The Exercise of Vital Powers

Courtesy of The Volokh Conspiracy:

Advice for Government Litigators:

When a federal court is considering your case, and the court clerk asks you for a relevant document, don’t respond that the clerk should file a Freedom of Information Act request.

HAHAHAHA!

Culture of Secrecy indeed

Peach Pundit is taking a look at how Gwinnett County Chairman Charles Bannister did his first year on the job. The following quote jumped out at me:

To that end, Chairman Bannister is anticipating that the county will start getting into the business of boosting economic development itself. In recent years, it has relied upon the Chamber of Commerce for that activity, but now Bannister is talking about the need for an economic development officer “to compete.”

Gee, that sounds an awful lot like what New London and Stockbridge are up to.

Maybe its time I put the Institute for Justice into my speed dial.

Speaking of things that need to be wiped from the face of the Earth.

Stevens, Young and little Murkowski need to go. Stevens has been in the Senate since 1968. Don Young since 1973. Lisa Murkowski was named Senator by her father when he left the position to be Governor of Alaska. The first two are poster children for Term Limits (either a constitutional amendment or a Vince Flynn novel, either is fine by me). The latter is nepotism run amok. They are a disgrace to this nation, the state of Alaska and the Republican Party.

I wonder how many American service men and women will die due to lack of equipment while these scum bags spend our tax dollars on their pork and lobbying schemes.

http://www.cato.org/pub_display.php?pub_id=5342

Man kills three daughters in Pakistan (link)

[The mother] recounted how she was awakened by a shriek as Ahmed put his hand to the mouth of his stepdaughter, Muqadas, and cut her throat with a machete. She said she looked on helplessly from the corner of the room as he then killed the three girls — Bano, 8, Sumaira, 7, and Humaira, 4 — pausing between the slayings to brandish the bloodstained knife at his wife, warning her not to intervene or raise alarm….

“I thought the younger girls would do what their eldest sister had done, so they should be eliminated,” he said, his hands cuffed, his face unshaven. “We are poor people and we have nothing else to protect but our honor.”

Islam must have one fucked up definition of “honor” if slaughtering a four year old girl is needed to protect it!

This is not a very good way to convince me that we shouldn’t wipe that culture and religion from the face of the earth by whatever means necessary.

Department of Homeland Security’s assistant secretary for policy, Stewart Baker at the US Chamber of Commerce’s event on combating intellectual property theft (source):

“I wanted to raise one point of caution as we go forward, because we are also responsible for maintaining the security of the information infrastructure of the United States and making sure peoples’ [and] businesses’ computers are secure. … There’s been a lot of publicity recently about tactics used in pursuing protection for music and DVD CDs in which questions have been raised about whether the protection measures install hidden files on peoples’ computers that even the system administrators can’t find.

“It’s very important to remember that it’s your intellectual property — it’s not your computer. And in the pursuit of protection of intellectual property, it’s important not to defeat or undermine the security measures that people need to adopt in these days.”

He then goes on to make strange claims about Avian Flu and the need for remote access.

Figures this would happen once I pay off my mortage

David Bernstein, just back from a trip to Israel, reports that the opinion on the Jewish Street is that the IDF should take whatever actions necessary to prevent Iran from getting the bomb. I have to wonder if this isn’t exactly what the Iranian government wants. They know that if they get a bomb and use it, they will get obliterated, and their radioactive smoldering remains will be international pariahs among the west and moderate Muslims. However, if they can provoke a conflict with Israel, they know they put the US Government in a bad situation between building a new Iraq and supporting our long time ally Israel. It would also be a way to turn the not-so-theocratic but fairly nationalistic youth in Iran against the west. The one thing they might have to fear - regime change - is unlikely due to the generally perceived lack of success in Iraq.

Crappy situation all around.

As a political philosophy, the belief that “it is the job of government to widen the chance for development of individual personalities” is not merely lame and insulting, but dangerous. The endless widening and development of our personalities will require and legitimize the endless widening and development of our government. The threat goes beyond taxes, spending, borrowing and regulating that increase without limit. It culminates in a therapeutic nanny state that corrupts both its wardens and its wards. Convinced that they are intervening, constantly and pervasively, to assist the growth of people who would otherwise stagnate, the enlighteners don’t need coercion to enfold the people in a soft totalitarianism. The objects of this therapy, meanwhile, may grow accustomed to it, and ultimately prefer being cared for to being free; or conclude that being free has no value apart from being cared for.

An interesting opinion piece on why the Democrats continue to fail.

David Friedman has posted yet another unworkable plan for how the Democrat Party can capture the “libertarian vote” away from the GOP.

First off, I don’t disagree about his attack on the GOP, the current leadership in Congress and the White House is anything but limited government. I suspect even their tax-cuts were more an attempt to revitalize the economy and increase revenue that is was an effort to let working Americans keep what they earn.

Friedman’s proposal is that the Democrats should embrace marijuana legalization¹. This plan to “pull the libertarian faction out of the Republican party” won’t work. As was discussed on Catallarchy back in June, libertarians who find themselves identifying with the GOP don’t really care about drug legalization. Republican libertarians tend to be much more socially responsible than Democrat libertarians, or even Libertarian libertarians (ie LP members).

Do I support marijuana legalization? Probably. Is that issue so important to me that I’ll go along with all the other baggage the Democrats bring along: big labor, radical environmentalism, soak-the-rich tax policies and overreaching nanny-state regulations? Hell no.

The War on Drugs is a failure. It doesn’t stop the problem, it raises grave civil liberties concerns, and it costs lives. However ending the WoD does not have to mean legalization - and that is a crucial point the LP and many left leaning libertarians miss.

¹ For every one Libertarian who says the LP isn’t just about drug legalization, there seems to be about four that do something to disprove that notion.

I believe there is more to this story than is being reported

Former Senate intelligence committee chair Bob Graham (D-Fla.) was quoted in the Washington Post as saying, “I came out of the room with the full sense that we were dealing with a change in technology but not policy,” … with new opportunities to intercept overseas calls that passed through U.S. switches(emphasis mine).

What change in technology? Law Enforcement has had the ability to wiretap on demand due to the CALEA law since 1994.

New York Times executive editor Bill Keller’s statement on publishing the article raises more questions:

“A year ago, when this information first became known to Times reporters, the Administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country’s security…..

“Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program — withholding a number of technical details – in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. (emphasis mine)

The NSA’s surveillance program ECHELON has been public knowledge since 1999. What clues would the publishing of this story have given the terrorists? More importantly, what clues could the story have given the terrorists what were compelling enough to cause the Times to sit on the story for over a year? Are these the technical details that were not reported?

General Hayden, Director of the NSA:

FISA involves the process — FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it’s a little — it’s difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it…

And here the key is not so much persistence as it is agility. It’s a quicker trigger. It’s a subtly softer trigger. And the intrusion into privacy — the intrusion into privacy is significantly less. It’s only international calls. The period of time in which we do this is, in most cases, far less than that which would be gained by getting a court order.

Now, 50 U.S.C. 805 (f), aka FISA, permits the Attorney General to commence emergency surveillance if there is not time to get a FISA judge to issue a warrant. If the NSA were conducting normal FISA surveillance then the FISA law should suffice. But it doesn’t, so the question is why?

One final tidbit that indicates this is more about technology than law. In his handwritten letter to the Vice President after being briefed on the program, Sen. Rockefeller said that “I am neither a technician nor an attorney”. If the NSA were conducting normal run of the mill surveillance, why would he have said he was not a technician?

Here is my theory.

The NSA is using technology and techniques similar to what Google uses in Gmail. With Gmail, Google uses content extraction to scan an email and obtain the “concepts” of the email. Google then displays ads on the page related to those concepts. All of this is done with Google’s usual speed and efficiency.

What if the reason that FISA doesn’t work for “this program”, as Gen. Hayden puts it, is because they are scanning anything that is remotely related to terrorism. Getting FISA warrants for every conversation containing the phrases “Bin Laden”, or “blow up a building” would be impossible. The paperwork generated would be immense. That is why Hayden said it is “more optimized under this process”. The “subtlety softer trigger” may simply be a combination of the phrase “hijack a plane” made on an international call. And since the surveillance is based on the conversation - not on who the end points are, the period of monitoring is much shorter than a normal FISA order would cover.

The next question becomes, is this possible?
My answer is probably, and again I turn to the folks at Google. Consider how much information is on the Internet. Consider how quickly Google returns the results for your query. It is known that Google runs a massively parallelized server farm using the cheapest hardware they can find. Rumors are that Google maintains anywhere from 10,000 to 100,000 servers.

Of course scanning voice is much more difficult than scanning text. I’m not aware of any programs that are processing massive amounts of binary multimedia data in near real time. But the NSA does have the best math geeks in the world, and searching audio streams for key words would be a math problem.

The perplexing part is how the Bush Administration is responding to this revelation. They went on full defensive mode once the story broke. That isn’t the typical MO for the Bush Administration, but they knew a year ago the Times had the story.

Second their legal defense seems incredibly weak as outlined by Professors Kerr and Solove.
Given that they had a year to prepare, couldn’t they have developed something better¹? The AUMF and Article II arguments seem almost designed to put the Administration at odds with Congress.

Is Bush using this disclosure for political advantage? John McIntyre seems to think so. However Bush is playing a dangerous game. Americans like their privacy and with the scenes of 9/11 retreating from people’s minds the Democrats could be able to play this to their advantage.

If Bush can’t quickly kill the interest in this story, then he is going to have to reveal more details to satisfy his critics. However, revealing the details of a massive key word analysis of phone conversations being conducted by the NSA would damage our ability to conduct the war on terror. Once the terrorists know what the NSA is up to they will change their behavior patterns.

The best way for the Administration to handle this is to quiet Congress down about it.