Month: December 2005

Where I’d Like to See FISA Challenged

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by Charles

The Authorization to Use Military Force was tantamount to a declaration of war against al Qaeda.  In my view, signals intelligence is part and parcel of a president’s war-making arsenal and falls under category of "necessary and appropriate force".  In the interests of national security, if the NSA intercepts a communique between Zahawiri and a bloke in New Jersey, I’m not going to have kittens if it’s done without a court order.  However, I would have a litter of twelve if none of the parties involved is Zawahiri or some other known al Qaeda suspect (the NSA’s inserting of persistent cookies into the computers of those who visit the NSA website might give me a contraction).

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Moral Values In Action

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by hilzoy Sometimes I wonder: will the Bush administration ever run out of issues on which to take completely appalling positions? They have defended torture and extraordinary rendition; they defend their right to imprison American citizens without warrants or charges, indefinitely; they seem to think it’s OK both to defy the law and to spy … Read more

Delayed Reaction to NSA Wiretapping

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by Charles

After absorbing over a week of news regarding the warrantless surveillance by the NSA, I thought I’d write this down to keep it all straight.  Calls for impeachment are serious business, not to be taken lightly or quickly or without good reason, and several of those calls have been made.  From what I’ve seen so far, the person who has written the most clearly on the NSA surveillance matter has been Orrin Kerr, along with a few others such as Cass Sunstein (more from Sunstein here).  Going through the list of fundamental questions:

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Post-Christmas Open Thread

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by hilzoy What would Bill O’Reilly make of me, I wonder? I love Christmas. I just love it. Partly this is because I have a very Christmas-y family, and we always had very Christmas-y Christmases. We made gingerbread cookies to hang on the tree; we made all sorts of decorations; we went carolling (except for … Read more

No Relief To Offer

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by hilzoy

I have written previously about the case of Abu Bakker Qassim and A’del Abdu al-Hakim, the two Uighurs who are still being held at Guantanamo, four years after they were captured by bounty hunters and turned over to the US for cash, and nine months after a tribunal found that — oops! — they were not enemy combatants after all. Today the judge who is hearing their case issued an extraordinary decision.

In it, the judge reached two conclusions. The first is that the detention of Qassim and al-Hakim is illegal:

“The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful.”

The second is that there is nothing he can do about it:

“In Rasul v. Bush, the Supreme Court confirmed the jurisdiction of the federal courts “to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” 542 U.S. at 485. It did not decide what relief might be available to Guantanamo detainees by way of habeas corpus, nor, obviously, did it decide what relief might be available to detainees who have been declared “no longer enemy combatants.” Now facing that question, I find that a federal court has no relief to offer.”

We are illegally detaining innocent people, and there is nothing that a federal court can do about it.

I’ll stop for a moment to let that sink in.

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The FISA Court Is Upset

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by hilzoy From the Washington Post: “The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush’s domestic spying program, according to several intelligence and government sources. Several members of the … Read more

Play Break!

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by hilzoy

Time for a break from the NSA story. While doing actual work, I ran across a fascinating study (behind subscription wall) in Evolution and Human Behavior. It’s called ‘Sex differences in response to children’s toys in nonhuman primates (Cercopithecus aethiops sabaeus)’.

Here’s what it’s about: as most parents know, little boys tend to be more interested in toys like trucks, and little girls in toys like dolls. (I was an exception: someone gave me a doll once, and I dissected it.) There is no obvious way to decide whether this is innate or a cultural artifact by watching human children. So why not see whether the same gendered toy preferences exist in, oh, vervet monkeys?

Guess what? They do.

“The percent of contact time with toys typically preferred by boys (a car and a ball) was greater in male vervets (n = 33) than in female vervets (n = 30) ( P < .05), whereas the percent of contact time with toys typically preferred by girls (a doll and a pot) was greater in female vervets than in male vervets ( P < .01). In contrast, contact time with toys preferred equally by boys and girls (a picture book and a stuffed dog) was comparable in male and female vervets. The results suggest that sexually differentiated object preferences arose early in human evolution, prior to the emergence of a distinct hominid lineage."

Discuss.

(Graphs and photos below the fold.)

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Intellectual Integrity Watch: Clinton And Carter Did It Too! Edition

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by hilzoy Yesterday, Matt Drudge ran a story with the headline: “FLASHBACK: CLINTON, CARTER SEARCH ‘N SURVEILLANCE WITHOUT COURT ORDER”. It has been picked up by all sorts of conservative blogs, including Pyjamas Media, Powerline, RedState, and lots, lots more. The only problem is that, as Think Progress explains, the orders signed by Carter and … Read more

FISA Judge Resigns

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by hilzoy From the Washington Post, under the headline “Spy Court Judge Quits In Protest“: “A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush’s secret authorization of a domestic spying program, according to two sources. U.S. District Judge James Robertson, one of 11 members … Read more

When It Rains, It Pours…

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by hilzoy From the NYT: “Jack Abramoff, the Republican lobbyist under criminal investigation, has been discussing with prosecutors a deal that would grant him a reduced sentence in exchange for testimony against former political and business associates, people with detailed knowledge of the case say. Mr. Abramoff is believed to have extensive knowledge of what … Read more

Intellectual Integrity Watch: Special NRO Edition

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by hilzoy

In the National Review, James Robbins (h/t cleek) claims, about the NSA surveillance of US citizens, that “the legality of the acts can be demonstrated with a look through the Foreign Intelligence Surveillance Act (FISA).” His arguments are completely disingenuous, and as a public service, I thought I’d say why. Robbins says:

“For example, check out section 1802, “Electronic Surveillance Authorization Without Court Order.” It is most instructive. There you will learn that “Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year” (emphasis mine).

Naturally, there are conditions. For example, the surveillance must be aimed at “the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers.” Wait, is a terrorist group considered a foreign power? Yes, as defined in section 1801, subsection (a), “foreign power” can mean “a group engaged in international terrorism or activities in preparation therefore,” though the statue language would explicitly apply to “a faction of a foreign nation or nations.””

The actual text from FISA that Robbins refers to says:

“(A) the electronic surveillance is solely directed at —

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and …”

Note the references to “a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title”. Here is sec. 1801 on ‘foreign powers’:

“(a) ”Foreign power” means —

(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.”

So: what Robbins has done is: leave out the part of the text that restricts the use of ‘foreign powers’ by adding ‘as defined in section 1801(a)(1), (2), or (3) of this title’; then saying ‘in sec. 1801, foreign powers includes terrorists’, without noting that that’s in 1801(a)(4), and is thus not relevant to the statute he’s discussing.

Later, he says:

“O.K. fine, but what about the condition that there be “no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party?” Doesn’t that necessarily cut out any and all communication that is domestic in origin or destination? Well, not quite. Return to section 1801, subsection (i): “United States person,” which includes citizens, legal aliens, and businesses, explicitly “does not include a corporation or an association which is a foreign power.””

Here’s the actual definition of US person:

“(i) ”United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.”

Note that 1801 specifically includes any citizen or legal permanent resident, and specifically excludes not ‘agents of foreign powers’, but “a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.” So there are several things wrong with Robbins’ point here:

(a) Your average US citizen or permanent resident is not a corporation or association, but a human being, and this the exemption has nothing to do with him or her.

(b) Robbins has left off “as defined in section 1801(a)(1), (2), or (3) of this section”, which makes it clear that the corporations and associations in question do not include terrorist groups (who are under 1801(a)(4).)

Robbins goes on to say that being an agent of a foreign power makes you stop being a US person:

“Well sure, but does that mean that even if you are a citizen you cash in your abovementioned rights by collaborating with terrorists? Yes you do. You have then become an “Agent of a foreign power” as defined under subsection (b)(2)(C). Such agents include anyone who “knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power,” and even includes those who aid and abet or knowingly conspire with those engaged in such behavior.”

Again, this is false: the definition of ‘United States person’ noted above does not say that no agent of a foreign power can be a United States person. It says that no corporation or association that is a foreign power as defined under subsection (b)(2)(C) can be a United States person. That means that US citizens and permanent residents who are agents of foreign powers can be US persons. And therefore the authorization to conduct warrantless wiretaps when “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party” is not affected by the fact that the US person in question might also be an agent of a foreign power.

Sloppy reporting or deliberate misinformation? We report; you decide.

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Dangerous Quakers On The Loose!

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by hilzoy A few days ago, William Arkin, who is usually very good, wrote: “Come on. The government is not just repeating the targeting of political opponents a la J. Edgar Hoover or Richard Nixon. It is not picking out a Seymour Hersh or a Cindy Sheehan to find their links to foreign influences nor … Read more

The Good News: At Least Alberto Gonzales Is Not On The Supreme Court

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by hilzoy

Today the Attorney General went into more detail about what he takes to be the legal authorization for the administration’s program of secret surveillance. And his explanation is really quite extraordinary. Yesterday I said that, as far as I could tell, the administration’s reasoning would allow the President to do literally anything in time of war:

“Does he want to imprison a United States citizen indefinitely, without a warrant, and habeas corpus be damned? Fine! Does he want to tap our phones and read our email, also without a warrant, in defiance of the FISA statute and the Fourth Amendment? Also fine! As far as I can see, on this reading of the Constitution, there’s no reason he couldn’t decide that his war powers extended to levying taxes without Congressional approval (wars cost money, you know), or throwing Congressman Murtha in jail to prevent him from sapping our troops’ morale, or suspending the publication of all newspapers, magazines, and blogs on the same grounds, or making himself President For Life on the grounds that we need the continued benefit (cough) of his awesome leadership skillz to successfully prosecute the war on terror.”

I was hoping (though not expecting) that I’d be wrong, and they would turn out not to be making the world’s most ludicrous legal argument. But no: they are.

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Requiem: Update

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by hilzoy

Next week Congress should vote on the Defense Authorization Bill, which contains Lindsay Graham’s amendment stripping Guantanamo detainees of their right to file habeas corpus petitions. The point of habeas petitions is to allow prisoners to ask the government why they are in prison, and to allow a judge to decide whether the government’s answer holds up.

Graham’s amendment, in its last published version, would grant Guantanamo detainees the right to appeal the verdicts reached by their military tribunals. But that’s not a substitute for the right to file habeas petitions. To see why not, consider the latest development in a case I’ve written about before: the case of Abu Bakker Qassim and A’del Abdu al-Hakim. Here’s an article about the case, and here’s an op-ed by al-Hakim’s lawyer.)

This is a case that illustrates why habeas corpus matters. It could not have been brought if Graham’s amendment had been enacted, since the people who brought it have no reason to appeal the decision of their military tribunal. The military tribunal found that they were not enemy combatants; why would they want to appeal that? What they want to know is: since they were cleared months ago, why are they still locked up in Guantanamo?

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Finally.

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Finally, President Bush gives the speech that I’ve been awaiting.  It would have done a lot more good right after the election; still, better late than never. UPDATE:  It’s worth noting that the pressure is now on the Democrats.  Iraq is a fight that we cannot afford to lose; yet, certain Democrats give the appearance … Read more

It’s A Puzzlement

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by hilzoy In his radio address yesterday, the President also said this: “The House of Representatives passed reauthorization of the Patriot Act. Yet a minority of senators filibustered to block the renewal of the Patriot Act when it came up for a vote yesterday. That decision is irresponsible, and it endangers the lives of our … Read more

We’re Back!

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by hilzoy Typepad came back, in theory, about an hour and a half ago, but they had not yet republished all the weblogs that were displaying backup copies. So I decided to take matters into my own hands (actually, I had to magically transform myself into Moe first, so they were probably his hands) and … Read more

Shameless Self-Promotion

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by hilzoy Nominations for the Koufax Awards are now open. So if you have a favorite group blog, or a favorite series (cough, Graham Amendment, cough), or a favorite commenter (cough, too many to mention, cough), don’t let our winsome modesty stand in your way.

They Do Comedy Too!

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by hilzoy Some recent comedic gems from the Bush administration: (1) Asked about the idea that our soldiers would be ‘welcomed as liberators’ in Iraq, President Bush said: “I think we are welcomed. But it was not a peaceful welcome.” Ah, yes: just another one of those non-peaceful welcomes, like the Russian welcome of Napoleon, … Read more

Take That, McCain Amendment!

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by hilzoy The Bush administration’s negotiations with John McCain over his amendment banning torture are going nowhere. Newsweek claims that he’s being advised not to veto it: “Bush was getting pushed to compromise by his secretary of State, Condoleezza Rice, who privately argued that Bush did not want his legacy to be a policy of … Read more

China Attacks!

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by Charles

Agence France Presse reports on a little espionage, most likely by the Chinese military:

A systematic effort by hackers to penetrate US government and industry computer networks stems most likely from the Chinese military, the head of a leading security institute said. The attacks have been traced to the Chinese province of Guangdong, and the techniques used make it appear unlikely to come from any other source than the military, said Alan Paller, the director of the SANS Institute, an education and research organization focusing on cybersecurity.

"These attacks come from someone with intense discipline. No other organization could do this if they were not a military organization," Paller said in a conference call to announced a new cybersecurity education program.

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Maye and the problem with Agressive Search Warrants

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The latest compilation of research on the Maye case can be found at this post on TheAgitator.  This case solidifies my dissatisfaction with the drug war and how it has peeled away our civil rights.  A number of things really bug me about this case.  I’m not going to discuss it purely as a matter … Read more

Belgravia Nails it

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Readers of the blog will recognize that I’m of the "more more more" school on Iraq:  more troops, more money, and more work.  You don’t win wars on the cheap and you don’t declare defeat before it occurs.  On these points, Henry Kissinger’s recent noises in my direction are a bit second movement. Gregory Djerejian … Read more

Hammond’s Flycatcher!

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by hilzoy Having just gotten back from Boston, I am not feeling particularly political, so I decided to tromp back into the woods to see whether I could see the Hammond’s Flycatcher that has inexplicably turned up in Maryland. After about 45 minutes or so of staring at the tree where it is said to … Read more

Travesties of the Death Penalty and the Drug War

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I don’t have any moral qualms about the death penalty as a concept.  It may make me seem callous or monstrous to some, but I don’t think there is anything wrong with some vicious murderers being punished by losing their own lives.  That said, it is important to realize the extreme nature of the punishment.  … Read more

Drove my Chevy to the levee but the levee was…

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by Charles …structurally flawed (apologies to Don McLean).  It’s a monumental task, building levees.  You can have hundreds of miles of them, but if a 100-foot section is poorly designed and poorly built, disaster awaits.  In the case of New Orleans, poor design and poor construction and poor monitoring were all over the place, which … Read more

Mark Kleiman Is Annoyed, And I Am Perplexed

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by hilzoy

I have a lot of respect for Mark Kleiman, and one of the reasons is that he generally stops, thinks, and considers the evidence before forming an opinion. Not in this post, though. He posts an article by a woman who is looking for a kidney donor over the internet. The article itself is thoughtful and moving. Above it, Kleiman writes:

“I missed the essay below when it first appeared in the New York Times, even though the author, Sally Satel, is an old friend. It’s a story about the power of the Internet to facilitate good deeds.

Naturally, the “bioethicists” are against it. This reinforces my basic belief that “bioethics” should be punishable by prison time.

Note that the current organ donation system, of which the bioethics crowd is inordinately proud because it’s so impersonally “fair,” eliminates any incentive for families or communities to mobilize themselves to get their members registered as organ donors, because there’s no relationship between who donates organs and who receives them. It would be wonderful, of course, if everyone in the world regarded everyone else in the world as infinitely valuable. But since that’s not the case, I don’t see either the moral or the practical case against trying to mobilize particularist emotions in the service of altruistic actions. To focus on the relatively trivial question of who gets the inadequate number of cadaveric organs donated, rather than the vital question of how many people sign up as donors, strikes me as reflecting an astonishing degree of moral blindness.

But of course I shouldn’t be astonished. This is the sort of reasoning that dominates the pseudo-field of bioethics, and has, by infiltrating the Institutional Review Board process, put a serious crimp in both medical and social-scientific research.”

Some problems with this:

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Mark Kleiman Has A Puzzle

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by hilzoy He asks: “What is the best-known literary work in English not currently in print? I have a nominee: Sir Walter Raleigh’s History of the World. Temple University Press seems to have put out a one-volume addition (doubtless abridged) in 1972, but that seems to be it. Five-volume sets sell for between $1500 and … Read more

Fiscal Irresponsibility

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by hilzoy From the Washington Post: “The House today passed a $56 billion tax-cut bill that extends for two years a reduction in tax rates for capital gains and dividend income. After spirited debate, the House voted 234 to 197 to approve the bill, the fourth tax cut passed by the body in two days. … Read more

Whither Newark?

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History will recall that my first reaction to being routed through Newark for my red-eye voyage home was, "I can’t explain it, but I’ve always had a visceral dislike for the Newark Airport."  But the timing worked out and I acceded to the travel agent’s suggestion. San Diego-Newark-Indianapolis may not be the most direct route, … Read more

The Big and Still Under-reported Story

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by Charles

One word.  Productivity.  According to Reuters:

Non-farm business productivity rose a hefty 4.7% in the third quarter, fastest pace in two years and stronger than first reported, according to a government report Tuesday that could ease inflation worries.

This is on top of 3.2% and 2.1% increases in the first and second quarters, respectively.  More surprising is that this is happening in an economy that added 1,840,000 jobs in 2005.  Why is productivity growth important?  From the same article:

Productivity is a key factor that determines whether living standards are improving. Productivity gains allow companies to pay workers more from their increased production without having to increase the price of products they sell, which would fuel inflation.

It keeps inflation down and raises wages, GDP and living standards.  Brad DeLong has been observing this economic indicator for years (his March 2002 analysis is an example), and he has an interesting table that tracks productivity growth in four-year intervals, every first quarter of every presidential years since 1960 (via Arnold Kling).

Productivity Growth (% Change From 4 Prior Years)
Year % Change
1960 12.0%
1964 12.8%
1968 12.2%
1972 7.9%
1976 9.1%
1980 3.6%
1984 6.2%
1988 6.9%
1992 8.1%
1996 4.9%
2000 9.5%
2004 17.0%

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Why Lawsuits Cost Businesses Big Bucks

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–Sebastian This post is inspired by, but not directly a response to, this WashingtonMonthly post on a book by Tom Baker.  Whenever a discussion about the costs of legal insurance comes up, I get really frustrated because the focus is typically on settlements and verdicts.  Tom Baker writes: Fourth, we know that “undeserving” people sometimes … Read more