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October 19, 2012

Comments

LJ--I wasn't planning on writing a scientific paper proposing that all Presidents are sociopaths. And the sample size is much less than 44, since I'm thinking of Presidents since the national security state really got going. But I suspect that people who want that much power and are comfortable wielding it might have something funny about them, or else maybe it's something that grows on you.

I don't really care one way or the other if I ever happen to sound like Brett. Anyway, Brett is a libertarian and I'm not, so there's not much overlap. I always admired Jim Henley over at Unqualified Offerings and "Thoreau" too. Henley used to be a libertarian and has become a liberal again, while I think Thoreau is still a libertarian, I think. Both of them seemed the kind of libertarian (when they both were of that persuasion) that seemed mainly outraged by governmental abuse of power overseas and in the drug war--that sort of libertarian has a lot in common with lefties. Brett has a few of those tendencies, I think, but most of the time he seems more exercised by the economic issues, the Ayn Rand type of stuff, where I disagree completely.

"First of all, my position on drones has nothing to do with punishing criminals. I think that trying to analogize the use of drones in a war against al Qaeda with a situation that is not at all comparable is really a silly rabbit hole."

That's your way of dodging the double standard issue. Al Qaeda murders people. So do Western governments, by launching unjust wars and in other ways. The issue is whether there is any justice for people do these things--if there isn't, then where is the deterrence and how can future wars be prevented if there are no serious consequences for the perpetrators? Western governments have shown that they won't punish their own--so by your own logic other countries should try to assassinate the guilty parties. Or there should be a global movement to impose crippling sanctions on the US until we show some evidence of taking international law seriously. I don't favor such things because of the collateral damage problem and because I think Americans would react badly, much as Pakistanis react to drones, with the difference being that our reaction is likely to be much more violent.

As for Al Qaeda, we have the right to engage in self-defense, though to the same degree that any country has that right. But that global community you want to unify--well, maybe they could also take on the rogue US problem while they are at it.

Phil: *See what a shitty tactic that is?

Just to get this part of your comment out of the way first: I am not particularly thin-skinned, so perhaps I'm not very sensitive to thin-skinnedness. Yes, I certainly have noticed when I've been accused of a lot of horrible things on this blog (including being an elevator stalker), and sometimes I'm a bit taken aback when people make comments about what they imagine my demographic profile to be, etc. But basically, I tend not to become offended. I'll try to become more sensitive (try, and try again).

The comment of mine that you thought was a shitty tactic was inspired by the following fact: most people here (feel free to correct me) seem to believe that terrorist attacks outside of our geographical borders are none of our business (except that, of course, we're sad about them). They see the problem of terrorism as a series of crimes inflicted one instance at a time in various jurisdictions, and that each jurisdiction's government needs to respond in accordance with its criminal law. Our reaction, thus far, to the September 11 attacks, has been an overzealous retaliation for the crimes committed within our borders on that day.

That's one way to look at it, and it's a legitimate way. It's convenient to look at it that way, because it fits nicely within the existing framework of our legal system.

As any lawyer knows, however, the beauty of our legal system is that it changes to accommodate new situations. This is done by creating new laws, through statutes, or by interpreting existing law to embrace new facts. I would suggest that the criminal law isn't really up to the task of dealing with terrorism. I would also say that we're not really there in terms of creating a satisfying legal framework to solve all of the problematic issues that international terrorism presents.

The acts of terrorism on September 11 were bigger than most crimes we deal with, in that they resulted in more carnage than any single act of war by a a foreign power on U.S. soil in our history. There were more people killed as a result of that attack than Americans killed in action during the War of 1812. It's understandable (to me) that Americans would see that huge mass murder, not as a criminal conspiracy, but as an act of war - just based on its size alone.

But not only that, the primary perpetrators (the triggermen, if you will) were all dead. Retaliation against them wouldn't have been possible. Besides, was retaliation really the point? Most Americans, mainly, wanted this not to happen again. Whatever people were interested in organizing these purposeful massive attacks on civilians - those people had to be brought to justice.

Well, it turns out that "those people" are a somewhat amorphous (I admit) movement of fundamentalist Islamists who use terrorism for a religious end. It's not clear that any particular political solution would even bring a stop to their actions. You ask who on the other side has the power and the right to sue for peace in this war or signal an end to hostilities? Well, before we even get to that issue, who has the authority even to state what they want? Our legal system has very little experience with preventing murder as massive as this, and our system of government has little experience with such an uncertain adversary in war.

But should we forego the use of military power (or the tools of military power) because the people who staged "crime" (as big as the act of war) aren't very well organized, and can't get it together to have a government or even a solid spokesperson? Why should we be the ones who have to confine response to an insufficient legal paradigm - when they are the ones who can't get their act together to have a normal government, a coherent cause for their war, or a practical plan for peace? They are warriors without a rational cause, so that means we aren't allowed to fight them? That, to me, seems ridiculous.

There's a reason why nobody (in our allied governments) complains about drone warfare. They're grateful for it. It's an international problem, not just a domestic one. It calls for an international solution, and we've stepped into the breach. If we, and/or the international community, creates a better system for joint police action, or whatever, that's fine with me. In the meantime, we're doing what needs to be done, because it's unconscionable for us to allow suicide bombings, resulting in mass murders, when we can do something to prevent them.

Perhaps this doesn't fit into currently "codified rules" because the rules weren't codified to address this kind of a threat.

No, but all this muttering about how politicians can't actually be normal is, to me, Tea Party 101.

That libertarians have a lot in common with a certain variety of lefties is certainly a fair observation, and at one point in the not so distant past, a Republican libertarian would have been like centaur. That it doesn't seem bizarre to find your friendly neighbourhood Republican retreating behind libertarian reasoning seems to underline the problem.

But to go back to the invocation of PTSD, it occurs to me that your observation is related to the notion that certain behaviors that would be classified insane are actually the only sane reaction to an insane situation. There is a certain amount of truth in that, but it sort of denies that the world can or should change. It is going to change, whether we like it or not.

But that global community you want to unify--well, maybe they could also take on the rogue US problem while they are at it.

I would suggest that the global community (well, not entirely global, but certainly Europe and the US) is already unified on this issue - it just hasn't created a coherent framework.

As to the rogue US: sometimes the law isn't up to the task. Maybe it will never be, or maybe we're still evolving. Perhaps the international community will someday step up. In the meantime, I don't think it's useful to play blame games when the lives of suicide bomber victims continue to be at stake.

I'm not clear what point you're making, LJ. I think Presidents are people with almost the power of a monarch when it comes to killing people overseas and it probably goes to their head in bad ways. And people who want that kind of power are hard to understand. As for the Tea Party, the odd thing about them is that they take populist notions and use them to support people like Romney who probably despise them. Thomas Frank talks about this weird phenomenon of rightwing populism a lot--he was on Book TV this afternoon making that point again. (In slightly different words.)

Taking up sapient's point, the legal system we need is one that can handle both groups like Al Qaeda and war criminals that occupy the White House. But it would not be good to have a half-baked one that, in practice, gives people in the White House yet more power to kill people without being accountable to anyone. In other words, one that focuses solely on the crimes of Al Qaeda and that sort and not on the crimes of the powerful. There's too much of that already. We use terrorists too--everyone knows this. Everyone takes for granted that either the US or Israel or both assassinated the Iranian scientists. That's terrorism. Maybe it's in a "good" cause, though in that case we should have no complaints if someone employs the same tactics against people in our country.

Show me a working legal system that would hold all government leaders, including Westerners, to account, and I'd probably favor drones or other assassination programs carefully targeted with a lot of oversight and care taken. In this current world, though, it's just more of the same BS that lets us get away with murder.

Well, given that your original comment was just a throw away line, I might be constructing a huge edifice of thought behind it when it didn't really mean anything. But there seems to be a dividing line in regarding government power in our discussions. To put it in broad strokes, the division is whether it is always to be questioned and doubted or to be embraced without any reservations. Obviously, most of us reside in the area between those two poles that doesn't necessarily provide a bright line of separation, but at some point, a difference in degree becomes a difference in type. My own thoughts mirror the point that Russell made here at 2:58, which is that

Obama owns his piece of the responsibility for the policy, but it is not exclusively his. I see that responsibility as pretty widespread. To some degree it belongs to all of us.

Which seems to be of a piece with your use of 'us' in the last paragraph. But given that it would be exceedingly difficult for us to enter, say, Warzistan, and separate out the person accused from the civilians and do what needed to be done, it seems to me that arguing for a total ban on drones (which I'm not sure if you are, but others do) is not realistic. One may argue that we didn't use a drone to take out Bin Laden, but that seems to underline the fact that the people at the top are going to get more attention than the underlings at the bottom of the food chain. One can also argue that we are using drones because those in power are sociopaths, but again, that leads into Conor Friesdorf territory, which is a no-go, at least for me.

I am not particularly thin-skinned, so perhaps I'm not very sensitive to thin-skinnedness.

No, but you excel at passive aggressiveness, apparently. Keep it up, it's working great for you.

The acts of terrorism on September 11 were bigger than most crimes we deal with, in that they resulted in more carnage than any single act of war by a a foreign power on U.S. soil in our history.

" . . . and a baby zebra."

There were more people killed as a result of that attack than Americans killed in action during the War of 1812.

Pro tip: If you have to pull a random event out of your hat and dress it up as a meaningful metric, you probably should have left it out.

Why should we be the ones who have to confine response to an insufficient legal paradigm - when they are the ones who can't get their act together to have a normal government, a coherent cause for their war, or a practical plan for peace?

Indeed! Why have any principles at all, if the other side won't bother?!

Do you even realize how close this is to "Who cares if we waterboarded them? They behead their prisoners!" The difference between you and the Bush apologists is pretty slim, no matter how much you cheerlead for Obama GOTV efforts or dress it up in talk about who you trust. And if, heaven forbid, Romney wins, you'll almost certainly do a 180 on drone attacks within six months. It's like the Democratic Party version of American Exceptionalism.

"They are warriors without a rational cause...."

No, they aren't.

They have stated their cause and it's as reasonable and rational as any other causus belli in history. They want us out of their lands, out of their politics, out of their lives, generally, and to stop backing Israeli agression against palistinians. These grievances have been clearly and consistently delineated by various spokesmen, including Osama Bin Laden.

At bottom, they are fighting an anti-imperial guerilla war.

You don't have to agree with the correctness of their greivances, nor do you have to like their tactics, but you do have to recognize that there is a real political and ideological impasse that has resulted in a call to arms and that the impasse is of a scale and quality that is not at all unusual in the history of international strife.

Europeans have embarked on far more bloody enterprises for far more frivolous a reason. Yet, I must note, that the hisory of European war is permeated by a sense of gentlemanly conduct.

The drones and torture are more about racism and religious intolerance than about effective war fighting.

You don't want to recognize these things at all becuase that would cause cognitive dissonance regarding the US reaction to them. It's easier to see these people that hate us as irrational murderous maniacs. That could be seen as justifying a lot of what we do in repsonse. There is, afterall, only one thing to be done with a rabid dog.

You don't like that they don't wear uniforms or have defined national boders or official spokesmen because not having those things makes them harder to kill. "they're not fighting fair!". Well boo hoo. When one goes abroad, one should expect to meet foreigners and one should expect that they won't speak english. One should be adult enough to understand this before deciding on traveling.

Furthermore, when one tries to hustle the East one should expect to get hustled back.

This post was originally about leadership. Well it was a lot easier to be a leader of the free world pre-9/11/01 because our core values weren't seriously challenged. We were never subject (except the war of 1812) to foreign attack. We were like the guru on the mountain top preaching lofty ideals to people who actually have to live in the strife of the every day world.

Then came 9/11/01. The US experienced what just about every other nation on the planet has experienced in the past 100 years.

How did we react? By immediately throwing all of our lofty ideals right out the window.

Sooner or later every individual and every group is put to the test. Without the test, whatever BS comes out of their mouths is just BS. After the test the talk can be reconciled with the walk. 9/11/01 was the test for us. We have failed the test.

Failing the test was in large part a failure of leadership. Bush was atrocious in this regard. BHO is just about as bad. We need a leader that calls upon us to adhere to our pre-9/11/01 values in spite of the threat of terrorism.

I'm with Russell. I rather risk be dead from a terrorist attack than to become a flailing wounded monster, indiscriminantly killing, torturing, living under a police state, sacrifing what we once held to be self-evident truth and justice for a pitiful iota of "security". Because that's what we're really talking about here.

The problem with monsters is that they lack self reflection.

As for drones and the people operating them; the military mindset demands conformity and dedication to a common goal. Military personnel are not souless as individuals, but, colectively, they will behave in ways that appear to be souless if they are ordered to. At least the miltary personnel are subject to the UCMJ and the ROE that are established by our civilian representatives.

The CIA has a selection process that absolutely prefers goal oriented mindsets (i.e. end justifies the means) and they are not subject to the UCMJ or ROE.

The CIA is an executive branch.

Hence the importance of leadership.

These issues are really quite simple at the moral level.

It's only when we start thinking like a bunch of post modern acedemics or like lawyers that things get muddied and the compass begins to spin out of control.

Furthermore, when one tries to hustle the East one should expect to get hustled back.

Ahh, those inscrutable Asians!

The problem with monsters is that they lack self reflection.

Yes, if those monsters could just be as reflective as you, the world would be perfect, I'm sure.


They want us out of their lands, out of their politics, out of their lives, generally, and to stop backing Israeli agression against palistinians. These grievances have been clearly and consistently delineated by various spokesmen, including Osama Bin Laden.

At bottom, they are fighting an anti-imperial guerilla war.

Most of what they're doing now has squat to do with the United States and/or Israel. Most of it now is about bullying and terrorizing their neighbors and destabilizing nascent democracies. They're crazy fundamentalist nuts, and their goals are untenable. We have our own brand here in the US, but they aren't sponsoring suicide bombings.

http://www.addictinginfo.org/2012/10/27/gop-rigging-elections-for-romney/

To change the subject...I wonder what people more knowledgeable than me thiink of this article. I have no doubts that the Republican party as a national organizationw ould engage in voter machine tampering if they could. I wonder about the feasiblity of it and I wonder about the logic of this particlualr article. Is anyone interested in discussing this?

"We have our own brand here in the US, but they aren't sponsoring suicide bombings."

Crafty of them. How civilized.

So, I suppose we just have to lay back and take it.

Maybe the plan is to drive everyone stark raving mad, so that WE commit suicide.

Luckily, according to Hans van Spakovsky's accusatory ravings, we'll still vote after we're dead by our own hands.


lily: interesting subject for a future OBWI post, methinks. I'm not sure what to think about the article, frankly.

If it's that blatant statistically, then who needs suicide bombers?

Not that I don't put it past them.

This week's New Yorker (Oct 29 - Nov 25) has a profile of von Spakovsky (no, he's not a villain in the new Austin Powers sequel, he's a real-life motherf*cker, in the here and now), the mastermind behind the effort to suppress and steal the voting franchise.

The man is a dapper sort, sartorially well-appointed and grammatically impeccable, and for my money, along with roughly 200 other elite Republican operatives beavering away at our precious bodily fluids, a mountebank, a grifter, a cheat, a liar of such immensity that if he had walked in on the Founding Fathers during the Constitutional Convention, they'd have thrown their parchments up in the air and boarded the next frigate back to England, kneeled before King George and put their lips to his hem and sobbed "We don't know what we were thinking, my Liege, because no matter what we wrought, it would have been pearls before these swine."

In fact, I'll reiterate, the soulless al Qaeda suicide bombers and the soulless CIA drone operatives are bad, very bad.

But Spakovsky and crew (Ralph Reed comes to mind) and their Republican ilk are the truly dangerous mortal threats to the American way of life.

al Qaeda only dreams of killing as many Americans as these vermin will kill with their policies.

They talk of their superior, exceptional souls, which is a dead giveaway of the howling, deadly, soulless wasteland they are determined to creat for the rest of us.

A patriot would strap on the suicide bomber vest, apply some teeth whitener, shoot his cuffs, and attend one of their closed-door conferences, the better to limit innocent collateral damage.

"Most of it now is about bullying and terrorizing their neighbors and destabilizing nascent democracies. They're crazy fundamentalist nuts....."

fundemnetalist nuts come in all shapes and sizes, as do efforts to destablize nascent democracies (or other forms of govt). Why I could give dozens of examples where we, the good old US of A, has engaged in exactly the same attitudes and behaviors. They do it for their vision of Allah, we do it for profit margins. You don't want to pay attention (the failure of your justification has been brought up by others here) because you are a closet fundementalist. You think we have a right because we are right in some absolute objective sense. Go read your Smedley Butler and then continue with history that takes you through Latin America and the Middle East during the cold war.

Let's assume Slarti knows what he's talking about. The drones cannot see well enough to do accurate target identification. So we are flying heavily armed, poorly aimed weapons into civilian populated areas and then pulling the trigger. We are not - can't be - sure of who we are shooting at. That's criminally irresponsible in any court room.

Again, this is really simple once the cloud of deliberate obfuscation is dispelled.

"Yes, if those monsters could just be as reflective as you, the world would be perfect, I'm sure."

Was this sniping really called for?

Also, Sapient, not to be too obsessive on this topic, but i find it as fascinating as it is important, I want to address this statement you made as a justification for everything we've done post 9/11/01:

"Our legal system has very little experience with preventing murder as massive as this, and our system of government has little experience with such an uncertain adversary in war."

I would say that LE's approach to our domestic "mafia" is an very good example of how pre-9/11/01 criminal justice infrastructure is up to the task and has experience in dealing with vast muderous criminal conspiracies.

No drones, no extraoridinary rendition, no torture, no suspension of civil liberties. And all within established boundries of due process.

As an aside, organized crime kills more poeple per decade than AQ does; even the decade containing 9/11/01 and the negative economic impact of organized crime is substantially higher than that caused by AQ.

Can you imagine flying drones through hell's Kitchen, targeting suspects because they were seen with organized crime figures, firing hellfire missiles into Moma Rosa's Italian restuarant during dinner hour?

Why not?

Why not?

the technology isn't ready yet.

it will be.

as a justification for everything we've done post 9/11/01

What? Do you really think I've been trying to justify everything we've done post-9/11?

What I attempted to convey is that the criminal law is not up to dealing with massive extraterritorial conspiracies to attack our country. The traditional means of combatting national security threats is war. Drone warfare is a tool in the "war" portion.

It's always helpful, Blackhawk, if you link to what you're referring to when you cite statistics (such as those about "organized crime"). "Organized crime" is a big topic. It could even be said to include terrorism. It certainly includes a host of other things: the international drug trade, cybercrime, financial crime, electoral tampering: you name it. I would definitely agree that we have a legal mechanism set up to deal with all of it (not necessarily effectively). Most organized crime doesn't occur in Italian restaurants, and most of it doesn't involve random mass murder of innocent civilians.

Was this sniping really called for?

Yeah, I think so. You pull out these racist/religionist tropes ('the East', (doing it for their vision of Allah') to argue for total withdrawal. You call a guy who was working to establish democracy in Libya and died trying an 'embassy prick'. You call anyone who thinks it is important to define terms a 'post modern academic'. You dismiss the experience of others because it doesn't accord with what you read in some source that you don't cite. And after that hard work is done, you pat yourself on the back for your moral purity. Believe me, sniping is a generous reaction.

If their activities have "squat to do with the US" what is the US doing there? And how can they be part of "massive extraterritorial conspiracies to attack our country"?

That makes no sense whatsoever, even if I shared your axioms, which I emphatically do not.

"We have our own brand here in the US, but they aren't sponsoring suicide bombings."

Actually, a few support bombing abortion clinics, though it's a minority. Not suicide bombings, but that's like worrying about drones vs. F-16's.

More importantly, a fanatic of any variety who is a citizen in a superpower doesn't have to support the flaky nongovernmental style of terrorism. They can support unjust violence through socially acceptable means, by starting unjust wars, propping up dictators , giving money to "freedom fighters" (though that often amounts to supporting terror), or an ally that practices apartheid. They can be couch potato terrorists and best of all, feel superior to the variety that thinks in fundamentally similar ways, but uses cruder techniques.

LJ, on the sociopath thing,it's just natural for me to distrust people who can wield life or death powers and don't seem to be anguished about it. I come to this from varying places--C.S. Lewis wrote somewhere about men in air-conditioned offices who can inflict great evil without ever raising their voices, and Francis Jennings, an historian of colonial America (focusing on the Native Americans) once wrote that the gentlemen who dress in lace somehow float above the dirty deeds performed by their underlings. That's a conservative Christian and a lefty historian on the same wavelength.

Donald, I suppose it's not the idea that I object to, it's the offhand manner that you put it that caught me. As we crunch these larger statements down to reduced concentrate (like the shift from 'The banking sector has, because of the perverse incentives, now become one where people don't really know right from wrong' to 'well, bankers are all crooks') we seem to be mixing in this notion that with the correct people in place, these things don't happen. I'm not saying that you need to wholeheartedly support whoever gets to decide these things, but I do think that one has to understand where 'the evil' comes from.

I'm trying to find an article that talks about Jean Quan, the mayor of Oakland who was an Asian-American activist of some note, with deep ties to the Asian-American community and the left in Oakland, but whose actions in regards to Occupy Oakland have people calling for her to resign. I've followed that controversy and I don't think you can say 'gee, if a person of sterner stuff had been elected mayor, things would have turned out alright' This">http://www.racialicious.com/2011/11/23/jean-quan-and-the-death-of-asian-america/">This is not the article I was thinking of, but hopefully it will give you some idea of where I am coming from.

I think "the evil" comes from a mixture of perverse incentives set up by whatever system we are talking about, along with whatever character flaws an individual might have. But I also think that a given system will probably attract a certain type or types of persons. Right now a President is expected to be a little bit ruthless (where "right now" goes back many decades) and someone who isn't comfortable with, say, the drone policy is pretty unlikely to win either major party's political nomination.

I just started reading Charles Ferguson's "Predator Nation"--Ferguson is the one who directed the documentary "Inside Job", which I never got around to watching. But the theme of the book seems to be that the financial sector imploded because of perverse incentives, but of course people who had enough integrity to resist those incentives would have had difficulty prospering in that industry. Then also, as Ferguson points out, some people might have been upstanding citizens and not immediately realized the immorality of what was going on all around them. It was just business.

Right now a President is expected to be a little bit ruthless (where "right now" goes back many decades)

since before the first one was elected, i suspect. that's why they don't have all the powers that so many wish/fear/fantasize that they had.

what the President can do in situations like this depends on what Congress allows him to do.

this comment is now the first and second appearance of "Congress" on this page.

"I think "the evil" comes from a mixture of perverse incentives set up by whatever system we are talking about, along with whatever character flaws an individual might have. But I also think that a given system will probably attract a certain type or types of persons."

Most anyone can be a cog on a wheel in any system. People only get to become a wheel (aka decision maker) after they pass certain, usually unspoken, litmus tests. They have to be a team player and they have to understand what the game is realy all about. The game is always about protecting careers, preserving/furthering the power of the right people above you and making money.

So perverse incentives have nothing to do with anything in the way you mean it.

It's not that some well meaning, but poorly finished, policy leaves some unrecognized perverse incentives out there, which are then later exploited by well meaning, but all too human actors.

People pervert incentives, deliberately, as a feature of the game. Perverse incentives are a baked in reality without which the game would never be played. Those who recognize the opportunity that's been made available and are prepared to artfully exploit it are the ones that advance to become wheels.

Let's assume Slarti knows what he's talking about.

I'm confused; I thought you knew what you were talking about.

I was simply voicing some moderately-informed skepticism. I should by no means be confused with someone who has image processing credentials. I've done some image correlation, and I've been around some folks who were doing superresolution(i.e. worked the inertial-registration side of the problem), but that's pretty much the extent of my knowledge base.

If what you think you know was obtained on the Internet, it's of suspect veracity. That includes everything that I tell you, I add. If you've actually seen evidence (not claims) that Predator imagery can be used to pull out license plate numbers or recognizable facial features at a standoff range measured in miles, with any degree of confidence, I am as wrong as wrong can be.

"If what you think you know was obtained on the Internet, it's of suspect veracity."

Thanks, Slart.

We were told just weeks ago on these very pages that it was "investigative journalism".

So which is it, folks?

My theory, presented here on the internet, is that satellite imagery is confirming that a huge cloud of what scientists now believe is a peculiarly condensed form of "bullsh*it" kicked up by AM radio and internet activity, and now by sources such as Twitter and its sister sites, Twaddle, Runatthemouth, and Crapallooza, is obscuring a goodly part of the Earth's surface and is not only spreading but intensifying over much of the Earth's surface.

The very weather is being affected.

There are point sources that have been identified as particularly heavy contributors to the overall effect which, depending on your geographic location, have been variously named the Kardashian Effect, the Limbaugh Effect off the east coast of Florida, the Berlosconi Halo over Europe and there's a shifting locus of activity, one week over Alaska and the next over Arizona, that has been dubbed the Princess Dumbass Plume.

The Gingrich Vortex Spew has been particularly noxious, even shutting down airline traffic over most of the northern hemisphere.

For some reason, the cloud of obscurity is especially thick in and around my apartment building. I can barely see my hand in front of my face.

Wait a second, both of my hands are on a keyboard at the moment.

So, whose hand is that?

"what the President can do in situations like this depends on what Congress allows him to do."

Sure. Congresspeople (like Wasserman Shultz) are partly to blame.

Sure. Congresspeople (like Wasserman Shultz) are partly to blame.

AFAIK, AUMF is to blame for most of the authority Bush and Obama have (ab-)used. rescind AUMF, and ... poof.

Maybe we should go back to 2000 (the election), talk about who was to "blame" for that, then talk about who was to blame for the ultimate decision by the Supreme Court, then talk about who was to blame for 9/11, then talk about who was to blame for the AUMF, then talk about who was to blame for Guantanamo, then talk about who was to blame for the Iraq war, then talk about who was to blame for the black sites, then talk about who was to blame for torture, then talk about who was to blame for the election of 2004, then ...

Whatever.

There's a lot to talk about if we're going to talk about who is to blame.

But, absolutely, Debbie Wasserman Schultz is surely to blame.

We have our own brand here in the US, but they aren't sponsoring suicide bombings.

They aren't that brave. They are cowards. They bomb civilian targets in the middle of the night. They gun down unarmed people. They call themselves "right to lifers" and "protectors of innocent life".

They are vermin.

I wonder, if both houses voted to repeal AUMF, what would change. Could the President "veto" it? There's nothing in the Constitution about "taking back" the a declaration of war.

"Maybe we should go back to 2000 (the election), talk about who was to "blame" for that, t"

You could go back to the Precambrian on any issue if you want. For the drone policy it's mainly the President and Congress.

And speaking of tracing back blame, I'm finishing Charles Ferguson's book "Predator Nation". He blames both parties going back to 1980 for the state of the economy , though he does say the Republicans are worse.

Jeffrey Rosen discusses the Obama Administration's opinions on wiretapping--

supreme court exposes the obama administration's circular logic on wiretapping

I agree that if Congress does nothing this is also on their heads. Not to mention the organelles of single-celled organisms back in the Precambrian.

You could go back to the Precambrian on any issue if you want. For the drone policy it's mainly the President and Congress.

And the American people who elected them. Debbie Wasserman Schulz, as a Congressional Representatives, ranks pretty low on the blame list, IMHO.

As for wiretapping, in the absence of Congressional action, the matter is right where it should be, in the Supreme Court, where Democratic appointees - including Obama's own - are the ones questioning whether the executive branch is overstepping its prerogative. As per usual.

And Obama's lawyers are arguing the wrong side. As usual.

I do agree though, that an Obama Supreme Court is far preferable to the alternative.

And Obama's lawyers are arguing the wrong side. As usual.

It's called full and fair litigation of an issue, resulting in a binding Supreme Court opinion. That's how Constitutional law is made. It doesn't happen if the Executive department concedes the point for the sake of avoiding criticism.

You're the only person I've seen who thinks that Obama's lawyers argue a case they vehemently oppose for the sake of establishing a binding Supreme Court opinion. The good intentions of the Obama Administration are an unfalsifiable propositions with you--it doesn't matter what position they take. Would they have argued for school segregation? Shouldn't they be making a forceful case for enhanced interrogation or whatever torture will be called if Romney wins? Might be good to have a Supreme Court ruling on that as well.

sapient: It's called full and fair litigation of an issue, resulting in a binding Supreme Court opinion. That's how Constitutional law is made. It doesn't happen if the Executive department concedes the point for the sake of avoiding criticism.

Right. Just as they've gone whole-hog defending DOMA.

No, you misunderstand me. Obama believes in the policy of wiretapping is constitutional. The only way to test the legality of his position is through court scrutiny, and his making a vigorous legal defense.

Obviously, Ugh, he doesn't believe that DOMA is constitutional, so he couldn't make a good faith argument in favor of its constitutionality. His administration won't defend it for that reason.

If you don't understand this, it's no wonder you're always annoyed.

Obama believes in the policy of wiretapping is constitutional.

And some people have a problem with that. It's good that there are checks and balances to resolve these things when necessary, but wouldn't it be better if the Obama administration, among others, wasn't trying to push the wrong things in the first place, particularly if the court is compliant on the given issue and might let them get away with it?

If you agree with the adminstration's stance, then there's no reason to be upset. The question is - do you agree with them? If not, you'd probably prefer that they had a different position rather than having to rely on the court to fix it, particularly if you think the court isn't very reliable.

I'd prefer not to have someone try to break into my house over having to call the cops. Wouldn't you?

I'm perfectly happy that the issue is being decided by the Supreme Court. That's the beauty of the legal system. It makes me especially proud that Obama was willing to appoint justices that don't seem inclined to rubber stamp all of his views on Executive power.

"They aren't that brave. They are cowards. They bomb civilian targets in the middle of the night. They gun down unarmed people. They call themselves "right to lifers" and "protectors of innocent life".

They are vermin.
"

Riiight. People who disagree with you are murderous vermin. They don't actually murder? That's just because they're cowardly murderous vermin.

It couldn't possibly be because you're wrong about them being murderous. Who are we supposed to believe, their actual behavior, or your intuitions about what's going on in their heads?

I think I'll go with the former, I've got no reason to believe you can read minds.


"It makes me especially proud that Obama was willing to appoint justices that don't seem inclined to rubber stamp all of his views on Executive power."

Obama makes you especially proud no matter what position he takes.

Obama makes you especially proud no matter what position he takes.

True dat.

It's not like Obama had the option of picking justices by issue in an a la carte manner. I don't think using drones or wiretapping were his very highest priorities when selecting among a fairly short list of qualified and reasonable acceptable appointees.

I don't think using drones or wiretapping were his very highest priorities when selecting among a fairly short list of qualified and reasonable acceptable appointees.

Not sure what your point is, but I totally agree. Let's also agree that the opposing party (represented by either John McCain or Mitt Romney) might not have chosen from such a list.

The fact is, no matter what your policy differences with Obama are, the Constitution doesn't necessarily mandate one point of view or another. That's what justices are for, and what they're arguing about. If the Supreme Court decides that the wiretapping policy at issue is constitutional, then we can argue about whether the policy is wise (and we can tell Glenn Greenwald to STFU about the Constitution.) If it decides that either of these policies are not, we can be reasonably certain that Obama will abide by the ruling, because he believes in the Constitution.

I'd rather that he be dealing with a whole Court full of his appointees, because I have confidence that he doesn't appoint people based on some ability to channel the "founders' intent". He appoints people based on their record of fidelity to the body of federal law that has interpreted and applied the Constitution to changing facts over the course of almost 250 years. I'm quite happy with what he does, how he comes to his decisions, and most of the results.

We would never have guessed ...

Salient is starting to remind me of theologians trying to prove the omnibenevolence of god.

Not sure what your point is...

You praised Obama for being willing to appoint judges who wouldn't rubber-stamp whatever he wanted to do. My point was that he couldn't create a justice of his own making, who would agree with his every decision. He had to pick among the best available in an imperfect world, much like we have to choose among presidential candidates with whom we don't agree on every single thing.

The fact is, no matter what your policy differences with Obama are, the Constitution doesn't necessarily mandate one point of view or another.

Nothing mandates a point of view. The constitution might mandate or prohibit, at least in terms of legality, if not physics, certain actions. I'm glad you used the word "necessarily" and wrote in general terms. It leaves open the possibility that you actually have an opinion of your own about the constitutionality of his policies and that you might think some of them actually aren't constitutional without the SCOTUS telling you so.

I don't doubt that Obama would abide by a decision declaring one of his policies unconstitutional. And the process by which that was decided would be constitutional, even if the policy was not.

BTW, you can continue to compare Obama to McCain or Romney all you like, but I'd have to guess you'd be mostly talking to yourself, since just about everyone you've been arguing with already prefers him over either of them, AFAICT. I, personally, am sweating over the possibility that Obama might lose on Tuesday. It scares me, maybe even more than it should. I have to tell myself it won't be the end of the world.

People who disagree with you are murderous vermin.

Once again, I am reduced to shaking my head and saying "WTF?".

If I'm not mistaken, bobbyp is talking about militant right-to-lifers who shoot abortion providers.

At the risk of a mega-threadjack - no matter how you view abortion per se, how it that not murder?

Nothing mandates a point of view. The constitution might mandate or prohibit, at least in terms of legality, if not physics, certain actions.

Thank you.

It's great that Obama's, or any President's, policies and actions are subject to judicial review.

It sucks that the kind of stuff that, these days, requires judicial review, actually requires judicial review.

We can go around the mulberry bush a million more times, but the bottom line is that a lot of people, including myself, find many of Obama's policies and actions not so great.

And by "not so great" I mean "ought to be seen as not constitutional".

I'm sure there are a thousand pragmatic and compelling reasons for the choices he has made, and in fact given his position they may well have been the best available options.

But all of that may be true, and they still might suck. Comes with the job.

Do I wish John McCain, or Mitt Romney, were President instead?

No.

Do I wish the President we actually have, Barack Obama, drew a clearer line on constitutional limits on executive power?

Yes, I do.

You might not. Your prerogative.

I do.

It leaves open the possibility that you actually have an opinion of your own about the constitutionality of his policies and that you might think some of them actually aren't constitutional without the SCOTUS telling you so.

My opinions on the constitutionality of policies are based on specific policies, the way they're implemented, and the law that applies to those facts. It takes quite a long time to do that research, and although I have a knee-jerk opinion about a lot of things, that doesn't translate into a solid opinion about the Constitutionality about a particular policy (as it is implemented towards specific people).

Some of my knee-jerk opinions: (1) the "state secrets" doctrine is problematic. (2) private companies that were involved in intercepting private communications without a warrant should not have been immunized from suit. (3) Bush v. Gore, Citizens United, and even more so Arizona Free Enterprise Club's Freedom Club Pac v. Bennett were wrongly decided. (4) prisoners are shortchanged regarding their Constitutional rights. Could go on.

Some of those beliefs rise to a Constitutional level, perhaps; but maybe not. I don't require that the Constitution, or Constitutional jurisprudence be adjusted to my beliefs.

And by "not so great" I mean "ought to be seen as not constitutional"

Those two things aren't equivalent in the law or in history.

That's the problem with the blogospheric Constitutional law conversation - it has nothing to do with anything.

If a whole lot of people think that something is "not so great" the political system should take care of that with elections (and we should work to make it so that it does). The Constitution doesn't prohibit all things that are "not so great".


And back to Benghazi: more information.

Many of the people here don't believe in secrecy of any kind, and deny that we should have a CIA at all, etc. I disagree. And let me also express my disgust for Republicans who claim to support U.S. intelligence efforts, but thwart our agents at every opportunity if it will gain them some political points. The CIA people who died in the attack deserve better.

Those two things aren't equivalent in the law or in history.

Yes, I get that the two are not strictly equivalent.

Hence, my clarification.

And let me also express my disgust for Republicans who claim to support U.S. intelligence efforts, but thwart our agents at every opportunity if it will gain them some political points.

What this has to do with the article you linked, I cannot tell. Also, I cannot tell what this has to do with, period.

Some explanation might be good.

Many of the people here don't believe in secrecy of any kind, and deny that we should have a CIA at all, etc.

Really?

Obama makes you especially proud no matter what position he takes.

True dat.

I just wanted to see that in print again. I am still not sure that I really read that, and I am also not completely sure that sapient is aware of what he has just stated.

It's one of the more depressing confessions of faith I have read in recent times. But maybe sapient didn't mean that the way I am reading it.

Ugh, could you explain to russell what you think about government secrecy? Donald, how much secrecy should the CIA be allowed - could you please let russell know your views on that?

Slart, my statement was a bit hyperbolic, but I believe that Obama is a great president. Up there with Lincoln and Roosevelt. So, yes, I'm proud of him, and I don't think that he would take a position that I would be ashamed of. (Obviously, if he suddenly turned into a monster and took uncharacteristic positions, I would be ashamed of him then. But you're not so linear that you wouldn't have understood that, are you? )

Oh, and Slart, regarding your 8:06 comment, please read up on the Valerie Plame affair, and the recent attempt by Darrell Issa to smear the President by exposing facts about the Benghazi CIA office. Two examples for you.

That's the problem with the blogospheric Constitutional law conversation - it has nothing to do with anything.

Ah, so it isn't possible to have a relevant conversation about constitutional law on a blog. Got it.

The Constitution doesn't prohibit all things that are "not so great".

Thanks for being so condescending.

the recent attempt by Darrell Issa to smear the President by exposing facts about the Benghazi CIA office

That's too bad that exposing facts is seen by you as a smear.

Sometimes the facts are smeary like that.

read up on the Valerie Plame affair

I'm fairly conversant with that, but thanks for the condescension! It makes for good conversation.

Valerie Plame was exposed by Dick Armitage, who is, yes, a Republican. And Democrats were absolutely correct to demand his head for having done so.

I believe that Obama is a great president

I believe that Jesus Christ is the savior of mankind, and I will henceforth sprinkle that kind of assertion into conversation uninvited until everyone else believes that, too. Possibly even longer.

No, you misunderstand me. Obama believes in the policy of wiretapping is constitutional. The only way to test the legality of his position is through court scrutiny, and his making a vigorous legal defense.

Obviously, Ugh, he doesn't believe that DOMA is constitutional, so he couldn't make a good faith argument in favor of its constitutionality. His administration won't defend it for that reason.

You know, despite my own feelings on DOMA and my support of the president's position, there's a very, very legitimate argument that it's the president's job to execute all duly-passed laws whether he personally agrees with them or not until such time as they're either repealed or found unconstitutional. In fact, that might even be written down someplace.

"Donald, how much secrecy should the CIA be allowed - could you please let russell know your views on that?"

Wikileaks again. That wasn't the CIA, but nevermind. I don't want to revisit that particularly, but I supported the Wikileaks dump, except that they should have been careful to take out names of people who might have been endangered. There were some interesting and damning revelations that should have embarrassed both the Obama and Bush Administrations, but they didn't get enough play, because people were too busy condemning Assange. Things like the fact that the Obama administration put pressure on foreign governments to stop their investigations into the Bush torture policies. Or the time we lied about an air strike on Yemen that killed dozens of civilians. I'm glad these things were exposed and regret that so many self-described liberals lined up behind the Obama Administration's desire to stop Wikileaks.

I think that there are probably some real secrets that should be kept--the names of people who might be endangered for talking to US officials would be one such and no doubt various military secrets and probably things I'm not thinking about right now, but until that system of checks and balances kicks in, I think we need whistleblowers like Wikileaks. Not that it does that much good, if people care more about the danger posed by Assange than they do about some of the things he helped expose.

As for the CIA, of course we need intelligence analysts, though in practice it seems Administrations often either pressure them to say what they want to hear or ignore them if they don't. But in theory, yes, it'd be nice to have governmental agencies devoted to figuring out what is going on in the world and writing objective analysis of that. Or did you mean "Do we need a secretive organization of assassins?"

Donald hits the nail on the head regarding the distinction between the Directorate of Analysis and the Directorate of Operations at the CIA. Analysis does some very good work. Operations has, historically, been insane. You can strongly limit the activities of one without interfering with the other.

Phil, Obama knows all about that argument. That's why he does enforce DOMA. He doesn't assert its constitutionality in court.

hairshirt, of course we can talk about the Constitution with offhand comments about what is and isn't Constitutional, and what should or shouldn't be. We can also talk about quantum physics without knowing anything about it. No law against doing so, and I'm not suggesting that people stop. But don't be confused that you're making fair judgments about why lawyers are "on the wrong side" of various issues, etc.

No one here knows anything at all about the Constitution, or about quantum physics. Got it. Good to know.

To this non-lawyer, there seems to be a difference between enforcing a law on the books and arguing for it in court. And Jeffrey Rosen in the link to the article I provided above seems to think the same. There's no reason why the Obama Administration has to be taking the position it is taking unless it really believes what it is arguing.

"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.

The liberal justices pounced on the Alice in Wonderland circularity of Verrilli’s argument. “General, is there anybody who has standing?” Justice Sonia Sotomayor asked after Verrilli had gotten out three sentences. “I don’t see a real person who would be subject to a Federal charge who could raise an objection,” chimed in Justice Ginsburg, noting that the human rights lawyers in the case would never be charged with a crime and their clients had no Fourth Amendment rights as non-citizens who acted abroad. Justice Breyer noted that the lawyers who represented clients at Guantanamo could be as certain that their telephone calls were being monitored as the probability that there would be “a storm tomorrow—I mean, you know, nothing is certain.” And Justice Elena Kagan noted that since the 2008 amendments vastly expanded the government’s surveillance powers, it was just “commonsensical” that the lawyers and journalists had to take precautions that wouldn’t have been necessary before the law was passed. Although the conservative justices were more sympathetic to the claim that the plaintiffs couldn’t be certain they were being surveilled, they, too, were skeptical of parts of Verrilli’s argument. “You are saying that the Government has obtained this extraordinarily wide-reaching power … and the Government’s not going to use it,” said Justice Anthony Kennedy. “It’s hard for me to think that the Government isn’t using all of the powers at its command under the law.”


I wanted to include some more paragraphs where Rosen points out the Obama Administration is siding with House Republicans against Senate Democrats, but I think the excerpt was getting too long.

In the editing of my comment above I must have taken out the part where I said I was quoting Rosen--sorry about that. Though I guess it's clear enough. For the convenience of people who haven't read it and don't want to scroll up looking for it, here it is again--

supreme court exposes Obama administration's circular logic on wiretapping

But don't be confused that you're making fair judgments about why lawyers are "on the wrong side" of various issues, etc.

Don't be confused about the fact that some things are more obvious than others. I wouldn't attempt to pass judgement with any degree of confidence on some arcane and highly ambiguous matter of constitutional law, not being an expert of any sort. But I think I can say with great confidence that, frex, the president sending CIA operatives to my house to kill me for no particular reason would be a violation of my constitutional rights. (Gravity involves quantum mechanics at some level, but you can still catch a baseball without being a quantum physicist.)

That aside, law may be complicated, but it's entirely the product of human beings. The universe is a far deeper mystery.

But what we're arguing about, or at least the points I've been making, aren't about the legal specifics about any particular issue or policy. Rather, I'm talking about the nature of people's arguments, including yours, particularly the idea that a president's willingness of abide by a SCOTUS decision, after the fact, is somehow equivalent to self-restraint.

To further my burglar analogy, it's like saying a burglar is strictly law abiding because he doesn't resist arrest when caught and doesn't attempt to escape his jail cell once he's locked up.

One other thing: I have no problem with the concept that my thinking that some aspects of the current use of drones are stupid and counterproductive and immoral is or may be orthogonal to the constitutionality of the same.

But I think I can say with great confidence that, frex, the president sending CIA operatives to my house to kill me for no particular reason would be a violation of my constitutional rights.

Don't know who's disagreeing with you here. Is anyone? I'm not.

Regarding DOMA:
Obviously, Ugh, he doesn't believe that DOMA is constitutional, so he couldn't make a good faith argument in favor of its constitutionality. His administration won't defend it for that reason.

It's quite possible I missed something..but Noah Kaplan's argument in response to the New York Times is wrong in your view?

Don't know who's disagreeing with you here. Is anyone? I'm not.

You're not? Then why did you write this earlier?

of course we can talk about the Constitution with offhand comments about what is and isn't Constitutional. We can also talk about quantum physics without knowing anything about it. But don't be confused that you're making fair judgments.

I read that as directly saying that non-lawyers like hsh are not qualified to opine on matters of constitutional law. If that's not what you meant, what did you mean?

Donald There's no reason why the Obama Administration has to be taking the position it is taking unless it really believes what it is arguing.

I think that the Obama administration does believe what it is arguing in that case. The specific issue being argued involves standing, which is the doctrine that allows certain plaintiffs to sue based on their demonstration of harm. The case (at this stage) is not challenging the constitutionality of the law (the FAA).

A summary of Obama's (Clapper's) argument is here:

"Clapper counters that allowing the federal court to decide the constitutionality of the FAA in this circumstance would result in the court examining the effects of the FAA in the abstract, not in a concrete setting. Clapper believes the federal court will have to speculate on the probable effects of the law. Six former Attorneys General agree with Clapper, arguing that allowing standing in this case will create the opportunity for anyone who dislikes a law to self-inflict harm and gain standing to challenge the law. The former Attorneys General contend that such a reading of standing law would open up the government to excessive challenges from parties disagreeing with policies that do not directly injure that party."

Do you see why this standing argument might be one that the government want to win, even aside from the argument regarding the constitutionality of the FAA? If fewer people have standing to sue, there is less of a burden on the federal government to engage in litigation. There is no reason why any executive department would be comfortable allowing a more expansive standing doctrine to go unchallenged.

Again, this case has nothing at all to do with the underlying issue of the Constitutionality of the FAA, although I'm sure that Obama will want to defend that too. If I'm not mistaken, the version of the FAA that's at issue (the amended FISA) is the one that he voted for.

Why waste all of this time discussing the constitutionality of FAA body-cavity searches when we have important nipple-spacing questions to resolve?

It's quite possible I missed something..but Noah Kaplan's argument in response to the New York Times is wrong in your view?

Noah Kaplan wrote that shortly before Eric Holder issued the specific policy on not defending DOMA, which I linked to above, but will do again. It's very specific as to its reasoning, and it makes a very important point: "The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation."

In other words, the Obama administration could not in good faith advance the argument that DOMA was Constitutional. But it wanted to be certain to allow Congress to do so if such an argument can be made.

Further, Holder said this: "Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law."

Don't know how Noah Kaplan feels about the way that the administration decided to proceed, but he probably approves since the issues can still be fully and fairly litigated by Congress.

I read that as directly saying that non-lawyers like hsh are not qualified to opine on matters of constitutional law. If that's not what you meant, what did you mean?

I meant that they might want to spend a little extra time supporting their arguments, or at least be open to the possibility that they're missing something.

"Do you see why this standing argument might be one that the government want to win, even aside from the argument regarding the constitutionality of the FAA? I"

Sure. But how this answers the actual arguments being made by the Supreme Court justices and Rosen escapes me. You have this abstract argument that the government wants to limit the number of people who can sue it to those who are actually harmed, but in this case the harm is caused in part because journalists don't know if the government could be wiretapping them, the government won't tell them, and says they can't sue until they prove they've been wiretapped.

"There is no reason why any executive department would be comfortable allowing a more expansive standing doctrine to go unchallenged."

This is so freaking grotesque. The government we are talking about won't even investigate its own war crimes. We are such a long, long way from existing in a universe where any decent person has to worry about the government being subjected to frivolous lawsuits about violations of people's civil rights.

Donald, my understanding is that you are criticizing the Obama administration for appearing in court to defend the statute? There are some really important issues that were discussed in the oral argument of the Clapper case. Have you listened to it, or taken the time to think about the issues?

It's difficult to discuss an issue when you try to, say, conflate the issue in the Clapper case with whether the government prosecutes people who torture. Pick a topic, and then we can discuss it, but don't try to derail the conversation by stating that "There are a lot of really shitty things going on in the Universe!" In fact, there are, and we can solve some of them, one by one. Sometimes we do this through litigation.

The standing issue is important for a lot of reasons. It limits the people who can bring an action to those who actually have a real stake in the outcome. You should listen to the oral argument. The conclusion I reach is this: the lawyers, human rights advocates and journalists only have a stake in this litigation because they claim to go to some extra expense to get their work done since they can't do as much work on the phone (or the Internet) for fear of having the conversation monitored. But, in fact, people who are doing sensitive work (such as representing people accused of crimes, or suspected of crimes) rarely do their most important investigations on the phone or by email. So it's very questionable whether they can show actual harm.

It's obvious that some of the liberal justices would like to get past the standing issue, and (correctly, in my view) stress in their questioning that the classified nature of the subject matter makes it almost impossible for anyone ever to challenge the law since no one ever knows that they're being monitored. It will be interesting to see what the court ends up saying about it.

But that's what litigation is about - scrutinizing a statute (or a set of facts), applying the law, and figuring out what harm was done if there was any. What's wrong with the Obama administration subjecting the FAA to that process? What if there is no harm done? I'm sure that Glenn will freak out, but maybe no harm is, actually, done by intercepting international electronic communications.

Just by the way, I talk very frequently with people who live outside the United States. It creeps me out immensely that anyone might be monitoring my phone calls. However, if the United States government isn't doing it, I can be pretty sure that some of the other governments around the world are. When I skype with friends in China, for example, I'm pretty sure that those communications aren't private (not that anyone would be particularly interested in my chats). My feeling is, if I want to be private, I need to get a room (and hope that it doesn't have a video camera in it). I'm pretty sure that most lawyers, journalists, and human rights activists should do that too.

What the Obama Administration does can't be separated out the way you want. In the abstract I could agree with your previous point, but not when it's part of a package, where the government tries to limit the number of people who can sue it while at the same time refusing to investigate itself. It's insane. It's why I supported Wikileaks. I don't think that what Wikileaks did is ideal--I'd prefer a more targeted sort of whistleblowing, but we live in a political climate where many Democrats defend policies they would have condemned under Bush, where the checks and balances don't work, where powerful people in the world of finance and in the national security state can get away with things that should have them serving long prison sentences. If we lived in a different world I'd take your concerns seriously. As it stands it's just apologetics. It's like listening to someone discussing states rights when the issue is slavery. And no, I'm not equating you with a state's rights advocate circa 1860--my point is that sure, you can isolate out some legal point that might be worth talking about in the abstract, but it might take on a very different flavor in the actual context where it comes up.

And for your last point, if human rights investigators are investigating Chinese human rights violations, they need to take for granted that China will try to spy on them. Apparently the same is true if you replace the word "China" with "the United States". Wonderful.

if human rights investigators are investigating Chinese human rights violations, they need to take for granted that China will try to spy on them.

Anyone communicating electronically should take for granted that their communications can be intercepted. That's particularly important for lawyers (since it's an ethical violation for lawyers to disclose confidential information, lawyers are warned that electronic communications are never safe). I'm sure that the same applies to people in other professions.

The fact remains that, but for the lawsuits that are pending, there would be very little discussion of the actual manner in which these laws operate. The discussion we're having right now is elucidated by the very argument that you don't think should be occurring in court. This is why it's valuable for the lawyers to be sifting through every issue, and bringing them all up.

I don't have to like the FAA in order to think that it should be vigorously defended, even just in order that it can be subjected to thorough scrutiny.

if the United States government isn't doing it, I can be pretty sure that some of the other governments around the world are.

Other governments have no obligation to respect my privacy.

Anyone communicating electronically should take for granted that their communications can be intercepted.

When I was a boy, my father travelled to China on a business trip. He called home one night, and after wishing me a good night, he started speaking to my mother in Arabic. At which point, an angry Chinese man cut onto the phone line and started screaming at them in Mandarin until they switched back to English. That night, both my parents wondered if a paranoid Chinese regime might conclude he was an American spy and imprison him; I doubt either of them slept very well that night.

When I grew older, I took pride that I lived in a country where the government didn't spy on its citizens and where people didn't have to live in fear that the state might annihilate them if they ever (however accidentally) frustrated its mass surveillance apparatus. Apparently, my pride was misplaced.

On the plus side, imagine how easy trials will be for the DA now that no one has any right to privacy regarding their electronic communications. Phone calls and text messages and email and video chat all belong to the government now.

On the plus side, imagine how easy trials will be for the DA now that no one has any right to privacy regarding their electronic communications. Phone calls and text messages and email and video chat all belong to the government now.

First of all, the above is incorrect. People have a theoretical right to privacy, and private electronic communications can't be used against a U.S. citizen without a warrant having been obtained. Unfortunately, the nature of the technology is such that it is not guaranteed to be private - not from the government or anyone else.

Second, I'm not particularly interested in defending the law here. (I am as interested as anyone else in my government getting the balance between security and Constitutional protections right.) Laws can be made better (and be made to conform to the Constitution) when offensive aspects of the law are explored in depth. Actual harm is one way to determine how a law operates to offend. That's what the standing issue tries to reach. That's why the solicitor general's argument is valuable.

I don't really care, at this point, whether people agree with this or not. If Jill Stein were elected President, the Executive branch would still be defending laws in court. That's the way the system works.

Unfortunately, this

People have a theoretical right to privacy, and private electronic communications can't be used against a U.S. citizen without a warrant having been obtained.

seems to contradict this

Anyone communicating electronically should take for granted that their communications can be intercepted.


I mean what's the point of the fourth amendment really? There is no such thing as secure papers; your papers can always be confiscated by someone after all. So you should take for granted that someone has rifled through them in the night. No matter what your theoretical constitutional rights are.

Is your point that those things obtained through unreasonable search/seizure/surveillance might be used not for evidence at trial, but as a reason for tighter surveillance, Turbulence?

Not arguing with your objection, just wondering what the perceived harm is. I think that there is harm; I'm just having trouble articulating for myself what that harm is, other than that peace of mind is ripped away.

Turbulence, you of all people should know that I was not referring to the government; I was talking about the technological ability of people to intercept communications (hackers, businesses, etc.), and the possibility that communications get derailed accidentally. Just the other day I was having a normal conversation on the phone (can't remember whether it was my cell phone, or the wireless receiver to my landline) when somebody's conversation came through the ear piece.

There are law firms in my area where the lawyers always include the following disclaimer in their emails: "This email transmission may contain confidential and/or privileged information. If you are not the intended recipient of this communication please let me know immediately by return email and destroy any copies of the email."

What do you think that's about? It's not about the government! With or without the disclaimer, an "unintended recipient" destroy a claim of attorney/client privilege, etc.

Most people are relatively comfortable using electronic communications for most purposes. But people who work in areas where interception could be problematic don't do it lightly (or shouldn't). This is not because of the government; it's because privacy isn't an absolute with remote communication technology.

just wondering what the perceived harm is

Historically, the motivation for the protection against unreasonable search and seizure was the use of writs of assistance by British or colonial authorities to conduct more or less open-ended searches, especially for smuggled goods. Smuggling was very common during the colonial period, especially in MA and maybe NY.

Basically, some authority would give a sheriff or other local agent a writ allowing them to go into anyone's home or property and look for smuggled stuff. They could do this on the basis of a reasonable suspicion that your were involved in illegal activity, or just because you annoyed them, or maybe because they wanted to look at your wife's underwear. They had the writ, they could do what they wanted, and they were more or less unaccountable for whatever consequences flowed from that.

The potential harm in the modern context ranges from undirected fishing expeditions on the part of criminal or intelligence authorities looking for "suspicious activity", to not wanting sensitive personal information to be exposed to folks who might not use it responsibly, to a simple aversion to nosey parkers. Or, all of the above.

A number of years ago I was involved in local activity in opposition to the USA Patriot Act. The things that folks most objected to in the act were:

1. Increased scrutiny of normal banking activity
2. Monitoring of what folks read, online or otherwise
3. Surveillance of electronic communications like email

All of these things fall under the general heading of "if you're not doing anything wrong, you have nothing to worry about", but that's not really that comforting to a lot of people. Not everyone trusts the state to do the right thing in the absence of transparency and accountability.

And, there are very compelling historical reasons to hold that exact opinion.

Folks don't like it. So, in an at least nominally self-governing context, there needs to be a really compelling reason to do it. IMVHO.

Some people think that the fact that somebody, somewhere, might be doing something that they, perhaps, should not be is weak sauce.

Other people think that whatever it takes to prevent any possible act of political violence is a small price to pay.

Everybody gets to pick where on the line they fall.

But, at least in the early days of the Republic, the line was drawn on the side of respecting privacy.

Is your point that those things obtained through unreasonable search/seizure/surveillance might be used not for evidence at trial, but as a reason for tighter surveillance, Turbulence?

That's part of it; once you've got complete surveillance of the population, you can do lots of things besides produce evidence during trials. The 4th amendment doesn't say, "the government can do whatever it wants with surveillance as long as it doesn't introduce it as evidence at trial".

I mean, what happens when my company is competing with a government contractor. Can the government spy on all our communications and give the results to their favored contractor so that we don't put them out of business? If I ask annoying questions about government officials, can the government spy on me and leak embarrassing details of my personal life to the newspapers?

Now you've peaked our curiosity.

If I were you, I'd follow the Kardashian/Trump practice and establish immunity upfront by leaking all of the embarrassing details of your personal life on Facebook and Twitter.

As far as the newspapers go, at least a couple of times a year, there's a headline in my local paper, something along the lines of "Turbulence Causes Emergency Landing of Delta Flight", "Public Figure Has Turbulence In Past."

We know everything.

i've even heard about turbulence in the middle east!!!

russell: Historically ...

Turbulence: once you've got complete surveillance of the population, you can do lots of things besides produce evidence during trials.

Historically, there's been an exception to 4th amendment for international mail. In other words, international communication has not been protected against searches. We're not talking about "complete surveillance of the population". We're talking about international electronic communications. At least that's my impression of what the law allows.

That said, I don't contend that the law is either Constitutional or wise. There may be aspects of the law that aren't. But arguing on the basis that the FAA is the same as the government coming into one's home and searching through one's belongings, or that it amounts to universal surveillance - neither of these things seems to be true about what this law is about. And litigating it is the process for scrutinizing the law's Constitutionality, and exposing its effects.

Historically, there's been an exception to 4th amendment for international mail.

Given that the DOJ has already admitted that the NSA wiretapping effort illegally collected substantial amounts of purely domestic traffic, your exception is beside the point, no?

More to the point, I don't see any reasonable basis for believing that the NSA is not collecting vast sums of data on purely domestic persons. I mean, they've suffered zero legal penalty for doing so in the past. And they seems to have the technical capability. So why not?

Given that the DOJ has already admitted that the NSA wiretapping effort illegally collected substantial amounts of purely domestic traffic, your exception is beside the point, no?

A cite would be nice, because I'm not sure what admission you're referring to. I found an admission that occurred under the Bush administration, prior to the change in the law. Is that what you're talking about?

Also, I'm not trying to argue that the government is incapable of wrongdoing, or that it never abuses its authority or violates rights. (If the administration doesn't mind breaking the law, it doesn't matter what the law is or what the administration says in court. Is that what you're arguing is happening?) And I'm certainly in favor of holding people accountable, although I understand why Obama didn't do it, especially in his first term.

Back to my actual point (which maybe nobody any longer disagrees with): I think the Obama administration is correct to defend the law in court.

A cite would be nice

OK, here you go. Did you really not know about the "significant misconduct" described in the article?

Sure, I knew that there had been misconduct during the Bush administration, but maybe since I read this in the article you cite (from April of 2009), I quit worrying that the Obama administration was continuing the abuses:

"As part of a periodic review of the agency’s activities, the department “detected issues that raised concerns,” it said. Justice Department officials then “took comprehensive steps to correct the situation and bring the program into compliance” with the law and court orders, the statement said. It added that Attorney General Eric H. Holder Jr. went to the national security court to seek a renewal of the surveillance program only after new safeguards were put in place."

It sounds to me that the Justice Department not only discovered the abuses, but corrected them.

Thanks for the article though. I appreciate your going to the trouble to find it.

It sounds to me that the Justice Department not only discovered the abuses, but corrected them.

I don't see any indication that that is true.

Have there been any prosecutions? Has anyone been fired? Or even demoted? Or reprimanded?

Usually, when organizations screw up, they take clear steps to punish offenders. But no one has paid any price for this "wrongdoing" because the people in charge don't think that anything wrong was done. But perhaps I'm wrong: can you show me even one person who got a letter of reprimand placed in their file over "significant misconduct"?

can you show me even one person who got a letter of reprimand placed in their file over "significant misconduct"?

Sorry, don't have access to NSA personnel records.

You know, the US Navy publishes on a regular basis lists of officers who were fired from their commands. I don't see any security issue with the NSA doing the same. Of course, the NSA has no interest in firing its staff; it doesn't think they did anything wrong.

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