Tuesday, November 17, 2009

FISA, continued

In an effort to continue the dialog on what we need to convey to our President, I posted this comment to the blog on Get FISA Right:

I look forward to the call today, during which I hope we will continue to advance the development of our Open Letter to the President.

I was heartened to view President Obama speaking before the press in China, side by side with President Hu; the President of the United States of America and the President of the People's Republic of China - conducting a joint press conference before the media - and this after having held a town hall with students from across China.

I am sure the intelligence community anticipated this change years ago and so when they heard the president say:

"Finally, as I did yesterday in Shanghai, I spoke to President Hu about America's bedrock beliefs that all men and women possess certain fundamental human rights. We do not believe these principles are unique to America, but rather they are universal rights and that they should be available to all peoples, to all ethnic and religious minorities. And our two countries agreed to continue to move this discussion forward in a human rights dialogue that is scheduled for early next year."

They were well prepared to accept the notion that these are universal rights and "they should be available to all peoples."

It is not our residency or our citizenship in America that bestows upon us the right to not be searched - without cause - by the government of America. No, that is a right that belongs to us as a member of the human family and it has been bestowed upon us - irrevocably - by our Creator. This right is mine through birth - not through citizenship in the United States of America. Now, citizenship in the United States of America provides me with the knowledge that I live in a republic that recognizes this right - and it harms America by acting as though this right is of a political, transitory nature as opposed to one that is eternal and unchanging. That would be taking a top shelf right and placing it on the bar; on which level is it more likely to be broken?

We need not make any change to this letter at all, but if liberals do not support the notion that the all people throughout the world are endowed with certain inalienable rights, then we certainly have no cause to wonder when conservatives choose to ignore that central, organizing principle of our Republic. Conservatives blather on and on about the "power of free markets"; we should seek to take as many of our arguments back to free people as we can. This is how conservatives have taken and tarnished the concept of freedom, so much so that they can pretend to argue for freedom, while arguing to imprison "terrorists" indefinitely.

Liberals must wrest the notion of freedom back from those who have little understanding of the word and we must do so under the auspices of increasing our security: a police state can never be free.

Saturday, November 14, 2009

More thoughts on FISA

As a means to developing a common understanding of what is meant by 'Getting FISA Right', Jim Burrows was kind enough to level set the scale and scope of the issue in this post here. I thought I might pivot off his work, to expose my own ideas about broadening the metaphor of our Republic: separation of powers.

At the end of the day, we are tasking our Government with the charge to defend our Republic against all enemies, foreign and domestic. Email may be one form our enemies choose to use for communication of whatever plot they might be developing - but it is still just communication between enemies that is of interest to us. And with that in mind, perhaps we need to return to the first step and assess our initial decisions, for a misstep at the start can lead us down the wrong path in the end - which is the problem we are here to address, no?

Our Constitution seeks to address this thorny issue of surveillance. It 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."

In practice, this has meant that:

"[E]xplicit search warrants based on probable cause and sworn testimony must be used for:

  • Any surveillance by the government within the US
  • Any surveillance by the US government upon “US persons” anywhere in the world.

On the other hand it is relatively well accepted that we allow the government to spy on the nation’s foreign enemies, and that the US courts need not issue warrants for spying on foreigners outside the US."

Is not our problem found right here? These words:

"well-accepted that we allow the government to spy on the nation's foreign enemies and that the US courts need not issue warrants for spying on foreigners outside of the US"

Take us away from the notion that there is an inherent right of People, to be free from unreasonable and invasive searches by Government.

Please note: I am not arguing that this is some new practice, or that this is some change in how the law was applied in the past. Rather, I am arguing that it is because 'this is how its always been done', that we have been led into this hornets nest of an issue.

In the days and nights when our Republic was founded, long distance communication was limited to mail delivery. Approaches that worked well then - assumptions that sufficed at that time - are now foundering on the volume and variety of long distance communication options available today. Additionally - and even more important than the varied communication platforms - is the reality that our world is more interconnected at both an interpersonal level and an international level, across all strata of our society. The transformations that our world has undergone - aided and abetted by our efforts to develop new (and hopefully, better) tools for communication - must also be accompanied by transformations in our understanding of our Laws, especially those we have codified into our Constitution.

So while previously, we have held that the Fourth Amendment only applied to US-persons, wherever in the world they might be, is not now the time to recognize that the better option is to define the scale and scope of those Constitutional protections as universal verities? When we say:

"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."

We must realize that we can actually implement the full meaning of those words, in a world of email and text messages, can we not?

Take the example of a Sender and Recipient: is not the thorny issue of whether or not to get a warrant resolved by always getting a warrant? In this scenario,

  1. The Government (represented in example by the form of the Spy) has a reason behind his or her desire to intercept the communication of one or both: Sender and Recipient;
  2. The Spy - presumably an Agent-member of the Executive branch - operates under a set of rules codified into law by;
  3. The Legislators, one of which requires him or her to present that reason to a member of our Judiciary, as a request for a warrant to intercept and search the communications sent from/to the aforementioned Sender and Recipient;
  4. The Judge approves or denies the request for a search warrant, guided by the knowledge of past history fully presented by the Agent of the Executive.
Why is this not the better approach? If the Executive can be convinced of the rationale for a search, why cannot the Judiciary be convinced as well? And there can be no concern within the Executive about sharing this information with the Judiciary: just as Patriots can be found to serve within the Executive, so to can Patriots be found to serve within the Judiciary. Rather than search for exceptions to the rules, why not attempt to apply the rule more broadly?

Our Republic was founded under the principle of balancing Federal authority amongst three separate, but equal branches of government. What we have today is an Executive that frequently says to the other two: "Trust me". This should be abhorrent to us, as we know historically that this is what the Executive always says (in truth - it's what the Legislature and the Judicial powers always say as well). We need to force our Legislators to codify the rules of the road into laws, such that search warrants are always required for the interception of communications; we need to force our Judges to develop processes based upon these laws whereby they can support the volume and velocity of these requests; and we need to force our Executives to faithfully conduct themselves according to these laws, under the guidance of our Judges and the supervision of our Legislators. This will unite our Federal authority in common cause, but it will imbue them with separate responsibilities. This separation of concerns, will allow each of them to responsibly fulfill their duties, while preventing any one branch from asserting some inherent and innate position of dominance over the other two.

Thursday, November 12, 2009

Do's and Don'ts of FISA Reform

So, the fine folks over here - are working to hold our President's feet to the fire, on comments he made during the campaign and even once in office. They have made great stride on the letter being composed by an interested group of individuals and I have made some small - minor, really - proposed changes.

Recommended changes:

Paragraph One, sentence one - replace 'executive' with 'Executive'

Paragraph Three, sentence one - restructure the sentence so that the specific date can be included, as in: "Two bills were the subject of the House Judiciary Committee Patriot Act hearing on Wednesday, XX/XX/2009"

Paragraph Four, sentence one - include the specific month, after the phrase: "last month"

Paragraph Seven, sentence one - can we just say: "In the House Judiciary Committee Hearing of XX/XX/2009, "?

Letter overall: let the word 'liberty' stand by itself. Preceding it with 'civil' just weakens the word; we have a Statue of Liberty, not a Statue of Civil Liberty. This is the 'sweet land of liberty' and that is what gets people out of the chairs to sing about!

These may all seem to be at the level of a nit-pick and perhaps they are; so herewith:

We need this letter to make clear in no uncertain terms, that the trade-off between security and liberty is false. Can we include the Franklin quote, even just by reference or allusion? Before our Republic was even Declared, much less founded, Franklin was in the Pennsylvania Assembly, noting -

Yet this is the very tradeoff that FISA asks us to make? We must always question the Executive, when it attempts to usurp authority from the other, co-equal branches of our federal authority! How can it be, that lawyers in the Executive branch can be completely convinced of the necessity for a search and yet lawyers in the Judicial branch cannot be similarly convinced? And lawyers in the Legislative branch need not even be consulted or informed? How is that possible?

And we cannot be cowed by exigent circumstances - not in a world in which I can get 24/7/365 answers to questions as mundane as "who was the Red Sox first baseman in 1987"; not when children as young as four have cell phones; not when people read tomes as lengthy as 'War and Peace' on screens that fit in the palm of their hands - no! 'Exigent circumstances' is naught but a process question and any society that has a 911 system to reach police officers at any hour of the day, is surely adept enough to divine a means to reach a judge from anywhere at anytime!

So, I hate to say: "Take it back. Make it stronger." - but there it is. We did not knock on doors and cajole our neighbors, so that this president might stand by and acquiesce to all of the inane ideologies that pass for conventional wisdom, within the confines of the four corners that are the design of our nation's capital - if no longer the practice. We put in that work, to elect this President, as we had some specific actions we needed him to take. One of those actions - just one and perhaps the most important one - was to restore our republic to a nation made of laws and not of men. We have bourn the brunt of what it means to be led by the hearts of men and we know that even the heart of the best of us can be turned by the darkest of circumstance. We did not vote for that.

No, we voted for a republic (if not a Republican) and a republic that holds dear and uplifts the notion of liberty.

Tuesday, November 3, 2009

Can we end the purportedly progressive war against Rahm Emanuel?

The Huffington Post has been engaged in rear-guard actions against Rahm Emanuel, ever since he was quoted as telling the left-wing to "Shut Up". Putting aside the wisdom of that remark, how does this war help the President reach his goals?

I used to think the incessant sniping from liberals, would help to make the President appear more centrist to independent voters; today's election results in VA have changed my mind. Congress has been slow-walking legislative requests from the President and this lack of success has destroyed the enthusiasm of the under-40 voters who pushed Obama over the top and we saw the effects of that in VA today.

That is the macro-level analysis. At the micro-level, the most recent assault on Rahm relates to a carve out of exemptions to Sarbanes-Oxley (SOX); here are some of my thoughts on that:

Not that I seek out parades, just to rain in them, but this story is pointless.


This key, "post-Enron" reform - has never been enforced!

Not once has any of the companies being permanently exempted by this bill, ever done what they will no longer be "required" to do.

Hard for me to see how central this provision is, when we saw last year bankruptcies that dwarfed Enron by huge orders of magnitude, bankruptcies on a scale that threatened the very foundations of worldwide economic activity - and not a single advocate has ever said: "Thank God we had Sarbanes-Oxley, or this would have been much worse".

In 2001, at the dawn of the Bush administration, Enron was the largest bankruptcy in the hisory of recorded economic history; by 2008, at the close of the Bush, it was no longer in the top five. The five who now lead Enron, were all larger than Enron and so all were subject to SOX-compliance; didn't mean a thing.

Who cares about SOX-compliance, when leveraged financial firms are creating assets of such toxicity that the wealth of nations are threatened?

Wake up, there is a real threat out there and these repetitive and silly attacks do naught but preclude the very outcome you profess to desire.

Rahm Emanuel was selected by Barack Obama; presumeably, you voted for Barack Obama to be the president for four years: how about you give him mire than ten-months to rectify all of the damage done by eight years of Bush the Lesser?

And you know what the worst part of this story was? The closing paragraph, the nineteenth and last paragraph of this assault on Rahm and, by extension, our new President was this:

"While this issue is small potatoes compared to other issues currently under debate, such as reforming the derivatives markets or overseeing financial institutions that are 'too big to fail,' it tells us a lot about what we can expect. Their message that regulation is just too burdensome and too costly should send a chill down the spine of anyone who still held out hope that this Administration is serious about regulatory reform."

Excuse me? While this issue is "small potatoes"? Every previous sentence decried this move as an act so traitorous, Benedict Arnold would foreswear ever being so vile - and at the end of it all, they mention it doesn't amount to a hill of beans.

I don't know the purpose of this attack on Rahm; I do not know the reason why: but in light of today's election results, can I be the only one questioning it?

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Ain't that America?

Home of the free, baby.

This is a nation 14-months removed from the demise of our investment banking sector. They all disappeared last year: first Bear Stearns crumbled under the weight of debt contracts - those toxic assets linked to CDO and CDS contracts that the finance boys talked them into writing; that was just an appetizer. Then, Lehman Brothers went belly up, after a desperate search for an acqusitiin partner. When Bear had gone under, folks thought it was just a temporary problem. But when Lehman fell, the remaining players scrambled for the warm embrace of the Federal Reserve. Those that survive - Goldman Sachs, Morgan Stanley - do so as bank holding companies, supposedly locked into golden handcuffs which prevents them from making the same, wild bets that felled their former compatriots.

The President then - George Bush - thought he was presiding over the end of the American republic. The Treasury Secretary scribbled some hasty notes on the back of a napkin and asked the Congress for hundreds of billions of dollars, which he could use to save the world - or at least the banks.

Well, that plan didn't really work and the backup plan didn't really work and the fall back plan has only been able to keep banks alive, not so much on economic activity.

But one thing has happened: the immediate threat to our economy - the worlds economy -is over. But the crazy thing is - instead of celebrating with a modicum of joy, people are out in the streets whining about debts that won't come due until decades after their death.

Bruce Bartlett has put more economic rigor into this conundrum:


Take a quick review and let me know if you can figure out why people - still mired in the effects of the worst economic slowdown since the Great Depression are so eager to stop spending. It looks to me like we need to increase spending.

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