Ultra-secret national security letters that come with a gag order on the recipient are an unconstitutional impingement on free speech, a federal judge in California ruled in a decision released Friday.
U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration’s surveillance practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.
“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”
The telecommunications company received the ultra-secret demand letter in 2011 from the FBI seeking information about a customer or customers. The company took the extraordinary and rare step of challenging the underlying authority of the National Security Letter, as well as the legitimacy of the gag order that came with it.
Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients.
After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority.
Archive for the ‘Individual Rights’ Category.
I have debated a while whether to run this personal experience, and in the end have reached a (perhaps wimpy) compromise with myself to run it but disguise the agency involved.
As most of your know, I run a company that helps keep public parks open by privately operating them. As part of that business, it is unsurprising that I would run a specialized blog on such public-private recreation partnerships. Most of the blog is dedicated not to selling my company per se, since there are not many who do what we do, but advancing the concept. In particular, I spend a lot of time responding to objections from folks who are concerned that private operators will not serve the public well or care for public lands as well as civil servants do.
One such objection is around law enforcement -- parks agencies who oppose this model argue that my company cannot possibly replace them because all their rangers are law enforcement officials and mine, a certification my private employees can't match. So a while back I wrote an article discussing this issue.
I argued that parks were not some lawless Road Warrior-style criminal anarchy and simply did not need the level of law enforcement concentration they have. We run nearly 175 public parks and do so just fine relying on support from the sheriff's office, as does every other recreation business.
I argued that so many rangers were law enforcement officials because they have a financial incentive to get such certification (e.g. more pay and much better pension, plus the psychic benefits of carrying a gun and a badge) and not because of any particular demand for such services.
Finally, and perhaps most importantly, I argued that providing customer service with law enforcement officials can cause problems -- after all, McDonald's does not issue citations to their customers for parking incorrectly. To back up the last point, I linked to an article in the Frisky (of all places) and a Yelp review of a park where customers bombarded the site with one star reviews complaining about the rangers harassing them with citations and ruining their visit.
Well, one day I got a letter via email from a regional manager of the state parks agency whose park was the subject of that Yelp review I linked. I was notified that I had 48 hours to remove that blog post or I would lose all my contracts with that state. In particular, they did not like a) the fact that I linked to a negative Yelp review of one of their parks and b) that I impugned the incredibly noble idea that state parks are all operated by law enforcement officials. I found out only later that there is a very extreme law enforcement culture in this agency -- that in fact you historically could not even be promoted to higher management positions without the law enforcement badge, truly making this an agency of police officers who happen to run parks. I would normally quote the letter's text here, but it is impossible to do so and keep the agency's name confidential.
Fortunately, I was able to write the acting General Counsel of the agency that afternoon. Rather than sending something fiery as the first salvo, I sent a coy letter observing innocently that her agency seemed to believe that my contracts with the state imposed a prior restraint on my speech and I asked her to clarify the boundaries of that prior restraint so I would know what speech I was to be allowed. To her credit, she called me back about 6 minutes after having received the letter and told me that it was void and asking me to please, please pretend I had never received it. So I did, and I reward her personally for her quick and intelligent response by not naming her agency in the story.
I am reminded of all this and write it in response to this story passed on by Ken at Popehat. It is a story of free speech and petty government retribution for it. I will let you read the article to get the details, but I will repost the original speech that earned Rick Horowitz a good dollop of government harassment. As an aside, I realize in posting this how far from the law and order conservative I have come since my early twenties.
Your approach should be to try to live your life, as much as possible, without giving them one minute of your time. If they want to talk to you, you should ask, “Am I being detained, or arrested?” If they say “no,” then you walk away. If they tell you that you cannot leave, then you stay put, but don’t talk to them. Because they aren’t following the law when they detain you for no reason.
And if the government will not follow the law, there is no reason why anyone else should.
Let me repeat that:
If the government will not follow the law, there is no reason why anyone else should.
So this is the proposal I set forth:
To the government, you can start following the law, or none of us will.
To everyone else, if the government will not follow the law, you should stop pretending law means anything.
It’s time to step away from the wrong.
Start fighting over everything!
I have never understood the argument that allowing same sex marriage would weaken marriage. I couldn't possibly fathom why allowing two men to marry made my marriage worse. This same argument was made by John Stossel arguing with Ann Coulter on his show. Coulter said it was not an issue about one's own marriage getting worse, but about a general loss of respect and strength for the institution as a whole.
I am still not buying it. But I want to help. If we really want to improve the general respect for the institution of marriage, here is my modest proposal: Allow gay marriage and ban Kardashian marriage.
For four years, Mr. Obama has benefited at least in part from the reluctance of Mr. Bush’s most virulent critics to criticize a Democratic president. Some liberals acknowledged in recent days that they were willing to accept policies they once would have deplored as long as they were in Mr. Obama’s hands, not Mr. Bush’s.
“We trust the president,” former Gov. Jennifer Granholm of Michigan said on Current TV. “And if this was Bush, I think that we would all be more up in arms because we wouldn’t trust that he would strike in a very targeted way and try to minimize damage rather than contain collateral damage.”
Dear Ms. Granholm, I have a clue for you: You have allowed the precedent to be set, which means everyone in the future who occupies the White House will claim this same power, whether you trust them or not. I personally think you are insane to have some special trust that Obama is minimizing collateral damage, particularly given his Orwellian refusal to acknowledge innocent deaths as innocent. What is he doing, steering the drones himself? But it is more insane to give the government power solely because the person who occupies the White House this micro-second is someone in whom you have particular faith. What happens in the next micro-second? Sorry, doesn't matter, it will be too late.
Every turn in the investigation that led to Petraeus's resignation perfectly illustrates the incredible and dangerous reach of the massive United States surveillance apparatus, which, through hundreds of billions of dollars in post-9/11 programs -- coupled with weakened privacy laws and lack of oversight -- has affected the civil liberties of every American for years. The only difference here is the victim of the surveillance state's reach was not a faceless American, but the head one of the agencies tasked to carry it out.....
It seems the deciding factor in opening the investigation was not the emails' content, but the fact that the FBI agent was friendly with Kelley. (Even more disturbing, the same FBI agent has now been accused of becoming "obsessed" with the Tampa socialite, sent shirtless pictures to her, and has been removed from the case.)...
One would assume, and hope, police have to get probable cause for all emails, just like they would for a physical letter or a phone call. But the law governing email -- the Electronic Communications Privacy Act (ECPA) -- doesn't have such requirements for emails more than 180 days old. Because ECPA was written in 1986, before the World Wide Web even existed, archived emails were an afterthought given the incredibly small storage space on email servers....
While these details may shock the average reader, these privacy-invasive tactics are used regularly by both federal and local law enforcement around the United States. In fact, as the New York Times reported, referring to Petraeus, "Law enforcement officials have said they used only ordinary methods in the case." The only difference here is the target was the director of the CIA and one of the most decorated soldiers in modern military history.
Electronic communication needs better Fourth Amendment protection.
By the way, another scandal here that interests me more than the sex thing is that the head of the CIA has such a terrible grasp on basic fieldcraft
Petraeus and Kelley were communicating not by sending each other emails, but using an old (and apparently ineffective) trick -- "used by terrorists and teenagers alike" -- of saving drafts in the draft folder of Gmail, thinking this was more private than if they sent them to each other. But as the ACLU's Chris Soghoian explained, this was not so
The Institute for Justice, or IJ. The do great work. What the ACLU should have been if it wasn't founded by Stalinists. Check out this aggravating example:
Imagine you own a million-dollar piece of property free and clear, but then the federal government and local law enforcement agents announce that they are going to take it from you, not compensate you one dime, and then use the money they get from selling your land to pad their budgets—all this even though you have never so much as been accused of a crime, let alone convicted of one.”
That is the nightmare Russ Caswell and his family is now facing in Tewksbury, Mass., where they stand to lose the family-operated motel they have owned for two generations.
The most contentious civil forfeiture fight in the nation will be the subject of a week-long trial starting Monday, November 5, 2012, in Boston. Throughout the week, the Institute for Justice, which represents the property owners in the case, will expose the ugly practice of civil forfeiture—where law enforcement agencies can pad their budgets by taking property from innocent owners who have never been convicted or even charged with a crime.
Forget about the economy -- libertarians expect Democrats to be horrible statists in economic matters. But we hope to get some protection of civil liberties in exchange. But Obama has been simply awful in this area as well -- prosecuting marijuana sellers that are legal under state law, claiming assassination powers, the drone war, wiretapping, failure to address gay marriage, etc.
Here is but one example - the Orwellian defense of warrantless wiretapping. You can't sue us unless we tell you there is a wiretap, and we are not going to tell you.
As part of its concerted campaign to prosecute whistleblowers and to classify state secrets, the Obama administration has taken a position in Clapper that makes the Bush administration pro-secrecy campaign seem pale in comparison: namely, that no one can challenge warrantless surveillance unless the government tells you in advance that you’re being surveilled—which national security interests prevent it from doing. When Bush administration offered milder versions of the same arguments, the civil liberties community rose up in protest. Verrilli, for his part, was met by vigorous skepticism from the Supreme Court’s liberal justices.
It’s unfortunate enough that the administration asked the Court to hear the surveillance case in the first place, after the U.S. Court of Appeals for the Second Circuit had ruledthat the plaintiffs —lawyers and human rights and media organizations whose work requires them to communicate with clients, sources, and victims of human rights abroad—had legal standing to bring the case. Although they couldn’t be 100 percent sure that their telephone communications were being monitored, the appellate held that there was a “realistic danger” that their telephone communications were being monitored under the FISA Amendments Act of 2008 (FAA), passed by Congress to codify some of the worst excesses of the Bush administration’s warrantless wiretapping program. This led the journalists and lawyers to suffer tangible injuries—such as having to fly to the Middle East to communicate with clients rather than talking by telephone, for example, or being more circumspect in talking to Middle Eastern sources, as journalists such as Naomi Klein and Chris Hedges alleged.
In his Supreme Court brief and in the oral argument yesterday, however, Verrilli alleged that these harms were too speculative to create legal standing to challenge the law, since the lawyers and journalists couldn’t be sure they were being surveilled under the FAA rather than under some other warrantless wiretapping authority. Essentially, the Obama administration was arguing that targets of surveillance could only challenge the law after they knew they were being surveilled, though the government would never tell them they were being surveilled before bringing a case against them.
I am sure we would all like a ruling that we cannot be sued unless we give the plaintiff permission to do so, essentially what the Obama Administration is claiming here.
Update: From the Washington Times:
Bloomberg News reported on October 17 that Attorney General Eric Holder “prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft.” :
The Justice Department said that there are established avenues for government employees to follow if they want to report misdeeds. The agency “does not target whistle-blowers in leak cases or any other cases,” Dean Boyd, a department spokesman, said.“An individual in authorized possession of classified information has no authority or right to unilaterally determine that it should be made public or otherwise disclose it,” he said.
However, when leaks to the press benefit the administration, prosecutions from the Jusitce Department are absent. For example, AG Holder was not prosecuting anyone over who leaked information about the killing of Oasma bin Laden. The Justice Department has yet to charge anyone over leaking information regarding the U.S. involvement in cyberattacks on Iran as well as an al Qaida plan to blow up a U.S. bound airplane. In fact, the Justice Department ended up appointing one of two attorneys to the cyberattacks investigation who was an Obama donor.
Part of the problem is that if this (or any other) Administration has its way, information that embarrasses the Administration get's classified, on the dubious logic that embarrassing the Administration embarrasses America. With this definition, all whistle-blowing becomes "espionage".
Update 2: More on Wiretapping from the EFF
To the contrary, there’s no indication that the still-active warrantless wiretapping program—which includes a warrantless dragnet on millions of innocent Americans’ communications—has significantly changed from the day Obama took office. With regard to the FISA Amendments Act, the Obama Administration has actively opposed all proposed safeguards in Congress. All the while, his Administration has been even more aggressive than President Bush in trying to prevent warrantless wiretapping victims from having their day in court and hascontinued building the massive national security infrastructure needed to support it. ...
Some have suggested it’s possible when Obama said “safeguards” on the Daily Show, he is referring to some unspecified secret administrative rules he has put into place. Yet if these “safeguards” exist, they have been kept completely secret from the American public, and at the same, the administration is refusing to codify them into the law or create any visible chain of accountability if they are violated. But given the ample evidence of Constitutional violations since Obama took office (see: here, here, and here), these secret safeguards we don’t know exist are clearly inconsequential.
The First Amendment is nearly the last portion of the Bill of Rights that courts seem to take seriously -- treating all the others as if the Founders were just kidding. The 9th and 10th went early. The 2nd has been nibbled away at. The 4th has become a bad joke under the last several Administrations. We abandoned the 6th somewhere out in Guantanamo Bay and the 5th has fallen victim to the drug war. (The 3rd is still alive and well, though!)
But today freedom of speech is under fire by those who increasingly claim [some] people have a right not to be offended that trumps free speech. Just who has this new right and who does not (certainly white males don't seem to have it) is unclear, as well as how one can ever enforce a standard where the victim has full discretion in determining if a crime has been committed, are left unexplained.
We have seen this theory of speech gaining adherents in Universities, for example, so while its continued gains are worrisome though not entirely unexpected. The one thing I never saw coming in the increasingly secular west was how much momentum anti-blasphemy laws would gain, and how much these laws would be pushed by the Left**.
Jonathon Turley has a good article on this topic in the Washington Post, as linked by Reason
Ken at Popehat has a roundup of creeping ant-blasphemy law over the last year (it is hard for me to even write that sentence seriously, it sounds so Medieval)
**It is in fact insane that the Left has so many people coming out in favor of protecting Islam from blasphemy. I know it is not everyone, but it is just amazing that a good number of people who call themselves liberal can excuse violence by a misogynist culture that is meant to suppress speech in the name of Gods and Churches. We have actual children of the sixties arguing that threats of violence are sufficiently good reason to suppress speech and that a religion that basically enslaves women needs laws that protect it from criticism (these same children of the sixties that all protested the Christmas bombings of Cambodia are also launching drone strikes willy nilly on civilians and claiming that the President can assassinate Americans solely on his say-so, but those are different topics.)
This all goes to prove my long-time conviction that the political parties have very little foundation in any real morality, and that they tend to simply take positions opposite of the other party. Since Conservatives staked out the anti-Islam position, the Left feels the need to find some way to be pro-Islam. Weird, but I can't think of any other explanation. The only exceptions to this rule are 1) expansions of Presidential power and 2) taking the drug war to new stupid extremes. Both parties seem unified in supporting these two things, at least when their guy is in office.
I am happy to vociferously criticize the many shortcomings in US civil liberties. But one are where I can't agree with other civil libertarians is their frequent homage to Europe as the home of civil liberties enlightenment. Kudos, of course, to countries like Holland and more recently Portugal for reasonable drug laws. But Europeans have many problems we do not share, particularly in protecting, or not protecting free speech. Here is another example, from Sweden. Just because they have a reputation for sexual freedom does not make them a civil liberties paradise:
One of the prime arguments I have always made about the Assange asylum case is that his particular fear of being extradited to Sweden is grounded in that country's very unusual and quite oppressive pre-trial detention powers: ones that permit the state to act with anextreme degree of secrecy and which can even prohibit the accused from any communication with the outside world.....
Svartholm is now being held under exactly the pretrial conditions that I've long argued (based on condemnations from human rights groups) prevail in Sweden:
"Gottfrid Svartholm will be kept in detention for at least two more weeks on suspicion ofhacking into a Swedish IT company connected to the country's tax authorities. According to Prosecutor Henry Olin the extended detention is needed 'to prevent him from having contact with other people.' The Pirate Bay co-founder is not allowed to have visitors and is even being denied access to newspapers and television. . . .
"Since he hasn't been charged officially in the Logica case the Pirate Bay co-founder could only be detained for a few days.
"But, after a request from Prosecutor Henry Olin this term was extended for another two weeks mid-September, and last Friday the District Court decided that Gottfrid could be detained for another two weeks.
"To prevent Gottfrid from interfering with the investigation the Prosecutor believes it's justified to detain him for more than a month without being charged....
Unlike in the British system, in which all proceedings, including extradition proceedings, relating to Assange would be publicly scrutinized and almost certainly conducted in open court, the unusual secrecy of Sweden's pre-trial judicial process, particularly the ability to hold the accused incommunicado, poses a real danger that whatever happened to Assange could be effectuated without any public notice....
By the way, the whole sexual freedom thing? Uh-uh. Which is another reason Assange is worried, since women can pretty much retroactively any sex they later regret as a sexual assault.
We expected Obama to be a dumpster fire on economic issues and commercial liberty. And he has been.
But here are two charts showing how the traditional libertarian choice in two-party electrions of "liberty in the bedroom or liberty in the boardroom" has broken down. First, Bush was a mess on economic issues. Now, Obama is a wreck on civil liberties issues. Here is use of domestic surveillance tools, many times without warrants:
And here are drone strike casualties:
This Administration has increased the frequency of drone strikes by a factor of 8 over George Bush. It has claimed that any civilian deaths from these strikes are combatant deaths because, well, civilians shouldn't have been hanging around near people we want to kill. The Administration has claimed the right to assassinate Americans without any sort of due process, continues rendition and indefinite detainment, and has ramped up Federal raids on medical marijuana dispensaries in places like California where they are legal under state law.
Update: While I was writing this, Ken at Popehat was saying something similar:
The United States government, under two opposed increasingly indistinguishable political parties, asserts the right to kill anyone on the face of the earth in the name of the War on Terror. It asserts the right todetain anyone on the face of the earth in the name of the War on Terror, and to do so based on undisclosed facts applied to undisclosed standards in undisclosed locations under undisclosed conditions for however long it wants, all without judicial review. It asserts the right to be free of lawsuits or other judicial proceedings that might reveal its secrets in the War on Terror. It asserts that the people it kills in drone strikes are either probably enemy combatants in the War on Terror or acceptable collateral damage. It asserts that increasing surveillance of Americans, increasing interception of Americans' communications, and increasingly intrusive security measuresare all required by the War on Terror.
But the War on Terror, unlike other wars, will last as long as the government says it will. And, as the MEK episode illustrates, the scope of the War on Terror — the very identity of the Terror we fight — is a subjective matter in the discretion of the government. The compelling need the government cites to do whatever it wants is itself defined by the government.
We're letting the government do that. We're putting up with it. We're even cheering it, because that's more comfortable than opposing it or thinking about how far it has gone.
Update 2: And let's not forget that whole transparency thing. The Obama Administration may be perhaps the worst Administration in decades in complying with FOIA requests for what should be public information.
I found this history from Ken at Popehat to be incredibly useful background on free speech jurisprudence from OW Holmes, particularly of the oft-abused "yelling fire in a crowded movie house."
Perhaps the worst modern threat to free speech is this notion that "hate speech" is somehow a class of speech that should be banned. Well, I would ask advocates of this position to remember that nearly every bit of political speech is hate speech to someone. Those who advocate for such a restriction generally imagine themselves defining what is hateful. Which leads me back to my #1 legal test: if one supports some sort of government-rule-making legislation, imagine the politician you like the least making the rules. If that makes you queasy, you shouldn't be supporting that legislation.
What I wish Obama had said day one:
I didn't care for this particular YouTube video. I don't think many in my State Department would agree with it in any way. But in this country, that does not matter. In this country, we allow people to speak their minds, whether or not they agree with those of us in office. No, that's not quite right. We protect their right to speak particularly when they don't agree with those of us in office. I have sworn an oath to do so. Browse YouTube and you will see hundreds of videos charicaturing me personally in ways I find hurtful. You will find videos supporting and attacking nearly every religion, political party, or idea you can imagine.
Many nations are sometimes awed, overwhelmed, angry, envious at the power and wealth of this country. But this did not happen by accident. We are wealthy and successful because we hold ourselves consistently to a set of principles, and among the most important of these is freedom of expression.
I think the fact that there is an asymmetry between how critiques of Islam are received by US intellectuals and how critiques of Christianity are received is so obvious I am not even going to bother to prove it. Suffice it to say that the same folks who refrained from even printing the fairly tame Danish Mohammed cartoons embrace satire of Christianity that is far more harsh, e.g. the Book of Mormon.
So accepting this asymmetry as nearly an axiom, I want to ask instead: Is this asymmetry an exception being made for Islam, or an exception being made for Christianity. In other words:
- Do these folks support criticisms of all religions except Islam, because Islam is somehow different, perhaps out of a fear of violence? If so, aren't we just encouraging anyone who is butt-hurt to resort to violence by giving folks with a Molotov cocktail an effective veto over speech?
- Or, do these folks oppose criticisms of all religions except Christianity, perhaps because Republicans and Texans are Christians and intellectuals really don't like those guys. In some ways this is parallel to the asymmetric way the "right not to be offended" is enforced on most campuses, with everyone afraid to offend a black woman but with no punishments assessed for offending white males.
Either answer, by the way, is absolutely unacceptable. People who want to limit speech in a way to favor their own in-group should wonder what might happen when their group is no longer "in".
Or so says California's Gavin Newsom, in a great Reuters quote found by Zero Hedge:
California Lieutenant Governor Gavin Newsom says he wants the U.S. Department of Justice to investigate "threats" against local communities considering using eminent domain to seize and restructure poorly performing mortgages to benefit cash-strapped homeowners.
Newsom sent a letter on Monday to U.S. Attorney General Eric Holder asking federal prosecutors to investigate any attempts by Wall Street investors and government agencies to "boycott" California communities that are considering such moves.
"I am most disturbed by threats leveled by the mortgage industry and some in the federal government who have coercively urged local governments to reject consideration" of eminent domain," he wrote in a letter, a copy of which was provided to Reuters.
Newsom, a Democrat who was previously mayor of San Francisco, warned the influential Securities Industry and Financial Markets Association in July to "cease making threats to the local officials of San Bernardino County" over the proposed plan to seize underwater mortgages from private investors.
Some towns in San Bernardino County, which is located east of Los Angeles, have set up a joint authority that is looking into the idea of using eminent domain to forcibly purchase distressed mortgages. Rather than evict homeowners through foreclosure, the public-private entity would offer residents new mortgages with reduced debts.
Newsom said in the letter on Monday that while he is not endorsing the use of eminent domain at this time, he wants communities in California to be able to "explore every option" for solving their mortgage burdens "without fear of illegal reprisal by the mortgage industry or federal government agencies."
This quote is so rich with irony that it is just delicious. Certainly ceasing to do business in a community that threatens to steal all your property strikes me as a perfectly reasonable, sane response. Calling such a response an actionable threat requiring Federal investigation just demonstrates how little respect California officials, in particular, have for private activity and individual rights.
The third paragraph might be worth an essay all by itself, classifying a voluntary private boycott as illegally coercive while treating use of eminent domain, intended for things like road building, to seize private mortgages as so sensible that it should be sheltered from any public criticism.
A lot of folks are criticizing the FBI for losing about 12 million ipod/iphone/ipad records, many of which included user name and addresses as well as their device's unique identifier.
What I would like to know is how all that ended up on an FBI laptop in the first place. I know there are those who have rooted on Jack Bauer for 6 or 7 seasons who expect that the FBI should have all this data -- but this is not the case. I know of no law that grants the FBI automatic access to all cell phone records or Apple accounts.
I missed Tom Junod's original article on targeted killing, but his response to Andrew Sullivan's defense of the Obama Administration is terrific:
I did not -- and do not -- condone the use of torture any more than Sullivan does. But the moral risk of torture is not so different from the moral risk of targeted killing. Indeed, the moral risk of torture provides a template for the moral risk of targeted killing. What was introduced as an option of last resort becomes the option of first resort, then the only option. Sullivan always understood that torture was a temptation, and that the day would come when it was applied not in emergency, "ticking-clock" situations, but as a matter of routine. Well, that day has come, only now with targeted killing, where the option of first resort meets the court of no appeal.
Yes, killing is a part of war, and torture isn't. But what if the the kind of militant who was captured and tortured under Bush is the kind of militant who is simply being killed under President Obama? The Obama Administration vigorously denies this, just as it vigorously denies that it is combating terrorism by practicing a policy of extermination against terrorists. But the numbers -- the thousands killed by drone and raid against the single high-value asset captured and interrogated outside the theater of war in Afghanistan -- tell a story that can't simply be shrugged off. Interrogation has been replaced by assassination.
Moreover, I talked to a source familiar with the targeting process who told me that the people involved in the life-or-death decisions of the Obama administration often do not know the credibility of intelligence sources. This was a highly informed and involved source who, when asked the most essential question -- "how good is the intelligence?" -- paused and finally couldn't answer. In fact, when I raised the question of whether those who were once captured are now being killed, the source suggested that it was the wrong question:
"It's not at all clear that we'd be sending our people into Yemen to capture the people we're targeting. But it's not at all clear that we'd be targeting them if the technology wasn't so advanced. What's happening is that we're using the technology to target people we never would have bothered to capture."
Unfortunately, I think targeting killing is here to stay, by the "only Nixon could go to China" logic. By having a Democrat start this policy, it has avoided a lot of critique from the usual defenders of humanity against arbitrary power, for the simple reason that many of these folks consider Obama to be "on their team." Just look at Andrew Sullivan, for God sakes, defending the practice. The Left spent more time criticizing Bush over looting at the Bagdad museum than it has over Obama's targeted killing (Glen Greenwald being a notable exception). Having set the precedent under Obama, there will be no going back under either party in the future.
Apparently, it is official US policy now that any adult male killed in done and other attacks be labelled a "militant". Was the drone strike yesterday that killed 12 men really necessary, Mr. President? Of course, they were all militants.
By the way, kudos to Greenwald to holding his "side" accountable, without even a token "but of course the other side is worse" dilution. Both Conservatives and Liberals can learn from it.
One of the worst outcomes of the war on drugs has been civil forfeiture laws, which basically allow police to take your property and keep the proceeds, forcing the burden of proof onto you to prove that the property is not a result of or facilitator to criminal activity. It is beyond me how such laws continue to be considered Constitutional, but the unfortunately the same justices that tend to protect property rights are the same one that seem to have an even stronger law and order streak.
Anyway, its good to be reminded just how awful these laws are, and Hit and Run has several recent examples here.
Update: Walter Olson has several more.
This is a nice but probably meaningless gesture to protecting basic Constitutional rights (Hat tip to a reader)
Just a week after the Virginia legislature approved a law to refuse compliance with NDAA“indefinite detentions,” an Arizona law committing the Grand Canyon State to noncompliance with any attempted federal kidnapping under the NDAA now stands just a signature away from implementation.
I guess I would be more thrilled if I thought the state would have passed this if there were a Republican in the White House, but I can't make myself believe it.
President Obama will issue an executive order Monday that will allow U.S. officials for the first time to impose sanctions against foreign nationals found to have used new technologies, from cellphone tracking to Internet monitoring, to help carry out grave human rights abuses.
LOL, Foreign nationals identified by NSA communications monitoring as violating this order will be pinpointed by satellites and surveillance drones and hit with a cruise missile.
Hard to picture any American President in the last 20 years signing this with a straight face. Is there a Federal law enforcement agency or major police force in this country who is NOT violating this order, had it applied to American citizens?
South Bend Seven helped me think through the more general point I was trying to get at in this post. I am simply sick of the incessant whining from this administration that it's too hard to get legislation through Congress and that difficulty justifies the Administration to start unilaterally exercising legislative powers via executive decree and the stretching of numerous regulatory authorities.
But here is the deal - its supposed to be hard to add new laws and, particularly, to expand the power of the government. Hard, but not impossible. Even when something is ruled unconstitutional, there is a mechanism to amend the Constitution. In fact, we have actually done it 27 times. But nowadays we don't even want to bother. We have Presidents of both parties that just invent new executive powers and who put pressure on the Courts to agree to broader and broader Federal powers.
I am not sure we will ever have another Constitutional Amendment in my lifetime. Already at 41 years since the last one (not counting the odd 27th amendment) this is the longest span in history without an Amendment being passed. We just can't be bothered to do things the right way. Don't believe me? Does anyone believe that if the income tax was invented today, anyone would bother with its Constitutional issues and decide an amendment is necessary. Or even more telling, in 1917 we honestly believed a Constitutional Amendment was needed for the federal government to regulate and ban alcoholic beverages. If that's true, where is the amendment that is required to ban marijuana, cocaine, or heroin? We dond't bother with one, because by the time we regulated these substances we had pretty much abandoned the concept (written into the document in several places and reiterated in the 9th and 10th amendment) that the Constitution conferred enumerated powers. Because that just made it too dang hard for politicians to exercise more and more power over us.
I have migrated from being a death penalty hawk 30 years ago to being against the death penalty. In short, if I don't trust the government to be able to make decisions on alternate fuel loans, I don't trust them to make life and death decisions. I grew up in Texas where governors in political races would compete with one another on who has or promises to execute the most people. Literally they were running on body counts. This is not an environment conducive to good decision-making.
Further, the death penalty does too much to cut off one's full appeal rights. A black man in Mississippi in 1965 was never going to get his full Constitutional appeal rights. Men have been executed that later improvements in racial tolerance or DNA evidence might have exonerated.
Apparently, some of the original supporters of California's death penalty expansion in the 1970's* are now promoting its repeal, and are trying to woo other Conservatives to the cause
Thirty-four years later, another initiative is going on the California ballot, this time to repeal the death penalty and replace it with mandatory life without parole. And two of its biggest advocates are Ron Briggs and Mr. Heller, who are trying to reverse what they have come to view as one of the biggest mistakes of their lives.
Partly, they changed their minds for moral reasons. But they also have a political argument to make.
“At the time, we were of the impression that it would do swift justice, that it would get the criminals and murderers through the system quickly and apply them the death penalty,” Mr. Briggs, 54, said over tea in the kitchen at his 100-acre farm in this Gold Rush town, where he grows potatoes, peppers, melons, cherries and (unsuccessfully, so far) black Périgord truffles.
“But it’s not working,” he said. “My dad always says, admit the obvious. We started with 300 on death row when we did Prop 7, and we now have over 720 — and it’s cost us $4 billion. I tell my Republican friends, ‘Close your eyes for a moment. If there was a state program that was costing $185 million a year and only gave the money to lawyers and criminals, what would you do with it?’ ”
*For those who did not live through the 1970's, it is hard to describe how much the culture was absolutely steeped in the notion that city streets were Road Warrior-esque free-fire crime zones. The Dirty Harry movies, the Charles Bronson vigilante movies, Escape from New York, the Warriors, etc. etc all promoted this notion that we were too soft on crime and that we had allowed criminals to run wild.
The Indiana union's lawyers contend that the right-to-work law interferes with the union's free speech rights by stifling the collection of money that helps pay for its political speech.
"In this case, the state of Indiana restricted a channel of speech-supporting finance," the union brief maintains. "The Union legitimately utilizes dues money collected through the agency shop provisions in its collective bargaining agreements, in part, to finance political speech The Indiana Right to Work law prohibits agency shop agreements, and that prohibition restricts a channel through which speech-supporting finance might flow."
According to Ken and Popehat, Eugene Volokh is defending Crystal Cox in a free speech case. Here is some background on Ms. Cox. In discussing Volokh's defense, Ken makes the same point I have on many occasions:
Crystal Cox is not a sincere supporter of free speech. Crystal Cox is not a defender of the First Amendment. Crystal Cox supports free speech for Crystal Cox, but for her own critics, Crystal Cox is a vigorous (if mostly incoherent) advocate for broad and unprincipled censorship.
This should not surprise us. As I mentioned before, free speech cases often involve defending vile speech by repugnant people. Nearly as often, those repugnant people are no respecters of the rights of anyone else. Do you think the Nazis who marched at Skokie, if they had their way, would uphold the free speech rights of the religious and ethnic minorities who protested them? Do you imagine that Fred Phelps' church, given its choice, would permit the blasphemous and idolatrous freedoms it rails against?
No. We extend constitutional rights to people who, given the opportunity, would not extend the same rights to us. That's how we roll.
Crystal Cox is no different. Eugene Volokh and the Electronic Frontier Foundation are appealing the judgment against her to vindicate (through however flawed a vessel) important free speech issues.
But it is one thing for me to blog that everyone, including Illinois Nazis and Crystal Cox, should have free speech rights. It's quite another to actually spend days of one's time on a pro bono basis actually handling her legal work. So kudos to Volokh -- we all know the sewers need to be cleaned out from time to time but few of us actually will jump in and do it.