I observe no religion, but the secularized public holiday of Christmas seems like an excellent excuse to spend time with family and exchange tokens of our affection. So, a Merry Christmas, or whatever you may be celebrating this holiday season, to all!
Seattle Public Utilities: Customers whose garbage can or lid blew away during the storm should call 206-684-3000 to have it replaced.
For your idle, time-wasting pleasure, I present this YouTube video:
Please compare to this Onion article headlined “It’s Not Nice To Be Smarter Than Other People”, which features such tidibits as:
I can’t think of anything ruder than people who have to be all brainy and intelligent. As my mother used to say, if you can’t say anything mundane, don’t say anything at all. She was right: It’s not nice to be smarter than other people.
Discuss.
Transactional Memory is a Big Deal in current programming-languages research, but from what I can tell, the folks I know working in industry generally haven’t heard of it.
This ACM article provides a good in-depth overview.
I love these questions submitted to Slate’s “Explainer” column that they chose not to answer. Gee, I wonder why not…
I think “What comes after 999 trillion” is my favorite.
Ruth Bernhard, a photographer Ansel Adams himself one described as “the greatest photographer of the nude”, has died at the age of 101. Wikipedia lists some quotes by her, including:
Never ever say the word shoot when you are taking a picture with a camera because a camera is not a violent weapon.
This is in contrast to Susan Sontag’s take on photography as essentially violent:
[T]here is something predatory in the act of taking a picture. To photograph people is to violate them by seeing them as they never see themselves. By having knowledge of them they can never have. It turns people into objects that can be symbolically possessed. Just as the camera is a sublimation of the gun, to photograph someone is a sublimated murder. A soft murder, appropriate to a sad, frightened time.
Ruth’s vision of photography seems to have been very optimistic and hopeful. She is particularly known for her female nudes, and about the female form, she said:
If I have chosen the female form in particular, it is because beauty has been debased and exploited in our sensual twentieth century. We seem to have a need to turn innocent nature into evil ugliness by the twist of the mind. Woman has been the target of much that is sordid and cheap, especially in photography. To raise, to elevate, to endorse with timeless reverence the image of woman, has been my mission - the reason for my work which you see here.
Feminism everywhere!
The Online Photographer ran this copy of Ruth’s recipe for a happy life, which I will shamelessly reproduce. Worth thinking about as Christmas approaches.
I suspect we all have something to learn from Ruth.
Sufferers of Seasonal Affective Disorder, take heart; today, December 21st, is the shortest day of 2006, which means more sun is on the way. Here in Seattle, the sun will set this afternoon at an utterly depressing 4:20PM. But tomorrow, it’s 4:21!
Also, only two more days until Festivus!
What else could this mean?
“We’re not winning, we’re not losing,” Bush said in an interview with The Washington Post. The assessment was a striking reversal for a president who, days before the November elections, declared, “Absolutely, we’re winning.”
Hasn’t Bush heard? You’re supposed to declare victory and go home, not declare a tie and keep losing.
I should have posted this for Halloween, but it’s still good now…
Maybe there’s something to this whole user-generated video content madness, after all…
Brian Tamanaha at Balkinization is surprised — as am I — to learn that the Wizard of Oz is an elaborate political allegory. He has a long excerpt from Jack Weatherford’s The History of Money (1997) which I will shamelessly reproduce here:
The most memorable work of literature to come from the debate over gold and silver in the United States was The Wonderful Wizard of Oz, published in 1900, by journalist L. Frank Baum, who greatly distrusted the power of the city financiers and who supported a bimetallic dollar based on both gold and silver. Taking great literary license, he summarized and satirized the monetary debate and history of the era through a charming story about a naive but good Kansas farm girl named Dorothy, who represented the average rural American citizen. Baum seems to have based her character on the Populist orator Leslie Kelsey, nicknamed “the Kansas Tornado.”
After the cyclone violently rips Dorothy and her dog out of Kansas and drops them in the East, Dorothy sets out on the gold road to fairyland, which Baum calls Oz, where the wicked witches and wizards of banking operate. Along the way she meets the Scarecrow, who represents the American farmer; the Tin Woodman, who represents the American factory worker; and the Cowardly Lion, who represents William Jennings Bryan. The party’s march on Oz is a re-creation of the 1894 march of Coxey’s Army, a group of unemployed men led by ‘General’ Jacob S. Coxey to demand another public issue of $500 million greenbacks and more work for common people.
Marcus Hanna, the power behind the Republican party and the McKinley administration, was the wizard controlling the mechanisms of finance in the Emerald City. He was the wizard of the Gold Ounce–abbreviated, of course, to Wizard of Oz–and the Munchkins were the simpleminded people of the East who did not understand how the wizard and his fellow financiers pulled the levers and strings that controlled the money, the economy, and the government.
In the Emerald City ruled by the Wizard of Oz, the people were required to wear green-colored glasses attached by a gold buckle. Beyond the city, the Wicked Witch of the West had enslaved the Yellow Winkies, a reference to the imperialist aims of the Republican administration, which had captured the Philippines from Spain and refused to grant them independence.
In the end, all the good American citizens had to do was expose the wizard and his witches for the frauds they were, and all would be well in the bimetal monetary world of silver and gold. In the process, the farmer Scarecrow found out how intelligent he was, the lion found his courage, and the working Tin Man received a new source of strength in a bimetallic tool–a golden ax with a blade of silver–and he would never rust again as long as he had his silver oil can encrusted with gold and jewels.
Judging by the comments so far on Balkinization, this is not an elaborate joke. Wikipedia sort of neither-confirms-nor-denies that the political-allegory interpretation is correct:
Both Baum and Denslow had been actively involved in politics in the 1890s. However, Baum never said that the original story was an allegory for politics, although he did not have occasion to deny the notion.
Wikipedia does enumerate political interpretations of the work, including the one revolving around US monetary policy.
A new government study indicates that marijuana is almost certainly the United States’ biggest cash crop:
A report released today by a marijuana public policy analyst contends that the market value of pot produced in the U.S. exceeds $35 billion — far more than the crop value of such heartland staples as corn, soybeans and hay, which are the top three legal cash crops.
California is responsible for more than a third of the cannabis harvest, with an estimated production of $13.8 billion that exceeds the value of the state’s grapes, vegetables and hay combined — and marijuana is the top cash crop in a dozen states, the report states.
Nationwide, the estimated cannabis production of $35.8 billion exceeds corn ($23 billion), soybeans ($17.6 billion) and hay ($12.2 billion)
The description of the study in this article is a little confusing — in one place, it says that the state with the second-most-valuable annual harvest is Tennessee, but that Washington is in second place for the value of existing, indoor pot plants. I’m not sure why the two don’t correspond.
So what? Well, the incredible value of pot being grown in the US, and the utter failure of “war on drugs” policies to meaningfully curb either the production or the consumption of this relatively harmless substance are powerful arguments for legalization. Dan Savage, editor of the local Seattle indie rag The Stranger, argues that legalizing pot will make it easier to keep out of the hands of young people, not harder:
If we want to keep pot out of the hands—and lungs and stomachs and brains—of the dariling kiddies, then we need to legalize pot. Someone with a license to sell booze isn’t going to risk losing that license by selling cases of Schlitz to children. A liquor license is a too valuable, and booze business is too profitable, to flush it away by selling six-packs to 14 year-olds.
Someone who sells pot, on the other hand, doesn’t need a license. It’s every bit as illegal to sell pot to 15 year-olds as it is to 25 year-olds or 35 year-olds. Pot dealers, unlike booze dealers, have no reason to police themselves. So if you want to stop pot dealers from selling to high school students (hell, if you want to stop high school students from dealing), legalize pot, issue licenses to growers and dealers, and sell it in “coffee shops” like the Dutch.
Will some kids manage to get their hands on pot anyway? Yes, some will—just like some kids get their hands on beer. But it will be much, much harder for them to get their hands on pot.
On a different note, building a viaduct tunnel on the Seattle waterfront has an estimated price tag of $4.6 billion. The article linked to above doesn’t mention what the annual value of the marijuana harvest in Washington is, but let’s say it’s a little less than Tennessee and call it $4 billion a year. That means a 10% tax on pot could single-handedly pay for the viaduct tunnel in less than ten years.
Smoke that.
This is an unusually good one, from a press conference a few days ago:
I’m pleased when Iraqi leaders go to Saudi Arabia and talk to my friend, the King of Saudi Arabia, and talk about how they can work together to achieve stability. It’s in Saudi’s interest, it’s in Jordan’s interest, it’s in the Gulf Coast countries’ interest that there be a stable Iran, an Iran that is capable of rejecting Iranian influence
In fairness, he meant to say “an Iraq that is capable of rejecting Iranian influence”; he corrected himself afterwards.
There was some very bad news yesterday for supporters of human rights and due process — or, I suppose, very good news for supporters of unreviewable government power. The hastily-passed Torture and Dungeons Act (AKA the “Military Commissions Act of 2006″, or MCE) was used for the first time to dismiss a court challenge brought by a “war on terror” detainee being held at Guantanamo.
The plaintiff in the case was none other than Mr. Salim Ahmed Hamdan, of Hamdan v. Rumsfeld fame. His petition to US courts challenging the legality of his detention was dismissed for lack of jurisdiction, due to the fact that the Torture and Dungeons act strips aliens detained by the US military of their habeas corpus rights. This was a federal district court ruling, so it is bound to be appealed. You can read the entire thing (it’s not too long) online.
The Writ of Habeas Corpus, AKA the “Great Writ”, is inherited from English common law; its first recorded use was in 1305, and it is one of the cornerstones of our system of law. The Writ is a primary mechanism for resisting state tyranny, as it allows anyone detained by the government to challenge the legality of their detention by appealing to the courts. This is a powerful check against the government’s ability to simply lock people up without any legal basis and then refuse to bring them to trial. Wikipedia quotes Dicey as saying that the Habeas Corpus Acts “declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty“.
The Framers of our own Constitution viewed the Great Writ as fundamentally important. Our Constitution provides, in Article 1, no less, that:
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
It’s worth noting that as far back as the Great Writ’s first applications in England, it was understood to apply to anyone, regardless of citizenship or nationality, that may fall under the power of the government. That was, in fact, the whole point: it was intolerable for the government to arbitrarily imprison anybody without a solid reason in law. Wikipedia notes,
Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett’s Case (1771), where the black slave Somersett was ordered to be freed, the famous words being quoted from an earlier case: “The air of England has long been too pure for a slave, and every man is free who breathes it.”
Fast-forward to 2006. The Torture and Dungeons Act says, in Section 7, that:
(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The question that immediately comes to mind is, is this constitutional? Can Congress eliminate the right of habeas corpus for anyone, even “aliens” being held by the military? The ruling yesterday is something of a mixed bag. It says that:
Today’s ruling implies that at least part of the Torture and Dungeons Act is unconstitutional, since it finds that the Constitution requires access to the Writ for aliens being held on US soil, but the MCA claims to forbid this. This would appear to apply to, for example, Ali Saleh Kahlah al-Marri, a foreign national who was staying in the US on a valid visa before being picked up, and who is currently being held at a military base within the US. However, the court’s ruling does not actually conclude this, since Hamdan’s habeas appeal was simply dismissed for lack of jurisdiction.
Some readers may be scratching their heads at this point and thinking, “I don’t see what the problem is. US citizens get to use US courts to challenge their detention, but people who have nothing to do with the US do not. Seems right to me”.
There are two intertwined reasons why forbidding non-citizens from challenging their detention is a terrible idea. The first is that there’s no morally tenable reason I can think of to provide different rights to citizens and non-citizens, period. As I argued in a previous post, in order to support lesser rights for non-citizens, it would seem to me that you would have to believe one of two things:
I can’t see why anyone would believe either of these things. Our system of law requires that the executive respect various basic human rights as a safeguard against abuse. I’m not sure why these safeguards would be any less important for non-citizens.
However, even if, for some reason, you believe that it’s acceptable in principle for non-citizens to have lesser rights, it still seems like a terrible idea for them to have no rights at all, which is the newly established state of affairs.
Consider the plight of an innocent foreign national picked up by the US military overseas and imprisoned as an “enemy combatant” in Guantanamo. The Torture and Dungeons Act defines a military tribunal system, but nothing requires the government to bring detainees to trail. If it’s so inclined, the government can simply imprison detainees indefinitely, without charge of any kind. There are a considerable number of people rotting in Guantanamo as you read this that have been imprisoned for years. If any of them are innocent, that’s just too bad; there may never be an opportunity for them to have their day in a court of any kind [1].
Foreign nationals imprisoned in this way obviously have no recourse to their home country’s court system. The ruling today relies on the fact that the Guantanamo camp is on sovereign Cuban soil, but obviously detainees have no access to Cuban courts, either. And now our Congress, in its wisdom, has forbidden alien detainees from challenging their detention in US courts.
If this ruling is allowed to stand, the US executive branch will have a Congressionally granted, and judicially approved, right to run prisons overseas as legal black holes. Detainment centers like Guantanamo will be utterly beyond the reach of any court. As the Center for Constitutional Rights says,
[It is very troubling] that any judge or any legislature anywhere would ever seek to deprive a person of that most basic of human rights - the right to personal liberty - without providing them with a fair process and unbiased judge to rule on the legality of that deprivation.”
and,
[T]his is the first time in the history of this country that a court has held that a man may be held by our government in a place where no law applies
As I understand it, women may be held in such a way, too, but this is otherwise exactly right.
With this hideous act of Congress, we have vested tyrannical powers in the US executive branch. Think I’m overstating the matter? What does tyranny mean, if not the right to seize people off the streets and cast them into a dark hole forever, incommunicado, without any constraints or safeguards on their treatment, and without due process of any kind? This power is the very essence of tyranny, and is exactly the power this Congress has, unreviewably, vested in the White House.
In 1679, the British Parliament passed legislation reaffirming the fundamental right of all subjects to the Great Writ of Habeas Corpus. The act’s full title was An Act for the better securing the Liberty of the Subject, and for Prevention of Imprisonment beyond the Seas. It was intended precisely to convey to the King that his usual tactic, now employed by the US government, of imprisoning his enemies outside British sovereign territory still did not obviate the King’s ultimate duty to respect fundamental human rights.
Some date the right of Habeas Corpus to the Magna Carta, issued in 1215. Therefore, this Administration and Congress have set back the rule of law and the rights of all people that fall under its power by at least three hundred years, and possibly by nearly as much as eight hundred years.
For shame.
Addendum: As usual, Glenn Greenwald has an article on the ruling that is well worth your time to read. Selected quotes (bold is mine but italics are Glenn’s):
What is so radical and indescribably regressive is the Congress’ enactment of a law which expressly denies habeas rights to everyone in the world other than U.S. citizens. Not only did the Founders repeatedly emphasize that the right of habeas corpus is the most critical safeguard against tyranny from the Executive branch (and never drew any distinction between citizens and non-citizens), but the statute granting habeas jurisdiction to federal courts (sec. 2241) was the very first statute ever enacted by the U.S. (in 1789) which bestowed jurisdiction to the federal courts. That is how paramount a right the Founders believed habeas petitions to be.
[...]
The MCA — passed in a pre-election frenzy with virtually no thought or deliberation — drastically reverses that 210-year trend and deliberately seeks to limit habeas rights as narrowly as possible. Put another way, it seeks to vest the maximum possible power in the President to order people imprisoned — even for life — with no opportunity to contest the validity of the accusations against them or the treatment to which they are subjected. That, as has been repeatedly noted, is a power which not even the British King possessed.
[1] I’m utterly discounting the so-called “Combatant Status Review Tribunals” that detainees are periodically subjected to. In these “trials”, defendants are not allowed to call any witnesses not already being held at Guantanamo, may not consult any classified evidence against them, and do not have access to a lawyer. Detainees are not presumed innocent. Evidence acquired using torture may be allowed. In order to even attend the tribunal’s proceedings, the detainee must sign a document waiving various rights. The Pentagon itself has said that “The process is not intended to determine guilt or innocence,” but rather “to confirm the status of enemy combatants.” It should be clear to all that this bears no resemblance at all to the principle of “due process.”
He did have surgery. He’s recovering.
Democratic Sen. Tim Johnson was in critical condition recovering from emergency brain surgery Thursday
[...]
The South Dakota senator, 59, suffered from bleeding in the brain caused by a congenital malformation, the U.S. Capitol physician said. He described the surgery as successful.The condition, usually present at birth, causes tangled blood vessels that can burst.
[...]
“The senator is recovering without complication,” said Adm. John Eisold, the Capitol physician. “It is premature to determine whether further surgery will be required or to assess any long-term prognosis.”
This is a full-on Mainstream Media news story, so I probably won’t have much more to say about it, but the political implications remain scary!
Much has been said about how Bush has been dealing with the Iraq Study Group’s report and recommendations, but I think this quote from a press conference he held after meeting with British Prime Minister Tony Blair pretty much says it all:
Some reports are issued and just gather dust. And truth of the matter is, a lot of reports in Washington are never read by anybody.
To show you how important this one is, I read it, and our guest read it. The Prime Minister read — read a report prepared by a commission. And this is important.
You hear that America? He read the report. What more do you want from the man?
Sheesh.
Wow, this is bad in all kinds of ways.
It’s being reported that Senator Tim Johnson of South Dakota may have suffered a stroke. As the first order of business, of course, my sympathies go out to him and his family. From MSNBC:
Sen. Tim Johnson, D-S. D., has been hospitalized with symptoms described as stroke-like. The seriousness of his illness has not been disclosed.
[...]
Johnson became disoriented during a call with reporters at midday, stuttering in response to a question. He appeared to recover, asking if there were any additional questions before ending the call.
[...]
A statement released by Johnson’s office said, “Senator Tim Johnson was taken to George Washington University Hospital this afternoon suffering from a possible stroke. As this stage, he is undergoing a comprehensive evaluation by the stroke team. Further details will be forthcoming when more is known.”
On the political front, the Democrats’ one-vote majority in the Senate may hang in the balance, although exactly what ramifications this may have is a little unclear. According to MSNBC, if Johnson resigns, the Governor of South Dakota (a Republican) gets to appoint a replacement. But if Johnson is partially or fully incapacitated and doesn’t step down, it’s unclear what, if anything, the South Dakota legislature or Governor can do about it. By way of precedent:
Most recently, Sen. Karl Mundt (ironically, also from South Dakota) suffered a stroke in 1969 and was incapacitated, but he refused to step down. He remained in office until Jan. 1973 when his term expired. Mundt was pressured repeatedly to step down during his illness, but he demanded that the governor promise to appoint his wife. The governor refused, and Mundt remained in office.
As an aside, I’m not sure that it’s “ironic” that Mundt was from South Dakota, so much as “coincidental”.
Update: It sounds like nobody’s really sure what’s going on yet:
[B]y evening, his condition was unclear, with conflicting reports over whether he had suffered a stroke. [...] The Washington Post reported that Johnson was undergoing surgery.
Well, I suppose perhaps it was inevitable. I experienced my first serious discomfort today with having so much information about me online.
Ill-advisedly, I got into a tangle on the radical feminist blog “I Blame the Patriarchy“. The bone I foolishly chose to pick was about whether it was, in fact, a good idea to pre-emptively castrate some schmuck who had written an email in stunted English in which he asks how he can avoid being a rapist, and says that “when women’s and girls are very open, I could hardly control myself.” While this doesn’t sound at all reassuring about this fellow’s future as an upstanding citizen, I thought that actual forced castration might be going a little too far, given what was known of the situation. Apparently, that was an outrageous suggestion.
You can read the whole debacle here if you’re bored and have a lot of time. It goes on for a while. I might have more to say about the issue, and why reaction was so violent and nasty, at a later time, when I have calmed down a little and gotten some perspective. In the mean time, though, I would like to talk about an issue tangential to what was actually being debated.
I was surprised at the level of hostility I ran into, but I was even more surprised when a handful of commenters decided it would be a good idea to leverage the information available about me on the web to make fun of me. So, in the course of the afternoon, I was treated to someone wondering out loud if I had secretly been hoping for a son instead of a daughter:
I continue to read that the child is named Ryan….Ryan Marie.
Are you familiar with Kathleen Parker, a columunist who goes to very great lengths to support everything that males do? And to make excuses for everything that a male does wrong? I refer to it as the “Katey P” Disease…and I think you just might suffer from it.
Were you disappointed that Ryan wasn’t a male? Have you been so throughly dipped and fried in Patriarchy that you are willing to come onto a Radical Feminist blog and spout off about how rapists’ nuts need to be defended?
– slade [an anonymous pseudonym]
slade carries on some more in a later comment about Ryan’s name. One of these is plenty, I think, to get the flavor, and if anything, the later comment is even more vicious, so if you care you can go look it up. As if this weren’t enough, someone dug up a link to a self-portrait on my photoblog, and had some fun with that:
I’ve done better [at taking pictures] with a Canon TX. I used to just love getting A1 with my TX while the guyes (check the shot) always had the big penis I mean lenses, the most expensive camera, wore those dorky pseudo-military hats. Oh geez, perhaps I could send him a pair of fingerless mittens?
– Pony [another anonymous pseudonym]
I can only assume “Pony” didn’t read the image comments where I mentioned I was suited up to go snowboarding. Oh, well.
I just love that shot of him on his blog. How long do you think he had to hang in front of the mirror to get everything just so. The stubble, that hat, squint, no the other eye, umm no this lens is too small the other, and that way, I look more…dangereuse. Har. Poseur.
– Pony
My initial reaction was to be surprised and taken aback that anyone would go off searching for personal details about me just to fuel personal attacks. My second reaction was to be angry. My third reaction was to consider why I was feeling angry, since after all, all this information is readily available online, and more besides, and I have nobody to blame for it being there but myself.
Lots of bloggers write from behind pseudonyms and take care not to reveal their identity. I have never done that, partly because this blog started out as my personal observations about what it was like to get clobbered by a car and have a titanium rod threaded into my femur, and during my recovery, my only audience was friends and family. Since this blog became political, though, I still never bothered to use a pseudonym because, as I now realize, it never occurred to me that someone would come digging through the information here in anger, or with malicious intent. I’m starting to think now that that may have been naive.
The idea that this afternoon, at least a few people came digging through this site and my photoblog looking for something, anything, that they could use to attack me makes me deeply uncomfortable. Being open about my life, sharing my artistic efforts, and talking about my family are things I felt comfortable doing because I trusted that anyone who cared to stop by would bear me no ill will. I assumed that if I stayed calm and well-reasoned when having discussions elsewhere, nobody would take such great offense that they would make it personal. It turns out, I was wrong.
I’m not sure what to do now. I suppose I could retreat behind a pseudonym, like everyone else seems to have already done, and stop mentioning anything about who I actually am. Or, I suppose, I could just shrug off the feeling of violation that came with people using my daughter and my appearance to attack me.
I know that several people reading are my close friends and that you run blogs under your own names. Perhaps you never participate in discussions where people may go off the deep end, so your risk is lower. I’m not saying not to carry on as you have been, but take a moment to think about the worst case. Are you comfortable with everything that is available about you?
What I found most upsetting out of all of this were the attacks on Ryan’s name, to the extent that I’m wondering if it’s wise for information about my family to be available. Both Laura and I are dismayed that anyone would think to drag a baby into the middle of any this ugliness.
Take a minute to inventory what’s available about you.
Update: Readers have left a series of extremely thoughtful and perceptive comments; please take a moment to go through them.
Confidential to Elena: I’m not editing comments to select only positive ones, as you imagine. Feel free to leave a comment of your own!
David Frum, a former Bush speechwriter, points out an interesting wrinkle in the recent revelations about Princess Diana’s death: the Clinton administration was wiretapping Princess Diana’s phones. For Frum, this means that those who support Clinton but condemn Bush’s wiretapping program are hypocrites:
So the Clinton administration was tapping Princess Diana’s phones. Repeat after me: the Clinton administration. And of course there was no warrant.
[...]
So question: when will we hear from all those valiant defenders of the civil liberties and personal privacy trampled underfoot by the fascist Bush administration? [...] And will the mass media take their familiar ominous view of this outrageous intrustion [sic]? Will the editorial pages denounce the unilateralism and arrogance and high-handedness of the departed administration? I’m sure we’re all breathless with uncertainty.
As Glenn Greenwald rightly points out, this difference is this:
The objection to the Bush wiretapping program is not (only) that it is “unilateral”, “high-handed” and “arrogant” (although it is certainly all those things), but rather that it appears to be illegal. It’s worth noting that a federal district court judge has agreed!
As Glenn Greenwald puts it (bolds are mine),
If Frum tries hard enough, he may be able to find a difference between these two eavesdropping stories beyond the fact that one involves a (D) and the other involves an (R). How about . . . . . what the Clinton administration did is perfectly legal, while what the Bush administration did (and is doing) is a criminal offense under American law? Might that explain the acceptance of the former and the objections to the latter?
Interestingly, David Frum replies to Glenn’s commentary and says, in part:
Greenwald vehemently asserts that the Bush NSA program is illegal, and that’s what makes it fascist, as compared to the benign Clinton administration wiretapping of Princess Diana.
But mere assertion does not make things true. The legality of the Bush NSA program is being litigated as we speak, and pending a final result, a little circumspection seems called for. You can see “allegedly illegal.” You can say “illegal in my opinion.” You can even say “found illegal by one federal district court judge in a decision widely derided and stayed pending appeal.”
Beyond that, though, the law is uncertain.
Um, OK. I suppose David will insist that we not actually call the program illegal until the Supreme Court has upheld a ruling that it is illegal. But this is disingenuous: the plain text of federal law prohibits the Bush wiretapping program. Go read the FISA statute for yourself; it’s not very long, and the money shot is:
§ 1809. Criminal sanctions
- Prohibited activities
A person is guilty of an offense if he intentionally—
- engages in electronic surveillance under color of law except as authorized by statute; or
- discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
- Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.- Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
So, there is every reason to believe that the Bush program is illegal. Even the White House concedes that the program violates federal statue; their whole theory is that this is nonetheless OK because Bush his exercising his unreviewable power as Commander-in-Chief. This is a controversial position to take, but getting the courts to agree to it is the only hope this program has of being found legal. There is simply no question that Bush’s actions are specifically prohibited by the FISA statute. The final word will, of course, need to come from the appeals process.
In contrast, however, there is no reason at all to suspect that Clinton’s actions were illegal. This makes the two cases very different indeed.
This distinction cannot be lost on Frum. If he personally believes that Bush’s program is legal, he must nonetheless concede that a reasonable person, simply by looking at the FISA statute, may believe otherwise, and that the issue needs to be addressed (and is being addressed!) by the courts. No such doubt exists about Clinton’s actions.
So, it is no surprise at all that the Bush program is so much more controversial!
I just caught myself saying the following out loud. It pretty much summarizes a lot of my life these days:
Sweetie, that’s your ear. Yes! Ear. Like daddy’s ear.
Why are you putting your cracker in your ear?
I just got up with my daughter, who is wearing a leopard-skin outfit and tossing crackers to our cats (don’t ask). It’s completely dark outside, and we’re listening to NPR.
Can you imagine anything more depressing than what we just heard:
Good morning, it’s Sunday, December 10th. Today in Seattle, the sun will rise at seven fourty-seven, and will set this afternoon at four eighteen PM.
Ugh. I guess we can expect it to start getting light in about an hour…