Some Thoughts on Procedure

 

Courtesy of Memegenerator.net and JPB.

"Procedure" is a word that evokes banality. It is the stuff of bureaucracy and litigiousness. It's the word we use to describe colonoscopies in polite company. And, if my Twitter feed is any indication, it is the last refuge of political scoundrels trying to make a point.

But procedure is also the bulwark of rights in our judicial system. (ie, Due Process) Those in power must follow procedure to exercise that power in a way consistent with law and custom. Presidents, Congressmen, police officers, prosecutors, and bureaucrats all most follow procedure to maintain their legitimacy.

I happen to agree with many on the Left, and a few on the Right, that Obama's executive orders relating to immigration were within the laws and customs currently on the books. Whether those laws should have exceptions that one libertarian friend said "you could drive a truck through" is another story entirely, but that's the law Congress gave him to work with.

(dis?)Courtesy of the White House

The Right's sky-is-falling narrative is overblown and off-base, at least in this context. Their references to a King or Emperor skirting procedure would be laughable if not so tragic, given what most of them are conveniently ignoring.

Obama has not once, but twice unilaterally sent troops to fight in civil wars that pose no existential threat to the United States nor could be construed (with a straight face) to be in line with the AUMF --lest we understand the text to mean the Authorization to Unilaterally Murder Foreigners. (See also: the Kill List.)

But you see, it's much easier to rile up the Right's base by helping millions of brown people here at home than blowing up different brown people half-way across the globe.

Take a moment to process that.

bellum medicamenti delenda est

My Response to Franklin Foer of The New Republic

TNR editor Franklin Foer took to his virtual pages today to argue for more federal involvement to protect our civil liberties. In the abstract, I agree with him: I think the federal government is a necessary check against wanton abuse by states and locals against their own people. (We kinda fought a war that settled that.)

However, when it comes to details, he's about as far afield of correct as you can get:

But back to the actual issue at hand, Foer cites civil asset forfeiture as the strongest evidence of need for federal intervention. Oh, if this were only the case.

As this Institute for Justice’s 2010 paper on the subject makes clear, the rise civil asset forfeiture is a direct result of federal involvement in local policing. In what are known as “equitable sharing” agreements, federal law enforcement split forfeiture proceeds with state and local law authorities, supposedly in relation to the amount of work the agencies put into the investigation. While the amount of money is discretionary by statute, all reports indicate that the default split is the maximum allowed: 80 percent to local agencies, 20 percent to the federal government.

You can read the whole thing here.

bellum medicamenti delenda est

Rand Paul's Filibuster, Due Process, and Democratic Cowardice

I've never been a big Ron or Rand Paul fan. The elder's refusal to take responsibility for his racist fundraising emails in the 1980s is an inexcusable disgrace. Rand has publicly distanced himself from the "L-word," and proudly asserts his conservative bona fides. I am not anti-Pauls, but I'm not about to put a "Paul 2016" sign up in my window either.

But what Rand Paul did yesterday was remarkable and one of the greatest political moments of my life. For thirteen hours, Rand Paul held a basic--though imperfect--civics lesson, citing simple truths and fundamental rights that the Obama administration blithely asserts they can ignore. Only one Democrat, Sen. Ron Wyden, had the courage to quite literally stand up for what is right.

I say "imperfect" because, not only did he get some constitutional doctrine wrong, Paul became too distracted by "drones," the weapon with which the United States carries out much of its targeted killing program. Easily lost in his many hours of talk about drones and Hellfire missiles, Paul was making an extensive and coherent defense of Due Process and the fundamental rights every American has against his government. In the criminal realm, these rights include, but are not exclusive to:

• Right to habeas corpus (the government has to present just cause for imprisoning you)
• Right to counsel
• Right to face your accuser
• Right to trial by jury
• And, in the case of an accusation of treason Article III  § 3 of the Constitution is quite specific:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Two witnesses. Overt acts.  Open court. For all the ambiguity in the Constitution, the requirements placed on the government to pursue charges of treason against a citizen are about as unambiguous as the document gets.

Yet, there isn't one of these rights and protections that isn't violated in its entirety by President Obama's "Kill list."

Since the birth of government thousands of years ago, rulers and despots have been ordering enemies killed for both just and unjust causes. It is the most brutal use of state power and it has been used and abused throughout the history of civilization.

But for almost 800 years, Western legal tradition has forbidden its use against its citizens. The rights listed above aren't some product of a bleeding heart ACLU lawyer, they have been formed by our  understanding of the rights of man since 1215. For reference, Genghis Khan was pillaging China when England decided, "Hey, maybe we should put in some safeguards to protect people from being indiscriminately killed by our leaders."

There is nothing that changed on 9/11 that should upend the wisdom learned over the greater part of a millennium.  The brilliance and beauty of our 224 year old system of government is that, at great cost and over time, it has continued to expand, not restrict, these protections that once were given only to "free men." The ancient right to Due Process was crafted over centuries, ultimately codified in our Constitution, to protect citizens from the unilateral actions of a government entity.

And yet, we have an administration that claims the power of assassination by executive decree, with no geographical boundary, and no reasonable understanding of "imminent threat"--the standard used to self-justify their secret decisionmaking.

When directly questioned by the Senate Judiciary Committee yesterday, whether the government had this power to order the domestic killing of an American citizen away from any cognizable battlefield, Attorney General Eric Holder essentially admitted as much, though he said it was highly unlikely they'd use it. Holder half-assed his answers, obfuscating as much as he could, in order to not say outright that the government can kill you without oversight or due process at its whim, dismissing the question because it was "hypothetical."

Yet, for another hypothetical, Holder didn't back down from specifics. This is the exchange Holder had with Sen. Grassley:

GRASSLEY: Once again, thank you for coming up here. I want to follow up on your response to Senator Cruz. And I think he talked about introducing a bill. Do you believe that Congress has a constitutional authority to pass a law prohibiting the president's ability to use drone aircrafts, to use lethal force against American citizens on U.S. soil? And if not, why not?

HOLDER: Do I think the Congress has the ability to pass such a bill?

GRASSLEY: No, whether the legislation -- well, yes, Congress has the constitutional authority to pass a law prohibiting the president's ability to use drone aircraft, to use lethal force against American citizens on U.S. soil.

HOLDER: I'm not sure that such a bill would be constitutional. I think that might run counter to the Article II powers that the president has. I'd have to look at, obviously, the legislation, but I would have that concern.

GRASSLEY: OK. But your basis is -- the why not, it'd be because of Article II?

HOLDER: I believe so, yes.

The  Attorney General of the United States's first reaction to a hypothetical bill to ban domestic drone strikes is to "have concern" that the President's power may be limited. Yet, the hypothetical nature of a question whether the government could summarily kill a citizen on American soil prevents him from unambiguously supporting 800 years of common law and the explicit text of the Bill of Rights.

I have a hypothetical for the administration:

A train is bombed by terrorists, killing over 100 people. A fingerprint pulled from the reconstructed device comes up with a match in the government's database. The fingerprint belongs to a Muslim American citizen living in Oregon. The United States has tangible evidence that he is responsible for over 100 deaths of innocents. Can the government kill him?

These facts aren't really hypothetical. In the wake of the Madrid train bombing, Oregon attorney Brandon Mayfield was taken into custody and held weeks without charge for a misidentified fingerprint. He was guilty of no crime, but government agents threw him in a cell and denied him his constitutional rights for weeks. Due Process should have protected him, but because he was thought to be a Muslim terrorist, his rights were ignored. Presented with tangible evidence in the wake of a mass casualty attack, in a world in which American terror suspects are routinely targeted abroad, it doesn't take a slippery slope to reach the point where a presidential hit is put on an American citizen in the United States. It just takes one step and a call to clandestine operations.

So when a U.S. Senator took to the floor to bring this bold assertion to the forefront of the public eye, only one person from the party that prides itself on its civil rights bona fides stood up to even question the claim. One.

I do not believe for one moment that most of the Republican senators, or even all of the Republicans who raised questions last night, agrees with Paul. They used his filibuster as a political tool to attack Obama. Under a Republican administration--which not a few of them imagine themselves to be someday leading--many would have no qualms whatsoever with this power. But this was an opportunity for the Democrats to stand up for what they claim to believe in, at no conceivable political cost from their constituents, yet all but one sat on their hands. They said nothing. They'll get no such support against executive overreach from Republicans during a Republican administration, and they know it, yet they just sat idly by as one man spent 13 arduous hours explaining the fundamental importance of Due Process and how assassination by executive decree, with no oversight or recourse, is anathema to a functioning republic.

Their silence was cowardice. They should be ashamed of themselves.

bellum medicamenti delenda est

UPDATE:   Adam Serwer reports that Holder has answered Paul:

"It has come to my attention that you have now asked an additional question: "Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?" Holder wrote. "The answer to that question is no."

Sigh. The drone issue continues to obscure the fact Americans have no legal recourse against a secret executive order to kill them, whether at home or abroad.

Are Justice and Vengeance Compatible?

As my Mood Music Monday made clear, as well as my several tweets after bin Laden's death was confirmed Sunday night, I'm glad he's dead. Not jubilant, not ecstatic, not giddy--just glad.

Like most Americans who were adults or close to it ten years ago, I immediately thought back what September 11, 2001 felt like...and how awful it was.

I worked nights and actually went to bed around 7 AM that morning, having just received a used computer from one of my cousins in California that weekend and been tooling around on it til I couldn't keep my eyes open. My then-girlfriend and I were asleep when it all went down and, as usual, we turned the phone off in our upstairs bedroom so that random phone calls wouldn't disturb us while we slept. She got up to walk the dog early that afternoon and said 'Heff left several messages on the answering machine. He said just turn on the television...any channel.'

So curious and confused, I groggily obliged and saw B-roll of one of the smoking towers. I started reading the scroll at the bottom of the page. I thought to myself "Oh, so a plane hit a skyscraper. That's sad, but hardly...OH MY GOD."

We sat in stunned shock as the news went through everything that they knew to that point. The rest of the afternoon is just a fog, really. I went in to my restaurant job to see my friends--it was my day off--and everything in town was eerily quiet on the way in. We talked a bit, and then I left to go home and try to wrap my head around all of it. I remember an enveloping dazed numbness--sort of like a concussion.

That night, my girlfriend and I went to her job--she was a bartender at the 'Townie' bar down the street from my job. It's your typical Midwestern bar--country music dominated the jukebox, regular karaoke nights similarly dominated by country songs; it was staffed by flirty, sassy women and patronized by restaurant workers and good ol' boys. While I'm sure other songs came on, all I remember is Lee Greenwood's "God Bless the USA" and Bruce Springsteen's anti-war classic "Born in the USA." People were singing and crying and just plain angry. There were several vets there that night as well as some guys who knew they were going to get a call very soon from their Reserve battalions. Others, I'm sure, signed up the next day. War--and much more death--was imminent.

So I stood at the end of the bar, talking to a lot of the old men standing around, and I heard racist invective that made the hair on the back of my neck stand up. I understand the rage and pain of that day--I felt it too--but mine was focused on the Taliban and al Qaeda, not Arabs generally. The hatred and contempt that so many felt made me fear for every Arab (and Arab-looking) person in America. They talked about the Muslims like animals--like vermin that had to be exterminated. The old men weren't talking genocide per se, but it was clear to them that Arabs and Muslims had to pay for what so very few of them believed and what just a handful of them did.

Don't get me wrong, I wanted it to rain unholy hell down upon Afghanistan. I wanted Chuck Norris Delta Force-style action where our guys swoop in and kill every 'bad guy' they see by any means necessary. Guns, knives, garrote, whatever. There was (apparently unrelated) fighting going on in Kabul that night, if I recall correctly, and we all watched hoping the explosions and small arms fire we saw were Americans going in and exacting righteous vengeance upon our enemies. It wasn't, but 'Death to the terrorists, dammit!'

But when I heard the words of the old men at the bar--and some of the younger ones too--I snapped out of the numb anger and thought "Oh, God. What is going to happen? How many are going to die?" I thought of our soldiers. I thought of Afghan civilians. And I feared so much for Arab Americans. I spoke up, briefly, countering with the absurdity of blaming white Christians for McVeigh and Nichols. Unsurprisingly, they were not persuaded.

Fast forward: Years later, a friend pointed out to me Glenn Beck's "9/12 Project"--to recapture the common cause and American unity that 9/11 had elicited. People tend to remember the touching photos, the crying embraces, and that New Yorkers actually acted like civilized people in public. (I kid.) Long forgotten by so many was the unfiltered hate and rage; that innocent people were yelled at, spit on, beaten up, and that their houses and mosques were damaged or defaced in the days following the attacks for acts that affected them as deeply as any other American. The vile, hateful bloodlust that sprang up in so many of us was like nothing I'd experienced before, nor would I like to feel again.

But when I heard the news Sunday night, I smiled and was happy that OBL was dead. My reaction was part relief,  part vengeance, and part justice. I was relieved that while terror will survive him, he personally will no longer be responsible; our national bogeyman is dead. The vengeance, I think, is just a natural albeit unpleasant side to me (and many other people). I don't think vengeance makes good policy, but neither will I deny the feeling when the two coincide. And yes, it was wholly justified to kill him, whether he put up a fight or not.

Now, you may ask, how is a committed libertarian, wary of state power and a proponent of due process, backing this? Because in this extraordinary case, post-mortem desire for incarceration and trial confuse procedure for justice.

Procedure is important when administering criminal law. Procedure is important when determining guilt or innocence, or severity of punishment. Procedure, as used in the Nuremberg trials--which, I think were important despite their many flaws--is important when trying to rebuild a nation state and separate the punishment of criminals from perceived retribution upon an entire citizenry. Procedure is important to keep the enforcers of policy in check: for all those held in Guantanamo, Bagram, and whatever black sites the CIA still have running, and I will continue to call for that. But let's not pretend that putting OBL in a courtroom in order to show all of his videos inciting death to America and claiming responsibility for murders, financing terror here and around the world, and organizing the training of murderers--to all of which there is no substantive contested fact from any quarter--would amount in "more" justice than he got on Sunday.

I am not swayed by the arguments that his capture and trial would be too dangerous for American courts. I surely would not be against a trial, had it worked out that way--but he was a figurehead and titular leader of a terrorist organization and, as such, is a legitimate military target. That the government used a SEAL team instead of a cruise missile--sparing the lives of 17 others or so who were in his compound--is hardly a miscarriage of justice.

Does this mean that others should get similar treatment? Not really. OBL was a titular figure of the highest order, unambiguously guilty of acts and war and terror against the United States, and a strategic target. On the other hand, Anwar al-Awlaki should be taken alive, if at all possible, to guarantee his due process rights, no matter how despicable he is. The breadth of his crimes are not widely known--indeed, they are classified--and his citizenship is a legal protection that must be respected until or unless he resists capture in a manner that imminently threatens the life of his would-be captors or others. That the administration has marked him for death by saying, essentially, "trust us, he's a bad guy" is not remotely satisfactory to subvert his constitutional rights.

So yes, I'm glad Osama bin Laden is dead--as a policy and personal matter. I don't think it's cause to "celebrate"--indeed, a very serious reassessment of our policy, both our presence in Afghanistan and our support of Pakistan should be in the forefront of our minds--but neither do I think it's appropriate to complain about some fictional justice for OBL lost. He is dead, and that is not a bad thing. It was vengeance. And it was justice.


bellum medicamenti delenda est

Mood Music Monday: Dedication to the CIC and DevGru

Now usually I don't do this...

..but credit where it is due: here's a shoutout to BHO and the badasses formerly known as Seal Team Six (now "DevGru") who took out OBL yesterday.





It doesn't make up for all the pain, disappointment, and waste of the last two years, but it's not a small accomplishment.

We will now return to our regularly scheduled skepticism and resentment of executive power.

bellum medicamenti delenda est

Quote of the Day

"But ultimately, what one thinks of Manning's alleged acts is irrelevant to the issue here.  The U.S. ought at least to abide by minimal standards of humane treatment in how it detains him.  That's true for every prisoner, at all times.  But departures from such standards are particularly egregious where, as here, the detainee has merely been accused, but never convicted, of wrongdoing.  These inhumane conditions make a mockery of Barack Obama's repeated pledge to end detainee abuse and torture, as prolonged isolation -- exacerbated by these other deprivations -- is at least as damaging, as violative of international legal standards, and almost as reviled around the world, as the waterboard, hypothermia and other Bush-era tactics that caused so much controversy."

-- Glenn Greenwald, discussing the inhumane conditions the U.S. government is imposing upon accused leaker Pfc. Bradley Manning.

Read the entire disturbing account here.

Situational Constitutionalism: Jurisdiction of Federal Judiciary

Predictably--and certainly not without warrant--the Left is now attacking last night's GOP victor for Kentucky's vacated Senate seat, Rand (son of Ron) Paul. One of the sticking points, as explained by TAP's Adam Serwer, is Paul's desire to restrict the federal judiciary from hearing abortion cases:

He also wants to offer legislation "restricting federal courts from hearing cases like Roe v. Wade."

Yeah, that sounds constitutional.

Unfortunately, it very well may be.

Article III, Section 2 of the Constitution clearly states:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.


In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. (emphasis added)

Whether we like it or not--and I, for one, don't--Congress's authority to limit federal jurisdiction is explicit in the text of the Constitution and thus has the full force of law. Though the "least dangerous branch" of our federal system, the Judiciary is nevertheless limited by a hefty Congressional check on its authority.

That Congress has not often acted to reduce the scope of federal jurisdiction is a testament to the reverence our system typically pays to the Judiciary. But no less important is the political cost that any Congress would be forced to pay if it overstepped its conventional prerogatives, even if they acted within their legal capacity. Between the political pressure and the sort of gentlemen's agreement between Congress and the Court, unpopular SCOTUS decisions tend to be sustained, or contravened only at the margins. This is certainly not the most secure way to maintain the Court's independence--trusting politicians to be responsible--but it seems to be enough to be a large enough counterweight to aggressive overreach when combined with Congressional electoral self-interest.

I engaged Mr. Serwer on this issue before and after my lunch break, and at one point he wrote:

[I]t would make the bill of rights irrelevant if you could strip the court's authority to review cases involving them

This is not actually true. The Court has ruled that where it has original jurisdiction and explicit (enumerated) authority is not within the power of Congress to restrict. Certainly, the Bill of Rights (or any other explicit power or protection in the Constitution) qualifies by its very existence.  Emanations and penumbras? Well...not so much.

The point is, the Constitution means what it says. We can disagree about some of the more ambiguous passages, but we can't just ignore the plain text when the implications give us pause. To do so is the hypocrisy I refer to as "situational constitutionalism."  We can't just toss aside parts we don't agree with because they may lead to policies we don't like--whether they involve right to counsel, habeas corpus, or jury trials for suspected terrorists, or First Amendment expression by third parties in election campaigns. Conversely, we can't just pretend limits don't exist to implement policies we might like, such as federally protected abortion access, eminent domain for revitalization/rezoning projects, or health insurance mandates. All these exceptions are proposed, for the most part, with good intent. But good intent doesn't trump the Constitution any more than bad policy outcomes do. Everybody has a reason why they want to skirt the Constitution--but if we always ignore it for reasons we think important, then the limits placed by the document cease to mean anything once our political adversaries take power. (Or, in the case of libertarians, seemingly when anyone is in power.)

I share Mr. Serwer's disgust with Congressional authority over federal jurisdiction--but that doesn't make it unconstitutional.

Mark Souder and His Part-time Lover

What happened to Mark Souder--or, more appropriately, what Mark Souder did to himself--is what Malcolm would probably refer to as "chickens coming home to roost." He is just another politician who has made his living moralizing to others while living his own life in accordance with a separate (lower) standard of personal virtue. I am not personally offended by his affair because I think a man's (or woman's) personal life is his own business. He set himself up for this, and be it Karma or poetic justice, he got what he deserved.

The reason why I'm commenting isn't about his sexual hypocrisy, though. (Notice, for example, I don't blog about outted anti-gay conservatives caught with men. Most of us pretty much expect that any more.) Outside of having been my Congressman in my last years in Fort Wayne, Mark Souder was the #1 drug warrior in Congress. All of his braying nonsense about morality, abstinence and what have you take a backseat to his amoral stance of imposing his anti-drug crusade at the point of a gun:

One of the reasons why then-Speaker Dennis Hastert originally appointed me to the Homeland Security Committee was to pressure Congress and the Executive Branch not to forget about our duty to fight illegal drugs in the wake of the September 11, 2001, terrorist attacks. Although Democrats now control Congress, in my position as the Republican leader of the Homeland Security Subcommittee on Border, Maritime and Global Counterterrorism, I am continuing to insist that we include battling narco-terrorism as a critical part of our homeland security efforts. Like child and spousal abuse, we will never completely eradicate illegal drug use, but we have a moral obligation to fight this battle.

Narco-terror isn't different from any other kind of terror, save the fact that its driven by profit from the prohibition of drugs. The overzealous war on commerce that Souder and his ilk wage upon American citizens, third world farmers, and nearly every type of person in between, helps fund global terrorism while deploying state-sanctioned terror into people's homes. There are alternative solutions, of course, but his high and mighty morality--blind to the immoral outcomes of his preferred policies--pressed him into waging war against his own country.

I don't care that he shtupped a "part-time" staffer. But, for the good of the country, I'm glad he did and was forced out of office by it.

Quote of the Day

From hope you can believe in to disappointment you can count on. What a legacy he's building.

-Jeralyn, TalkLeft, on Obama and his latest deal to renege on federal trials for KSM et al.

Further Empowering the Most Powerful Man on the Planet

Over at the League of Ordinary Gentlemen, Jamelle has an idea to "address long term challenges" through "meaningful legislation": fundamentally change the structure of Congress so that it's "more responsive." To wit:

Accountability is nice, but absent further institutional reform, it still leaves you with that basic problem (albeit slightly reduced). Better would be to reduce or eliminate some of those barriers, as to make better legislation possible in the first place. A system where committees are weaker, majorities are stronger and obstructionism harder is a system that incentivizes better legislation, as each member knows that their bill can make it to the floor in more or less its original state. It’s a system where there are fewer opportunities for capture by special or parochial interests, and it’s a system that actually empowers presidents to pursue their agendas.

(Emphasis mine.)

Jamelle starts off his post saying that the conventional wisdom among Lefty bloggers is that Congress is "broken" and thus needs fixing so that the president can get his important agenda through past all those darned obstructionists.

First of all, it isn't the job of Congress to enable the president to do anything. In fact, bold, lame, or otherwise bland legislative agendas are, indeed, the sole prerogative of the, er, legislature. The very first legally binding part of the Constitution reads:

Article 1 Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Not most. Not some. Not 'all but those the president or the party of greater assumed moral right feel necessary.' All. This isn't some obscure, buried clause of ambiguous meaning where intelligent people can differ. This is the first word of the first line of law that establishes our current form of government.

And it isn't that I'm naive as to 'how government really works.' Nor would I even imply that extra-constitutional power grabs are the exclusive domain of one party. Indeed, I oppose the expansion of executive power because of the fact that presidents of any party seek to enlarge their power--and whatever power you give to one president, you give to his opponents who will, eventually, succeed him.

The naivete, I would argue, is in the assumption that these heightened powers would always be used for good, or even assumed that they would be used for good on net. Despite the disarray of the current GOP, the notion of a permanent Democratic majority is just as fanciful as the permanent Republican majority imagined in the early Bush (43) years. Political tides change and, invariably, the party in the White House changes also. I can't imagine Jamelle or Yglesias or any number of Lefty bloggers arguing for this power four years ago. The reason for that is, of course, their compatriots would have looked at them as if they were mentally defective to argue to give W. more power. Yet, for some reason, there is a consensus among these same folks that we do exactly that today as if a Republican will never come back into office.

Whatever power you give the guy you agree with, by way of our precedent-based system of laws, you give them to your political adversaries. Furthermore, the precedent given is not only that of the explicit power granted, but the power to expand the limits of power generally. Thus, by saying this or that constitutional limit doesn't apply because you have compelling reasons, any other constitutional limit is therefore vulnerable to the same argument, rendering the Constitution itself moot.

You would think that adherents to the party that has one--ONE!!--president elected twice since FDR (who governed much like a Republican after the first two years) would be wary about vesting too much power in the presidency. But, ah, how short-term our memories are when your guy (or gal, I suppose) gets in power.

A Republican case in point: Yoo'll never guess who lamented the extra-constitutional executive powers of the Clinton administration:

"President Clinton has exercised the powers of the imperial presidency to the upmost ... [and] undermine[d] notions of democratic accountability and respect for the rule of law ... ."

Of course, this is from the same man who would write this with a straight face, just two years later, what later became known as a "Torture Memo":

“our Office [of Legal Counsel] recently concluded that the Fourth Amendment had no application to domestic military operations.” (Emphasis in original)

Even if one was so naive to think that every president from their party was a politician with the heart of gold and the wherewithal (i.e., superhuman knowledge) to effectively implement the "meaningful legislation" Jamelle et al. would like pass, such contortions of our rule of law leads to the unraveling of our most fundamental protections against state encroachment. This isn't some reductio ad absurdum argument: this is a playing out of rights preferences of one political party over the other. One party is marginally better on property rights, the other on civil liberties--or at least, they pretend to be. But if you grant one of them the power to run roughshod over the rights and liberties they find less compelling, you grant the other side the very same. Such actions, by either party, are inimical to individual liberty.

Because of, not in spite of, Congress's numerous abrogations of its Constitutional duty to act as a check on the Executive and punting its prerogative to declare war by writing Bush a blank check on the Iraq invasion, we're facing many of the problems the so-called "Progressives" have been complaining about for years. And it's not all the Republicans fault: one only has to look to the recent half-assed "debate" on PATRIOT Act reforms and State's Secrets protections sought by the current administration to show that civil liberties and transparency aren't much more popular at either end Pennsylvania than they were last year.

Nevertheless, the "Progressive" idea is to further empower the most powerful man on the planet to charge headlong into some new foray of ill-conceived and expensive adventure in the name of what's best. How this ever got the label of "progress" is fully beyond me.

Congress wasn't meant to work efficiently. (and thank Madison for that!) The fact the president can't just come up with an idea and make it so is the essence and beauty of deliberative democracy, not some sort of calamity.

In the future, as a practical matter, the next time Jamelle et al. want to give Obama more power, perhaps they should stop and think, "What would W. do with it?"

UPDATE: It should be noted that weeks ago, I happened upon a blog entry Yglesias wrote in 2005 arguing for the rejection of the filibuster. I never changed the post to reflect that, and since have. 10 points for consistency, but still 0 points for efficacy.

iRat

Despite Godwin's Law, there comes a point when analogies to certain vicious security states of the 20th century are appropriate. This video has made me so angry that I'm gonna "go there" to make my point.




There is something so fundamentally wrong with this campaign that I'm getting a migraine from trying to figure out where to begin.

Even at the height of the Third Reich, there were very few Gestapo officers relative to the population of Germany and, subsequently, German-occupied Europe. Thus, to get information, the government relied heavily on everyday citizens reporting to the Gestapo's local and regional offices. The files recovered after the war document the copious amounts of information they had collected, most of which was voluntarily given by citizens about other citizens. Like today's "fusion centers" that aggregate data on Americans, the Gestapo had too much information to run efficiently. (Former FBI agent Mike German has done invaluable work on fusion centers at the ACLU.)

Collecting information this way is not only a threat to individual liberty, but it also is counter-productive to law enforcement's legitimate and necessary counter-terrorism efforts because the resources required to investigate so many bogus leads. Thus, informing on fellow citizens actually helps terrorists because law enforcement agents are too busy wasting their time with superfluous allegations. (Of course, law enforcement will happily arrest and prosecute people for whatever non-terrorism related information they find as they dig into the lives of those people unlucky enough to be reported on.)

Our police should do their jobs and our citizens should mind their own damned business.

H/T: Allison Gibbs

Terrorists Foiled Plot for "Darwin Award" Immortality

At least the foiled terror plots are getting more entertaining. From the DOJ press release:

First, the superseding indictment charges Daniel Patrick Boyd, aka "Saifullah," and Hysen Sherifi with conspiring to murder U.S. military personnel, in violation of Title 18, United States Code, Section 1117. The superseding indictment alleges, among other things, that in furtherance of this agreement, Boyd undertook reconnaissance of the Marine Corps Base located in Quantico, Va., and obtained maps of the base in order to plan an attack on Quantico. According to the superseding indictment, Boyd possessed armor piercing ammunition, stating it was "to attack the Americans." A conviction for conspiring to violate Title 18, United States Code, Section 1117 has a maximum penalty of imprisonment for any term of years or life, and/or a $250,000 fine, followed by five years of supervised release.

Let me repeat that: the plot was to, among other things, storm the sprawling military complex full of gung-ho Marines in Quantico, Virginia. I've been there. It's in the middle of nowhere. It is a place that is perfectly suited for "Surviving the Game," and these idiots were gonna walk right into it voluntarily, guns blazing.

I saw a Marine veteran interviewed about the plot on the news last night. I don't know if the reporter was that naive or just playing straight man, because the vet looked rather incredulously at the him when he asked why a handful of self-trained nitwits attacking a base full of Marines was, in the vet's words, a "bad idea." He tempered himself by saying (paraphrasing) "because [the terrorists] would get their brains blown out."

I've never served in our armed forces, and I have nothing but respect for those that do so don't take the following the wrong way: having met my share of Marines, I don't think it's any stretch to say that hunting down a merry band of shit-brained terrorists on the grounds of Quantico would brighten more than a few of their days. I, obviously, don't want to see any of our servicemen hurt. But I just find it unlikely the Marines would have any trouble whatever dispatching Boyd and his crew of bearded misfits, with a tad bit of glee to boot.

To wit, instead of life in prison, maybe they should be sentenced to be dropped into the middle of Quantico with a couple rifles and a "good luck, dumbass" from the USMC.

Headline reference here. And no, for the love of reason, I am not remotely serious about attacks on military bases.

Situational Constitutionalism

In recognition of the anniversary of the 2001 attacks today, I wrote in my Twitter feed and similarly on my facebook status:

Trampling on the protections provided by the Constitution is no way to honor the fallen.

While I intended it to reference those who are wont to say "9/11 changed everything" or some other pap to justify torture, wiretaps, indefinite detention without charge etc. initiated by the Bush administration and--for the most part--wholeheartedly continued by the Obama administration, it dawned on me that some may take it as some sort of backhanded slap at the health care reform plans currently festering in Congress. Well, it wasn't, but since we're on the subject...

I am sick and tired of the Left (I patently refuse to refer to people who work to reestablish the age-old power of the state over people's lives as "progressive") complaining about the unconstitutionality of Bush administration actions while simultaneously holding in contempt those of us who read Article 1,§ 8 of the Constitution and Amendments 9 and 10 of the Bill of Rights as limits upon government action. If the Necessary and Proper, General Welfare, and Commerce clauses are to be read so broadly as to nullify the major safeguards against tyranny (e.g., arbitary seizure and reallocation of wealth and property) enshrined in our Founding documents, then those documents cease to mean anything at all. Explicit directives from the document upon which all federal laws are (meant to be) built are not to be casually tossed aside because legislators or presidents purportedly mean/meant well.

The Left is just as guilty as the Right of situational constitutionalism--standing by the document when its suits their particular policy interests, but ignoring it when the unambiguous meaning of the text prohibits the excessive power the government needs to implement their preferred goals. Either the Constitution grants the power or it does not. If it does not, the government does not legitimately have that power, in spite of what they or anyone else thinks is the "right thing to do."

If you don't like it, change the Constitution. Short of that, simply ignoring the text to play Robin Hood (or Jack Bauer, for that matter) is sickening and ignominious hypocrisy.

Update: Further comment on the Millhiser piece I linked to above, here.

Quote of the Day, Double Dish Edition

A Quote of the Day Two-Fer:

None of the leading Democrats really believes that our civil rights are being trampled on; including president Obama, who has still achieved nothing substantive whatsoever for gay Americans.

Oh, I forgot the cocktail party. Always great to throw a cocktail party for the gays. That's what they really want, isn't it? Just give them some cocktails, ask for more money and they'll forget about their civil rights.

Andrew Sullivan, 7/27/09

If you're a Republican, a lot of things are logical: the entire debt began the moment Obama took office; Bush and Cheney never tortured anyone, but Obama is about to; the WMDs really are in Iraq; the president has the constitutional power to send tanks into the streets to arrest any American without charges; deficits don't matter; Obama is a Kenyan Muslim impostor; and Sarah Palin was qualified to be president of the United States at a moment's notice.

Andrew Sullivan, 7/28/09

There are more than a couple issues I disagree with Sullivan on, but I think he, Greenwald, and Maddow are really sticking it to both parties, and rightfully so.

And I didn't realize until I typed the three names, but is it just a coincidence that three of the most thoughtful critics of Obama are openly gay journalists? (Also worth noting, the most forgiving of the three is the self-proclaimed conservative, Sullivan.) I think this probably has a lot to do with their open support of Obama's platform, and--like many of us less Left-inclined--their profound disappointment with the lack of "Change" on so many important, non-DNC issues. The rest of the Left refuses to come to terms with this, and that is to the detriment of all of us.

Horseshoes, Hand Grenades, and Nuclear Warfare

So, the new trope the Right is trotting out to defend torture is carpet bombing of Germany and Japan in WWII:

On the night of March 9, 1945, [General Curtis] LeMay sent 346 huge B-29 bombers loaded with napalm from the Mariana Islands (Guam, Saipan and Tinian) to Tokyo. The first planes dropped their incendiaries on the front and back of the target area -- like lighting up both ends of a football field at night. The rest of the planes filled in the middle. More than 16 square miles of Japan's capital city were gutted, two million people were left homeless, and 100,000 were dead.

It didn't end there. Washington gave LeMay the green light as his bombers burned 64 more cities. He used the World Almanac and just went down the list by population. Altogether, an estimated 350,000 people lost their lives. Anyone hearing this for the first time in 2009 would be hard pressed to defend such an action.

The author is right: anyone hearing this for the first time in 2009 would be hard pressed to defend such an action...due to the stunning accuracy of American weaponry today. If the American military were to engage in action like this in modern combat, I assure you the commanders responsible for such a campaign would be condemned the world over--in addition to being run out of the service and probably court martialed. Does the advancement of weapon technology excuse LeMay's actions? Not necessarily, but neither are all horrible actions during wartime viewed ex post facto in the same league, ballpark, or sport. Furthermore, in the case of torture, we're not even discussing war: we're discussing humane treatment of unarmed individuals in American custody. In particular, we're dealing with international criminals; murderers of a special sort that nevertheless have unalienable rights--such is the very definition of unalienable--which should not be crossed UNDER ANY CIRCUMSTANCES.

The logic of Mr. Kozak's argument is thus: Japan was bad. We were at war with Japan. We did bad things to Japan to win in a just cause, thus that action was justified--or at the very least, exusable--even if somewhat barbaric.

Certainly, setting hundreds of thousands of innocent civilians ablaze is more morally condemnable than going to extreme measures for information against a known terrorist responsible for murders, yes? On its face, this argument seems to work, but again--we're comparing unlike actions to one another as if they could ever be on the same moral plane. I intend to show that they are not, for moral and consequentialist reasons.

The Right's new-fangled argument rests on two premises: 1) that LeMay's actions were, indeed, justifiable militarily and politically and 2) that they were integral in the decision of the Japanese to surrender, thus bringing a(n assumed) just conclusion to a horrific war. (I will stipulate that, from a matter of justice, ultimately it was more just for the Allies to have won WWII. I don't think this is much of a concession.)

I will grant the bulk of #2 straight off for the simple reason that I haven't studied the battles of the Pacific that closely, nor the internal politics of 1940s Japan, well enough to know whether these strikes were actually effective in bringing about a swifter end to the war. I think the numbers of U.S. casualties is nothing but loosely-based conjecture and not worth addressing on a substantive level. For the sake of argument, however, I am prepared to stipulate that the carpet bombing with incendiary bombs (a tactic already used in the European theatre, by the way, lessening the strength of the race angle insinuated by the article) helped break the will of the Japanese people, thus paving the way for a quicker and less costly (to the U.S.) end to the war in the Pacific. The numbers of American dead, then, will be assumed to be much less in the pro-LeMay scenario.

The first assumption, however, I know to be based on contestable claims--at the very least. The article bases the military motives almost entirely on the fact that American lives would be spared. As I write above, I will assume this to be true, absent any decent evidence to the contrary. However, this is hardly the only--and some would argue, not the primary--geo-political reason for such aggressive action on the part of the American military against the Japanese mainland.

As the fighting in Europe ended, the spoils were being divided by the Great Powers; spheres of influence were established between the Soviets and the West as a conglomerate. The threat of communism was not unknown to either Great Britain or the United States, and thus the looming confrontation with the USSR was not one of great surprise. While it certainly hadn't reached the Berlin Airlift stage of crisis, the situation developing in Berlin, the rest of Germany, and Eastern Europe was undeniably a tenuous one. There is reason to believe that the Western powers wanted Japan to be free--or free from Soviet influence, at any rate. Thus, a prevailing sentiment among some Russian and WWII scholars is that the use of Fat Man and Little Boy against Hiroshima and Nagasaki was a last ditch effort to get the Japanese to surrender before Autumn--the time when the Soviets had indicated they would be ready for an invasion of Japan from the North.

Without delving into the immorality of communism, would LeMay's actions be as acceptable if made from this more geo-political motive? Is the threat of communism enough to burn hundreds of thousands of people alive--either to benefit U.S. political influence or, conceivably, to protect the surviving Japanese people from the threat of Soviet domination? These, I believe, are not questions easily answered. But they are questions that we, today, can debate and have reasonable disagreements about. I would, however, be hard-pressed to ever compare these very contoured and complex questions about war planning to anything outside of that particular time period, due to its special circumstances.

The evolution of warfare makes comparisons almost laughable--can you really compare carpet bombing to the pillaging hordes of the Mongols or the Vikings? Where, exactly, should we stand on the conquest of North America, including the use of germ warfare, that made it possible for me to be raised in the Ohio Valley? Can you compare the use of flame-throwers on D-Day to the battle of Antioch (Holy Hand Grenade notwithstanding)? In all seriousness, the point of this is that it's nearly impossible to compare, let alone excuse, even conventional warfare. Yes, there are established rules, but the rules which governed battle on open fields in 1776 hardly apply to house-to-house fighting in Mosul in 2009.

How on Earth Mr. Kozak can make honest sense of a comparison between the dumb, blunt force of millions of tons of explosives dropped from 1000s of feet in the air in the 1940s to the up-close and personal psychological violence inflicted by torture--both currently and historically quite ineffectively--fully against the rules of war (if we are to suspend disbelief for a moment that the previous administration intended to give our prisoners the basic protections of war combatants) is well-beyond my capacity of rational thought.

From a practical and military perspective, in order to collect actionable intelligence, guilt or innocence is effectively irrelevant. Thus, comparing the guilt of Khalid Sheik Mohammad versus the innocence of Japanese (or German) families killed in incendiary bombing campaigns misses the point entirely. Unalienable means unalienable, especially while in the full custody of the U.S. government, and the blunt use of force at the military's disposal of the military in the first half of the 20th century is in no way comparable to the centuries-old custom and knowledge that torture leads to false confessions--and that dismissing tried and true interrogation techniques in favor of such unreliable torture is an act of gross negligence that, in my opinion, rises to the point of criminal.

The interrogation professionals shunned the euphemistically-named "Enhanced Interrogation Techniques" for traditional methods (and, until I get evidence to the contrary, I'm going to assume that these people wanted the best and most reliable intelligence to be collected as efficiently as possible and aren't part of some ultra-Left cabal bent on treating terrorists with kid gloves and sissifying our military and intelligence operations). The most vital information thus far made public was provided by these traditional methods and--if the interrogators are to be believed--hampered by the implementation of torture.

The level heads and trained professionals of our intelligence-gathering agencies who, like the rest of us, experienced the horror of 9/11, still argued against the use of torture--even against those most responsible for it. Mr. Kozak's invocation of the reflexive pain and anger of 9/11 serves only to remind us of how emotional--not rational--we were after that day. Those charged with finding the truth of those events, and of subsequent dangers, managed to set aside their quite righteous emotional sentiments against the guilty and lust for vengeance that many--if not most of us--felt. Furthermore, Mr. Kozak's citation of public opinion viz. war with Japan and Germany pre- and post-Pearl Harbor could just as easily be used to justify Japanese internment and the blatantly racist Korematsu decision. The emotional state of the masses is hardly a sound base for foreign, domestic, or intelligence policy.

In the end, Mr. Kozak makes a fragmented and irrational case for the use of torture against our enemies. His submission is based on selected facts that really should not be compared with one another for temporal, technological, and practical reasons. Yes, bad things happen--and they often happen in the name of national defense or security. It does not follow, however, that questionable military decisions from the 1940s are in any way related to, or could possibly excuse, counterproductive and plainly cruel interrogation tactics of today.

Why I'm Hard on Obama

Recently, my facebook wall became a bit of an ideological battleground. I have spats with one of my liberal friends from Indiana who is wholly in the tank for Obama. Then, a girl I had a fleeting crush on (Yes, you Amy) in my last few weeks at IU (my first time around) has been giving her two cents, along with an old friend from grade school, among others. The topics of contention varied, from school choice to spending and waste. The topic, however, that garnered the most comments was Obama's bow to the King of Saudi Arabia.

Without rehashing all the mess that went along with it, the general consensus of the liberal faction was that a) it wasn't a big deal, b) we should be worrying about other things and c) we should give Obama some space and time to see how his policies play out. I grant "a" to a certain extent, fully agree with "b," and "c" I couldn't disagree with more strongly because I think it flies fully in the face of "b." There was also mention that I was detracting from Obama just to be contrarian, or perhaps out of some partisan agenda. Neither is true, but probably would have been 10 years ago or so, so I'll forgive the assumption.

As I've noted here before, I hoped Obama would do well and have, most definitely, gushed pride for his accomplishments. But almost all good will toward him has been erased, not for some petty reason or any fealty to the GOP--I think they'd be screwing up pretty bad too, at the moment, because only about five of them really buy the limited government argument they've been spouting since the election--but because he is what I feared he'd be: just another opportunistic Democratic politician who will pander to the typical lefty constituencies (the American Bar Association, the Big Labor, and--most disappointingly--the teachers' unions). While one would expect some deference to his party's supporters, he's going out of his way to make himself a liar and bend to the whim of Reid, Pelosi, et al. who represent anything but "change." Furthermore, he's maintained or strengthened some of the Bush administrations most awful policies: indefinite detention and state's secret privilege, which even the left is starting to howl about.

Even though he has as much political capital as W. did post-9/11 and more than Bill Clinton ever enjoyed while in office, Obama can't bring himself to use it against his own party--effectively the only group keeping him from implementing his own policy.

Between his capitulations and outright reneges, the Obama presidency has already demonstrated itself to be more of the same, instead of the change that so many--and on some levels, I must count myself here--hoped for. Below, you will find a list of his more egregious actions, none of which involve royalty, diplomacy, or foreign policy--and the majority of which come from either major news sources or respected but unabashedly liberal sites (not that there's anything wrong with that):

Farm subsidies (New York Times):

The White House plan would have prohibited so-called direct payments to farms whose annual gross receipts exceeded $500,000 — a large sum on the surface, but one that did not take account of whether those receipts yielded any real profits.

Within days, the National Farmers Union, which represents roughly 250,000 farm families, forcefully denounced the president’s plan and urged Congress to oppose it. The group’s board also raised the issue at a meeting with officials at the White House

While Mr. Obama’s Democratic allies on Capitol Hill adopted much of his budget template, the farm subsidy limits never got off the ground.

State Secrets (Washington Post):

There are two things you really need to know about the "state secrets" privilege.

The first is that the government lied in the 1953 Supreme Court case that established the government's right not to disclose to the judicial branch information that would compromise national security. The widows of three civilian engineers who died in a military airplane crash sued the government for negligence. The government refused to turn over records, citing national security. But some 50 years later, when the records in question were made public, there were no national security secrets in them, just embarrassing information establishing the government's negligence. (More about the case here.)

The second thing is that the way the state secrets privilege has typically worked since then is that the government can refuse to publicly disclose a specific item of information if it explains why to the judge. The idea is not that government officials get to tell a judge to dismiss an entire case because they don't want to answer any questions at all.

But it is precisely such a sweeping assertion that the Justice Department -- the Obama Justice Department -- is making in three cases that relate to torture and warrantless wiretapping. (emphasis in original)

State Secrets, cont'd (Salon.com/Glenn Greenwald):

Every defining attribute of Bush's radical secrecy powers -- every one -- is found [in Obama's DOJ briefs], and in exactly the same tone and with the exact same mindset. Thus: how the U.S. government eavesdrops on its citizens is too secret to allow a court to determine its legality. We must just blindly accept the claims from the President's DNI that we will all be endangered if we allow courts to determine the legality of the President's actions. Even confirming or denying already publicly known facts -- such as the involvement of the telecoms and the massive data-mining programs -- would be too damaging to national security. Why? Because the DNI says so. It is not merely specific documents, but entire lawsuits, that must be dismissed in advance as soon as the privilege is asserted because "its very subject matter would inherently risk or require the disclosure of state secrets." (emphasis in original)

Education (Former DC Mayor Williams in Washington Post)

The reality of our children's deficits demands much more than we have given them. Platitudes, well-crafted speeches and the latest three-to-five-year reform plan aren't good enough. We must find ways to educate every child now, by any means necessary.

It was that spirit that led us, as elected officials of the District in 2003, to promote the D.C. Opportunity Scholarship Program. The program, which provides scholarships for low-income children to attend private schools, is part of the three-sector initiative that annually provides $50 million in federal funding to the District for education purposes. That money has been equally divided among D.C. Public Schools, D.C. Public Charter Schools and the scholarship program.

...

Despite...obvious signs of success, though, some in Congress want to end the program. Its funding is set to expire after the next school year ends, but some have even suggested curtailing it immediately so that these students can be placed in D.C. public schools as soon as possible. Already, no more students are being enrolled. These naysayers -- many of whom are fellow Democrats -- see vouchers as a tool to destroy the public education system. Their rhetoric and ire are largely fueled by those special-interest groups that are more dedicated to the adults working in the education system than to making certain every child is properly educated.

To us, that narrow perspective is wrongheaded and impractical, especially during these perilous economic times. Rather than talking about ending this scholarship program, federal lawmakers should allow more children to benefit from it.

Obama's Dept of Ed killed the program

AIG/punitive taxation due to misinformed populist outcry (New York Times)

It is with deep regret that I submit my notice of resignation from A.I.G. Financial Products. I hope you take the time to read this entire letter. Before describing the details of my decision, I want to offer some context:

I am proud of everything I have done for the commodity and equity divisions of A.I.G.-F.P. I was in no way involved in — or responsible for — the credit default swap transactions that have hamstrung A.I.G. Nor were more than a handful of the 400 current employees of A.I.G.-F.P. Most of those responsible have left the company and have conspicuously escaped the public outrage.

After 12 months of hard work dismantling the company — during which A.I.G. reassured us many times we would be rewarded in March 2009 — we in the financial products unit have been betrayed by A.I.G. and are being unfairly persecuted by elected officials. In response to this, I will now leave the company and donate my entire post-tax retention payment to those suffering from the global economic downturn. My intent is to keep none of the money myself.

I take this action after 11 years of dedicated, honorable service to A.I.G. I can no longer effectively perform my duties in this dysfunctional environment, nor am I being paid to do so. Like you, I was asked to work for an annual salary of $1, and I agreed out of a sense of duty to the company and to the public officials who have come to its aid. Having now been let down by both, I can no longer justify spending 10, 12, 14 hours a day away from my family for the benefit of those who have let me down.

Medical Marijuana (reason.com):

Federal agents raided a medical marijuana dispensary in San Francisco Wednesday, a week after U.S. Attorney General Eric Holder signaled that the Obama administration would not prosecute distributors of pot used for medicinal purposes that operate under sanction of state law.

Transparency (Cato@Liberty/Jim Harper)

On the campaign trail, President Obama promised to post bills online for five days before signing them.

Last week, President Obama signed three new bills into law. None of them received the promised “Sunlight Before Signing” treatment - at least, not as far as our research reveals. (The White House has yet to establish a uniform place on its Web site where the public can look for bills that the President has received from Congress.)

The new bills put today’s podcast on Obama’s five-day pledge slightly out of date. He is not batting .091 on his transparency pledge. He’s batting .071. The substance of the podcast remains true, however: This is still a worse record than the Nationals.

Domestic Surveillance (ACLU):

A series of leaked "intelligence" reports have caused quite a dust-up over the last several weeks. A Texas fusion center warned about a terrorist threat from "the international far Left," the Department of Homeland Security and a Missouri fusion center warned of threats posed by right-wing ideologues, and a Virginia fusion center saw threats from across the political spectrum and called certain colleges and religious groups "nodes of radicalization." These are all examples of domestic security gone wrong. The way for local police to secure their communities against real threats is to focus on criminal activities and the individuals involved in criminal activities.

Trade (reason.com):

Just because it was totally predictable, doesn't make it any less outrageous: The man who campaigned daily against trade agreements and outsourcing has sparked an utterly pointless trade war with Mexico.

In addition to these, there has been double-talk on pork and earmarks while Democrats spread their spoils of electoral victory across their favorite constituencies, half-hearted gestures on fiscal responsibility (and I'm probably being generous about half of a heart), rushing to pass stimulus "right now" and then waiting two days to sign it in spite of few if any in Congress having the time to read it before voting, holding a proverbial gun to the head of the Senate (think "nuclear option" woo, bipartisanship!) and other tactics employed by politicians against politicians for political advantage against the better interests of the people.

The sooner America realizes that he's just another smooth-talking politician (we've seen one or two of them before, haven't we?), the better off everyone will be. But right now, so many people just think the man can do no wrong, in spite of his miserable track record of broken promises, outright lies, and self-serving political moves that only help the Democrats at the expense of the people.

I've got more change in my pocket than we've seen in 100 days.

Jihad on You!

It turns out, I may be a terrorist:


Do I really think the government is going to go all McCarthy-era/J. Edgar Hoover-style surveillance on all of us limited government/federalist types? No.

But, seriously, these idiots need to clean up their language when they are dealing with statements like this because abuse does, in fact, happen and pronouncements such as this give legal cover to those who go too far. It's hard enough to discipline law enforcement for breaking the law--irresponsible nonsense like this makes it that much harder.

Take reason's "Are you a terrorist?" test here. Headline reference here. (Sorry, no vid available)

Indefinite Detention Case Dismissed

Ah, change:

The Supreme Court on Friday wiped out a lower court ruling that gave the President the authority to detain indefinitely as terrorism suspects individuals living legally in the United States. The order also approved transfer of Ali Saleh Kahlah Al-Marri from military custody to civilian custody for a trial on criminal charges in a regular federal court, presumably in Illinois. The order is available here.

The Court’s action ended the Qatari national’s appeal in Al-Marri v. Spagone (08-368) that the Court had agreed to hear. Thus, the hearing set for April 27 will not be held.

I mean, it's great that the guy will finally get his day in court, but the presidential authority to detain a man indefinitely is now unchallenged in SCOTUS--as the case has been rendered moot by the new administration's actions. On its face, it looks like a win for justice. But, essentially, it's a maneuver to skirt the issue, thus saving face for the Bush administration and refusing to challenge a purported power of the executive.

Change You Can Believe In...

From the WSJ:

On the campaign trail, Mr. Obama criticized many of President George W. Bush's counterterrorism policies. He condemned Mr. Bush for promoting "excessive secrecy, indefinite detention, warrantless wiretapping and 'enhanced interrogation techniques' like simulated drowning that qualify as torture through any careful measure of the law or appeal to human decency."

Amen. Unfortunately, that was later in the column. The column begins like this:

President-elect Barack Obama is unlikely to radically overhaul controversial Bush administration intelligence policies, advisers say, an approach that is almost certain to create tension within the Democratic Party.

Civil-liberties groups were among those outraged that the White House sanctioned the use of harsh intelligence techniques -- which some consider torture -- by the Central Intelligence Agency, and expanded domestic spy powers. These groups are demanding quick action to reverse these policies.

Mr. Obama is being advised largely by a group of intelligence professionals, including some who have supported Republicans, and centrist former officials in the Clinton administration. They say he is likely to fill key intelligence posts with pragmatists.

"He's going to take a very centrist approach to these issues," said Roger Cressey, a former counterterrorism official in the Clinton and Bush administrations. "Whenever an administration swings too far on the spectrum left or right, we end up getting ourselves in big trouble."

So much for "condemnation" and "appeal[s] to human decency."

Maybe he'll still break a fiver for me?

Breaking News: ATF "Disrupts" Plot to Kill Obama; Scores of Black People

And the racists are mobilizing:

WASHINGTON (AP) - The ATF says it has broken up a plot to assassinate Democratic presidential candidate Barack Obama and shoot or decapitate 102 black people in a Tennessee murder spree.

In court records unsealed Monday, agents said they disrupted plans to rob a gun store and target an unnamed predominantly African-American high school by two neo-Nazi skinheads.

I don't know how competent these idiots were or how close they could have gotten, but I expect that more of the same is coming. The backlash against a black President may be both dramatic and bloody -- and not just for the (presumable) president.

Obviously, I don't think any violence will be widespread in the sense that states are going to secede again, but there are enough hate groups that may test the patience of the US security apparatus-- probably to the point that a Democratic majority Congress would go to extraordinary (and extra-constitutional) lengths to attempt to bring them under control. I certainly hope we won't have a spate of domestic terror cells, but I'd be lying if I said that it wasn't a small fear of mine.

Unconstitutional impediments to assembly, speech, and--of course--firearms, will only fuel the fire of the hate groups and perhaps cause them to grow, albeit to rather limited (thankfully) extent. The problem with this is not that terror-minded hate groups will be stopped before killing or otherwise harming people--I'm all for that. But perfectly legal yet marginal fringe groups might be targeted in anti-racist crackdowns just because some group of white boys with guns decides to name themselves "militia." It isn't as if the government doesn't already cast too wide of net for terror suspects. (You know, like the environmentalists who ended up on terror lists in Maryland.)

If and when that happens, the same Democrats and other liberals who are (correctly) arguing against domestic wiretapping and treatment of prisoners at Guantanamo may be calling for similar measures--at least as they apply to surveillance and suspicion-- to be used against our own citizens who may or may not be associated with domestic racial terror.

The problem with fighting for liberty is that often you're stuck protecting the rights of bastards. But being a bastard does not equate being a terrorist--even if you're a racist bastard with guns. I have a feeling that the political dynamics of the personal liberties debate may change once the targeted people under suspicion aren't named Khalid and Abdul, but rather Kenny and Cletus.

Let's hope we don't find out.

Hat tip: NJ Ray