the original letter from the DHS goon interested in these things. It can be found if you click through to the Washington Times link below. Strictly speaking, if you read that letter, his primary focus is on border security and detention of illegal aliens. I'm sort of curious at what point he expects to put them on the wrists of people, but the whole "airline passenger" bit is based on a one-line (or one and a half) speculation in the larger letter, "In addition, it is conceivable to envision a use to improve air security, on passenger planes." and "The DHS and in some respect the TSA, are both interested in border security in various forms and for differing reasons."

So it's very possible that on the airline front, this was just someone thinking out loud, and it will never get past the "someone spitballing comes up with a really bad idea" stage, and that the articles I've read (and this one, below, that I wrote) are blowing it all out of proportion.

Still, better to discuss the issues when they're little ones than waiting until they're big, and the decisions have already been made, eh? --Liam]

Recent news reports (I've heard about it from three places now, including NPR's weekly news quiz game show "Wait Wait, Don't Tell Me" and the Washington Times) indicate that the Department of Homeland Security is considering requiring that all airline passengers wear a new "safety bracelet". This will take the place of the traditional boarding pass and will contain information about the passenger (ostensibly to help with identification in case of a crash).

It will also enable monitoring of the location of each passenger, and in the case of hijack or other dangerous behavior, can be made to emit a "taser" like electric shock, to immobilize the user.

Where to begin with how bad an idea this is....

First off, let's consider that criminals have proven time and again to be pretty darn tech savvy. Which means that there's a very good chance that criminal elements will figure out how to disable them, thus rendering the only people unencumbered by such an "immobilizing shock" the very people they're needed for. But worse, imagine that they figure out how to trigger the devices on other people. Individually, it would make mugging a lot easier. Find someone at the airport, trigger their wrist band, and then as they're recovering, steal their wallet, laptop, etc. And collectively, imagine if the passengers on Flight 93 (the one that the passengers took back on 9/11 and crashed in a field in PA) has all been wearing these devices, and the al Qaeda operatives on board had hacked the system. Instead of overpowering the hijackers, they might have all been twitching painfully as the hijackers successfully made their suicide run at the White House or Capitol Building (the two most likely targets, last I read, for Flight 93).

My wife's initial thought on hearing about it was that it wasn't that much different than the pilot having a gun in the cockpit, but I disagree. In order for the gun in the cockpit to cause any harm to anyone, the pilot or co-pilot has to get it out and wield it. That's quite a bit different from a bracelet that is electronically triggered, and thus, could be triggered accidentally.

Then there are the people who have heart conditions and pacemakers. Will they be allowed to not wear one, since they'd be potentially lethal? But if so, again, would it be difficult at all for criminal elements to come up with phony documentation of a heart condition in order to avoid wearing one?

But the biggest reason to avoid these (and the reason why, if they ever become mandatory, I will no longer patronize the air travel industry) is the slippery slope argument. Once they slip this past us, and convince a significant number of us that it's GOOD that we wear these, because (so they'll tell us) they keep us safer, how long will it be before someone references Columbine and suggests having the children at the more dangerous high schools be required to wear them. All in the name of stopping the next Eric Harris or Dylan Klebold BEFORE they can kill too many of their classmates.

Once that goes through, then they'll start suggesting we all wear them at certain large scale gatherings. Political rallies. Soccer's World Cup matches. Any place where dissent or disappointment could turn ugly.

And then, perhaps, they might tweak them to work like the old "invisible fence" for dogs, such that as long as we stay out of the restricted areas of a given place, we remain shock free. I'm not sure I want my local Six Flags to issue me a wrist band that will shock me if I accidentally open the "employees only" door next to the bathroom one.

All the while, the wearers are broadcasting their whereabouts and potentially subject to "immobilizing shock" at a moment's notice.

It's not too hard to imagine any of the above scenarios, if these things are accepted on airplanes, is it really that hard to imagine that we could reach a day where we're all required to wear these things all the time, as our personal identification? Do we really want to get to a world where we, like in the old Soviet Union, can be stopped at any time and have our papers demanded, and be hauled in to prison if we aren't carrying them?

Or one in which all of our movements are tracked by the government, so that every detail of our lives is now available on a computer somewhere? Every time you stopped at McDonald's to sneak a burger when your spouse thought you were being true to your diet. Every time you had a beer with the buddies before heading home but told your spouse you had to work late. To say nothing of those among us who are having affairs, now having their movements all carefully stored.

And is there really any good reason why law enforcement needs the ability at a moment's notice to "electrically immobilize" an entire gathering?

Of course, I've gone overboard again, at this point these are just being considered, and my best guess is that cooler heads will prevail and someone will realize just how bad an idea these things are on just about every level and one day this will have been just another bad idea that someone thought up and never went anywhere.

Still, it's worth thinking about, because if this is that one bad idea in a hundred that someone is actually successful in implementing, we want to watch out, lest our ever-eroding civil liberties erode even further.

Liam.

Daily Kos

I'm not a regular reader of Daily Kos, but since apparently some regular visitors here would like more information on the FISA stuff and why it's making so many people angry, here is a post from Kos on the topic.

I found it interesting to read, if a bit long on speculation and short on actual fact.

Liam.

Random News Tidbits

There are a few news tidbits that don't make up enough for a full post, but which are worth quick comment on...

First, for those who haven't heard, President Bush departed the G8 summit with the words "Goodbye from the world's biggest polluter." I assume he meant it as a joke, but as the leader who seems determined to single handedly kill Kyoto, it rings pretty hollow as humor goes.

Second, I'm willing to forgive a lot of personal failings (I've had my share myself), but I really find it hard to tolerate hypocrisy, and this week John McCain showed it in spades. Three examples:

1. He's accused Barack Obama of flip-flopping on some topics on which Obama actually has held true, while himself (McCain) changing positions as often as one would hope he changes underwear.
2. The Kyl-Lieberman Amendment. McCain has gotten a fair amount of mileage by condemning Obama for missing the vote on this amendment designating the Iranian Revolutionary Guard a terrorist organization: "This is the same organization that I voted to condemn as a terrorist organization when an amendment was on the floor of the United States Senate. Senator Obama refused to vote." Unfortunately, records show that McCain was in New York when that vote was taken (Obama was in New Hampshire), so McCain (who has at last count missed more Senate votes than any other Senator) missed the very vote he's condeming Obama for missing.
3. And finally, tacking towards the Religious Right, McCain and his campaign are trying to sell themselves as the family values candidate, but as this article shows, McCain's story about his divorce of his first wife and marrying of his second... doesn't ring true. It's pretty clear he was actually cheating on his first wife with his second, before they ever separated. Again, as a personal failing, I can forgive it. But in a guy who is trying to sell himself as the morality candidate, not so much.

Next up: According to the New York Times, there is a secret report by the International Committee of the Red Cross that concludes that CIA interrogation methods constitute terror and that the high level administration officials who signed off on them are guilty of war crimes. I have long held that if our conduct since 9/11 had been undertaken by a smaller nation, they'd already be under massive sanctions from the United Nations, and their leaders would probably be on trial at The Hague (in absentia at the very least).

A little one, interesting just as a tidbit, although I don't think it has any merit, there's this from the Times again. Apparently a law professor from U. of Arizona has determined that John McCain is not Constitutionally eligible to become President. It's already been discussed that he was not, technically, born in the United States, but in the Panama Canal Zone, and it's been pointed out that a 1937 law conferred citizenship on any child born in that area after 1904 to American parents, which makes McCain a citizen. But the Constitution requires a "natural born" citizen, and this professor argues that the 1937 law was passed just before McCain turned one year old, meaning that although he was granted citizenship, he did not have it for nearly the first full year of his life, which means that although he's a citizen, he's not technically a "natural born" citizen. The Professor says, and I agree with him, that it's kind of absurd that such a technicality should keep McCain from the Presidency. Still, the devil is in the details, and it will be very interesting to see if this gets any traction and how it plays out. Actually, my biggest question is what happens if McCain is elected and then he is determined to be ineligible? Is there another election? Does his VP immediately move up to become the President elect? Or, being disqualified, does the election go to the next top vote getter, which would almost certainly be Mr. Obama? I wonder if there's even a law in place covering this? I suppose it might fall under the same contingency of a President-elect dying before taking the oath. If that's the case, then it probably depends on whether it happens before or after the Electoral college meets. If after, the VP-elect immediately becomes the President-elect, but if before, then the Electoral college must decide who to elect, without being able to vote for the disqualified President. Interesting, if probably moot.

I think that's everything for today. I was asked in the comments on a prior article to comment further on the FISA stuff, and so hopefully tomorrow I'll get the opportunity to do the research thus requested and answer the questions.

Liam.

What Is FISA, Anyway?

It's probably past time that I should have gone over the FISA law and it's history. It's easy to get caught up in the anger and the frustration when our government oversteps its authority, but for those who aren't exactly sure what FISA is, let's go over this primer.

FISA stands for Foreign Intelligence Surveillance Act, and it was originally enacted in 1978, largely as a result of Congressional investigation into the Watergate matter and President Nixon's extensive use of Federal resources to spy on American citizens, particularly political and activist groups, in violation of the Fourth Amendment. Under FISA, governmental agents could spy for up to a year without warrants, unless United States citizens were involved. In that case, spying could be done for up to 72 hours PRIOR to judicial authorization. Although still technically a violation of the Fourth Amendment in my view, this was done as a compromise between losing vital information in the wait until a judge could review the request and the complete lack of oversight of the Nixon spying program.

The most controversial aspect of the original FISA law, in my view, was the creation of the FISC or Foreign Intelligence Surveillance Court, more commonly referred to as the FISA court. The reason this is so controversial is that this court is a secret court. It's rulings are secret, it's proceedings are secret, even it's membership is secret. There are eleven FISA court judges, appointed by the Chief Justice of the Supreme Court, and proceedings before the court involve solely the Department of Justice.

And it is a measure of how far we've fallen in this country that a secret court, comprised of members selected by the President's hand-picked Chief Justice and whose rulings and entire operation are completely secret is the oversight we're arguing FOR, because opponents claim that the burden of having to submit warrant requests to this court, even up to three days after the fact is too onerous on the President and the Justice Department. It amazes me that I find myself in the position of arguing in FAVOR of a secret court, when the very term "secret court" conjures up images of political trials in the old Soviet Union, or the mockery trials of Jews in Nazi Germany.

Since 1978, the bill has been amended twice. First in 2001, in the aftermath of 9/11, it was amended in the passage of the Patriot Act, largely to make it's application to terrorist groups explicit instead of implied.

The second modification of the bill came in the "Protect America Act of 2007", passed and signed into law on August 5, 2007. This law was in response to the President's warrantless wiretapping program, and to the Presidents' assertion that the existing FISA law did not apply to cellular telephones and internet communication. It was a temporary modification with a 'sunset clause' that made it expire in February, five months later. What this modification did was removed the requirement that warrants be obtained for any governmental surveillance "reasonably believed" to be of targets outside of the United States. Instead of having to obtain a warrant from the secret court, the new requirement was only that the court be notified, in a sealed notification that was not to be opened unless the legality of the wiretapping was challenged. That's right, you understand that correctly, the entire oversight of any spying was a sealed document containing whatever justification the Justice Department had for wanting to observe the target, that could only be opened if that spying was challenged, but since it was a secret, who could even challenge it?

The modification also changed the rules for spying on American citizens. Under the new bill, monitoring of all electronic communications in the United States without court oversight or warrants was permitted, provided it was not targeted at a specific person "reasonably believed to be" inside the country.

So essentially we removed a secret court's oversight and replaced it with a batch of requirements so vague and so secret that there's just about no way to prove when they are not followed. Like the Security Letters of the Patriot Act, there's no way to know if you've been targeted under the new law, and unless you know you've been targeted, you have no standing to challenge that targeting. There is no oversight, and that's a dangerous amount of power to put in the hands of any person.

Now, here's an important point, so pay attention: The original FISA law does not expire.

The argument in favor of a speedy adoption of the new FISA statute often alluded to the "expiration" of the FISA law, but what they rarely mention is that the only thing that expires are the "temporary extensions" to FISA which were enacted in August, 2007 and expired in February of this year. That's right, this whole brouhaha over the loss of "vital tools in the war on terror" is the President throwing a temper tantrum because some extra powers he was granted on a temporary basis had expired. The rest of FISA was still in place. The President could still go to the FISA court for warrants up to 72 hours retroactive to beginning his electronic surveillance of U.S. targets. He and his Justice Department had essentially all of the tools they needed to do their jobs, they merely chafed under the bridal of oversight and the annoyance of having to submit to it.

So now we get to the meat of the bill that was signed into law today after passing the Senate yesterday and the House on June 20th. This bill amends the original FISA law with the following points:

• Grants immunity to the telecommunications companies and other persons for their complicity in the Warrantless wiretapping program begun before there was any law even pretending to make it legal (and I still believe ultimately the law (and the program itself) is unconstitutional and should be struck down).
• Less well publicized is that it also grants them immunity from having to disclose any such involvement in any such spying to any investigating body. So we can't even investigate to determine whether the program was legal or not.
• Allows the government to not keep records of searches, and to destroy any existing records after a period of ten years.
• Removes the requirement for details descriptions of the nature of the surveillance or its target
• Increases the time for retroactive warrants for wiretaps on U.S. citizens from 72 hours to seven days.
• Requires FISA court permission to wiretap American citizens, even when overseas
• Explicitly denies that the invocation of "war powers" can override this statute, as President Bush claims in his argument for the legality of his earlier warrantless wiretapping program.

So ultimately the bill was a compromise on some issues (the "notification" of the FISA court went back to requiring a warrant, albeit not for seven days after the spying commences), but has the primary effect of protecting the President and the Justice Department from ever being successfully investigated regarding their excessive power grab in the spying program enacted in 2001, because the Telecom companies are expressly granted authority not to disclose their role in any of this to anyone, and without the threat of prosecution, there's simply no reason for them to voluntarily do so.

As I believe I've said before, I'm not overly anxious to see the telecoms prosecuted for this, except as part of a larger effort to ferret out the extent to which our laws, and our Constitution, were violated by this President. But granting immunity to the smaller fish before they've rolled over on the larger one prevents the main criminals from ever being held accountable.

(Note, I confirmed most of what I found independently, but the bulk of the information I have here came first from the Wikipedia articles on FISA and the two amendments. I am reasonably confident that the information is correct, but since my information here used that as a primary source, I felt I should reference it).

FISA, Spying and What We Have To Fear

Earlier today, in discussing this shameful turn of events, I was hit yet again with the specious argument "What the heck do you people have to hide. If you're not doing anything wrong you shouldn't have any fear of reprisal". This is an argument I know I have had with others before, but it's been a while, and I feel the need to expound.

The problem with that argument is that it entirely ignores the nature of slippery slopes. We must remember that we have do not have laws to protect the guilty, we have laws to protect the innocent, and to prevent those little white lies, skeletons and minor crimes of which we are all guilty from rendering to the State undue power over us.

I drive my Prius very carefully. It gets better gas mileage if I stick to the speed limit, so I have a personal as well as a legal interest in not exceeding it, and yet it is not uncommon for me to drive three to five mph over the speed limit. Yes, it is technically in violation of the law. It is also a lesser violation than most of the other cars which whiz past me like a cheetah past a snail, and a lesser violation than most police officers will care to pull me over for. Nonetheless, it is a violation, and in an extremely controlling country, such violations could be used against me.

But the thing is, even if you haven't done anything actionable, do you have any secrets? Suppose you've had an affair, or even fantasized about someone other than your spouse and mentioned it to a friend. Suppose you're gay, but do not feel your family or friends would accept you for it. Suppose you have a fetish for wearing undergarments of the opposite gender. Suppose you have a gambling problem... an embarrassing debt... bill collectors calling... a telephone reprimand from your boss.

All of these are things which might be discussed over the telephone in certain situations. And each of these might be something you wouldn't want to get out. So can you honestly say you have nothing to fear as long as you haven't done anything illegal? Someone out there has access to your secrets. Someone, if they found a reason to consider you an opponent or an enemy could bring out those secrets and use them to blackmail you into capitulation, or make your life difficult by releasing them.

Or suppose you are a recreational drug user. In my life, I have known many, and still do today. I have friends who have mentioned to me when their weekend plans involved marijuana. I do not partake, and on the rare occasion when I've been invited I've always declined, but the point is that I know people who use various and sundry drugs, at various different levels from recreational through full on addictive abuse, and more than one at most (if not all) of those levels. Not just in the past, but still active users.

So imagine you're the recreational pot smoker, and you consider yourself safe under this spying program, because after all, you're no terrorist. They're only looking for terrorists, right? And no one complains too much if a few people are rounded up, because it was just terrorists, as long as the numbers are few, people are willing to assume those rounded up actually are terrorists.

But then consider that there have been attempts in recent years to link drug use to terrorism, claiming that the illegal drug trade funds terrorists (far less so than our extreme national addiction to oil, but why let a little thing like facts get in the way of an argument?). So suppose at some point some Presidential Administration decides to conflate the two, rounding up regular drug users as 'supporters of terrorists'. Did you really not have anything to worry about? Or did the spying program that was "just to find the terrorists" suddenly get used to troll for other forms of law breaking?

Our due process is a recognition of the fact that we're all guilty of something, and that it is simply too much power for the government to wield to be allowed to just sift through our lives looking for the time we drove 80 in a 65 zone or that beer we had at our cousin's birthday six months before we were legal to drink, or the fact that in a moment of pique we idly and without truly meaning it wished the President or other high government official dead. And that is exactly what we have to worry about with warrantless wire tapping.

Today it's terrorists. Tomorrow, they start rounding up my friends and family who use drugs. Then perhaps they come after me for knowing about the drug use and not reporting it. Or for the "seditious" act of believing our President is incompetent and loudly proclaiming same to all who will listen. And as long as they aren't too ham-handed about it, it very well could play out like the old saying "First they came for the Jews, but I didn't speak up, for I wasn't a Jew, then they came for.... and when they came for me there was no one left to speak for me."

We dismiss a few random sweeps as terrorists. They throw in a few of the worst of the drug addicts, and we probably accept it, perhaps are even secretly pleased to have "those people" off of the streets. If they play it properly, when they expand it to a few more recreational users, most people will be so happy with the terror-and-drug fighting success of the earlier program that they don't say much. And by the time enough people wake up and start complaining, it's too late, our liberties are gone.

This is, to be sure, an extreme example. But we can all name countries in which those sorts of things and worse have happened. The old Soviet Union. North Korea. China.

The reason we have our laws and why we must be so strict in adhering to them, even when it makes it a little bit harder for our government to keep us entirely safe, is because it isn't unthinkable that such things could happen in our world, with the wrong people given the right opportunity.

Don't tell me I've got nothing to fear if I'm not a terrorist. That argument relies on the honor and decorum of the very people who have already decided they are not subject to the laws which bind the rest of us.

Coincidence, Paranoia and Felonies

In researching some of the information in my earlier post on the FISA fiasco, I came across an interesting little tidbit of information; It is not terribly much of a stretch to suggest that I have violated US Code Title 18, Part I, Chapter 115, Section 2385: Advocating Overthrow of Government.

I believe I made a pretty convincing argument that our Founding Fathers believed that a free society needs to have the power to keep its government in check, and that occasionally that government may need to be overthrown in order to maintain liberty and freedom.

Thus, I can only conclude that this piece of legislation is in direct contradiction with the original intent of our country as initially set up: it makes it a crime to advocate the overthrow of the United States government, and thus criminalizes the very behavior we so revere in our Founding Fathers.

You can read the text of this law here. It has been on the books for years, originated in the 1940s and amended in 1956, 1962 and 1994.

I understand the purpose of the law, coming as it does in the section about treason and also having originally been passed in the time of or immediately after World War II (different sites list the original bill as 1940 and 1948). The problem is that while I can see the justification for laws against actively engaging in an overthrow, or actively arranging for others to (the reasons for which may outweigh the original Founders' intent), I think it goes a bit far (including possibly violating the First Amendment) to criminalize even the act of suggesting that maybe it's time for such a thing, even if no such action is taken. The problem is that it is so vaguely worded that under it, statements I made earlier today could render me punishable by fine, up to twenty years in prison, and ineligible to work for any government agency for a period of at least five years. Is it really that hard to read my statements (from another site) that "maybe it's time to throw them all out and start over", or that "I want a new government... that starts with all of its members ... not allowed to draw a salary until they can pass a rigorous test on the Constitution" or even here on this blog, when I said "And so it is not without precedent that I contemplate whether we've arrived at such a juncture" could qualify as "advocating or advising" the "desirability of overthrowing the government of the United States"?

I don't, of course, expect the men in black SUVs to come knocking at my door, I suspect that it would take a bit more than musing on a few blogs to elicit that response. Still, it's a little bit scary that in a country that we all love for its freedom of speech, if they chose to pursue it, they could probably make a case that I'm guilty of exactly that and prosecute me for it. It's always fun to find federal laws which, without too terribly much imagination, could be made to cast me in the role of felon.

One final note that makes the whole thing pretty eerie... I have had cable modem service from Comcast since they bought out Adelphia about a year ago, and from Adelphia for years before that, and except for in storms, I have rarely had trouble with the signal. A week ago, we added Comcast telephone service and Comcast cable TV, and just as I was about to post this item, the phone and internet went out, but the cable TV seems to still be working. Comcast assures me that depending on which node goes out, that's not an unusual turn of events, but you have to admit it's kind of creepy at 12:30am discussing which Federal statutes could be used to arrest me and having my lines of communication severed just as I'm doing it.

Ah, the wonders of coincidence...

FISA, Telecoms and the Constitution

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Thomas Jefferson wrote those words over 230 years ago as part of one of the two most important documents in the history of this country, the Declaration of Independence. Indeed, our Founding Fathers are said to have believed that the government that they themselves were setting up would likely be short-lived, believing that the Constitution, and even the government itself, might require being entirely overthrown and re-established every 30-50 years or so.

The Second Amendment of our Constitution says "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." This was intended to keep the citizens from becoming powerless, to make sure that should such an overthrow become necessary, should the government begin to usurp powers it wasn't supposed to have, or to restrict rights the founders intended for us, that there would be recourse, the ability to rise up and institute a NEW government, just as they themselves had done.

And so it is not without precedent that I contemplate whether we've arrived at such a juncture. Our government has failed us. Today, our government has declared that the overarching principle, that no man is above the law, is just words. Today our Democratic leaders have shown that even inter-party struggle is not enough to make them stand up for the law and the Constitution. What they would not do out of any innate nobility of spirit or purpose (because I sincerely doubt either party has that in much measure), I had hoped they would do just to check their Republican counterparts. The right thing done for wrong reasons is better than the wrong thing done for wrong reasons.

But today, the last impediment to immunity for the Telecommunications industry for their participation in what seems clearly to be an illegal spying program went down, and with it the hope that we'll likely ever see any justice or even any truth regarding the program, a program which clearly violates the Fourth Amendment to the Constitution, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Founding Fathers couldn't have known about the telephone, which would not be invented for another 85 years after that Amendment was ratified, nor the Internet, email or any of the other electronic marvels which we take for granted in today's life. Just as we have to view the Constitution in terms of the language of the day, and recognize that this Amendment DOES convey a right to privacy even if that word in 1791 would have meant "an outhouse", so we also must view the Constitution through the lens of time, understanding that as our methods of communication expanded, so too did the protections against just this type of unchecked prying into our private lives.

It is not that the telecommunications companies will get off scot free that bothers me. Although they have legal departments whose job it should have been to explain the legality of the program to them, there is a certain logic to the argument that they were given assurances by those high in government that the program was legal, and thus might have accepted it as so. It is that by protecting the underlings, so to do we protect the architects of the violation. The underlings should be protected, but as a consequence of the prosecution of those at the top providing the proof that they really did have reason to believe that what they did was legal, not in lieu of it.

Because there can be no more civil cases against the telecommunications companies, there is a very real chance that the details of the program will never come to light. It is, as one commentator on television put it, as though the Congress in the Watergate matter had chosen to immunize the President and codify in law broader powers for him to spy un-Constitutionally instead of preparing Articles of Impeachment against him. It is as if a bank robber, caught red handed, were to be found not guilty by the Court and granted license to rob even more banks. It is as if the Constitution just doesn't matter to our elected officials any more.

I have so very much to say on this topic, I feel it needs to be broken up into sections, so this will end my comments for this post. Over the next few days, I will be posting a few more on the topic. I believe they're all important, but in order not to lose any of them in the maelstrom of words, best if we treat each bit individually.