ChezLark

Oh, man.

It’s often troubled me that the Senators who have been debating Net Neutrality might not… how should I say this… have the firmest grasp of the issue.

27 Stroke B confirms my worst fears with these excerpts from Senator Ted Stevens (R-Alaska)’s speech against the Net Neutrality amendment (I’ve added some additional material by transcribing from the speech):

There’s one company now you can sign up and you can get a movie delivered to your house daily by delivery service. Okay. And currently it comes to your house, it gets put in the mail box when you get home and you change your order but you pay for that, right.

But this service isn’t going to go through the internet and what you do is you just go to a place on the internet and you order your movie and guess what you can order ten of them delivered to you and the delivery charge is free.

Ten of them streaming across that internet and what happens to your own personal internet?

I just the other day got, an internet was sent by my staff at 10 o’clock in the morning on Friday and I just got it yesterday. Why?

Because it got tangled up with all these things going on the internet commercially.

So you want to talk about the consumer? Let’s talk about you and me. We use this internet to communicate and we aren’t using it for commercial purposes.

We aren’t earning anything by going on that internet. Now I’m not saying you have to or you want to discriminate against those people

[...]

The regulatory approach is wrong. Your approach is regulatory in the sense that it says “No one can charge anyone for massively invading this world of the internet“. No, I’m not finished. I want people to understand my position, I’m not going to take a lot of time.

[...]

You’re asking now that to tell people who do have these systems that they can not ask that someone pay for the increased capability provided for what — for business. I don’t have to have that kind of speed they’re talking about, in terms of speeds that they’re going to put in the internet. But people who are streaming through 10, 12 movies at a time or a whole book at a time for… consumers… those are not you and me, those are not consumers, they’re the providers. And those people who provide these things and use the internet for a delivery service, rather than for a concept of communication, that’s the difference.

[...]

Here we have a situation where enormous entities want to use the Internet for their purposes to save money for doing what they’re doing now. They use FedEx, they use the delivery services, they use the mail. They deliver it in other ways and they want to deliver it vast amounts of information over the internet. And again, the internet is not something you just dump something on. It’s not a truck.

It’s a series of tubes.

And if you don’t understand those tubes can be filled and if they are filled, when you put your message in, it gets in line and its going to be delayed by anyone that puts into that tube enormous amounts of material, enormous amounts of material.

My favorite part is when he says that his staff “sent him an internet”. I would like someone to send me an Internet, please.

Hopefully my words make it through the series of tubes to you on your own private internet OK despite the fact that it might get tangled up with the people massively invading the tubes as though they were a truck.

But seriously, if you listen to Stevens’ speech, incoherent as it is, he appears to be echoing the anti-Neutrality companies’ argument that it’s unfair to legislatively prevent companies from charging more money for more bandwidth. That’s the “No one can charge anyone for massively invading this world of the internet” line.

This is a red herring, of course. You already pay more today for more bandwidth. Companies like Amazon and YouTube pay huge amounts of money for the bandwidth they use, which is only fair, and is not what Net Neutrality is about. Net Neutrality isn’t even about whether ISPs can charge end users more money for more bandwidth, which of course is also only fair.

Net Neutrality is about forbidding an ISP who has a business relationship with, say, Barnes and Noble, to charge Amazon punitive rates just for the privilege of reaching the ISP’s customers. Customers who, it should be emphasized, have paid for access to the Internet just like everyone else. There’s no good reason why ISPs should be able to throttle traffic selectively, based on their own interests, and that’s what Net Neutrality aims to prohibit.

One more thing: take a look at Stevens’ line about “those are not you and me, those are not consumers, they’re the providers“. This is the other thing that motivates Net Neutrality, of course: we’re all becoming providers. I’m a “provider” (albeit a tiny one), but I have no means or desire to pay extortion money to some ISP for the privilege of reaching you, a broadband consumer.

We want everyone to be a “provider”. Web 2.0, if it means anything, is surely about breaking down the status quo of huge corporations being the only source of “content”. Net Neutrality is the foundation on which you build a many-to-many Internet. Opposing Net Neutrality is the way to cement the hegemony of corporate speech.

Update: Later posts on the Series of Tubes:

• Senator Stevens remixed
• A Series of Tubes, on TV
• Senator Stevens’ Legacy is clear
• A Series of Tubes jumps the shark

Well, you can’t say that this isn’t the logical endpoint of criticizing the press. MediaMatters reports that two Fox broadcasters have started calling for the government to create on Office of Censorship:

On the June 29 broadcast of Fox News Radio’s Brian & The Judge, co-host Brian Kilmeade, who also co-hosts Fox News’ Fox & Friends, suggested that the U.S. government should “put up the Office of Censorship,” in the wake of reports in The New York Times, the Los Angeles Times, and The Wall Street Journal detailing a Treasury Department program designed to monitor international financial transactions for terrorist activity. Similarly, during the June 29 edition of Fox & Friends, co-host E.D. Hill wondered if it would be appropriate for the U.S. government to create an “Office of Censorship.” During an interview with Rep. J.D. Hayworth (R-AZ) about The New York Times report, Hill asserted that such an office, previously established during World War II by the Franklin D. Roosevelt administration, could screen news reports to determine whether they “hurt the country” or are of “news value.”

No comment.

A minor note probably only of interest to me: I noticed the other day that my beloved Canon 20D’s “odometer” rolled over for the first time; it does this every 10,000 shots.

This might sound like a lot, but I gather that pros routinely take tens and tens of thousands of shots in a year. Depending on who you ask, my camera’s shutter is apparently expected to last somewhere between 50,000 and 100,000 shots.

In case you care.

Here’s what all those shutter actuations go towards:

An update on Net Neutrality:

• Recall that the House previously rejected an amendment to its “Communications Opportunity, Promotion, and Enhancement Act of 2006 (COPE)” that would have added Net Neutrality provisions. So, all eyes are now on the Senate
• The Senate Commerce, Science and Transportation Committee, yesterday, rejected a net neutrality amendment to pending legislation by a tie vote, 11-11.
• U.S. Senator Ron Wyden (D-Ore.), immediately following the vote, upped the ante by placing a “hold” on the bill. The “hold” is an “informal practice” that signals the Senator’s intent to filibuster the bill

The upshot seems to be that the close committee vote and the threatened filibuster will make it hard for the telecommunications legislation to proceed without a Net Neutrality amendment.

Which is a good thing.

Ah, Berkeley. You crazy city, you

With overwhelming support from Berkeley residents, the Berkeley City Council unanimously passed a resolution Tuesday night to be the first jurisdiction in the United States to let the public vote for the president’s impeachment. The measure will appear on the Nov. 7 ballot, at a cost of about $10,000.
[...]
Voters will be asked to vote yes or no on a measure that will read, “Shall the City of Berkeley call upon the United States House of Representatives to initiate proceedings for the impeachment and removal from office of President George W. Bush and Vice President Richard B. Cheney, call upon the California State Legislature to submit a Resolution in support of impeachment to the United States House of Representatives, and establish a Temporary Task Force on Impeachment?”

I wonder what it would take to get a similar measure on the ballot in Seattle. I think it’s already too late to get on the November ballot.

Could it be? Presidential Signing statements seem to be (finally!) getting a lot of attention by Congress and the media. Huzzah!

Dan Froomkin (gotta love that name) has a rundown of signing-statement news in his Wednesday blog post. Scroll down a little on the page.

Some stuff pointed to from there:

There was a Judiciary Committee hearing on Tuesday. The Christian Science Monitor reports this action:

Pressing the issue, Sen. Edward Kennedy (D) of Massachusetts asked Boardman to provide a list of laws that President Bush has decided not to enforce.

“I cannot give you that list,” [deputy assistant attorney general in the Office of Legal Counsel at the US Department of Justice, Michelle] Boardman said.

“No, then who can? Is there any way for the public to know the president has made a judgment that he is not going to enforce a law?” he asked.

A pretty important question, I would say.

Judiciary Committee Democrat Patrick Leahy prepared these statements about the hearings:

“Today, again, the Department of Justice and the Administration have treated our concerns contemptuously. We will not be joined by the Attorney General — or even the Deputy Attorney General — who we confirmed in a bipartisan way. We will not hear from a spokesperson for the White House, although they are all too willing to spin to the press or to friendly audiences. We will not even hear from the acting Assistant Attorney General for the Office of Legal Policy, who we were initially told would be attending. Instead, the Administration is, again, seeking to send forward a young deputy to parrot the Administration’s line, not answer our questions, witness our frustration and hear our criticisms.”

There’s a bill being floated in the House “Requiring the President to notify Congress if the President makes a determination to ignore a duly enacted provision of law”. Seems like a good first step.

I might be spending too much time reading other blogs, because this is something of a meta-post.

Over at Unclaimed Territory, Glenn Greenwald lays out a claim that is getting wide circulation in the progressive blogging community, namely, that it’s asinine to criticize the NY Times for publishing its exposé of the government’s monitoring of financial transactions, because all the operational details of the program had been revealed by the government in earlier statements.

Prior to the “treasonous” Times articles, The Terrorists already knew that we were eavesdropping on their international calls and monitoring their banking transactions — because that information was previously, and repeatedly, put into the public domain, often by the Bush administration and President Bush himself. What the Times revealed is the lack of oversight and checks on these intelligence-gathering activities, not the existence of the activities themselves, which were already well known.

Glenn cites a Boston Globe article that ran today with the headline “Terrorist funds-tracking no secret, some say”. That article says

[A] search of public records — government documents posted on the Internet, congressional testimony, guidelines for bank examiners, and even an executive order President Bush signed in September 2001 — describe how US authorities have openly sought new tools to track terrorist financing since 2001. That includes getting access to information about terrorist-linked wire transfers and other transactions, including those that travel through SWIFT.

“There have been public references to SWIFT before,” said Roger Cressey, a senior White House counterterrorism official until 2003. “The White House is overreaching when they say [The New York Times committed] a crime against the war on terror. It has been in the public domain before.”

The Globe article details several public mentions of the government’s effort to track terrorist financing.

Now, I have no doubt that these mentions occurred. It may even be the case, as Glenn specifically claims, that every detail of the SWIFT program in the NY Times article was previously disclosed in one way or another prior to the article’s publication.

But it seems perilous to me to insist that this means that the Times article could not possibly have had an impact on terrorists’ knowledge, because that assumes that terrorists have perfect knowledge of all public disclosures.

If the Times article revealed no new details of financial monitoring, it would presumably have fizzled. But the article was a bombshell; the White House and Congresspeople are denouncing the Times and calling for an investigation. News outlets all over the world picked up the story immediately. People are talking.

Why?

I submit to you that the article is important because the details it reveals about the financial monitoring program come as news to lots of people. Which means they may come as news to our enemies.

Now, I happen to think that freedom of the press is vital, and that the NY Times acted thoughtfully and appropriately in publishing this information. I think it will be a dark day if a prosecution is even initiated against any journalist on the basis of what they have published.

But I also think that the progressive blogosphere does itself no good by insisting that the Times article was a non-event in terms of disseminated knowledge about government actions. Where is the blogger who will stand up and declare that he was previously aware of all the details in the article? Scattered mentions of financial surveilance is not the same as a front-page feature article in the New York Times.

Let us progressives spend our time describing why, even if the Times article carried brand new revelations, it is nonetheless vital that the press be free to publish such material.

Barack Obama thinks Democrats need to reach out more to religious folks.

Sen. Barack Obama chastised fellow Democrats on Wednesday for failing to “acknowledge the power of faith in the lives of the American people,” and said the party must compete for the support of evangelicals and other churchgoing Americans.

Fair enough.

“Not every mention of God in public is a breach to the wall of separation. Context matters,” the Illinois Democrat said in remarks to a conference of Call to Renewal, a faith-based movement to overcome poverty.

((making noises of cautious agreement))

“It is doubtful that children reciting the Pledge of Allegiance feel oppressed or brainwashed as a consequence of muttering the phrase ‘under God,’” he said.

OK now hang on a minute. First of all, should our standard really be whether or not children are, in fact, “oppressed” or “brainwashed”? How about a standard of propriety instead? Why should one of the daily organized, sanctioned activities in a publicly-funded school be an invocation of the Christian God?

“Having voluntary student prayer groups using school property to meet should not be a threat, any more than its use by the High School Republicans should threaten Democrats.”

Having voluntery student prayer groups use school property doesn’t bother me in the slightest. Getting all students to stand up in the morning and chant a devotational statement that cites a God they may not believe in does bother me.

At the same time, he said, “Secularists are wrong when they ask believers to leave their religion at the door before entering the public square.”

Believers may enter the public square with whatever religious convictions they like. But the government shouldn’t be hanging out in the public square cajoling citizens into God Is Great proclamational groups in its spare time.

As a result, “I think we make a mistake when we fail to acknowledge the power of faith in the lives of the American people and join a serious debate about how to reconcile faith with our modern, pluralistic democracy.”

Here’s a reconciliation for you: let’s let everyone practice whatever religion they like, and make sure government isn’t in the business of pushing religion.

What’s the problem?

Laura tells me that complaints have been lodged. Irate complaints. About there being too much politics and not enough pictures of Ryan Marie.

Your wish is my command. Laura and I took Ryan to the wading pool in Volunteer Park over the weekend; it was approximately a bazillion degrees out, and Ryan had a great time splashing around in the water. Laura took this picture (obviously); I really like it. I went for a retro kind of treatment in the developing.

“Scott” left a thoughtful comment to my previous post on the NY Times flap; here is a reply. I thought the issues raised were important enough to warrant positioning on the main page.

I’m all for the press being able to print what they want

OK.

I don’t really like the idea of any paper or news organization publishing the ways that we are staying safer.

You can’t eat your cake and have it too! A free press is liable to publish things you may not approve of, but that’s what “free” means.

I just don’t see how anyone would allow their saftey to be compromised because of this “freedom” that has been given to the press. And would stand up to that “freedom” as opposed to standing up for their safety.

Two things:

• I’m not convinced that my safety is in any way impaired by the specific acts that the NY Times has been catching flak for lately (publicizing the NSA’s domestic spying and the financial-records monitoring)
• More generally, I think safeguarding freedom of the press is more likely to keep me safe than blindly trusting the executive. With a healthy press, the government knows it is ultimately accountable to the electorate. If the press is muzzled, how am I even supposed to know I’m being kept safe? Bush could be using my tax dollars to have engraved portraits of himself made while he assures me I’m being protected from terrorists, for all I know.

Here’s a spin that hasn’t gotten talked about much: Bill Keller said “A reasonable person, informed about this program, might well decide to applaud it”. So, if you’re a fan of Bush & Company, go ahead and applaud! Use this opportunity to show all the pinko lefties what a great job the government is doing.

And thank the press for documenting the bold measures Bush is taking to keep this country safe. Just think: without the NY Times, nobody would be able to appreciate the visionary leadership Bush has shown by deciding to prise open nearly every aspect of our lives and subject it to government monitoring.

Sorry, couldn’t resist that last bit

This article (actually a 31-point list) on How to Be Creative, at gapingvoid, was very interesting and entertaining.

Certain people sure are mad at the New York Times for publicizing the government’s secret program to collect records on financial transactions.

In particular, Representative Peter King thinks the NY Times has committed treason:

The chairman of the House Homeland Security Committee urged the Bush administration to seek criminal charges against newspapers that reported on a secret financial-monitoring program used to trace terrorists. Rep. Peter King cited The New York Times in particular for publishing a story last week that the Treasury Department was working with the CIA to examine messages within a massive international database of money-transfer records.

King, a New York Republican, said Sunday he would write Attorney General Alberto Gonzales urging that the nation’s chief law enforcer “begin an investigation and prosecution of The New York Times - the reporters, the editors and the publisher.”

“We’re at war, and for the Times to release information about secret operations and methods is treasonous,” King told The Associated Press.

Right-wing bloggers seem to be going with an “arrogant elitism” meme. Michelle Malkin’s rundown of right-wing reaction is under the headline “Why They Blabbed: It’s the Arrogance”. Some quoted commentators include Patterico, who complains:

This leaves you in the position of having disrupted a major anti-terror program, by publishing classified information, with no justification other than telling your readers “what the government is up to” and “whether the government is changing the rules.”

As long as it’s legal, don’t you want the government to change the rules?? Don’t you want to prevent the next September 11?

In my book, it’s precisely the role of the press to inform the public about “what the government is up to”, and that is plenty of justification to publish a story, absent a realistic risk of direct harm.

And no, I would rather the government not “change the rules”, at least some of the rules. Specifically, I’m fond of the ones detailing my civil liberties, including those that protect the NY Times’ right to tell me what the hell the government that supposedly represents me is up to!

In conclusion, 9/11! Oops, sorry; wrong meme. ((ahem))

Or, how about Andy McCarthy, who asks:

Is there some illegality going on in the government’s Terrorist Finance Tracking Program (exposed by the Times and other news outlets Friday)? No, no laws have been broken. Is there some abuse of power? No, there seem to have been extraordinary steps taken to inform relevant officials and win international cooperation. Why then? Why take action that can only aid and comfort the enemy in wartime?

Because, Keller haughtily pronounced, American methods of monitoring enemy money transfers are “a matter of public interest.”

To which I would ask, can there really be any debate that the government’s program to sift through records of financial transactions involving US citizens is, in fact, a “matter of public interest”? As far as I can tell, every news outlet in the western world jumped on this story as soon as the NY Times broke it. It’s been talked about everywhere. People care! This is what the press is for!

Instapundid notes, semi-coherently,

A deeper error is Keller’s characterization of freedom of the press as an institutional privilege, an error that is a manifestation of the hubris that has marked the NYT of late. Keller writes: “It’s an unusual and powerful thing, this freedom that our founders gave to the press. . . . The power that has been given us is not something to be taken lightly.”

The founders gave freedom of the press to the people, they didn’t give freedom to the press. Keller positions himself as some sort of Constitutional High Priest, when in fact the “freedom of the press” the Framers described was also called “freedom in the use of the press.” It’s the freedom to publish, a freedom that belongs to everyone in equal portions, not a special privilege for the media industry.

Um, so apparently Glenn Reynolds (the author of this passage) believes that when the First Amendment forbids abridging “the freedom of speech, or of the press,” what the Framers meant was that we had the right to operate printing machinery, but that the particular words we printed remain, of course, subject to tight control by the government. Sheesh.

Taking this argument seriously for just a moment, though, I would point out that articles in the press are written by actual human beings. What does “freedom of speech” mean, Glenn?

Moving on, Noel Sheppard opines:

Irrespective of the self-serving opinions of Bill Keller and his associates, the public’s interest in safety and national defense is much greater than its desire to know the intricate details of how the government achieves such vital goals.

Mind you, this line of reasoning is used as part of a call to prosecute the NY Times for publicizing government secrets. Is this really what it boils down to?

“We are the government, and we are keeping you safe.

No, you can’t know how. It’s a secret.

How do you know you would agree with the measures that are being used in your name? How do you know we are striking the right balance between your privacy, civil rights, and security? Well, because we’re the government, and we’re keeping you safe, obviously.

No, you’re not allowed to know any more than that. Further questions will constitute treason. Please move along.”

Is this really the world in which she wants to live? One in which promises of “security” trump even our right to know how that security is, or is not, being achieved? How are we supposed to even know enough to decide, as the electorate, if our government has defended our security in a satisfactory way, if the claim that we are being kept safe clamps off any further inquiry?

For the record, Bill Keller, executive editor of the NY Times, wrote an open letter explaning how he reached the decision to publish:

Who are the editors of The New York Times (or the Wall Street Journal, Los Angeles Times, Washington Post and other publications that also ran the banking story) to disregard the wishes of the President and his appointees? And yet the people who invented this country saw an aggressive, independent press as a protective measure against the abuse of power in a democracy, and an essential ingredient for self-government. They rejected the idea that it is wise, or patriotic, to always take the President at his word, or to surrender to the government important decisions about what to publish.
[...]
The question we start with as journalists is not “why publish?” but “why would we withhold information of significance?” We have sometimes done so, holding stories or editing out details that could serve those hostile to the U.S. But we need a compelling reason to do so.
[...]
The Administration case for holding the story had two parts, roughly speaking: first that the program is good — that it is legal, that there are safeguards against abuse of privacy, and that it has been valuable in deterring and prosecuting terrorists. And, second, that exposing this program would put its usefulness at risk.

It’s not our job to pass judgment on whether this program is legal or effective, but the story cites strong arguments from proponents that this is the case. [...] A reasonable person, informed about this program, might well decide to applaud it. That said, we hesitate to preempt the role of legislators and courts, and ultimately the electorate, which cannot consider a program if they don’t know about it.

We weighed most heavily the Administration’s concern that describing this program would endanger it. The central argument we heard from officials at senior levels was that international bankers would stop cooperating, would resist, if this program saw the light of day. We don’t know what the banking consortium will do, but we found this argument puzzling. First, the bankers provide this information under the authority of a subpoena, which imposes a legal obligation. Second, if, as the Administration says, the program is legal, highly effective, and well protected against invasion of privacy, the bankers should have little trouble defending it.

This seems fair to me.

Are you a photographer? Do you ever post images for critique on Internet photography sites? Do you ever read such sites? Have you ever seen the sort of critiques people commonly make of photographs on the Internet?

Are you bored?

If you answered “yes” to any of these questions, you should read Mike Johnston’s parody of online photo critiquing.

Gapminder is a really cool site run by a not-for-profit in Sweden that publishes innovative visualizations of world-health and development statistics. Go check it out!

The Electronic Frontier Foundation was in court again Friday for oral arguments in its lawsuit against AT&T over the NSA’s warrantless wiretapping and record collection efforts.

I was poking around their web site and I thought this graphic of theirs was particularly amusing:

I’m having some trouble with the tone of this article, which MSNBC has been running as the headline on its home page for most of today. It describes how “[t]he recent flurry of accusations against U.S. servicemen has stunned military analysts and experts”. There are now several different cases of US army abuses against civilians being investigated.

It is surely legitimate to wonder how this happened, why now, and what is causing it. But there are some strange passages in the article. Consider (bold is my emphasis):

Michael O’Hanlon, a defense analyst at the Brookings Institution [says] American troops “obviously lost a lot of their own compatriots, a lot of them have been there a number of times. Morale is still pretty strong, but I would think there’s a psychological toll.”

Some say that’s to be expected, but criminal behavior still must be prevented: War crimes are an indictment of leadership.

“Some say” that “criminal behavior still must be prevented”? I’m not sure what to make of this. Do “some say” that criminal behavior should not be prevented? If so, who are these people?

John Pike, “director of Globalsecurity.org, a Washington-based military think tank”, says:

“Anybody who contemplates a decision to use force, anybody who contemplates putting boots on the ground has to understand that part of what they’re assuming responsibility for is stressed-out soldiers are going to massacre civilians. It just comes with the territory.”

Still, Pike said that even if true, the number of abuse cases isn’t shocking, given the number of troops and three-plus years of combat: “If this is the worst that the troops have done, the chain of command would appear to have done a pretty good job.”

I’m willing to believe it’s true that abuses are unavoidable, and that it’s important to realize this up front (all the more reason not to start a war!). However, there’s a big difference between saying that the number of abuses is not shocking, and that the abuses themselves aren’t shocking. It’s alleged in multiple cases now that US soldiers executed Iraqi civilians in cold blood. That may be unavoidable and predictable, but it’s still shocking and criminal. We can forecast the likelihood of rape and murder incidents back home, too, but that doesn’t make the crimes any less heinous.

I fear too many people will read the paragraph above as meaning “this stuff happens all the time, and it’s no big deal“. It’s always a big deal.

“I wonder whether people have lost faith in the military because of this kind of incident,” [former Pentagon analyst] Cordesman said, referring to the allegations against American troops. A classic terrorist strategy, he noted, is to force the enemy into atrocities, turning the local population against the opponent and sapping its support at home.

What is the purpose of the sentence in bold? As far as I can tell, it can only serve to suggest that somehow, US troops aren’t responsible for any abuses because in some unspecified way, they being “forced” to commit abuses against civilians. I assume that insurgents in Iraq are trained in the use of the Vulcan Mind Meld.

At least Cordesman isn’t a spokesman for the US army.

Already, this war’s mistakes are being taught as cautionary tales. The failings at Abu Ghraib are now part of a West Point leadership course, alongside Vietnam’s My Lai, where some 300 villagers were killed.

Good. It sounds like the army, for one, recognizes that it’s responsible for its own actions. How about MSNBC quit implying that it’s not?

I’ve been following with interest the comment-discussions on recent posts on Unclaimed Territory, Glenn Greenwald’s blog. In particular, the argument that the President’s powers under Article II of the Constitution authorize him to spy domestically on suspected enemy agents has more first-glance plausibility than I had originally assumed. As a refresher, this argument goes like this:

• Article II of the Constitution says “The President shall be commander in chief of the Army and Navy of the United States”. His authority to direct the military when it is engaged in a Congressionally-approved confrontation is “plenary”, that is, unreviewable by other branches of Government.
• We are at “war” with Al Quaeda
• It is an obvious and natural incident of war to surveil the enemy
• FISA forbids domestic wiretapping without a warrant
• The President ordered domestic wiretapping without a warrant of suspected Al Quaeda members
• However, this is not illegal because the President’s constitutional authority cannot be abridged by legislation.

It’s not clear at first glance how this is supposed to jive with the Fourth Amendment, which says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

An interesting case in point here is US v. Truong Dinh Hung, a case decided in 1980. Briefly, that case concerns one “David” Hung who was convicted of “espionage, conspiracy to commit espionage and several espionage-related offenses for transmitting classified United States government information to representatives of the government of the Socialist Republic of Vietnam”. He was surveiled without a warrant by the government, and sought on appeal to have his conviction overturned on the grounds that his Fourth-Amendment rights were violated.

A federal court in the Fourth Circuit, in that case, found that the government did not violate Hung’s rights by wiretapping his phone without a warrant, explicitly on the grounds that it is within the President’s constitutional Article II powers to surveil enemy agents. There are various nuances at whatfors in the ruling; here are some important passages:

As has been stated, the government did not seek a warrant for the eavesdropping on Truong’s phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
[...]
For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, “unduly frustrate” the President in carrying out his foreign affairs responsibilities.
[...]
However, because individual privacy interests are severely compromised any time the government conducts surveillance without prior judicial approval, this foreign intelligence exception to the Fourth Amendment warrant requirement must be carefully limited to those situations in which the interests of the executive are paramount. First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators.
[...]
Second, as the district court ruled, the executive should be excused from securing a warrant only when the surveillance is conducted “primarily” for foreign intelligence reasons.

Bold emphases are mine.

The Hung case, interestingly, was decided after the passage of the FISA legislation, which created a comprehensive legislative framework for domestic wiretapping, but because the acts at issue in the case had occurred before FISA was passed, the applicable law was pre-FISA.

To my limited knowledge, there has never been a case decided in which a similar situation presented itself (a foreign agent was surveiled without a warrant) since FISA became operational. However, the appeals court in Hung cited a constitutional power on the part of the President to surveil foreign enemies. This is consistent with the Bush-defending position that the President can surveil Al Quaeda even if FISA says he can’t.

One more piece to consider: I have previously mentioned this analysis by Laurence Tribe, “generally recognized as one of the foremost constitutional law experts in the nation”, prepared for House Representative John Conyers. Of the Article II argument, the analysis says:

[T]he [wiretapping] scheme in question, far from being authorized by Congress, flies in the face of an explicit congressional prohibition and is therefore unconstitutional without regard to the Fourth Amendment unless it belongs to that truly rare species of executive acts so central to and inherent in the power vested in the President by Article II that, like the power to propose or veto legislation or to issue pardons, its exercise cannot constitutionally be fettered in any way by the Legislative Branch.

Any such characterization would be hard to take seriously with respect to unchecked warrantless wiretapping. As the Supreme Court famously held in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), an emergency presidential takeover for a limited time of certain critical publicly held corporations like Bethlehem Steele Co. and the United States Steele Co., in order to avert the threat that would be posed to our national security by a stoppage of the steel production needed for weapons and other materials essential to the ongoing Korean War, falls outside that tiny category of congressionally illimitable executive acts and is indeed unconstitutional unless affirmatively authorized by Congress. If that is so, then certainly an unchecked presidential program of secretly recording the conversations of perhaps thousands of innocent private citizens in the United States in hopes of gathering intelligence potentially useful for the ongoing war on a global terrorist network not only falls outside that category but misses it by a mile.

This leaves a few issues open in my mind:

• Is the President’s Article II authority to surveil the enemy absolute, or does the scale of the surveillance matter? In Hung, a handful of people were wiretapped. Today, it’s believed that thousands of phone conversations may be recorded. Is this material?
• Suppose the President does have Article II authority to wiretap. How, exactly, is this supposed to be balanced against the 4th Amendment’s “unreasonable searches and seizures” guarantee?

The government, of course, is fighting on several fronts to prevent a full-blown judicial review of the wiretapping program. I guess we can only hope that those engaged in the fight will prevail and we will get a (hopefully) dispassionate and clarifying ruling from the judicial branch.

Today is Ryan’s 8-month birthday. Happy birthday, little one!

The One Tooth becomes ever sharper. Yikes!

A potentially promising development: it would seem that the judge in the lawsuit against AT&T for collaborating with the NSA’s collection of telephone records isn’t willing to immediately roll over and play dead for the government. Recall that the government has gone with the “litigation nuclear option” — the “state secrets” privilege, and is claiming that the AT&T lawsuit must be dismissed wholesale because proceeding would inevitably disclose government secrets.

27 Stroke B mentioned today that the judge handed out homework to the two sides today, in the form of a list of 11 questions that attorneys “should be prepared to address” at oral arguments on Friday. Among the questions:

5. If a warrant is not required for the government via AT&T to intercept plaintiffs’ communications, how can the Fourth Amendment’s reasonableness requirement be adjudicated without implicating state secrets?
6. How can confirming or denying the existence of the alleged surveillance program at issue here, or AT&T’s alleged participation in that program, constitute disclosure of a state secret when the program has been so widely reported in the public sphere?
7. If the litigation discloses that AT&T received a certification from the government, the existence of this certification would evince AT&T’s involvement in some kind of surveillance program.
   1. Could the difference between a possibility that AT&T is involved (based on public reports) versus a near certainty that AT&T is involved (if it received a certification) itself be a state secret?
   2. In particular, consider a terrorist who would use the communications channels that are allegedly being monitored so long as he is not certain that they are being monitored. If this litigation reveals that AT&T has received a certification and is involved in some kind of surveillance program, might the risk to national security of disclosure of the certification be de minimis and not outweigh plaintiffs’ due process rights?

Bold emphasis is mine. One thing makes me nervous: I’m not sure the judge’s thinking in 7(b) is actually legal. From having read the dismissal order in the lawsuit brought by El Masri (the German citizen who was spirited to Afghanistan by the CIA), I’m a little worried. From that ruling:

Accordingly, the judiciary must accept the executive branch’s assertion of the privilege whenever its independent inquiry discloses a “reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” [...] Importantly, once the court is satisfied that any disclosure of the putative secrets “might have a deleterious effect on national security, ‘the claim of the privilege will be accepted without requiring further disclosure.’” [...]

Finally, it is important to note that, unlike other privileges, the state secrets privilege is absolute and therefore once a court is satisfied that the claim is validly asserted, the privilege is not subject to a judicial balancing of the various interests at stake. Thus, the adverse party’s need for privileged information affects only the depth of the judicial inquiry into the validity of the assertion and not the strength of the privilege itself, for “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.”

I added bold emphases. A footnote says:

In re Under Seal, 945 F2d 1285, 1288 (4th Cir. 1991) (“the privilege is absolute when properly invoked”); United States v. Halkin, 690 F.2d 977, 990 (D.C.Cir. 1982) (“[S]ecrets of state—matters the revelation of which reasonably could be seen as a threat to the military or diplomatic interests of the nation—are absolutely privileged from disclosure in the courts.”).

I understand this to mean that the judge in the EFF / AT&T lawsuit may conduct a “searching” inquiry into whether, in fact, there are legitimate state secrets at issue, but if, say, there really is a classified NSA surveillance program in operation, it is likely that the proper application of the state secrets privilege means that the case must be dismissed, unless there is some way to litigate it without disclosing the state secrets.

On the other hand, it’s possible that the judge’s question 7(a) leads to a possible middle ground: perhaps the disclosure that AT&T received some kind of certification from the government compelling its participation in some kind of classified program cannot reasonably be considered a state secret, in itself.

We’ll see.

Today is the longest day of the year in the northern hemisphere. The sun will set in Seattle this evening at 9:11PM (yay, endless evenings!) and the National Weather Service’s forecast has a zero chance of precipitation for its entire 5-day span. Outside my window it’s bright and sunny and 63F.

Welcome, summer!