Tag: Civil liberties

The Pigeons Come Home

Now that it looks like we’re headed for a … ugh … Trump/Clinton showdown, expect to see more articles like this:

Back in 2013, I argued that the U.S. has been building “all the infrastructure a tyrant would need, courtesy of Bush and Obama,” adding, “More and more, we’re counting on having angels in office and making ourselves vulnerable to devils.” With Trump and Hillary Clinton leading in the primaries, let’s revisit some particulars:

Bush and Obama have built infrastructure any devil would lust after. Behold the items on an aspiring tyrant’s checklist that they’ve provided their successors:

A precedent that allows the president to kill citizens in secret without prior judicial or legislative review

The power to detain prisoners indefinitely without charges or trial

Ongoing warrantless surveillance on millions of Americans accused of no wrongdoing, converted into a permanent database so that data of innocents spied upon in 2007 can be accessed in 2027

Using ethnic profiling to choose the targets of secret spying, as the NYPD did with John Brennan’s blessing

Normalizing situations in which the law itself is secret — and whatever mischief is hiding in those secret interpretations

The permissibility of droning to death people whose identities are not even known to those doing the killing

The ability to collect DNA swabs of people who have been arrested even if they haven’t been convicted of anything

A torture program that could be restarted with an executive order

Even if you think Bush and Obama exercised those extraordinary powers responsibly, what makes you think every president would? How can anyone fail to see the huge potential for abuses?

Before moving into a new house, parents of small children engage in child-proofing. Before leaving the White House, Obama should engage in tyrant-proofing. For eight years, he has evinced a high opinion of his own ability to exercise power morally, even in situations where Senator Obama thought that the president should be restrained. At this point, better to flatter his ego than to resist it. You’ll be gone soon, Mr. President, and for all our disagreements, I think your successor is highly likely to be less trustworthy and more corruptible than you were.

Insofar as you can, limit his or her ability to violate liberties or hide atrocities before you go. It may be the most significant step you can take to safeguard your legacy.

Conor, who like many libertarians, has been sounding alarms on these issue for the last decade, also calls on Congress to reclaim its power while it still can.

Lee warned about it when Bush was assuming Patriot Act, surveillance and torture powers. I warned about it when Obama assumed mass surveillance powers and started doing everything by executive order. The mantra was always the same whether you trusted Bush or trusted Obama or trusted both: it wasn’t about them; it was about the next President and the next.

And now we have a next President, either Clinton or Trump. And the public doesn’t trust either of them. Nor should they. Both have shown a disregard for Constitutional restraint and the Rule of Law. Both have shown that they will use the power of the office to engage in petty personal vendettas. Both of them could be imagined being overruled by the Supreme Court and saying, as Andrew Jackson once did, “John Roberts has made his decision, now let him enforce it.”

Yet rather than reign in this unprecedented power, our leaders seem to be expanding it. To wit:

A while back, we noted a report showing that the “sneak-and-peek” provision of the Patriot Act that was alleged to be used only in national security and terrorism investigations has overwhelmingly been used in narcotics cases. Now the New York Times reports that National Security Agency data will be shared with other intelligence agencies like the FBI without first applying any screens for privacy.

This basically formalizes what was already happening under the radar. We’ve known for a couple of years now that the Drug Enforcement Administration and the IRS were getting information from the NSA. Because that information was obtained without a warrant, the agencies were instructed to engage in “parallel construction” when explaining to courts and defense attorneys how the information had been obtained. If you think parallel construction just sounds like a bureaucratically sterilized way of saying big stinking lie, well, you wouldn’t be alone. And it certainly isn’t the only time that that national security apparatus has let law enforcement agencies benefit from policies that are supposed to be reserved for terrorism investigations in order to get around the Fourth Amendment, then instructed those law enforcement agencies to misdirect, fudge and outright lie about how they obtained incriminating information — see the Stingray debacle. This isn’t just a few rogue agents. The lying has been a matter of policy. We’re now learning that the feds had these agreements with police agencies all over the country, affecting thousands of cases.

This shouldn’t be a partisan issue: do you want Clinton or Trump to have these powers? But of course, it is a partisan issue. Congressional Democrats don’t want to reign in the power of the White House because they’re just fine with Clinton wielding that power. Republicans might be a little more principled, given their fear of Trump, but I suspect they wouldn’t mind too much if he had such power.

One way or another, we appear to be on the brink of realizing what all those civil libertarians have been complaining about for years. And the country may never be the same.

The No Fly Fraud, The Donald and the Death of Civil Liberties

In this corner, we present the Democratic Party. Fresh off of Obama’s lackluster Oval Office speech, they are pushing to ban people on the federal no-fly list from buying guns. Never mind that the list is arbitrary and secretive. Never mind that it’s difficult to find out why you’re on the list and almost impossible to get off of it. Never mind that there are several hundred thousand people on the list, including the odd PhD Candidate and the occasional 4-year old. Never mind that this would deprive people of a basic civil liberty without due process. Never mind that terrorists will simply get their guns illegally. There’s an election coming up. Time to sow some panic!

And in this corner, we have the Republican frontrunner. Fresh off making false claims that he saw video of thousands of American Muslims celebrating 9/11, calling for Muslims to be registered and saying that some mosques should be closed, today he said that we should just stop letting Muslims come into the country. He clarified later that this would include US citizens currently abroad although he didn’t clarify if this meant military personnel. In support of this, he cited a bunch of unscientific online polls from anti-Islamic groups. Never mind that we’ve had a total of 40 people killed on American soil by anything remotely Islamic in the last five years (against five million American Muslims and 70,000 total murders in that time). Never mind that it would be unconstitutional. Never mind that there would be no practical way to do it without forcing everyone to declare their religion to the government. Never mind that his campaign is drifting further and further into something that can only be called fascism. There’s panic to sow!

So one party wants to take away civil liberties based on secret lists. The other wants to bar people from the country based on their religion.

And people wonder why I vote libertarian.

No, There is No Blood On Snowden Hands

The director of the CIA is claiming that the attacks in Paris are at least partially the fault of Edward Snowden:

In a pair of public appearances this week, CIA Director John O. Brennan made clear that he blames leaks by former intelligence contractor Edward Snowden for enabling terrorists to evade detection.

“Because of a number of unauthorized disclosures, and a lot of hand-wringing over the government’s role in the effort to try to uncover these terrorists,” Brennan said, the CIA and others agencies have lost use of critical tools needed “to find these terrorists.”

Brennan’s assertion has become a refrain in the two years since Snowden exposed details about a range of U.S. surveillance programs. And former CIA director R. James Woolsey went further, saying on Sunday, “I think Snowden has blood on his hands from these killings in France.”

I guess this was to be expected. Ever since Snowden revealed the scale of the NSA’s domestic spying program, our government has been trying to blame him for … well, everything. But even the WaPo’s coverage is deeply skeptical:

The revelations that were the source of greatest controversy involved programs that would likely have been of little value in disrupting the Paris plot, experts said. The National Security Agency’s collection of data about the times and durations of billions of domestic phones calls was not designed to pick up calls entirely outside the United States.

A second program that relied heavily on cooperation from companies including AOL, Microsoft and Google was aimed at intercepting e-mail and phone calls between foreign operatives and individuals in the United States. Nothing has changed since that revelation to restrict the NSA’s ability to sweep up communications exclusively among foreigners, as was apparently the case for the plot in France.

“Aspiring terrorists already knew the U.S. government was doing everything it could to track and monitor their communications,” said Jameel Jaffer, the deputy legal director of the American Civil Liberties Union. “What Snowden disclosed was the astonishing extent to which the government’s surveillance power had been turned on ordinary citizens. The CIA director knows this. He’d just rather we talk about Snowden’s disclosures than about the intelligence community’s failures.”

Glenn Greenwald, Snowden’s amanuensis, makes similar points in his detailed response, pointing out that the FBI itself was warning about terrorists avoiding e-mail and electronic communications as early as 1997. Osama bin Laden did not use electronic communications but used couriers precisely because he was concerned that US electronic intelligence was too good.

Moreover … and this is important to repeat … Snowden’s revelations were not about our ability to spy on terrorists. What he revealed was mass domestic surveillance of Americans, almost all of which has been used to help the DEA and the IRS pursue criminal charges without all that pesky fourth amendment stuff.

So why would the CIA director be spewing this line of bullshit? Why would he be spewing it before the bodies are even cold? Two reasons. One, to cover up his own incompetence. Greenwald again:

For most major terror attacks, the perpetrators were either known to Western security agencies or they had ample reason to watch them. All three perpetrators of the Charlie Hebdo massacre “were known to French authorities,” as was the thwarted train attacker in July and at least one of the Paris attackers. These agencies receive billions and billions of dollars every year and radical powers, all in the name of surveilling Bad People and stopping attacks.

So when they fail in their ostensible duty, and people die because of that failure, it’s a natural instinct to blame others: Don’t look to us; it’s Snowden’s fault, or the fault of Apple, or the fault of journalists, or the fault of encryption designers, or anyone’s fault other than ours. If you’re a security agency after a successful Terror attack, you want everyone looking elsewhere, finding all sorts of culprits other than those responsible for stopping such attacks.

This need to deflect blame is especially acute when it comes to ISIS, which arose from the disbanded Iraqi armed forces, took advantage of the vacuum created by Bush’s invasion and Obama’s retreat, has been empowered by our stupid decision to throw in against Assad because we hoped that “moderates” would appear, and drawn support both from our “allies” in the region and our own lack of concern of where weapons provided to anti-Assad forces ended up.

There’s another another reason. NYT:

American and French officials say there is still no definitive evidence to back up their presumption that the terrorists who massacred 129 people in Paris used new, difficult-to-crack encryption technologies to organize the plot.

But in interviews, Obama administration officials say the Islamic State has used a range of encryption technologies over the past year and a half, many of which defy cracking by the National Security Agency. Other encryption technologies, the officials hint, are less secure than terrorist and criminal groups may believe, and clearly they want to keep those adversaries guessing which ones the N.S.A. has pierced.

Some of the most powerful technologies are free, easily available encryption apps with names like Signal, Wickr and Telegram, which encode mobile messages from cellphones. Islamic State militants used Telegram two weeks ago to claim responsibility for the crash of the Russian jet in the Sinai Peninsula that killed 224 people, and used it again last week, in Arabic, English and French, to broadcast responsibility for the Paris carnage. It is not yet clear whether they also used Telegram’s secret-messaging service to encrypt their private conversations.

(Actually, it appears that the terrorists used unencrypted SMS.)

There has been an enormous push from “security experts” to pre-emptively cripple digital encryption methods by demanding “back doors” for the government that would essentially render encryption useless. For the past few years, companies that support and provide digital encryption have been outright accused of aiding and abetting terrorism. And now the security state supporters have found an actual terrorist attack to pin on the door of companies that provide encryption, regardless of whether encryption was involved or not.

But encryption does not destroy the government’s ability to stop terrorists. They can still use human intelligence assets. They can still track metadata, they can still … maybe … answer the phone when the relative of a guy with a bomb in his underwear tries to warn them. They can still use Patriot Act powers. What they can not do is snoop through everyone’s e-mail in the hopes that they’ll catch a tax dodger, a drug dealer or, once in a blue moon, maybe a terrorist.

The encryption debate is currently at high heat. Obama has, to his credit, resisted efforts to demand back doors to encryption and Congress has been reluctant. What Brennan is doing is trying to exploit a tragedy to bypass this debate and expand his power.

We’ve been here before. In the 1990’s, our law enforcement agencies sought the power to have warrantless wiretaps, roving wiretaps, sneak-and-peak raids and other surveillance methods to use in pursuit of the War on Drugs. The Republican Congress refused to give them those powers because they believed they violated the Fourth Amendment. After 9/11, before the bodies were even cold, the CIA and FBI insisted that this was a the reason 9/11 happened; that had Congress given them those powers, they would have prevented it.

It was bullshit, of course. As we later found out, both agencies ignored critical pieces of evidence. They’d also taken an overzealous view of “the wall” between the agencies and refused to share information with each other. But the CIA and FBI were not actually that interested in how 9/11 happened. What they were interested in was getting the surveillance powers they had craved for so long. Americans were scared and the agencies cravenly exploited that fear to get the Patriot Act (Bob Barr, a sponsor of the Patriot Act and now opponent, has a good segment on this in an episode of Penn and Teller: Bullshit!). They then went on to use those powers to … pursue the War on Drugs.

Now we’ve had another awful terrorist attack. And the same leaches who exploited 9/11 to weaken our civil liberties now want to exploit Paris to weaken them again. To hell with them. To hell with them and their security state. To hell with them dancing in the blood of 130 dead Parisians. They were granted the powers they demanded after 9/11 and abused them. They shouldn’t get another bite at the apple of our liberty.

And here’s my challenge to supporters of the security state, Republican or Democrat. If you really think that our civil liberties are outdated or dangerous … if you really think that we shouldn’t mind these intrustions if we have nothing to hide … then you first.

Seriously. Put every e-mail you send on a public server so we can all look at them. Every single one. Broadcast your meta-data on a website so we can see exactly what you’re up to at all hours. Record your phone conversations … every one … and put them on YouTube. Show us every text message, tell us about everyone you meet, report every conversation. Because if you’re going to smear the blood of Paris on your face and demand that rest of us surrender our privacy, I want to see you leading by example. Show us that you have nothing to hide. Then … maybe … we’ll consider letting you snoop around our affairs.

No More Bloody Sundays

Today marks the 50th anniversary of “Blood Sunday”, the day when civil rights demonstrators marching from Selma to Montgomery were set upon by a law-enforcement organized mob at the Edmund Pettis Bridge. There’s a lot to say about it, including the lame-brained decision of GOP leaders to not attend. But one thing really jumped out at me looking at all the grandstanding politicians.

There is no way a Selma protest would be allowed today:

Today, it would be impossible to obtain a federal court order permitting a five-day protest march on a 52-mile stretch of a major U.S. highway. Under contemporary legal doctrine, the Selma protests would have ended March 8, 1965.

Starting in the 1970s, however, the federal courts began rolling back this idea. A series of rulings erected what is known as the public forum doctrine, which lets a city, state or the federal government decide whether public property can be used for 1st Amendment activities. It also means that if courts do not designate a place a “traditional public forum,” government may forbid its use as a site of protest altogether.

Under this doctrine, the federal government has completely banned large protests at Mt. Rushmore and the Jefferson Memorial.

In fact, a few years ago, a bunch of people were arrested for dancing at the Jefferson Memorial, a decisions the Courts upheld. I can’t imagine what Jefferson, a staunch advocate of free speech, would have said about it.

Even in traditional public forums, government may strictly regulate the time, place and manner of speech activity. The National Park Service, for example, has created “free speech areas” and limited protests to them. Predictably, the federal courts have sustained this policy.

Likewise, local, state and federal governments have banned dissent near major political events, such as the presidential nominating conventions.

Protesters are relegated to “designated speech zones,” sometimes blocks or miles from the venue. The federal courts have sustained such regulations as justifiable security measures. The purpose and effect of these regulations, however, is to render the protesters invisible.

Krotosyznski goes on to note the crackdown on the peaceful side of the Ferguson protesters, which included firing tear gas at people standing on their own lawns. The courts belatedly decided that this violated the free speech rights of the protesters, but it was long past. Whether the Ferguson protests had merit or not, given the DOJ reports, is kind of beside the point. The point is that kind of heavy-handed response has become routine for protests that do not have official government sanction.

Many of the Tea Party protests got permission for their activities, but sometimes only after delays and only in designated areas. And the idea that the Tea Party need permission to oppose government policy is fundamentally ridiculous.

So, yeah, follow the commemorations of the Selma march today. But remember that every single one of those politicians speaking about Dr. King’s courage would have shut him down in a heartbeat today. Because for worshippers of government power, no matter what their political persuasion, dissenters are a problem, not something to be proud of. They are only something to be proud of decades after the fact.

What Now?

So now that the Republicans have taken back both houses of Congress, what should they do for the next two years? Nothing, argues National Review:

The desire to prove Republicans can govern also makes them hostage to their opponents in the Democratic party and the media. It empowers Senator Harry Reid, whose dethroning was in large measure the point of the election. If Republicans proclaim that they have to govern now that they run Congress, they maximize the incentive for the Democrats to filibuster everything they can — and for President Obama to veto the remainder. Then the Democrats will explain that the Republicans are too extreme to get anything done.

They’ll say that anyway. If the Republicans proposed poached eggs for breakfast, the Democrats would denounce them as dangerous extremists. And I don’t think NRO actually believes this argument because they later say Republicans should force the Democrats to filibuster/veto popular legislation.

Even if Republicans passed this foolish test, it would do little for them. If voters come to believe that a Republican Congress and a Democratic president are doing a fine job of governing together, why wouldn’t they vote to continue the arrangement in 2016?

Which brings us to the alternative course: building the case for Republican governance after 2016. That means being a responsible party, to be sure, just as the conventional wisdom has it. But part of that responsibility involves explaining what Republicans stand for — what, that is, they would do if they had the White House.

So the Republicans shouldn’t govern. Instead, they should gear up for 2016 to take the White House and Congress at which point they will … what? … concentrate on keeping power?

I’m sorry, but I really don’t care about the Republican Party one way or the other. Whether governing hurts or helps their prospects in 2016 is irrelevant to me and should be irrelevant to people who are not actual party operatives. We had a unified Republican government for six years and the result was the most massive expansion of government power since the New Deal.

No. What we want from the Republicans is progress. What we want is for them to turn back the tide of government expansion. What we want is for them to … what’s that word … govern? The Republicans are on probation right now. It’s up for them to prove themselves worthy of getting power back.

There is precedent for governing and winning elections at the same time: Republicans worked with President Clinton and kept Congress and won the White House twice as a result. But they didn’t win because they grandstanded. The won because the accomplished things — welfare reform, spending restraint, NAFTA — that made them worthy of winning all three branches of government.

Nick Gillespie:

Yet Republicans mistake the meaning of the midterms at their own peril. These elections were a particularly frank repudiation of Barack Obama and the past six years of failed stimulus, disastrous foreign policy, and rotten economic news. Even the president’s historic health-care reform remains a negative with voters. But if the GOP thinks it has a mandate to return to the equally unpopular bailout economics and social conservatism of the George W. Bush years, it too will be sent packing as early as the next election.

You should read Nick’s entire piece, which breaks down the polling to show a decisive shift against big-government, in every respect.

It’s not enough for the Republicans to not be Obama. “Not Obama” isn’t going to be a candidate in 2016. In fact, Obama won’t be a candidate in 2016 (savor that relief for a moment). If the Republicans want to earn our votes in 2016, they need to accomplish things. They need to prove themselves worthy. They need to show that they can get government out our hair, despite the man in the White House.

How does this break down into nuts and bolts? On the day after the election, John Boehner and Mitch McConnell laid out an agenda for the next two years. It includes approving the Keystone XL pipeline, tax reform and fast track trade authority. It also includes three changes to Obamacare: raising to 40 the hours needed to qualify as a full-time employee for the employer mandate, exempting veterans from counting toward the 50-employee mark that triggers the coverage mandate and repealing the medical device tax.

These are all OK ideas and some of them — like fast track trade authority — are supported by the President. But it’s kind of small potatoes. It’ll make a nice first month, but it’s not exactly the Contract with America. I would prefer something a bit bolder.

This would involved finding things that the Democrats or the President will support. There’s a strain of thought among conservatives, exemplified by the NRO piece above, that working with Democrats will give “legitimacy” to Obama. Nuts to that. The country needs things done. And if we can the President on board, great.

But the Republicans should also pass legislation they know will be filibustered or vetoed. This could give the Democrats something to talk about in 2016 (“look at the extreme legislation we blocked!”). But I think it more likely, if Republicans are smart … OK, if they’re not too dumb … OK, if they’re not completely stupid … that it would give the Republicans something to run on in 2016. It would give the American people something to vote for, not just something to vote against. When the Republicans have run on a positive agenda — Reagan in 1980, Newt in 1994 — they have done well.

As for specific issues: the first on that list would be entitlement reform. The President has indicated that he is open to it. It’s time to call his bluff. The deficit has been shrinking in recent years but will soon begin to blow up as the bill for Baby Boomer retirees comes do. The time to act is now, before we are back in the land of trillion dollar deficits.

A lot of Republicans worry that overhauling Medicare and Social Security will open them up to attack from the Democrats. But here’s the thing: that’s going to happen anyway. The number of elections that have not included a Democrat “mediscare” campaign over the last forty years is precisely zero. The Democrats are going to demonize Republicans anyway. At the very least we could get something out of it. And if it costs the Republicans some seats, so be it. It would be worth it to slice trillions off our debt.

The counter-argument is they should wait until the Republicans have the White House as well. That way, they won’t have to compromise with Democrats and accept a tax hike or defense spending cuts in return for entitlement reform. I find that hope ridiculously optimistic. It assumes that Republicans will take the White House and keep the Senate. And it assumes that they will take the political risk of entitlement reform once they have full power, which I find unlikely.

Act now. At the very least, call the President’s bluff. Then you’ll have something to run on in 2016.

The second priority should be regulatory reform, which is sucking a couple of trillion dollars out of the economy. Probably the most important regulatory reform is the repeal of Sarbanes-Oxley, which is strangling our economy, halting IPOs and a nightmare for businesses. It’s the poisonous spider at the center of the web of economic malaise. President Obama will probably oppose this. Good! Make him stand with the bureaucrats and trial lawyers! Over 60% of the American people think regulation is too onerous, including many independents. This is a winning issue for Republicans.

Third would be an overhaul of the patent and copyright laws which are strangling innovation. The Republicans are open to this and the President is too, despite fierce opposition from trial lawyers. Reform could be passed in the first few months of 2015.

Fourth, an overhaul of our drug policy, specifically a recognition of state laws on medical and recreational marijuana. The President has occasionally made noises on this and a majority of Americans now favor pot legalization. The Republicans can get ahead of the Democrats on this by embracing a federalist approach: states that keep pot illegal will still have the aide of the DEA in keeping it illegal; states that make it legal will be left alone. I have little hope the Republicans will do this, but it would be a great step for them.

Fifth, an overhaul of Obama’s anti-terror powers. Justin Amash and Rand Paul give me hope that the GOP may be open to this. The best thing about reigning in Obama’s police state would be exposing the lie that the Democrats are the party of civil liberties and personal freedom.

That’s just for starters. There are other things: more spending cuts, reigning in Obama’s foreign policy and executive power excesses, a symbolic repeal of Obamacare (symbolic because it will be vetoed). But I see the above as doable and I see it as proving the GOP’s supposed small-government bona fides. If they’re serious, they will do something along these lines.

I have no doubt that the Republicans will run into opposition from the President. In fact, his petulant press conference seemed to promise that he would do what he wants on issues like immigration and only invite cooperation on his agenda. We’ll see what happens behind closed doors. This President has, on occasion, compromised with Republicans. But he has also been willing to take a my-way-or-the-highway approach, particularly when he had Congress for the first two years (Republicans were invited only to tweak details of Democratic legislation; kind of like being asked which arm you want the shark to bite off).

But if the President is determined to pursue his agenda and won’t cooperate, then pass the legislation anyway. Force him to veto it. Force him to oppose. Force his party to go on record as the party of bigger taxes, more government and no reform. Force him to tie his former Secretary of State and Heir Apparent to his unpopular agenda.

That’s something you can run in 2016. That’s something that might bring my vote in 2016. Until then, I will remain skeptical of the GOP and their commitment to small government.

Monday Roundup

For reasons that I hope I’ll explain one day, this week is going to be a bit crazy. So here are a few stories I’ve been sitting on, awaiting longer commentary:

A few weeks ago, Marvel comics unveiled an alternative Spiderwoman cover which was immediately decried as sexist because of her pose. I suspected that this criticism was largely coming from people who weren’t terribly familiar with the medium. And indeed, Maddox easily found a spiderman cover that was almost identical. As a general rule, if you ask a rhetorical question like, “Would they draw Spiderman like that?” you should probably do a little bit of research to make sure the answer isn’t “yep”. I don’t agree with everything Maddox says, but his point is well taken.

Another video you want to take in is Matt Ridley talking about global greening — the apparent rise in plants that has resulted from global warming. I disagree with parts of what he says, but toward the end he hits a very important point: Europeans are now planning to burn zillions of tons of trees under the belief that this is “green energy”. There’s a reason we stopped burning trees for fuel.

A few months ago, the town of Peoria launched a SWAT raid into the home of Jon Daniel. This incredibly dangerous man had … uh … created a parody Twitter account of Mayor Jim Ardis. During the raid, the cops found some pot on one of Daniel’s roommates. A judge has decided that the raid was lawful and they can proceed with the felony possession charges. I have no idea how the raid could be lawful when the prosecutor is not bringing charges because mocking someone on Twitter is not illegal. We have now gotten to the point where cops can raid your house based on something that isn’t a crime.

Obama has unveiled a plan to deal with drug-resistant bacteria, mainly by curtailing the massive overuse of antibiotics in farming and creating incentives for companies to develop new antibiotics. All things considered, this could be the biggest accomplishment of his administration. I mean, he’s not actively making things worse, so it’s got to be one of the top five things he’s done, at least on par with the Great Deckchair Rearranging of 2011.

Just a reminder if you need one: slavery did not make America rich.

SCOTUS Protects Our Phones

A lot of breaking news today, so short posts while I prepare two big ones. The Court will be issuing its biggest decisions over the next week. Today they ruled against Aero (and much as I like the idea of Aero, I kind of see their point). But the most important decision they handed down was in Riley v. California. The Court decided — unanimously — that cops need a warrant to search your cell phone. The decision is here and it’s beautiful. They systematically destroy the government’s argument that cell phones must be searched immediately for police safety. They point out that taking a phone off the network can easily protect it from being “wiped”. And they close with this:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

They only way it could have been better if they’d said “get a fucking warrant”, words that should be inscribed on the doors of every police station, NSA office, CIA dungeon and FBI building in the country.

Book Review: Rise of the Warrior Cop

I’m kicking off a new feature in my blogging: reviews of books or movies I think are relevant to current issues and events. I’ve made occasional oblique references to books like Three Felonies a Day or Declaration of Independents. But this will be a little more in depth. Not anticipating this will happen often.

On this blog, I regularly link to the work done by Radley Balko so it won’t surprise anyone that I just read his new book Rise of the Warrior Cop and have a high opinion of it. But I thought it was worth a post to spell out just why I think this is an important book. It’s not for the reasons that you think.

Balko’s blog has become one-stop-shopping on law enforcement abuses. From the misguided and tragic raid on Corey Maye to the killing of Kathryn Johnston, he’s documented hundreds of wrong-door raids, overamped raids and militaristic excesses that have trashed civil liberties and all too often left the bodies of innocent people and police on the ground.

But the book is very different from his blog. While the blog tends to focus on specific incidents of abuse, the book takes a step back to break down how we’ve gotten here: how all of our civil liberties have slowly been chipped away by the legislatures and the courts through hysteria over crime, drugs and terrorism. It chronicles how our approach to law enforcement has changed from colonial times (when we didn’t have professional law forces) to today, with a heavy focus on the last forty years.

The thing about wrong door raids or the shooting of innocent people by police is that focusing on particular horrifying incidents gives one the impression that are isolated or very rare events. Balko shows that they are not that rare. Ray Kelly admitted that at least 10% of the hundreds of raids launched in NYC every month hit innocent people. Others estimate the problem is much larger. Hard numbers are difficult to get because there is very little documentation of what goes on in police raids and legislators and law enforcement have resisted efforts to document it.

But wrong door raids are only the tip of a much larger and much scarier iceberg. The militarization of law enforcement is deeply problematic even when it doesn’t result in harm to innocent people. Over 50,000 armed raids are launched every year in this country and something like 90+% of armed raids are for consensual non-violent crimes (drugs, principally). The problem isn’t just innocent people getting hurt: it’s about the guilty people too. How did it become reasonable to routinely send armed tactical squads for drug busts? If someone has some pot, why should cops bang on the door at 4 am, wait 15 seconds, crash it down, throw everyone to the floor and point guns at their head while screaming profanities? Before you answer, remember that guns of any kind are only recovered in a tiny fraction of these raids. Before you answer, remember that armed resistance to cops has been rare even when crime reached its awful peak in the early 90’s (assaults on police are at an all-time low). Before you answer, remember that these tactics, with court approval, have been used to bust up small-time gambling “rings”, people selling raw milk, guitar manufacturers using illegal wood and even barbers practicing without a license. Raids have been launched against legal pot shops in California. These are licensed pot dealers — business people — who are treated like murderous meth kingpins. Raids have been launched against practicing physicians that the Feds decide are prescribing too much pain medicine. In many cases, they admit that the tactics are used not because of any danger but to “send a message”.

A man’s home is his castle, even if he is breaking the law. The Constitution applies to all of use, lawmakers and lawbreakers. Our Founding Fathers rebelled for far less than this. They thought daytime searches were out of line.

These tactics have only ramped up and expanded as the crime rate has fallen. Supporters like to say that the militarization of police is the reason crime has fallen. But they have a problem: cities that have eschewed such tactics, like San Diego, have seen sharper drops in crime and crime started dropping there before crime began to drop everywhere else. No matter what you might think of these tactics, there’s little evidence that they are actually working to reduce crime.

Rise of the Warrior Cop is definitively not anti-cop. I would say that at least 60% and probably more of the interviewees are in law enforcement. Some of the most telling passages in the book are from the 1970’s when police officers resisted the militarization of policing precisely because they feared what eventually happened: the creation of groups of armed officers with little connection to the community busting down doors in the process of ordinary law enforcement; communities that see cops as dangerous rather than helpful; the majority of good decent community-oriented cops being eclipsed by gung-ho warriors.

The problem is not that cops are bad; the problem is that cops are human. And because of panic-mongering over the War on Drugs and the War on Terror, we have given these humans military weapons, enormous discretionary power and little accountability. Cops in the book talk about the adrenaline rush that comes with a no-knock raid, the sense of power that guns, body armor and tanks give them. It’s a testament to the basic goodness of most of our cops that there aren’t more abuses.

Balko is clear in his closing argument: we do not live in a police state. Only a small minority of Americans are being impacted by this. But I would say that the mechanism of a police state has been slowly worked into our society thanks to the War on Drugs and the War on Terror. Think about 2016. In 2016 we will get a new President. Here are just some of the powers that this new President will have:

  • The power to surveil any overseas communication of any type through a secret court and the infrastructure to surveil any electronic communications, period.
  • The power to collect meta-data on all Americans, which includes their location, who they call and where they go.
  • A surveillance state that is governed by secret laws that no citizen can see.
  • The power to kill American citizens overseas based on secret internal evaluations.
  • The power to indefinitely detain terror suspects, including American citizens.
  • A post office that routinely photographs our mail.
  • Armed paramilitary SWAT teams in almost every city with a population of more than 25,000. Some cities of just a few thousand have them. Many now have armored vehicles and military grade weapons. Some even have massive .50 machine guns. That’s in addition to 73 different federal agencies that have tactical squads and employ tens of thousands of armed agents who are authorized for raids.
  • A judiciary that thinks the exclusionary rules is old-fashioned, that warrants should almost always be granted and that police always act “in good faith”. A judiciary that thinks, if you’re arrested for so much as a bogus parking ticket, the police should be to take your DNA and see what else you might have been up to. A judiciary that thinks the smell of pot justifies a warrantless search and that your silence can incriminate you.
  • Maybe you think some of those policies above are reasonable. The problem is that this is not multiple choice. The President and the state now have all of those powers and privileges. And that list will only grow if left unchecked. One of the things we’ve seen is that the powers bequeathed by one President to the next only get extended further. As Alex has said many times, Obama has engaged in War on Terror policies far in excess of what Bush did. What might the next President do? Are you willing to trust anyone with that kind of power?

    This isn’t about party. Republicans have played their role in chipping away at our civil liberties (Nixon especially). But one of the biggest enablers of law enforcement militarization has been Joe Biden, a liberal Democrat. When Obama took office, he massively increased the amount of money going into grants and giveaways to provide military-grade equipment to cops in even the tiniest safest cities. Under Obama, raids on legal pot growers have increased. Surveillance has increased. Civil liberties have decreased. And the only problems the Democrats have had with even the most invasive anti-crime legislation is it not going far enough. This is a bipartisan problem.

    A lot of people talk about the Second Amendment and its critical role in protecting us from tyranny. I agree on the importance of the Second Amendment. But where are these people when the actual pieces are put in place that could, under the right man, enable tyranny? Where are they as the Third, Fourth and Fifth Amendments are effectively gutted? Even the First Amendment is in danger. It is now routine for teams of cops to show up to protests in full riot gear and arrest peaceful protesters who won’t disperse. Medical marijuana activists have been specifically targeted for raids.

    If you really care about liberty, you should not respond to violent raids on non-violent drug dealers with “that’s what they get for dealing drugs.” If you really care about liberty, you shouldn’t dismiss concerns over Waco and Ruby Ridge because those people were crazy. If you really care about liberty, you shouldn’t think that it’s reasonable for cops to respond to peaceful protests with tear gas guns (response to violent protests is different). If you really care about liberty, you shouldn’t dismiss IRS profiling because it only hurt a bunch of Tea Partiers. If you really care about liberty, you shouldn’t cheer the DHS when they call for extra scrutiny of Right Wing groups even as all political terrorism is in decline.

    We see blazing hypocrisy on this issue all the time. Conservatives who rightfully screamed bloody murder over the Elian Gonzalez raid were almost gleeful when cops beat and pepper-sprayed Occupy protesters. Liberals who howled when Occupy protesters were beaten broke out the pompoms when it was the ATF (Rachel Maddow specifically said the nature of the opposition justified the tactics). Liberals who objected to profiling of Muslims thought it was just fine when the DHS did it with Right Wing groups.

    It is precisely that kind of partisanship and division which has enabled this. People looking the other way as the War on Drugs raged out of control because it was only hurting dirty hippies and poor black people. People looking the other way at ATF raids because it was only hurting gun nuts. People biting their tongues on War on Terror excesses because they’re not Muslim. People dismissing IRS abuses because the Tea Party deserved it.

    We have to get this through our heads: civil liberties belong to all of us. If anyone’s civil liberties are under attack, then all of our civil liberties are under attack.

    Balko seems a bit optimistic that we will reach a tipping point on this. I’m not so sure. I thought the Columbia raid, in which video captured the killing of two dogs and the terrorizing of a child over a minor drug bust, would have changed things, but it didn’t. I fear that, if things don’t change soon, it will take something truly horrible to wake the American people up.

    50,000 raids a year may not sounds like a lot in a country of 300 million. The vast majority of Americans will never have to worry about this. But the potential danger lurks out there. Anyone in this country — anyone who isn’t a Congressman at least — is a vague pile of evidence away from having their door knocked down, their house searched and any complaint being dismissed depending on which group our government decides is dangerous. This week, it’s legal pot dealers in California. Next week, its gun owners. After that, it’s IMF protesters. After that, it’s Right Wing “hate” groups.

    Is that they kind of country we want to live in? That’s the question the book asks.

    I’ve only talked about a tiny fraction of what’s in Rise of the Warrior Cop. It’s a quick read but packed with facts that are alternatively enraging, alarming and, on occasion, darkly hilarious. But if you care about this issue — either because you agree with me that this is alarming or because you think I’m a hysterical nut — you should take a look.

    Scandal Week

    With Benghazi revelations and IRS abuses dominating the headlines, the Obama Administration is releasing details on a couple of additional scandals, hoping they will slip under the radar.

    No dice, guys:


    Last week, The Washington Post reported that Health and Human Services Secretary Kathleen Sebelius had “gone, hat in hand, to health industry officials, asking them to make large financial donations to help with the effort to implement President Obama’s landmark health-care law.” According to the Post, an HHS source and an industry official have affirmed that over the last three months, “Sebelius has made multiple phone calls to health industry executives, community organizations and church groups and asked that they contribute whatever they can to nonprofit groups that are working to enroll uninsured Americans and increase awareness of the law.”

    Over the weekend, The New York Times reported that two organizations expected to be supporting the law are The Robert Wood Johnson Foundation, which is expected to give $10 million, and H&R Block, which will give a “donation” of $500,000. The Post and the Times reports also indicate that Secretary Sebelius has made contact with insurers, asking them to support the health law’s implementation.

    One of the things I’ve noticed about this Administration is that they are very devoted to finding ways to violate the spirit, if not exactly the letter, of the law. They are constantly searching for loopholes and excuses for behavior that is supposed to be forbidden.

    In this case, Sebelius is strictly forbidden from fundraising or soliciting funds in an official capacity. She can do so as a private citizen, but not with her official title and not with companies she regulates. The White House’s answer is that “Sebelius did not solicit for funds directly from industries that HHS regulates, such as insurance companies and hospitals, but rather asked them to contribute in whatever way they can” with is Orwellian doublespeak. There is no question about how industry saw this shakedown and I doubt that the Obama Administration is under any delusions either. They’re hoping that they’ve skirted the law. But the ultimate result is just the same.

    But wait, there’s more!

    The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

    The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

    In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

    And, just like that, the press suddenly becomes aware of the gigantic surveillance state that Barack Obama has built up over the last four years.

    The government is not saying why they tapped the phones. They have previously hinted that they were investigating a leak of classified information. But even if that’s the case, this was a massive sweep of AP journalists. It crosses that line from investigating a specific criminal action into engaging in broad unwarranted surveillance for any potential criminal action. It’s the difference between having Constitutional safeguards on our liberty and not having them at all.

    What we are seeing is apotheosis of an Administration that has had far too little checking and balancing from the media. No matter what Obama has done, the media has been on his side, either ignoring it for finding excuses for it. And they have kept pushing and pushing the boundaries until, perhaps, they have finally crossed a line that even liberals might notice.

    With the AP scandal especially, a lot of scales are falling from a lot of eyes. Better late than never, I guess. But we’ll just see how enthusiastically they cover the next revelation.

    Not Giving In

    One of the worst temptations after a high-profile crisis like Boston is to surrender some of our freedom for the illusion of safety. Perhaps this was justifiable after 9/11, when he had 2800 dead and weren’t sure what Al-Qaeda’s capabilities were. But even in that case, we can see now, after ten years, that we gave too much. Warrantless wiretapping, surveillance, no-fly lists, TSA, torture, the spectre of drones in American cities, the Patriot Act. The last time we gave an inch, the government took about ten miles.

    In the wake of Boston, many pro-“security” pols are already beating the drums for more restrictions on our freedom. They are as shameless and as opportunistic as those who called for immediate gun control in the wake of Sandy Hook. They are hoping that, in the passion of the moment, we will give them something they have wanted for a long time whether or not it would have prevented this tragedy.

    But the idea that we should have a 9/11-type surrender of freedom after Boston is simply absurd once you push aside the emotions of the last week. As horrible as the attack was, it killed and maimed fewer people than a good night on America’s highways. As scary as it is that terrorists might start going after “soft targets”, there are literally tens of thousands of mass gathering throughout the year in the United States. We simply can not protect all of them, no matter what we do. And, as we have found out with the powers we gave the government after 9/11, any powers we give the government now will quickly be used for other purposes.

    In Boston, at least one bad idea was used and several more have been proposed in the interest of “public safety”. To tackle three of them:

    Lockdown: For years, we have had a growing problem with schools locking down the minute they sense some danger, real or imagined. In Boston this week, we had the strange case of a (mostly) voluntary lockdown put out by the Governor. This lockdown included MTBA, which basically mandated the lockdown for anyone without a car (with corresponding hurt to the working poor).

    Murderers, rapists and muggers are always on our streets. But for one idiot kid, we shut down a major American city? If I were him, I would have been delighted to see millions of people inconvenienced because the police couldn’t find me. The cost of the lockdown has been estimated between $1 and $3 billion (although I think those are wild overestimates). Was it worth that? Was it worth the precedent? Ironically, the kid was found because the lockdown was lifted and one man ventured out of house and saw something in his boat.

    The motto for this week was “Boston strong”. And the people of Boston have indeed shown a sterling resilience. I’ve heard many say they plan to go to the marathon next year as a show of defiance. But what is strong about telling people to hide in their homes and not go out?

    I was living in Baltimore when the Beltway Sniper was on the loose. We didn’t have any killings up there (although it turned he was staying there). But the sense of tension and fear was very palpable. Much more so than this week because no one had any idea who the sniper was. But we got out and went to work. The idea of shutting down anything simply wasn’t on.

    Look, I get the flip side: if he’d had more guns and bombs, he might have gone into a public square and slaughtered dozens. But that danger always exists. Criminals have weapons. Terrorists have bombs. That we knew this one guy was dangerous does not make any other day of the week safe. If you know of a specific danger, you can call in more cops and warn citizens. In an extreme case, you can use the National Guard. In short, you can increase the number of alert and armed people who are out there and improve the odds. But having everyone cower in their homes? It’s not only a violation, it’s an ineffective one.

    (More on this from Popehat.)


    One thing being pushed in the wake of Boston is more public surveillance. We are being told that we need more security cameras and more police access to security cameras.

    Never mind that the clearest video of these guys came from a private store’s camera. Never mind that more images came from the public. Never mind that, with ubiquitous smart phones, it’s almost impossible not to be photographed every day. Never mind that the public cooperates any time something like this happens. Never mind that cameras have never delayed or stopped a terrorist attack: London is one of the most heavily surveilled cities in the world but that didn’t stop the 7/7 attacks. No, we need more cameras say the police staters.

    The police state supporters have always wanted more cameras. They have been pushing them on us for decades using any crisis — the War on Drugs, 9/11, Boston — to push for more. They are constantly walking through the blood of the slain in their efforts to get everyone on camera every day. Of course, these cameras are rarely used for counter-terrorism. Like the Patriot Act powers, they are mostly used for ordinary crime, including drug crime. And we frequently find that they are abused for purposes that have no relation to crime.

    I would think that the ease with which these guys were identified and the images that came in from the public would indicate that we have enough surveillance already.


    Remember when Rand Paul filibustered the Senate over the use of drones, worrying that the President’s power to kill would be extended into this country against American citizens? Remember how crazy everyone said he was, how paranoid?

    Well, guess what? Lindsey Graham and John McCain are now calling for an American citizen captured on American soil with no obvious ties to any terrorist organization to be treated like an enemy combatant. They want to deny him a lawyer, deny his Miranda rights and basically detain him indefinitely.

    Now do we see why Ron Paul wanted clarity on drones? Now do we see why he wanted clarity on targeted killing? Now do we see why we shouldn’t have opened the door to indefinite detention and denial of rights with Jose Padilla? Once you have started to carve out areas of the law that are exempt from Constitutional rights, those areas will expand and expand until they enclose everything.

    No extremist links have been alleged in this case, let alone proven. There is no evidence that he is tied Al-Qaeda or any other group. There is little evidence this was part of a larger conspiracy. It’s not even clear what, if any, role their religion played in this. But McCain and Graham simply want him declared an enemy combatant because … well, because he’s a Muslim who killed and maimed a bunch of people. They now want the “battlefield” to enclose the entirety of the United States.

    Constitutional rights are not popular the best of times. Every time a high-profile criminal is caught, some subset of the population gets annoyed that he gets a lawyer and jail time instead of being strung up at dawn. If the Bill of Rights were ever up for a vote, I doubt it woud get 50%. That is why those who do value civil liberties, who claim to revere the rights and liberties enshrined in our Constitution must never give an inch.

    I don’t object to a temporary delay in Mirandizing this guy to make sure there are no more bombs out there (and, indeed, the FBI has apparently made some related arrests this morning). But once that is done — preferably within a day or two — he should be Mirandized and given a lawyer. He should be tried in a criminal court and thrown in jail for the rest of his life (Massachusetts has a death penalty on the books but has not used it for thirty years).


    We have courts because they are essential to the protection of the rule of law and the rights of individual citizens, and they are the method by which we dispense justice under rules that are designed as much to protect us as they are to protect criminal defendants. Treating Tsarnaev, a naturalized American citizen who has lived in this country since he was eight years old, treated no differently from men who were captured on battlefields in Afghanistan and are currently sitting in the prison complex at Guantanamo Bay where they are likely to remain for a very long time, is a perversion of that system of justice in the name of a haphazard system of non-justice that has risen up in the years since the September 11 attacks. If Tsarnaey is treated as an “enemy combatant” then it would mean that any American citizen could potentially receive the same designation if the government so chose, and that they could be subjected to the same deprivations of rights, including lack of access to counsel for extended periods of time. That’s a perversion of justice and a perversion of liberty.

    Lindsey Graham and others in the Republican Party would have us believe that this weeks events in Boston were part of a war that began nearly twelve years ago with the attacks of September 11th. At the very least, this judgment is premature because we have absolutely no idea what the real story behind the Boston Marathon attacks actually is. We don’t know if the Tsarnaev brother were motivated by religion, by a political agenda, by an unspecific generalized hatred of the society they’d grown up in based on the fact that they hadn’t achieved what they believed they were entitled to, or by just a desire to cause destruction and pain to people. Even if the attacks were based on some kind of religious/political motivation, we don’t know if they were acting alone or if they were surrogates for others, either domestic or foreign. Ascribing, at this early date, these attacks to a “Global War On Terror” is both premature and, quite obviously, based only on the fact that they are Muslim men. That is clearly not sufficient grounds to strip an American citizen of his rights and throw him in the rat hole that is Guantanamo Bay.

    Our legal system has served us well, although admittedly at times imperfectly, for two centuries now. Sacrificing the values it represents in the name of the “war on terror” would be a fatal error.

    Bingo. Mirandize him, give him a lawyer, put him on trial. Those are his rights as an American. No matter what he’s done.