ChezLark

On an island, contemplating the ocean. I will be ranting about life some more soon enough, never fear.

…OK, not really.

But in a way, yes.

I’ve been ranting at you for days that the main problem with Arlen Specter’s proposal to “fix” our foreign-intelligence-surveillance laws (FISA) in the wake of the President’s warrantless NSA wiretapping program is that it abdicates Congress’ authority to regulate the President’s actions by adding language like this to FISA:

Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.

Specter himself, in an op-ed piece, insists that there is nothing wrong with these passages.

Critics complain that the bill acknowledges the president’s inherent Article II power and does not insist on FISA’s being the exclusive procedure for the authorization of wiretapping. They are wrong. The president’s constitutional power either exists or does not exist, no matter what any statute may say.

But, I disagreed, and pointed out the respectable authorities who thought Specter was being either naive or disingenuous here. I can’t claim credit for the legal analysis, of course.

But perhaps you think I am something of a tinfoil-hat conspiracy theorist to disagree with a Senator’s understanding of his own legislation. Perhaps you feared, gentle reader, that I would lead you astray.

Well, fret no more. A follow-on editorial in today’s Washington Post hammers home this same point.

No matter how adamantly Mr. Specter denies that his bill would give Congress’s blessing to domestic spying outside of FISA’s strictures, it does so explicitly and unambiguously. [...] Mr. Specter argues that the bill doesn’t accept the president’s assertions of unilateral power but merely acknowledges them. But this is incorrect.

Under the Supreme Court’s decades-old understanding, presidential power is at its lowest ebb when the president is acting contrary to the will of Congress, and at its zenith when he is using his own powers in concert with legislative authorization. Right now, to conduct warrantless surveillance domestically Mr. Bush must act at the very least in sharp tension with FISA. Under Mr. Specter’s bill, however, the legislature would be explicitly acknowledging an alternative source of authority for snooping.

So, do you believe me now?

Well the decision has been released.

From the ruling; bold is my emphasis:

In brief, unless a law is a grant of positive favoritism to a minority class, we apply the same constitutional analysis under the state constitution’s privileges and immunities clause that is applied under the federal constitution’s equal protection clause. DOMA does not grant a privilege or immunity to a favored minority class, and we accordingly apply the federal analysis. The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, we apply the highly deferential rational basis standard of review to the legislature’s decision that only opposite-sex couples are entitled to civil marriage in this state. Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents. Allowing same-sex couples to marry does not, in the legislature’s view, further these purposes. Accordingly, there is no violation of the privileges and immunities clause.

There also is no violation of the state due process clause. DOMA bears a reasonable relationship to legitimate state interests — procreation and child-rearing. Nor do we find DOMA invalid as a violation of privacy interests protected by article I, section 7 of the Washington State Constitution. The people of Washington have not had in the past nor, at this time, are they entitled to an expectation that they may choose to marry a person of the same sex.

Finally, DOMA does not violate the state constitution’s equal rights amendment because that provision prohibits laws that render benefits to or restrict or deny rights of one sex. DOMA treats both sexes the same; neither a man nor a woman may marry a person of the same sex.

From Justice Fairhurst’s dissent; italics are in the original; the bold passage is my emphasis:

Contrary to the plurality’s discussion, this case does not present the issue of whether allowing opposite-sex couples the right to marry is rationally related to the State’s supposed interests in encouraging procreation, marriage for relationships that result in children, and traditional child rearing. Undoubtedly, state-sanctioned, opposite-sex marriage has a conceivable rational basis–some opposite-sex couples can procreate, and the State may have a legitimate interest in encouraging procreation and family stability by allowing such couples to marry.

But DOMA in no way affects the right of opposite-sex couples to marry — the only intent and effect of DOMA was to explicitly deny same-sex couples the right to marry. Therefore, the question we are called upon to ask and answer here, which the plurality fails to do, is how excluding committed same-sex couples from the rights of civil marriage furthers any of the interests that the State has put forth. Or, put another way, would giving same-sex couples the same right that opposite-sex couples enjoy injure the State’s interest in procreation and healthy child rearing?

Of course it wouldn’t.

…and make a million bucks:

Long-tail products must either “sell themselves” or external people must sell them for you. If you have to send one email or take one phone call to sell a Cecilio and Kapono ringtone, you’re dead. (Don’t know who Cecilio and Kapono are? That’s the point.) This is where two cool concepts butt heads: long-tail versus wisdom of the crowd. The former says a market of one is good. The latter says that when lots of people buy something, it’s probably good. How then does one person find something that’s good for her out of the millions of products to buy when there’s no crowd to follow?

(by Guy Kawasaki)

This post by Tim O’Reilly from last fall is as good an explanation as I have read anywhere.

From an article in the Independent, a UK newspaper, about stem cell research:

President Bush and some religious authorities, notably the Catholic Church, argue that the microscopic, four-day-old embryos from which stem cells are derived are potential human lives. They believe it is immoral to take stem cells from any human embryo even for the purpose of saving lives because the process involves the destruction of embryos.

But Professor Hawking dismissed these objections, saying that banning stem cells from human embryos is equivalent to opposing the use of donated organs from dead people.

“The fact that the cells may come from embryos is not an objection because the embryos are going to die anyway,” he said. “It is morally equivalent to taking a heart transplant from a victim of a car accident.”

Seems like a fair summary.

The Washington Supreme Court page claims that

[A] decision in Andersen v. King County, a consolidated case regarding Washington’s Defense of Marriage Act, is expected tomorrow, July 26, 2006.

…because I didn’t know what duck typing was until just now.

I tell you, kids these days, with their and their late-binding, dynamically-typed, regexp-subsuming scripting languages…

Bah.

Tired of hearing about Senator Specter’s dangerous proposals?

Too bad, I’ve got the microphone.

This one’s short, though: I just wanted to mention that not all our Congressional representatives seem bent on kow-towing to the White House.

Congresswoman Jane Harman and Congressman John Conyers, over in the House of Representatives, have drafted as sensible a piece of legislation as I have seen in quite a while: the The Lawful Intelligence and Surveillance of Terrorists in an Emergency by the NSA (’LISTEN’) Act (H.R. 5371). It’s pretty short, so you can just go read the whole thing, but in a nutshell, it says:

• We weren’t kidding about FISA.
  

  Notwithstanding any other provision of law, chapters 119 and 121 of title 18, United States Code, and the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive means by which electronic surveillance may be conducted.

• If the President has a problem complying with FISA, he doesn’t get to just ignore it. Instead, he has to submit a report to Congress detailing why compliance is burdensome, what additional technology, manpower or procedures may be necessary, and any suggested legislative changes he cares to suggest.
• But FISA still controls until Congress decides otherwise.
• Congress authorizes increased spending by the NSA and others as necessary to fully comply with FISA.

How much more sensible can you get? Perhaps it would be nice to know what is wrong, exactly, with the current law before changing it, and in the mean time, perhaps it would be a good idea to continue to respect the law. We’re even willing to shell out cash to make sure the law is fully respected.

How novel.

Nice, short photo essay on digital photography at the BBC, in the form of images and commentary from Thomas Hawk.

A new poll shows that:

• Fully half (50%) of US adults believe that Iraq had weapons of mass destruction before the invasion. This is up from 36% in February of 2005. No such weapons were ever found.
• 64% of US adults believe that Saddam Hussein had strong links to Al Qaeda. No such links have ever been documented.

I give up. I hereby no longer consider myself a citizen of the United States at large. I am now officially a citizen of the Urban Archipelago.

And possibly Cascadia.

Well I guess it’s complain-about-Arlen-Specter day.

Glenn Greenwald offers an analysis of Specter’s op-ed piece in which he is (if such a thing is possible) more critical than I was just a moment ago.

President Bush’s record of seeking to expand Article II power has been a hallmark of his administration. The president and vice president have vociferously argued that the administration had the authority for the program without any judicial review. Bush’s personal commitment to submit his program to FISC is therefore a major breakthrough.

[W]hat Specter is celebrating here is that the President courteously agreed to “allow” a federal court to decide whether the eavesdropping he has ordered on Americans violates the Constitution’s prohibition on searches and seizures in the absence of probable cause warrants. Since when does a President have the option to prohibit judicial determinations as to whether his conduct violates the Constitutional rights of American citizens? In what conceivable way can it be said to be a “concession” that George Bush has deigned to permit a federal court to rule on the constitutionality of the eavesdropping he ordered?

On the issue of whether Congress can limit the President’s “inherent” authorities, Glenn rightly reminds us of two additional data points:

The Supreme Court in Hamdan just ruled not more than three weeks ago that even though the President has the Constitutional power to create military tribunals for war detainees (just as he has the Constitutional power to eavesdrop), he is required to do so in accordance with the laws enacted by Congress. That was the whole point of Hamdan — that the President is required to abide by the law even with regard to the exercise of his Constitutional powers. And just to make certain that this point was not lost on the Arlen Specters of the world, the Court (f. 23; emphasis added) explained :

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring).

Most amazingly, when Alberto Gonzales testified before Specter’s own Judiciary Committee, had told Specter that it is false to claim — as Specter just did — that Congress lacks the power to regulate or restrict “inherent Constitutional powers” of the President:

GONZALES: Well, the fact that the president, again, may have inherent authority doesn’t mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.

Senator Specter, author of a bill that represents a wholesale capitulation to the White House on NSA spying, has an op-ed piece in today’s Washington Post, titled “Surveillance We Can Live With”, in which he defends his proposal.

President Bush’s electronic surveillance program has been a festering sore on our body politic since it was publicly disclosed last December. Civil libertarians, myself included, have insisted that the program must be subject to judicial review to ensure compliance with the Fourth Amendment.

So far, so good.

The challenge, which I have been trying to meet legislatively, is to structure a procedure under which the courts can adjudicate the lawfulness of this highly sensitive program while maintaining the secrecy the president contends is so important.
[...]
My bill, the result of months of negotiation with the administration, accomplishes this goal by authorizing consideration of the program by the Foreign Intelligence Surveillance Court (FISC)

Two problems:

• We have only the President’s say-so that the existing FISA court structure was inadequate in the first place. One would think that a secret court, that has rejected exactly four warrant requests in its entire history, and that even allows warrants to be granted retroactively, would be sufficient. The Judiciary Committee, including Arlen Specter himself, haven’t even been fully briefed on the spying program, so they have no way to know that change was, in fact, necessary at all. Nevertheless, Specter’s proposal dramatically weakens judicial oversight of wiretapping by letting the government apply to have entire surveillance “programs” sweepingly authorized.
• Specter’s proposal “authorizes” the FISA court to “consider” spying programs, but doesn’t even require the existing NSA program to be subject to judicial review. For that, we have only the President’s verbal promise. This is progress?

Critics complain that the bill acknowledges the president’s inherent Article II power and does not insist on FISA’s being the exclusive procedure for the authorization of wiretapping. They are wrong. The president’s constitutional power either exists or does not exist, no matter what any statute may say.

This is, admittedly, a subtle legal point, but some very respectable minds believe Specter is wrong here, and that the way Specter has drafted his bill actually cedes legitimate Congressional authority to the President. See in particular my previous post.

Marty Lederman, the author of the “Youngstown Refresher” post I cited recently was, according to his faculty page at the Georgetown University website, Attorney Advisor in the Department of Justice’s Office of Legal Counsel from 1994 to 2002, and has clerked for justices in the federal court. The Balkanization legal blog also has a post by Congresswoman Jane Harman, opposing the Specter proposal on (among other things) the same grounds: the bill’s language deferring to the President’s “constitutional authority” will roll back Congressional authority over eavesdropping in the US.
I would be more inclined to believe that Specter is acting in good faith here, and sincerely believes that his draft legislation does not cede any Congressional authority, if it were not for the facts that:

• The White House was intimately involved in crafting this “compromise”
• Specter has outright lied about the effect of his previous draft bills when describing them to the press.

On with Specter’s letter:

The negotiations with administration officials and the president himself were fierce. The president understandably rejected a statutory mandate to submit his program to [the Foreign Intelligence Surveillance Court], on the grounds that such a mandate could weaken the presidency institutionally by binding his successors.

Listen here: the President doesn’t get to “reject” “statutory mandates”. It doesn’t matter how “fiercely” administration officials and the President “negotiated”, they don’t get to pass the laws. Congress gets to pass laws, and the President gets to follow them. At least, that’s how it’s supposed to work.

The president, however, did personally commit to submitting this program for court review should the bill pass.

How generous of him. Of course, the bill could simply require that the existing surveillance program be submitted to the FISA court, instead.

Even without a legal mandate, his sending this program to the FISC would be a powerful precedent to be considered by future presidents.

Really? It seems like the precedent being set here is that a bullying president with cronies inhabiting both houses of Congress can get carte-blanche legislation enacted in exchange for a non-binding “personal commitment”.

The president and vice president have vociferously argued that the administration had the authority for the program without any judicial review. Bush’s personal commitment to submit his program to FISC is therefore a major breakthrough.

No, it’s not. Getting the President to admit that he might be bound by judicial review means we’re living in a time of busted checks and balances. And trading a “personal commitment” for a gutting of the Watergate-motivated limitations on Presidential abuse is an abdication of Congressional responsibility.

It is a preeminently fair compromise to condition that commitment on congressional approval of the negotiated legislation, which also modernizes FISA in important ways, giving the president added flexibility in protecting the country.

It is nothing of the sort. The President has no standing to refuse to accept legislation. Congress is under no requirement to “modernize” (aka, gut) FISA in any way whatsoever, particularly since the White House has neither explained why the current system is inadequate, nor even briefed Congress on the details of the program that, supposedly, could not “conform” to FISA. To say that Congress is “legislating in the dark” here is to understate things dramatically. Congress is caving in to the President without even having articulated why existing laws need to be changed at all in the first place.

In my opinion, it is intolerable to let this matter drift indefinitely. If someone has a better idea for legislation that would resolve the program’s legality or can negotiate a better compromise with the president, I will be glad to listen.

Mr Specter, here is my humble proposal. I hope you will take it under careful consideration:

• Pass a brief bill reiterating that when Congress made FISA the “exclusive means” for legally collecting foreign intelligence in the US, they meant it. The Bill should unequivically condemn the President’s wiretapping program(s), which are in obvious and blatant violation of FISA, as you yourself have pointed out in the past.
• Pass a brief bill immediately allowing the Supreme Court or the FISA court to rule on the legality of the existing NSA program. You say that “it is intolerable to let this matter drift indefinitely” and I couldn’t agree more. Court review could begin tomorrow! After more than six months, why delay?
• Refuse to alter FISA in any way whatsoever until the White House:
• Briefs all members of the Judiciary Committee, at a minimum, on the existing NSA spying program, including a quantified analysis of the program’s effectiveness in apprehending terrorists to date, and
• Explains in detail why it would have been infeasible to comply with current FISA requirements in conducting the program’s wiretaps
• Stop “negotiating a compromise” with the White House. The executive branch’s standing in the creation of legislation is, at best, to explain to the Congress what measures may be advisable for the country. The President has veto authority over legislation he objects to, and that is all. He has no standing to insist on arbitrary requirements for the scope of legislation. Exert your independent oversight function!

The central issue that gets raised by Senator Specter’s monstrous non-compromise bill on warrantless NSA spying is so important that it merits a separate post.

You will frequently hear the White House claim that the President has “inherent” constitutional powers that Congress may not interfere with. Although this is true in certain extremely limited cases, most of the President’s powers may, in fact, be affected and limited by Congress.

Instead of trying to describe it myself, I will instead suggest that you read Marty Lederman’s excellent “Note to Senator Specter — A Youngstown Refresher“. Here are some excerpts:

The President has a great number of constitutional powers — call them “inherent” (or , as in Hamdan, “independent”) powers — that he may exercise in the absence of statutory restriction.
[...]
But the fact that a power is “inherent” does not mean that it is exclusive, or non-defeasible.
[...]
For examaple, under the Commander-in-Chief Clause alone — at least as it has come to be understood in modern times — the President has “inherent” authority: to set rules for the military; to establish courts martial and (possibly) military tribunals; to deploy troops; to govern and make rules for occupied territory; to seize enemy property (think of the Emancipation Proclamation); to engage in defensive military measures; even, to some undetermined and contested degree, to introduce troops into hostilities (e.g., Korea, Bosnia, Haiti, Somalia, etc.); and so on.

But this does not mean that Congress may not enact statutes to regulate these functions.

Go ye and read the entire thing.

A few days ago I warned that Congress was “selling you up the river,” but I didn’t elaborate much. Well, don’t say I didn’t give you time to prepare.

Ever since the President’s warrantless NSA wiretapping program was revealed, Congress has been “negotiating” with the White House about FISA. The White House has insisted that although the President has constitutional authority to order the wiretapping, they are interested in working with Congress to “fix” FISA. Even though they say it doesn’t apply. I know, it doesn’t make sense to me, either.

At any rate, Arlen Specter, chair of the Senate Judiciary Committee, has been at the center of all this. He has schizophrenically bounced between criticizing the White House, calling for the program to be submitted to the FISA court for a review of its legality, and proposing to alter FISA to allow exactly what the President has been doing. One of his recent “compromise” proposals even included retroactive amnesty for wiretappers.

What’s new is Specter’s latest proposal, which, if news reports are to be believed, represents a “final compromise” negotiated between Specter and the White House, to be passed as-is or not at all. A Washington Post article just today claims that the “compromise” was “personally negotiated by President Bush and Vice President Cheney”.

The new Specter bill is an outrageous Congressional capitulation. Except for the fact that it doesn’t contain a retroactive amnesty provision, it’s considerably worse than anything that’s been floated to date. Here’s a rundown, informed by thoughtful analysis at Balkinization, Orin Kerr and Glenn Greenwald. There’s also a short analysis document available.

Specter’s bill modifies FISA, which previously made it illegal to engage “in electronic surveillance under color of law except as authorized by statute”, to allow surveillance “as authorized by statute or under the Constitution.” Sounds innocuous, right? It’s not.

The White House’s central justification for the NSA monitoring is that the President has unfettered power as commander-in-chief to surveil the enemy. If Congress passes a law forbidding him to do so (like FISA!), the thinking goes, the law is unconstitutional. The question of whether or not this theory is true was the major part of the legal murkiness around the wiretapping program.

The reason the Hamdan Supreme Court ruling was so important was that it reaffirmed that Congress is a coequal branch of government, even in wartime. Hamdan, and the much earlier Youngstown ruling, clarified that even the President’s “inherent” contitutional authorities as commander-in-chief can generally be curtailed by Congress if it passes legislation. If Congress is silent on a matter that the President has “inherent” constitutional authority on, he gets unfettered control. From Youngstown:

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.
[...]
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.
[...]
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

Legal observers believe that the Hamdan ruling, by clarifying the fact that the President’s commander-in-chief authority is still subject to Congressional restrictions, has clarified that FISA makes the President’s wiretapping illegal, shredding his “unfettered power” theory.

Now you can see: the innocent-seeming “or under the Constitution” phrase gives away Congress’ power. Before, FISA insisted that it was a criminal violation to wiretap foreign communication without complying with it. Now, it would effectively say, “it’s a crime to wiretap foreign communication without complying with FISA, unless the President decides it’s OK.” Congress is proposing to write into law that the President is above the law. In case the “or under the Constitution” clause wasn’t clear enough, there is an explicit freestanding paragraph in the Specter bill:

Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.

The “Nothing … shall be construed to limit the constitutional authority” phrasing seems to clearly intend to say “The President can exercise his constitutional authority as though Congress were silent on the matter“. This abdicates Congress’ ability to restrict the President’s powers, and hands him a blank check.

You can read more about the issue of limiting the President’s constitutional authority at Orin Kerr.

The blanket capitulation to the President is the worst aspect of the bill. However, it’s also got lots of other distasteful stuff:

• Instead of issuing warrants for individual wiretaps, the FISA court can now issue warrants for entire “surveillance programs”. This, despite the fact that the government’s claims that it would be too cumbersome to obtain appropriate warrants under the existing FISA rules have never been verified. For bonus points, the new warrants are also infinitely renewable. No word yet on how this could possibly pass muster with the Fourth Amendment, which says “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”.
• The government gets to transfer all legal challenges to wiretapping programs to the (secret) FISA court, where sensitive evidence can be witheld from plaintiffs. Some observers believe that because the Specter bill does not alter the FISA court’s current rules of proceedings, only the government would be allow to present material to the court. The plaintiffs could potentially have no representation at all.
• For kicks, the Specter bill specifies that the FISA court “may dismiss a challenge to the legality of an electronic surveillance program for any reason.” No word yet on whether “just cuz” is legally acceptable, although I don’t see why not.
• This might be my favorite part. Specter’s bill doesn’t require that the existing NSA surveillance program (you know, the one that caused all the controversy to begin with!) be reviewed by a court. However — get this — the President “promises” (evidently, verbally) that if Congress passes the Specter bill unmodified, he will submit the currently known NSA spying program to the FISA court for review, as a special, one-time bonus gesture of imperial munificence. It’s widely believed that there are other, undisclosed and possibly more sweeping, surveillance programs running, but no word on whether those would ever be reviewed.

I could go on and on and on about this (and probably will). Suffice it to say, don’t believe the hype when the Specter proposal is naively described in the mainstream press as a “compromise” of any type whatsoever. Specter’s proposal would

By sheer random coincidence, I stumbled across these video excerpts, on YouTube, of a 1971 debate between Noam Chomsky, whom I imagine my audience is familiar with, and Michel Foucault, a French postmodernist philosopher.

I imagine most people will find the debate rather opaque, as I certainly did. The video excerpts are not too long, though, so it may be worth watching them all the way through (as I did).

An all-English transcript is available here.

I won’t attempt to say anything at all about the substance of this debate here; I’m certainly not equipped or qualified. However, a couple of meta-points struck me:

• Here are two philosophers debating. Chomsky speaks in English and Foucault speaks in French. Evidently, no simultaneous translation was used; each understood the other’s language well enough to follow the other’s (intricate!) reasoning. This casual cross-cultural, cross-linguistic interaction struck me as profoundly alien to my experience of living in the United States in the 21st century. Wherever this debate was held, the audience filled what looks to be a reasonable-size auditorium, and was presumaby expected to be able to follow detailed debate in two languages. Would this happen today in the United States?
• Chomsky and Foucault are, at least in part, earnestly debating the potential outlines of a better society, one to be potentially born of a social revolution. It was, after all, 1971. Their debate ranges over the issue of whether human nature can even be understood from within the confines of our current culture, whether there is such a thing as an objectively establishable Justice, etc. I appreciate that I have been paying attention to politicans and not philosophers lately, but in watching this debate, I felt like asking: “Where is this discussion today!?” Through the political lens, it sometimes seems like the aspirations of American society are currently limited to the blind faith that bombing sections of the world flat will mystically result in Freedom and Democracy for the surviving brown people. This seems almost unimaginably far removed from the discussion Chomsky and Foucault undertake here.

If anyone has pointers to substantive material on current social issues, I am all ears. I feel like watching these snippets made me realize how vacuous and superficial modern debates seem to be, at least in the political sphere.

No chance.

Statistics show that for a photographer in 2002 the average annual salary was $24,040. The lowest 10% earned less than $14,640, the middle 50% between $17,740 and $34,910 while the highest 10% earned upwards of $49,920. For a photographer employed by a newspaper or periodical the average annual salary was $31,460, while in other professional and scientific services the average was $21,860.

Don’t quit your day job.

Let’s take a quick look at Bush’s veto yesterday of HR 810, the Stem Cell Research Enhancement Act of 2005, which was passed with strong support by Congress.

The bill is very short. Here’s the essential portion of it:

(a) IN GENERAL. —- Notwithstanding any other provision of law (including any regulation or guidance), the Secretary shall conduct and support research that utilizes human embryonic stem cells in accordance with this section (regardless of the date on which the stem cells were derived from a human embryo).

(b) ETHICAL REQUIREMENTS. —- Human embryonic stem cells shall be eligible for use in any research conducted or supported by the Secretary if the cells meet each of the following:

(1) The stem cells were derived from human embryos that have been donated from in vitro fertilization clinics, were created for the purposes of fertility treatment, and were in excess of the clinical need of the individuals seeking such treatment.

(2) Prior to the consideration of embryo donation and through consultation with the individuals seeking fertility treatment, it was determined that the embryos would never be implanted in a woman and would otherwise be discarded.

(3) The individuals seeking fertility treatment donated the embryos with written informed consent and without receiving any financial or other inducements to make the donation.

I added the bold emphasis in sections (2) and (3).

What did President Bush say about his veto?

This bill would support the taking of innocent human life in the hope of finding medical benefits for others. It crosses a moral boundary that our decent society needs to respect, so I vetoed it.

Yet we must also remember that embryonic stem cells come from human embryos that are destroyed for their cells. Each of these human embryos is a unique human life with inherent dignity and matchless value.
[...]
If this bill would have become law, American taxpayers would, for the first time in our history, be compelled to fund the deliberate destruction of human embryos. And I’m not going to allow it.

Right off the bat, it would appear that the comment about “funding the deliberate destruction of human embryos” is just wrong. As you can see, HR810 contemplates that research would be allowed only on freely donated embryos for which no compensation was paid.

But there is a larger, glaring, unescapable, blatant inconsistency in White House policy: simply discarding a human embryo, which, says Bush, is a “unique human life with inherent dignity and matchless value”, is perfectly legal. And yet, for some inscrutable reason, it’s apparently critically important that we not use discarded embryos to research cures for diseases.

If the President or other Christian-morality-inflicters explained that destroying any human embryo should be a criminal offense, I would think they were nutty but at least self-consistent. But it just doesn’t make any sense to allow embryos to be thrown away, but not used for science.

My question to the President and other opponents of HR810 is this: what is the moral boundary that this bill crosses? It doesn’t fund the deliberate creation of excess embryos. It permits the use of embryos that would otherwise be discarded. The discarding of embryos is legal and ongoing. What new moral ground are we breaking by sending the embryos to scientists instead of a disposal bin?

From our friend Tony Snow:

Q: But it often appears in some of the reporting and some of the discussion out there that the President is holding back scientific progress.

MR. SNOW: Wrong.

Q: How do you —

MR. SNOW: You’re just flat wrong. Just flat wrong. I mean, that is basically an attempt to substitute an insult for an argument. I’ve given you the argument and I’ve rebutted the insult.

There you go. The President’s ban on expanding stem cell reasearch does not hold back science. It doesn’t matter that scientists say so. You’re just wrong.

No, really.

Wrong.

Recall that the Electronic Frontier Foundation filed a class-action lawsuit against AT&T for participating in the NSA’s program to sweep up details of telephone calls in the US as part of an effort to monitor potential terrorists.

The government went with the “nuclear option” of asserting the “state secrets privilege”, and asking the judge in the case, Vaughn R. Walker, to dismiss the lawsuit outright.

In a somewhat surprising move today, Judge Walker rejected the government’s attempt to dismiss the case. The ruling contains some interesting findings.

• Although the EFF case is about the NSA’s effort to collect telephone records (who called whom when), the court cites the government’s acknowledgement of the NSA’s wiretapping program as evidence that it is not a secret that telecommunication providers are collaborating with the government to spy on telephone activity:
  

  AT&T’s assistance in national security surveillance is hardly the kind of ’secret’ that [settled case law] and the state secrets privilege were intended to protect or that a potential terrorist would fail to anticipate.

• Unlike past lawsuits that have been dismissed because the “very subject matter” of the lawsuit was a state secret (like the El Masri lawsuit over “extraordinary rendition”),
  

  [T]he very subject matter of this action is hardly a secret. As described above, public disclosures by the
  government and AT&T indicate that AT&T is assisting the government to implement some kind of surveillance program.
  [...]
  [S]ignificant amounts of information about the government’s monitoring of communication content and AT&T’s intelligence relationship with the government are already nonclassified or in the public record.

This ruling only lifts the threat of summary dismissal. There are still plenty of hurdles:

[I]t is certainly possible that AT&T might be entitled to summary judgment at some point if the court finds that the state secrets privilege blocks certain items of evidence that are essential to plaintiffs’ prima facie case or AT&T’s defense. The court also recognizes that legislative or other developments might alter the course of this litigation.

But it is important to note that even the state secrets privilege has its limits. While the court recognizes and respects the executive’s constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. See Hamdi v Rumsfeld, 542 US 507, 536 (2004) (plurality opinion) (“Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”). To defer to a blanket assertion of secrecy here would be to abdicate that duty, particularly because the very subject matter of this litigation has been so publicly aired. The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.

All in all, quite heartening!