Coyote Blog

Police officers long for the days when they can make up any facts they wish about an encounter with the public and make them stick.  That is why, even if the public were required to videotape police, my guess is that officers would still find a reason to arrest them for wiretapping.

Today, here on Cape Cod, where every car has an Obama sticker, I was struck by two cars which had Obama stickers as well as this same slogan, a paraphrase of a Ben Franklin bon mot:

Those who give up their liberty for more security neither deserve liberty nor security.

I have absolutely no problem with this bumper sticker in its original context, which I presume was to protest things like the Patriot Act, indefinite detentions, and wiretapping during the Bush Administration (and all retained, so far, by this Administration).

But my question back to them would be — do you still support this statement in the context of pending health care legislation, which is yet another example of trading individual liberty for security, albeit security of a slightly different type?

Apparently the  NSA is under some heat for proposing to monitor the communications of a member of Congress thought to be meeting with terrorist suspects:

While the N.S.A.’s operations in recent months have come under examination, new details are also emerging about earlier domestic-surveillance activities, including the agency’s attempt to wiretap a member of Congress, without court approval, on an overseas trip, current and former intelligence officials said. . . .

The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said.

The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress.

I have a counter idea.  Why don’t we monitor all the communications of all of Congress all the time and post it on a web site.  If they want to exercise ultimate power over us, we can then exercise ultimate scrutiny over them.  Unfortunately, in the world of the future, Congress is likely to be the only group exempted from monitoring.

I am headed off to Wyoming and my family’s ranch for a while:

Since data rates go down substantially when the cows are chewing on the phone line (really- the phone line is draped for miles on a fence) I am not sure how much I will blog.

In case I am offline for a while, I would like to offer this serious thought for world improvement.  We don’t need more progressive taxes, or larger government, or more wiretapping, or more government control of mortgages, or mandatory service.   All we really need is … more cowbell.

I would prefer not to see warrantless searches without judicial oversight be legal under any circumstances, so I am happy there are roadblocks in the FISA extension.  What I am unclear about, though, are the exact issues surrounding telecom immunity from lawsuits which is apparently what has the thing held up.  By no means do I wish to give telecoms some blanket immunity from the consequences of their handling of private data.  However, it seems odd to want to hold them liable for complying with what would be, under the new law, a legal government order.  Or, is the immunity issue all retroactive to past compliance with government orders when it wasn’t so clear if the government orders were legal?

I must say I have some sympathy for businesses, particularly those that are highly regulated as telecom, who bow under government pressure and then get sued for doing so.  For example, as I wrote before, I am required by Arizona law to take actions that the Feds consider illegal.  Its a frustrating place to be.

Anyone who can provide clarity on the issues here (not the FISA issues or wiretapping issues but narrowly on the immunity issue) is encouraged to do so.

This weekend, the Democrats in Congress passed legislation legalizing the Administration’s previous grab for new wiretapping powers.  Further proving that the minority party in the US government does not really object to power grabs, they just get in a huff that the other party thought of it first.  Other examples of such behavior include the Patriot act, currently supported by Republicans and opposed by many Democrats, but most of whose provisions were originally proposed by Bill Clinton and opposed by a Republican Congress  (opposition led by John Ashcroft!)

I really don’t want the president, of either party, listening to my phone calls without a warrant, and that answer does not change if I am talking  to my friends in Arizona or my friends in London.

John Scalzi has a great post reacting to the line in the article above where Democrats vow to, at some time in the future, "fix" the flaws in the law they just passed.

They wouldn’t have to "fix" it if they hadn’t have passed it.
Once again I am entirely flummoxed how it is that the Democrats, faced
with the president more chronically unpopular than Nixon, and so
politically weakened that the GOP candidates for president can barely
bring themselves to acknowledge that he exists, yet manage to get played by the man again and again.

If the Democrats honestly did not feel this version of the bill
should have been passed, they shouldn’t have passed it. I don’t see why
this is terribly complicated. And don’t tell me that at least it has a
six-month "sunset" clause; all it means at this point is that in six
months, the Democrats are going to allow themselves to get played once
more, and this time they’ll have given Bush the talking point of "well,
they passed it before."

My only objection to this statement is the implication the this is just a matter of the Democrats getting played.  I actually think it’s exactly what the Democrats want — they want to retain a reputation for caring about government intrusiveness without actually reducing government powers (just like Republicans want a reputation for reducing economic regulations without actually doing do when they were in power).  After all, the Dems expect to control the administration in 2 years, and they really don’t want to take away any of the President’s toys before that time.

I think it was George Carlin (?) who used to ask "Do you know what the worst thing is that can happen when you smoke marijuana?" His answer was "Get sent to prison".  The implication, which I have always agreed with for most drug use, was that it is insane as a society to try to save someone from doing something bad to himself by … doing something worse to him.

I think of this whenever I get in a discussion about security responses to 9/11.  The worst thing that can happen to this country as a whole  (as differentiated of course from the individual victims of 9/11) is to turn the country into a police state to combat potential future terrorist actions.  I personally would greatly prefer to live with a 1 in 100,000 chance of being the victim of terrorism than find myself living in an America that has abandoned its constitution.  I wrote more on this topic here.

To this end, though I tend to be slow to believe these type of stories, this one (via Reason) about domestic NSA wiretapping is pretty frightening:

AT&T provided National Security Agency eavesdroppers with full
access to its customers’ phone calls, and shunted its customers’
internet traffic to data-mining equipment installed in a secret room in
its San Francisco switching center, according to a former AT&T
worker cooperating in the Electronic Frontier Foundation’s lawsuit
against the company….

The source is just one low-level guy, so this story is still pretty soft.  I hope the investigation is allowed to play out.

There have been any number of stories about how provisions of the Patriot Act are used more routinely to proecute drug cases than to pursue, you know, terrorists.  Note, however, this provision in the Patriot Act that has nothing to do with national security (via Overlawyered).

Quietly slipped into the reauthorization of the Patriot Act:
first-time-ever authority for the Justice Department to engage in
wiretapping and bugging of private premises for purposes of going after
antitrust violators.

Given the fact the the feds regularly prosecute companies with large market shares for A) raising prices (i.e. monopoly pricing); for B) lowering prices (i.e. predatory pricing); and for C) keeping prices the same (ie price fixing), this becomes an open mandate to listen into any private conversation at any company with a non-trivial market share.  Have fun at your next staff meeting over there at Microsoft or Exxon. 

From the Incredible Bread Machine by G.W. Grant:

"Now let me state the present rules,"
The lawyer then went on,

"These very simple guidelines,
You can rely upon:
You’re gouging on your prices if
You charge more than the rest.
But it’s unfair competition if
You think you can charge less!
"A second point that we would make
To help avoid confusion…
Don’t try to charge the same amount,
That would be Collusion!
You must compete. But not too much,
For if you do you see,
Then the market would be yours –
And that’s Monopoly!

While I bloviated for many screen-inches on wiretaps, detentions, and separation of powers (and here, and here), George Will nails what I was trying to say in about a paragraph.

But, then, perhaps no future president will ask for such congressional
involvement in the gravest decision government makes — going to war. Why would
future presidents ask, if the present administration successfully asserts its
current doctrine? It is that whenever the nation is at war, the other two
branches of government have a radically diminished pertinence to governance, and
the president determines what that pertinence shall be. This monarchical
doctrine emerges from the administration’s stance that warrant-less surveillance
by the National Security Agency targeting American citizens on American soil is
a legal exercise of the president’s inherent powers as commander in chief, even
though it violates the clear language of the 1978 Foreign Intelligence
Surveillance Act, which was written to regulate wartime surveillance.

Will seems to think the wiretapping a reasonable approach, and thinks Congress should authorize it, but its very reasonableness or even necessity does not justify executive circumvention of the Constitution:

Besides, terrorism is not the only new danger of this era. Another is the
administration’s argument that because the president is commander in chief, he
is the "sole organ for the nation in foreign affairs." That non sequitur is
refuted by the Constitution’s plain language, which empowers Congress to ratify
treaties, declare war, fund and regulate military forces, and make laws
"necessary and proper" for the execution of all presidential powers . Those
powers do not include deciding that a law — FISA, for example — is somehow
exempted from the presidential duty to "take care that the laws be faithfully
executed."