Thursday, August 31, 2006

Olbermann on Don Rumsfeld

Wow, you don't see speeches like this too often.

Watch the video at the above link or read the transcript below:

The man who sees absolutes, where all other men see nuances and shades of meaning, is either a prophet, or a quack.

Donald S. Rumsfeld is not a prophet.

Mr. Rumsfeld’s remarkable comments to the Veterans of Foreign Wars yesterday demand the deep analysis - and the sober contemplation - of every American.

For they do not merely serve to impugn the morality or intelligence - indeed, the loyalty — of the majority of Americans who oppose the transient occupants of the highest offices in the land; Worse, still, they credit those same transient occupants - our employees — with a total omniscience; a total omniscience which neither common sense, nor this administration’s track record at home or abroad suggests they deserve.

Dissent and disagreement with government is the life’s blood of human freedom; And not merely because it is the first roadblock against the kind of tyranny the men Mr. Rumsfeld likes to think of as "his" troops still fight, this very evening, in Iraq.

It is also essential. Because just every once in awhile… it is right — and the power to which it speaks, is wrong.

In a small irony, however, Mr. Rumsfeld’s speechwriter was adroit in invoking the memory of the appeasement of the Nazis.

For, in their time, there was another government faced with true peril - with a growing evil - powerful and remorseless.

That government, like Mr. Rumsfeld’s, had a monopoly on all the facts. It, too, had the secret information. It alone had the true picture of the threat. It too dismissed and insulted its critics in terms like Mr. Rumsfeld’s - questioning their intellect and their morality.

That government was England’s, in the 1930’s.

It knew Hitler posed no true threat to Europe, let alone England. It knew Germany was not re-arming, in violation of all treaties and accords. It knew that the hard evidence it received, which contradicted policies, conclusions - and omniscience — needed to be dismissed.

The English government of Neville Chamberlain already knew the truth.

Most relevant of all - it "knew" that its staunchest critics needed to be marginalized and isolated. In fact, it portrayed the foremost of them as a blood-thirsty war-monger who was, if not truly senile - at best… morally or intellectually confused.

That critic’s name… was Winston Churchill.

Sadly, we have no Winston Churchills evident among us this evening. We have only Donald Rumsfelds, demonizing disagreement, the way Neville Chamberlain demonized Winston Churchill.

History - and 163 million pounds of Luftwaffe bombs over England - taught us that all Mr. Chamberlain had was his certainty - and his own confusion. A confusion that suggested that the office can not only make the man, but that the office can also make the facts.

Thus did Mr. Rumsfeld make an apt historical analogy.

Excepting the fact that he has the battery plugged in backwards. His government, absolute - and exclusive - in its knowledge, is not the modern version of the one which stood up to the Nazis. It is the modern version of the government… of Neville Chamberlain.

But back to today’s Omniscients.

That about which Mr. Rumsfeld is confused… is simply this: This is a Democracy. Still. Sometimes just barely. And as such, all voices count — not just his. Had he or his President perhaps proven any of their prior claims of omniscience - about Osama Bin Laden’s plans five years ago - about Saddam Hussein’s weapons four years ago - about Hurricane Katrina’s impact one* year ago - we all might be able swallow hard, and accept their omniscience as a bearable, even useful recipe, of fact, plus ego.

But, to date, this government has proved little besides its own arrogance, and its own hubris. Mr. Rumsfeld is also personally confused, morally or intellectually, about his own standing in this matter. From Iraq to Katrina, to the entire "Fog of Fear" which continues to enveloppe this nation - he, Mr. Bush, Mr. Cheney, and their cronies, have - inadvertently or intentionally - profited and benefited, both personally, and politically.

And yet he can stand up, in public, and question the morality and the intellect of those of us who dare ask just for the receipt for the Emporer’s New Clothes.

In what country was Mr. Rumsfeld raised? As a child, of whose heroism did he read? On what side of the battle for freedom did he dream one day to fight? With what country has he confused… the United States of America?


The confusion we — as its citizens - must now address, is stark and forbidding. But variations of it have faced our forefathers, when men like Nixon and McCarthy and Curtis LeMay have darkened our skies and obscured our flag. Note - with hope in your heart - that those earlier Americans always found their way to the light… and we can, too.

The confusion is about whether this Secretary of Defense, and this Administration, are in fact now accomplishing what they claim the terrorists seek: The destruction of our freedoms, the very ones for which the same veterans Mr. Rumsfeld addressed yesterday in Salt Lake City, so valiantly fought.


And about Mr. Rumsfeld’s other main assertion, that this country faces a "new type of fascism."

As he was correct to remind us how a government that knew everything could get everything wrong, so too was he right when he said that — though probably not in the way he thought he meant it.

This country faces a new type of fascism - indeed.


Although I presumptuously use his sign-off each night, in feeble tribute… I have utterly no claim to the words of the exemplary journalist Edward R. Murrow. But never in the trial of a thousand years of writing could I come close to matching how he phrased a warning to an earlier generation of us, at a time when other politicians thought they (and they alone) knew everything, and branded those who disagreed, "confused" or "immoral."

Thus forgive me for reading Murrow in full: "We must not confuse dissent with disloyalty," he said, in 1954. "We must remember always that accusation is not proof, and that conviction depends upon evidence and due process of law.

"We will not walk in fear - one, of another. We will not be driven by fear into an age of un-reason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men;

"Not from men who feared to write, to speak, to associate, and to defend causes that were - for the moment - unpopular."

Monday, August 28, 2006

More On Balkin And Originalism

Jack Balkin adds to his argument against expectation originalism, which he earlier defined as being bound to the original expected applications as well as the original public meaning of the Constitution.

Balkin makes an interesting distinction between the search for the proper meaning of the Constitution and how specific actors should interpret the Constitution. In other words, he separates the question of how the Constitution should be interpreted from the question of how judges should interpret it.

His analysis is a response to a standard originalist argument that the Constitution must be interpreted according to the original meaning because otherwise the judges are given too much leeway to decide cases. In essence originalism serves a pragmatic function, constraining judges and protecting democracy.

I believe the pragmatic argument is reasonable, but must take into account that other methods of constraining judges might be more effective. If those methods work better and the sole function of originalism is to limit judges' discretion, then the underpinnings of originalism come crashing down.

Of course I believe there are normative reasons for adhering to the original public meaning of the text, so in my eyes Balkin's argument is not as forceful. But his separation between the normative and pragmatic basis for any form of constitutional interpretation is important to note.

Thursday, August 24, 2006

A Sensible Middle Ground?

Peter S. Wenz, in an article titled "Dworkin's Wishful-Thinkers Constitution," argues for a middle ground jurisprudence that eschews the extremes of Dworkin and Scalia.

Dworkin, as he correctly notes, favors a liberal interpretation of the Constitution, where he interprets the clauses broadly (as principles) and the judge is obligated to ascertain the moral reading of the clause. Since morality shifts from generation to generation, the judge will interpret the clauses based on his best interpretation of the current moral climate. Wenz doesn't support the judge finding unremunerated rights based on morality, and argues that such a jurisprudence leaves too much open to the judge's discretion and circumvents democracy.

Scalia, on the other hand, views the clauses as rules and favors a more narrow interpretation. However, his narrow interpretation leaves the Constitution static and not relevant to the modern world.

He therefore proposes another form of interpretation based on jurisprudence of Justice Hugo Black. Black was the quintessential textualist. He refused to "find" rights based on "ordered liberty" or within the Due Process Clause. Black was a textualist, and if it isn't in the text, then it doesn't matter.

Wenz, however, does not consider Black an originalist, so his jurisprudence would not relegate the Constitution to the 18th Century. It eschews both extremes and draws a sensible line.

I do not agree with his conclusion for a few reasons:

1) He misunderstands both originalism and Scalia's version of it. Scalia does not interpret the Constitution as a set of rules. Everyone admits that some clauses are abstract and cannot be defined narrowly. What people like Wenz fail to comprehend is that abstractness is not synonymous with progressiveness. Scalia's response to Larry Tribe in a Matter of Interpretation argued that just because a clause is abstract, it does not follow that the clause must change over time. It simple means that the clause must be interpreted broadly based on the 18th century understanding of the term.

2) While Black was not an originalist, he would not have agreed with Wenz's caricature of his position. Wenz chides Dworkin for not recognizing that everything Dworkin argues for can be textually based. Prohibitions against abortion could be unconstitutional simply because their sole basis is religious (!) and the Constitution requires a separation of church and state. Moreover laws proscribing contraceptives are similarly rooted in religious tenets and would also run afoul of the 1st Amendment.

But Black himself dissented in Griswold! He did not support the religion argument, simply because (if I may guess) textualism requires interpreting the text according to its plain meaning and an interpretation that reads the 1st Amendment to outlaw bans on contraceptives would twist the wording beyond all recognition. That's not textualism; it's Dworkinism in a new set of clothing.

While I respect Black's interpretive methodology, my position is more similar to Scalia's. But Wenz's version of textualism has nothing to do with Hugo Black and is just another effort to make the Constitution say whatever we want it to mean.

Wednesday, August 23, 2006

Intellectual Gymnastics


David J. Kirschner[i]

Last week, Anna Diggs Taylor, a United States District Judge for the Eastern District of Michigan, issued a forty-three page opinion in the case of the American Civil Liberties Union (ACLU), the Council on American Islamic Relations (CAIR), the National Association of Criminal Defense Lawyers, Christopher Hitchens and others against the National Security Agency (NSA) and the Central Security Service (CSS), permanently enjoining the NSA from “directly or indirectly utilizing the Terrorist Surveillance Program (hereinafter “TSP”) in any way, including but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter “FISA”) and Title III.”[ii] The government immediately sought, and obtained, a “stay” pending an appeal of her decision to the Sixth Circuit Appellate Court which effectively permits the NSA to continue the TSP, at least for the time being.

At the outset, it should be noted that as I and many others have pointed out, the legality of TSP is far from clear. In fact, it may very well be that the program is indeed illegal. That, of course, will inevitably be decided the Supreme Court. However, what struck me as particularly bizarre about Taylor’s opinion is that she summarily concluded the TSP violates the Constitution and, in so doing, disregarded applicable precedent. Regardless of what the Supreme Court may eventually decide about the program’s legality relative to FISA and Title III, it is not likely to determine it unconstitutional. And it most assuredly will not permit her contorted reasoning.

Article III of the Constitution only permits courts to hear actual cases or controversies, not hypothetical or imaginary ones. So before a court entertains a claim seeking judicial relief, a party must demonstrate that direct and discernible harm has been sustained. Such harm, or injury, must constitute an invasion of a legally protected interest which is concrete, particularized and imminent, not conjectural, hypothetical or speculative. Otherwise, judges would be regularly called on to issue advisory opinions on what the law may be in a case that may never occur.

In support of her decision, Judge Taylor strangely relied on Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,[iii] a case which has nothing to do with electronic surveillance. In Friends of the Earth, the court granted standing to environmental groups who sued a polluter under the Clean Water Act because environmental damage allegedly cause by the defendant had deterred members of the plaintiff organization from using and enjoying certain lands and rivers. The court held that plaintiffs established a sufficient concrete injury based on their conditional statements indicating they would use the nearby river for recreation if the defendant was not discharging pollutants into it. Aside from having nothing to do with electronic surveillance, reliance on Friends of the Earth is entirely inappropriate and inapplicable. There, the plaintiffs themselves were directly affected by being deterred from using the river. Not so here. As even Judge Taylor noted, “[t]he plaintiffs in this case are not claiming simply that the defendant’s surveillance has ‘chilled’ them from making international calls to sources and clients. Rather, they claim that defendant’s surveillance has chilled their sources, clients and potential witnesses from communicating with them.”[iv]

Interestingly, none of the Plaintiffs claimed to have been subjected to the TSP or have any of their telephone conversations intercepted. All the Plaintiffs were able to demonstrate is that the “TSP has caused clients, witnesses and sources to discontinue their communication with plaintiffs out of fear that their communications will be intercepted.”[v] Predictably, and accurately, the Defendants argued that the program merely “has a chilling effect based on purely speculative fears that the TSP subjects Plaintiffs to surveillance.”[vi] Their argument was based on the sound authority of Laird v. Tatum,[vii] in which the Supreme Court stated, “Jurisdiction of a federal court may [not] be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity.”[viii] In Laird, the plaintiffs alleged merely that they could conceivably have become subject to the army’s domestic surveillance program, not that they actually suffered as a consequence of it. Logically then, it would appear that since the TSP is indeed an investigative and data-gathering program to thwart terrorism and terrorist activities, Laird’s precedent is directly on point.

Taylor, however, elected not to follow Laird. Instead, Taylor disregarded the Plaintiffs’ admission that none of their telephone conversations or email communications had been intercepted and instead decided that the program indeed damaged them. The basis for her decision was not that they “could conceivably” have become subject to surveillance, but rather that they in fact suffered a “concrete, actual inability to communicate with witnesses, sources, clients, and others without great expense which has significantly crippled Plaintiffs, at a minimum, in their ability to report the news and competently and effectively represent their clients.”[ix] Simply put, Taylor accepted plaintiffs’ assertion that “the TSP has interfered with their ability to . . . talk with sources, locate witnesses, conduct scholarship, engage in advocacy, and communicate with persons who are outside of the United States, including in the Middle East and Asia.”[x] Are we to believe that Constitution guarantees journalists, reporters and attorneys the right to “communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations?”[xi] Isn’t this precisely the type of communication that should be overheard? Apparently, Taylor doesn’t think so. Why? Because plaintiffs “must discuss confidential information over the phone and email with their international clients”[xii] or else incur “great expense” which will “significantly cripple” them. And this is a problem because?

Following this logic, person A, who is neither a citizen nor a resident and is afraid to talk on the telephone to person B, a citizen and a resident, because person A’s status as a terrorist or terrorist associate subjects their conversation to being overheard violates person B’s right to free speech? And her rationale that “[t]he President indeed has publicly acknowledged that the types of calls plaintiffs are making are the types of conversations that would be subject to the TSP,”[xiii] combined with the “continuation” of the TSP, they could become subject to interception damages the plaintiff’s? As a well respected and highly esteemed justice before whom I was honored to appear asked a lawyer who moved for a mistrial because a reporter was inside the courtroom, “Are you serious?” Sadly, it appears she is. It’s a good thing this isn’t the law, otherwise I would have a problem listening to conversations between organized crime “wiseguys” operating their criminal enterprise. Unless I missed something in law school, I am unaware of any constitutional or otherwise fundamental right that guarantees persons located in other countries First Amendment or any other constitutional rights. I am also unaware of any precedent establishing “vicarious protection” to one person because of another person’s protected rights.

In support of her “reasoning,” Taylor relies on Zweibon v. Mitchell.[xiv] Zweibon held that it was illegal to wiretap an organization’s office telephone since it would inevitable provide the membership roster of that organization, “thereby causing members to leave that organization, and thereby chilling the organization’s First Amendment rights.”[xv] But in Zweibon, all the parties resided in the United States, the organization itself had its First Amendment rights directly violated, and there was no issue involving national security. Is there an analogy here? It is more than well-established that governmental action to regulate, restrict or impinge speech may be justified only upon a showing the existence of a compelling governmental interest. Well, I can think of at least one. But I cannot fathom any government interest protecting the speech of suspected terrorist or terrorist sympathizers who are neither citizens nor residents of the United States.

The opinion, provides at best a cursory review of the history of the case law involving electronic surveillance, Title III and FISA, but conspicuously omits any discussion or reference to the Patriot Act. And although Taylor “analyzes” the TSP, she does so exclusively in terms of domestic criminal matters which are governed by the Fourth Amendment Search and Seizure provision and its dearth of precedent. Nowhere does she even attempt to draw the inevitable distinction between conducting electronic surveillance to obtain evidence for use in criminal prosecution and gathering intelligence in the interest of national security and thwarting acts of terrorism. As I have discussed in previous writings, the crux of the TSP issue rests squarely on this distinction. Perhaps both her and her law clerk missed it. However, her sweeping assertion that, “the President of the United States, a creature of the same Constitution which gave us these amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well,”[xvi] constrains me to think she just chose to ignore it.

Undoubtedly, anticipating a challenge to her “analysis” granting plaintiffs standing, Taylor wrote, “Although this court is persuaded that plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions (emphasis added) drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. . . . Because of the very secrecy of the activity involved here challenged, Plaintiff’s each must be and are given standing to challenge it. In other words, I’m conferring standing because I want to, precedent be damned. That’s sure to help unmuck the already mucky the waters of stare decisis.

In concluding her decision, Taylor transparently clarifies the entirety of her cryptic opinion by stating, “The irreparable injury necessary to warrant injunctive relief is clear as the First and Fourth Amendments rights of plaintiffs are violated by the TSP. The irreparable injury conversely sustained by the defendants under this injunction may be rectified by compliance with the Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our constitution.”[xvii] She then quotes former Chief Justice Earl Warren who said, “[I]mplicit in the term ‘national defense’ is the notion of defending those values and ideas which set this nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile.”

Isn’t that like saying implicit in the term “public interest” is the notion of defending those values and ideas which set this nation apart: the safety and security to live in freedom. It would be ironic if, in the name of “public interest,” we would sanction the extension of “those values” to persons outside the country who are committed to our death and destruction.

[i] David J. Kirschner is an Assistant District Attorney in Bronx County, New York, where he supervises covert investigations involving the use of electronic surveillance. As a senior member of the Investigations Division’s Rackets Bureau, Mr. Kirschner has successfully litigated cases relying upon evidence obtained through electronic eavesdropping and regularly prosecutes white collar crimes including racketeering, enterprise corruption, extortion, usury, gambling, fraud and public corruption. In addition, he frequently supervises the office’s arrest, intake and arraignment process. Mr. Kirschner also teaches trial advocacy at Hofstra Law School’s National Institute for Trial Advocacy, Cardozo Law School’s Intensive Trial Advocacy Program, and is an Adjunct Assistant Professor of Business Law with the City University of New York at Queens College and the Lander College for Men, an affiliate of Touro College. The views expressed herein are exclusively those of the author and do not represent or reflect the views of the Bronx County District Attorney.

[ii] Judgment and Permanent Injunction Order, p. 1-2.

[iii] 528 U.S. 167 (2000).

[iv] Memorandum Opinion, p. 20.

[v] Memorandum Opinion, p. 17-18.

[vi] Memorandum Opinion, p. 18.

[vii] 408 U.S. 1 (1972).

[viii] Id. at 3

[ix] Memorandum Opinion, p. 20.

[x] Memorandum Opinion, p. 17.

[xi] Memorandum Opinion, p. 17.

[xii] Memorandum Opinion, p. 17.

[xiii] Memorandum Opinion, p. 19.

[xiv] 516 F.2d 594 (D.C. Cir. 1975).

[xv] Id., See also, Bates v. City of Little Rock, 361 U.S. 516 (1960).

[xvi] Memorandum Opinion, p. 33.

[xvii] Memorandum Opinion, p. 43.

The Never Ending Originalism Debate

If like me you're a law blog geek, you've noticed that another debate over the primacy of originalism has been brewing for the last week. If you have better things to do with your life than read complex arguments about the "semantic meaning" of the words of a document written over 200 years ago, then you might have missed it, but if that's the case, what are you doing reading this blog anyway?

It started on Volokh when Orin Kerr offered (what little evidence there is for) the original meaning of the 4th Amendment. Randy Barnett, originalist par excellance, responded with the Akhil Amar's (whose excellent book on the Constitution I'm almost done reading) article on the original meaning and then it just blew up (see here and here).

Larry Solum offered the best defense of originalism in his response to Brain Leiter's contention that an interpretive method that places primacy on the plain meaning has no normative foundations (or more accurately that those foundation have not been explicated by originalists). Leiter states,

Why, in other words, is an originalist way of fixing meaning authoritative? Why not the plain meaning? Why not the morally best sense we can make of the plain meaning or the original intent at a suitable level of abstraction? Why not the accumulated meanings that have accreted to the text over the course of its institutional history as it is interpreted, debated, amended, and applied?

In others words, we assume that the Constitution binds us and therefore some meaning of the words must bind us as well. But why the original meaning of the document?

Now, if you ask me, the answer seems obvious. The Constitution must have had some meaning when it was signed and ratified. Since original intent is generally not considered a successful way of interpretation (and was impossible with the Founders since we did not have access to their notes for decades), the people in the late 18th Century could not have used original intent as a method. So there must have been some method that interpreted the Constitution and that is as Solum puts it "sentence meaning" or "clause meaning" which is how a reasonable person would have understood the clause at the time. That's called plain meaning.

To argue that the meaning changes with time is to ignore our obligation to constitutionalism. If we are bound by a Constitution's meaning and that meaning changes, what are we bound to? The interpretation of judges (or other officials) in various centuries? What's the point of the Constitution in that case?

Jack Balkin argued that we need to distinguish between original public meaning and original expected application. The difference is what people understood the clause to mean and how they expected it to be applied.

Let's go through the three possibilities of "original" interpretation: original intent (largely discredited), original public meaning, and original expected application. The former relies on the subjective intentions of the promulgators of the clause, the middle looks to the objective interpretation a reasonable listener would attach to the clause, and the latter points to how that reasonable listener would expect the clause to be applied.

As an example, let's take an ordinance passed a municipality: No one shall be allowed to walk their dog between 10 P.M. and 2 A.M. Let's assume the ordinance is passed after a rise in dog bites between those hours. Using original intent we would look to see what the members of the municipality intended when they passed the ordinance, which would probably be to eliminate dog bites. Perhaps though they only intended to limit the ordinance to big dogs, which statistics have shown are more prone to biting. Using this interpretative methodology one could argue that a chihuahua is not covered by the ordinance.

Under the plain meaning, it would mean "dogs" and no exceptions. Intent is irrelevant. (As an aside originalists look to the statements by the founders not because we care what they thought, but because their speeches are evidence of what the words were understood to mean in their era). Under the expected application method, we'd assume the ordinance would be interpreted to cover the all dogs.

In this limited example original public meaning and original expected application converge. So let's use a better example: the 8th Amendment prohibits "cruel and unusual punishments." Balkin argues that the original expected application methodology would require interpreting this clause in the same way as the people in 1791 and applying it the same way. That means they had a conception of cruelty and they would apply it to a negate a statute if it was cruel. This is a position he (correctly) ascribes to Scalia.

Someone who abides by the original public meaning would recognize that a concept of "cruelty" existed in 1791, but it must be reevaluated in each generation to see how it should be applied. In other words, there's a broad concept called "cruelty." The Founder's generation might not have considered flogging cruel, but given what we know today we believe that it is. So the meaning of the term "cruelty" doesn't change but we now know the founders were wrong about what was and wasn't cruel (meaning they misinterpreted what was cruel, not what cruelty was.

This is a fascinating argument. For some reason the Founders did not have as a good an understanding of certain terms ("cruel", "equal", "due", etc.) as we do today. As society's understanding of the term improves, we interpret the Constitution to reflect that improvement. Note that Balkin is not arguing that was constitutes "cruelty" has changed, just that the meaning that is locked into the Constitution is applied differently based on how society moves in the right direction. I'm not sure I agree with this argument, but it is compelling.

Tuesday, August 22, 2006

Are Terrorists Rational?

In this paper, Bryan Caplan argues that majority of terrorists are mostly rational. He disaggregates terrorists into three discrete categories: sympathizers, active terrorists, and suicidal terrorists.

He further distinguishes three different types of rationality, but mostly concludes that under all three forms, sympathizers are completely rational, active terrorists are mostly rational, and suicidal terrorists are mostly irrational.

We can understand why sympathizers are rational. Generally terrorism is the means used by the weaker power in a conflict. The costs of actively participating in a war against a stronger enemy are high and since the chance of success is likely low, majority of people have an incentive to free-ride. Terrorists try to minimize freeriding by rewarding friends and punishing enemies, thereby increasing the benefits for actively helping and the costs for opposing them.

Active terrorists are fairly rational as well. The costs of being in a conflict at high, but often the opportunity costs are low because not fighting isn't really beneficial (for example the GDP in the territories is so low that forgoing the amount of wages they could earn is not costly). Often the psychological benefits are high as well, because the extremist doctrine that spawns terrorist groups usually gives the holder of that belief a sense of security (and even if those beliefs themselves are irrational, there is a sense of rational irrationality, which Caplan posits, where the costs of believing an irrational belief is low since believing, for example, that Allah will destroy the infidels is costless).

Suicidal terrorists are generally irrational. But they are a small number. If 1% of the Muslims worldwide believed the Islamist idea that killing infidels would lead to eternal bliss, we'd have over a million suicide bombers. But we don't. The reason is not necessarily because they truly don't believe it. They might. But if we assume that a such a belief is irrational, the costs of that belief are low until the time when the terrorist leader asks for volunteers. Then the costs shoot up. Rational irrationality would predict most active terrorists would not turn suicidal and the ones who do are irrational. And that's generally what happens.

The problem is that a single suicide bomber can cause a lot of damage. Is there any way to deter him? Probably not. But in my mind since the active terrorists, who are the ones who are in charge and the ones who are rational, can be deterred a method of attacking the leaders of terrorist groups would seem the most apt. We probably cannot deter the suicidal maniacs who blow up buses but we sure can increase the costs for the people who send them.

The NSA's Terrorist Surveillance Program: Is It Worth The Risk? [Part II]

The following is the second in a series of posts discussing the NSA wiretap program. The notes will appear as footnotes at the end of each portion rather than at the end. There will likely be 3 parts in total, plus a summary. David Kirschner is a good friend whose bio is in the second footnote of Part I. Two members of this blog had him as a professor as well - myself and CWY.

Whether the President’s authorization of the National Security Agency’s terrorism wiretap program is within his constitutional powers necessitates an analysis of the language contained in the Constitution, which is always the primary source of law. Article II of the U. S. Constitution provides that, “The executive Power shall be vested in a President of the United states of America. . . . shall be Commander in Chief of the army and navy of the Unites States . . . [and] shall take Care that the Laws be faithfully executed.”[3] In 1936, the U. S. Supreme Court, relying on this language, stated that it established the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.”[4] It appears then, that according to both the language in the Constitution and the Supreme Court’s interpretation, matters of national security are well within the presidential powers.

Indeed, presidential authority to conduct warrantless eavesdropping against spies and foreign enemy powers, particularly in matters of national security, is far from contemporary. President Franklin Roosevelt first authorized the use of wiretaps on national security grounds during World War II.[5] In 1967, the Supreme Court in Katz v. United States,[6] held that the Fourth Amendment required issuance of a court order authorizing the overhearing of the content of telephone conversations since the participants had an “expectation of privacy.”[7] However, the Court refused to extend the same protection to wiretap applications “involving the national security.”

On the heels of the Katz opinion, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968.[8] This Act expressly excluded Title III orders, as they became known, from national security matters. That Act provided, as follows:

Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities (emphasis added). Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.

Until 1972, the Supreme Court had not directly addressed the lawfulness of national security wiretaps. In the “Keith”[9] case, the defendant, Plamondon, was charged with the bombing of a Central Intelligence Agency office in Michigan.[10] During pretrial proceedings, the defendant moved to compel the United States to disclose electronic surveillance information that had been obtained without a warrant.[11] The Government, opposing disclosure of the surveillance materials, claimed that the surveillance was a reasonable exercise of the President’s power (exercised through the Attorney General) “to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government (emphasis added).”[12] The Supreme Court rejected the Government’s claim unanimously holding that Title III, by its terms, did not apply to the protection of “national security information” and that the statute did not limit “the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means . . . (emphasis added).”[13]

[3] U.S. CONST., art. II, §§ 1, 2 & 3.

[4] United States V. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

[5] Comment: Extremism in the Defense of Liberty?: The Foreign Intelligence Surveillance Act and the Significance of the USA PATRIOT ACT, 77 TUL. L. REV. 465, 468 (2002).

[6] Katz v. United States, 389 U.S. 347, 358 n.23 (1967).

[7] Id.

[8] 18 U.S.C. §§§ 2510-2520.

[9] United States v. United States Dist. Ct., 407 U.S. 297 (1972) [hereinafter referred to as “Keith”].

[10] Id. at 299.

[11] Id. at 299-300. See also Id. at 300 n.2.

[12] See id. at 301.

[13] Id.

Friday, August 18, 2006

The ACLU Defends Religious Liberties

In response to a recent post on my main blog, I received a lot of skepticism that the ACLU would defend people's religious rights, particularly if the religion in question is the majority one, Christianity.

People have this impression because those on the right demonize the ACLU with no regard to the facts. The best example of this is the infamous story where some students were suspended for handing out candy canes with religious messages in a public school after being told not to. The right-wing Christian media were of course up in arms about this, and many couldn't resist swiping at the ACLU.

In an article still up at WorldNetDaily about the candy cane incident, Jerry Falwell (see bolded sentence below for delicious irony) implies that the ACLU would have sided against the students:

The fact is, students have the right to free speech in the form of verbal or written expression during non-instructional class time. And yes, students have just as much right to speak on religious topics as they do on secular topics – no matter what the ACLU might propagate.

The truth?

The American Civil Liberties Union of Massachusetts today asked a federal district court in Springfield to protect the First Amendment rights of high school students who were disciplined by school officials for distributing candy canes with religious messages just before Christmas.

Here are some recent examples of the ACLU's defending religious freedom from their site:

September 20, 2005: ACLU of New Jersey joins lawsuit supporting second-grader's right to sing "Awesome God" at a talent show.

August 4, 2005: ACLU helps free a New Mexico street preacher from prison.

May 25, 2005: ACLU sues Wisconsin prison on behalf of a Muslim woman who was forced to remove her headscarf in front of male guards and prisoners.

February 2005: ACLU of Pennsylvania successfully defends the right of an African American Evangelical church to occupy a church building purchased in a predominantly white parish.

December 22, 2004: ACLU of New Jersey successfully defends right of religious expression by jurors.

November 20, 2004: ACLU of Nevada supports free speech rights of evangelists to preach on the sidewalks of the strip in Las Vegas.

November 9, 2004: ACLU of Nevada defends a Mormon student who was suspended after wearing a T-shirt with a religious message to school.

August 11, 2004: ACLU of Nebraska defends church facing eviction by the city of Lincoln.

July 10, 2004: Indiana Civil Liberties Union defends the rights of a Baptist minister to preach his message on public streets.

June 9, 2004: ACLU of Nebraska files a lawsuit on behalf of a Muslim woman barred from a public pool because she refused to wear a swimsuit.

June 3, 2004: Under pressure from the ACLU of Virginia, officials agree not to prohibit baptisms on public property in Falmouth Waterside Park in Stafford County.

May 11, 2004: After ACLU of Michigan intervened on behalf of a Christian Valedictorian, a public high school agrees to stop censoring religious yearbook entries.

March 25, 2004: ACLU of Washington defends an Evangelical minister's right to preach on sidewalks.

February 21, 2003: ACLU of Massachusetts defends students punished for distributing candy canes with religious messages.

October 28, 2002: ACLU of Pennsylvania files discrimination lawsuit over denial of zoning permit for African American Baptist church.

July 11, 2002: ACLU supports right of Iowa students to distribute Christian literature at school.

April 17, 2002: In a victory for the Rev. Jerry Falwell and the ACLU of Virginia, a federal judge strikes down a provision of the Virginia Constitution that bans religious organizations from incorporating.

January 18, 2002: ACLU defends Christian church's right to run "anti-Santa" ads in Boston subways.

Yes, not only did the ACLU support Christian students' right to religious expression in public schools, they supported JERRY FALWELL.

Ed, over at Dispatches from the Culture Wars, a blog I recommend, points out that the ACLU has actually defended Falwell twice, as well as giving some other examples of the ACLU defending religion.

I almost always agree with the ACLU, whether they are defending religious people whose rights are unfairly restricted or when they're defending the separation of church and state. I urge you all to do some research on their actual cases before passing judgement on them.

Thursday, August 17, 2006

The NSA's Terrorist Surveillance Program: Is It Worth The Risk? [Part I]

The following is the first in a series of posts discussing the NSA wiretap program. The notes will appear as footnotes at the end of each portion rather than at the end. There will be four or five posts in total, spread out over the next week or so. David Kirschner is a good friend whose bio is in the second footnote. Two members of this blog had him as a professor as well - myself and CWY.


David J. Kirschner[2]

For years, the United States Government has engaged in covert surveillance and intelligence gathering. Among the most effective methods of conducting such surveillance is through electronic eavesdropping, which is the wiretapping of a telephone or “bugging” of a geographical location. Historically, the government has used electronic surveillance to spy on the former Soviet Union, China and a host of other countries presenting a threat or a perceived threat to our national security. However, the government has also used it against domestic political opponents who posed no national security threat. Administrations from Franklin D. Roosevelt to Richard Nixon permitted, and sometimes encouraged, government agencies to engage in gathering political intelligence. Electronic surveillance methods have also been used on members Congress, numerous non-mainstream and some mainstream political figures, and even Supreme Court Justices. In fact, in the 1960’s, the FBI created a counterintelligence program known as “COINTELPRO,” which was intended to disrupt groups and neutralize individuals deemed to be threats to national security. Targets included the Klu Klux Klan, the Black Panthers and Martin Luther King, Jr.

Obviously, such use, or rather misuse, is categorically unacceptable and unjustifiable. Traditionally, there exists a clear distinction between domestic criminal investigations and matters of involving issues of national security. The former guarantee’s protection to citizens, lawful permanent residents, and even in many cases even illegal aliens, from having evidence obtained in violation of the Fourth, Fifth and Sixth Amendments used against them in domestic criminal prosecutions. Conversely, foreign intelligence gathering has had little, if anything, to do with criminal domestic matters.

With the advent of terrorism and terrorist-related activities, however, exclusive reliance on such a distinction became problematic. Domestic terrorist activities could easily appear to be little more than another criminal case while simultaneously emblematic of an ongoing terrorist campaign against the United States on its soil. The obvious question, then, is whether proscribed conduct is a matter of national security or within the purview of the criminal justice system. If a person, citizen, permanent resident or nonresident, is charged with having violated a domestic criminal statute, they would be entitled to all constitutionally protected rights. When that person and his activities threaten our national security, however, it is an entirely different matter. Arguably then, intrusion of any constitutional safeguards, otherwise taboo in the prosecution of domestic crimes, might well be justified and may even be absolutely necessary to thwart terrorism. And so the pressing question is to what extent, if any, must we afford a foreign power or its agent’s constitutional protections who intend to bring unimaginable death and destruction to us on our soil? Before analyzing this question, however, consider how we are to handle agents of those foreign powers who are also citizens or permanent residents? Should the Justice Department’s criminal justice system have jurisdiction or the National Security Agency?

[1] This article is adapted from a lengthier work which, outlines the United States government’s historical and traditional use of electronic surveillance, analyzes the legal issues surrounding its use in matters of national security and examines some of the legal and practical issues presented by the Foreign Intelligence Surveillance Act (FISA) and its progeny, The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT) Act. I extend my sincerest appreciation to the following law school professors whose scholarly works on this topic provided me with a comprehensive review of these issues and greatly assisted me in preparing the background and foundation of this article: Orin S. Kerr, Associate Professor of Law at George Washington University Law School and former counsel with the Computer Crime and Intellectual Property Section of the U.S. Department of Justice’s Criminal Division. Internet Surveillance Law after the USA Patriot Act: The Big Brother That Isn’t, 97 Nw. U. L. Rev 607 (2003); Peter Swire, Professor, Moritz College of Law of the Ohio State University and John Glenn Scholar in Public Policy Research. Professor Swire also served as Chief Counselor for Privacy in the U.S. Office of Management and Budget during President Clinton’s Administration and was asked by Chief of Staff John Podesta to chair a fifteen-agency White House Working Group on how to update wiretap and other electronic surveillance law for the Internet age. The System of Foreign Intelligence Surveillance Law, 72 Geo. Wash. L. Rev. (2004). Lastly, I wish to express appreciation to my former student, Desiree Cameron, for her research assistance. The views expressed herein are exclusively those of the author and do not represent or reflect the views of the Bronx County District Attorney.

[2] David J. Kirschner is an Assistant District Attorney in Bronx County, New York, where he supervises covert investigations involving the use of electronic surveillance. As a senior member of the Investigations Division’s Rackets Bureau, Mr. Kirschner has successfully litigated cases relying upon evidence obtained through electronic eavesdropping and regularly prosecutes white collar crimes including racketeering, enterprise corruption, extortion, usury, gambling, fraud and public corruption. In addition, he frequently oversees the office’s arrest, intake and arraignment process. Mr. Kirschner also teaches trial advocacy at Hofstra Law School’s National Institute for Trial Advocacy, Cardozo Law School’s Intensive Trial Advocacy Program, and is an Adjunct Assistant Professor of Business Law with the City University of New York at Queens College and Touro College.

Party, Party, Party II

As somewhat of a follow-up to the previous post, here's a piece from today's Best of the Web (recommended reading for all our readers on a regular basis):

Dem vs. Dem
The sectarian strife within the Democratic Party is moving closer to civil war, the Hill reports:

A group of Senate Democrats is growing increasingly angry about Sen. Joe Lieberman's (D-Conn.) campaign tactics since he lost the Democratic primary last week. If he continues to alienate his colleagues, Lieberman could be stripped of his seniority within the Democratic caucus should he defeat Democrat Ned Lamont in the general election this November, according to some senior Democratic aides. . . . "I think there's a lot of concern," said a senior Democratic aide who has discussed the subject with colleagues. "I think the first step is if the Lieberman thing turns into a side show and hurts our message and ability to take back the Senate, and the White House and the [National Republican Senatorial Committee] manipulate him, there are going to be a lot of unhappy people in our caucus."

This sounds to us like a bluff. If Lieberman wins re-election as an independent, his party will have every reason to make nice with him--not only to ensure that the seat stays Democratic, but also to ensure that the party isn't captured by the Angry Left, the limited political appeal of which would have been demonstrated by a Ned Lamont defeat.


Also curiously, we have received two messages from the John Kerry* campaign in as many days raising funds for three Senate candidates. Here's a passage from today's:

If the Bush administration could plan and execute the war on terror as well as it executes its shameless pre-election fear-mongering, we'd all be a lot safer.

That's what strong, principled Senate candidates like Ned Lamont, Bob Menendez, and Dan Akaka are making clear to voters in three of America's closest, high-stakes Senate contests.

What these three have in common is that all support Kerry's cut-and-run approach to Iraq. What Lamont and Akaka have in common is that they are running against Democrats; only Menendez has a serious Republican opponent. Kerry's efforts are less about furthering the Democratic Party than about furthering the Angry Left within the party.

* Who as of Sept. 10 will have served in the Senate for 66 times as long as he served in Vietnam.

That last little paragraph is the juice of this piece: The far-left fringe in this country is not only not focusing on substance all that much, but rather on defeating the "enemy" - in this case, anyone who is not as far to the left as themselves. It will be interesting to see how mainstream Democrats react. Will they be able to take that power and push it against the Republicans, or will they be too busy or forced to fight within their own party? I think it's the latter, hence the previous post.

On a related note, look around the blogosphere to see the reaction to today's [likely to be overturned] court ruling against the NSA wiretaps. The far-left is literally jumping for joy and celebrating that the NSA cannot - according to this liberal Carter appointee who was a Democrat before becoming a judge - tap conversations between terrorists and people within the United States. While it is of utmost importance that the law be followed [and I will put up the series from David Kirschner as soon as I can], it is pathetic to be "thrilled" and "overjoyed" that terrorists are being given increased ability to carry out attacks in this country. The hatred for this President among the far-left is greater than that for those who wish to kill us. Let's repeat that: The hatred for this President among the far-left is greater than that for those who wish to kill us.

It's time to look at our priorities, and it's time mainstream Democrats and liberals took a long look at who their friends are.

Tuesday, August 15, 2006

Party Party Party

As the polarization of American politics grows deeper, I've often wondered whether the American political system would finally make a change. Single-issue voters, particularly on the hard left, have seemingly taken over the political landscape and have caused an upheaval of sorts; Ned Lamont defeating Joe Lieberman in the Democratic primary in Connecticut merely the latest, and strongest, example of this.

Though the fringe left has yet to realize it, they simply can't win on a national scale - in fact, it's doubtful that they could win even on a local scale, as Lieberman is expected to defeat Lamont come November. While Lamont won a primary, he did so by less than 4% in a vote that tends to bring out more hardcore supporters than moderates; in a full election that includes independents and conservatives, he will likely get crushed. While the KosKids and their supporters are loud, energetic, and gaining power, their actual stances scare even many Democrats - their full support covers maybe 15-20% of the country, if that. However, because they are vocal and have no qualms blasting even Democrats such as Lieberman and Hillary Clinton, they are slowly tearing apart the Democratic Party. Moderates - and even not-so-moderates - are forced to cater to the KosKids line or risk being blasted from their base; but, having done so, lose all ability to attract moderate voters from either side of the aisle.

So what will happen over the next few years to the Democratic Party? Either it will nominate candidates who cater to the far-left, and then get crushed repeatedly when elections come around; or, they will try and nominate moderates, and hope that they survive their own primaries with enough remaining energy, clout, and money to beat a Republican nominee - and without a base to support them. Whichever direction it chooses is party suicide. As a liberal blogger wrote a few months ago,
"This is something Democrats just can't figure out. It is without a doubt better for the party and the country to have Bob Casey in the Senate than Rick Santorum. It's better to have John Dingell in the House than the Republican alternative (Dingell, a pro-business moderate from Michigan, was challenged in the 2004 Democratic primary by an EMILY's List-supported Liberal).

Our party leaders MUST learn to defy the single-issue groups that define us and realize that the success of the party, and therefore the success of the nation as a whole, depends on supporting candidates who agree with the party base 80% of the time but not 100%."
Unfortunately, it seems too late for this. The single-issue factions have taken the Democratic Party by the throat and they're not letting up.

So what happens from here on? It seems that an incredible change may be on the horizon for American politics. The fringe left may have just blown their chance at gaining a 51-49 advantage in the Senate; as James Taranto noted, this may hurt even more in November:
Suppose the Democrats do win all contested Senate races on Nov. 7, and Lieberman beats Lamont in Connecticut. That would, as we said, give Democrats a 51-49 advantage in the Senate. In order to be elected majority leader, Reid would need every single Democratic vote--including Lieberman's.
Assuming that the Democrats do not get the majority, partly due to a Lieberman win, we'll see a stronger push by the fringe to swing the party even further to the left. This would likely result in any Presidential candidate in 2008 to either be from the far left (Russ Feingold, for example) or someone who will have just barely won their own party's nomination and have spent almost a year trying to defend attack ads (say, Clinton or someone like Ben Nelson). They will also go in without any base support come November '08. The Republicans need to merely put up a half-decent "clean" candidate - who need not even be a moderate - to walk to an easy victory.

The in-fighting that will then occur among Democrats will be loud and unpleasant. 15-20% of the country will be on the far left; 20-30% more "moderate" Democrats. The Democratic Party may realize that winning elections as things stand is simply impossible... and we will finally see what this country could probably have used for a while: A third party.

Moderate Democrats, sick of the direction of the party, will leave it - once and for all. Together with Republicans who are on the fence, they will open up a third, 'middle-of-the-road' centrist party, dedicated to compromise on serious issues. If one assumes that the current demographics imply 20% far left, 25% moderate Democrats, 25% moderate Republicans, and 30% staunch conservatives, a moderate party could expect to draw up to 40% of a national vote - about the same as conservatives. Meanwhile, the fringe left would be a strong 20%, but unable to actually win in almost any election, save a few token Congressmen.

This three-party system could prove to be the best thing to happen in US politics in decades. A moderate party that does its best to distance itself from the fringe will not only strengthen moderate viewpoints around the country, but force the growing conservative chunk of the country to better examine its own opinions. With a strong center, decisions that are better for a large majority will reign for the first time in over 50 years. Compromises on large issues will finally be able to be achieved - with the fringe opinions being quickly excluded and larger issues narrowed down into smaller ones.

It would be wonderful to see... here's hoping it happens. This country is in need of a political makeover - a third party just might be the trick. There needs to be at least 2 viable parties to choose from in an election, and right now, there's just one. May the change begin...

Party, party, party.

Wednesday, August 09, 2006

In A Parallel Universe....

Imagine it's December 2000 all over again. The Florida Supreme Court just decided that the recount can continue. Now imagine the U.S. Supreme Court refused to grant certiorari (meaning they don't take the case), and the Florida court's decision stands. What might have happened?

Richard Posner paints (not available online) a picture of what might have happened: The recount continues and Gore wins (Posner actually argues that Gore probably would not have won statistically, but that assumes impartial counters, who don't exist). The Florida Supreme Court authorizes the governor, Jeb Bush, to certify the votes of the electors (who would vote for Gore) are to be submitted to Congress. Bush refuses, as does Florida's legislature under the Electoral Count Act which authorizes the legislature to choose the electors if normal elections procedures fail. The legislature then appoints its own slate of electors. Because the opposing slates are submitted after December 18, which is the cutoff date listed in the Constitution, it's unclear if either slates counts.

Next the ECA requires Congress to meet jointly to count the votes. The two houses do that, and they are later required to certify the votes, but because the House is Republican and the Senate is Democrat by virtue of the 50-50 tie and Gore's tiebreaker until January 20. When the two houses cannot agree the ECA requires the slate certified by the state governor to be authoritative. Bush would likely support his brother's slate, but the state court would hold him in contempt.

The two houses cannot agree which slate to accept, and are unsure what to do if both slates are not accepted. Gore would have more electoral votes, but he would not have a majority. If the Supreme Court stayed out until now, it's likely it would invoke the "political question" doctrine and stay out of this mess too. So Congress is deadlocked.

January 20 comes around and an acting president is appointed. No vice-president has been elected yet, so next in line is the Speaker of the House and the Senate President pro Tempore. Neither would accept because they cannot serve unless they resign their seats and politically that would be a bad move especially for Strom Thurmond, because it would give the Democrats control of the Senate. Next is Madeline Albright, but she can't serve because she's foreign born. Lawrence Summers is next in line as Secretary of the Treasury (guess he wouldn't have been president of Harvard). So Summers, as a weak acting President, controls the country.

The US Constitution provides that the President be able act quickly. As opposed to the legislature or the courts, the President must be on call all the time because a crisis does not take vacations. How effective would our executive branch be with an unelected President Summers and a deadlocked Congress? Imagine if 9/11 happened on January 21. How effective would our response be?

At some point the deadlock would be resolved. But the President would be weak, have no transition, and would come into power after months of partisan bickering. The executive branch would be weak for four years.

In essence Posner argues that the decision was poor but necessary. Pragmatic issues required Supreme Court intervention to stave off the possible crisis. We couldn't have a long transition period without a President because we need a President. Gore v. Bush, in that light, is defensible on pragmatic grounds.