Decius wrote back in November:
Congress can tax you, and spend that money buying you things you might not want, like milimeter wave scanners at the airport. If they can tax and spend, why can't they just have you give your money directly to the vendor?

Zing!

RE: Debate continues on recusals of Justices Thomas, Scalia, and Kagan (and no knock-out blows have yet been thrown)

Decius:

It's important to understand that it isn't Congress that must change -- it is us.

David Frum:

Few of us have the self-knowledge and emotional discipline to say one thing while meaning another. If we say something often enough, we come to believe it. We don't usually delude others until after we have first deluded ourselves.

Lawrence Lessig:

There is this bizarre blindness. If we can't get beyond the architecture of polarization, we are doomed.

Steve Bellovin et al:

Architecture matters a lot, and in subtle ways.

Douglas Rushkoff:

Corporatism, with its promotion of competition between individuals over scarce resources and money, laid the ground for individualism and for a heightened concept of the self.

Evgeny Morozov:

It's time that citizens articulate a vision for a civic Internet that could compete with the dominant corporatist vision. It's not just geeks and tech-savvy young people who need to think hard about what an alternative civic Internet may look like; for such visions to have any purchase on society, they need to originate from (and incorporate) much broader swathes of the population.

Finding a way to articulate a critical stance on these issues before technology giants like Facebook usurp public imagination with their talk of "frictionless sharing" should be top priority for anyone concerned with the future of democracy.

David Frum:

Cain's gaffe on Libya and Perry's brain freeze on the Department of Energy are not only indicators of bad leadership. They are indicators of a crisis of followership.

Decius:

Everyone participates in the process of producing the truth every day. Your recommendations matter. You will need to be able to think critically about the range of ideas that you are exposed to and decide which ones make sense.

It is that last part that will really move us forward.

A Crisis Of Followership

noteworthy wrote:
Sarah Palin:

Peter Schweizer's new book, "Throw Them All Out," reveals this permanent political class in all its arrogant glory. (Full disclosure: Mr. Schweizer is employed by my political action committee as a foreign-policy adviser.)

Doesn't this suggest that Schweizer is the true author here, and Palin is the byline for strategic reasons?

It doesn't really matter who wrote it - many politicians don't write their own stuff. Whats important is that herein Palin endorses a bold and, at first glance, genuine path toward addressing corruption within our political system. Suddenly her claims of being a maverick have some credibility. She actually appears to be standing for something important instead of merely claiming to have done so in the past.

(I found it interesting that every one of the 15 reviews gives the book five stars.)

I noticed that one of those positive reviews was posted by Marc Thiessen, the former Bush administration speech writer who a year ago was calling for cyberwarfare over wikileaks.

The presence of Thiessen increases the suspicion that this book is to become official party dogma and this might even be a calculated election season move, as the Wikileaks war mongering was transparently coordinated to make Leiberman's inappropriate actions appear moderate in comparison.

Of course, whether or not the litany of solutions proposed here address the right problem is an important one. If you found yourself having whipped up a populist movement and that movement wanted to see action taken to solve a problem that you didn't want to solve, providing a credible sounding solution that addresses the wrong problem might be just exactly the sort of strategy you'd play, and it would certainly be good for kicking the can down the road for a few years.

I haven't read Schweizer's book yet, nor Lessig's, but the later is on my short list. I'm aware from some of Lessig's presentations that studies have shown that campaign finance has absolutely no influence on Congress. I haven't read these studies. I therefore approach the matter with an open but skeptical mind. Perhaps these studies are asking the wrong questions. There is clearly a problem. If you haven't figured out where it is you aren't looking carefully enough.

I'm skeptical of Lessig's proposed solutions because I figure the "coalition of both traditional and non-traditional allies" exist entirely outside of the direct campaign finance world and tinkering with that world won't make a lick of difference. The Clark Lytle Geduldig & Cranford Memo makes it clear - if you don't do what these rich people want, they'll go after you. They'll dig up dirt and they'll nail you to the wall with it. They don't have to directly donate money to your opponent in order to do that.

The people who get the support of the parties needed to get elected and avoid getting discredited by "the coalition of both traditional and non-traditional allies" are the people who do what the people with the money want them to do.

It would not be surprising to me if there were both carrots and sticks. They have to motivate people to do this somehow, although many might be suckered in by a naive interest in serving the people and find themselves trapped. Once you get good at doing a thing, and well compensated, abandoning it for an entirely different profession is not always the path of least resistance in life.

In the end, I find the idea that Congress isn't barred from insider trading a bit hard to swallow. If Schweizer has identified any real problems, and they get fixed, that is good enough for a days work I think.

RE: Sarah Palin: How Congress Occupied Wall Street - WSJ.com

This weekend marks the 20th anniversary of Clarence Thomas's appointment to the Supreme Court. In his first two decades on the bench, Justice Thomas has established himself as the original Constitution's greatest defender against elite efforts at social engineering. His stances for limited government and individual freedom make him the left's lightning rod and the tea party's intellectual godfather. And he is only halfway through the 40 years he may sit on the high court.

Yoo's partisanship is annoying. I have great respect for Thomas although I sometimes disagree with his perspectives, he is a valuable voice on the court, particularly when it comes to the protection of the constitutional rights of adults.

Twenty Years of Justice Thomas

If you see any promotional essays that reveal something about where the book is taking its arguments please post them. Solove wrote:

This book grows out of an essay I wrote a few years ago about the Nothing-to-Hide Argument. The essay’s popularity surprised me and made me realize that there is a hunger out there for discussions about the arguments made in the debate between privacy and security.

This was an interesting essay but I recall feeling like it failed to hit the nail on the head. Oversight is not sufficient to address concerns about privacy violations. The "nothing-to-hide" argument always carries the implicit and falicious assumption that nothing inappropriate will ever be done with any of the data collected...

I recall traveling in southern German a certain feeling of freedom that isn't present in modern America, at least in my interactions with public transportation architecture. Its legal to speed on the freeway in certain places. A gas station attendant was confused when I attempted to pre-pay for gas. You are required to pay to use the subway in Munich but no turnstile enforces this requirement. You can just walk on the train. In New York City the subway system is locked in cages. In Atlanta most of the freeway traffic exceeds the speed limit all the time and everyone is constantly on the lookout for the police while they drive.

There are many ingredients in a free society but *trust* is certainly one of them. Another is not having to look over your shoulder to see if the police are watching you.

When we say we need to go through your computer, we're saying that we don't trust you.

You might ask why - and thats what the fourth amendment's "probable cause" requirement is about. By default, we trust you. If we choose not to trust you, we have to have a good reason for it.

Random, suspicionless searches have no "why." We don't trust you because no one can be trusted.

The random forensic inspection of traveler's laptop computers by U.S. Customs sends the message that no one who leaves the country can be trusted with regard to any information they might carry with them.

And you have to look over your shoulder - you've got to ask, is there anything stored anywhere on my computer that might be questioned by the police for any reason? Even if you're confident that you've got nothing to hide, we still don't trust you. You still have to take stock of it.

If you live in a society where no one is trusted and everyone constantly has to look over their shoulder - you are not living in a free society. Whats lost here is the character of a society and the quality of life living there. These things damage your quality of life in *exactly the same way* that crime and terrorism damage your quality of life - through mutual distrust and fear.

Without the constraints imposed by the Constitution, in particular the 4th Amendment's requirement for probable cause, the efforts of law enforcement would exacerbate and amplify the negative collective impact of crime - just as our over-reaction to failed terrorism plots has caused some people to argue that those plots were nearly as effective as if they had been successful.

RE: Nothing to Hide: The False Tradeoff between Privacy and Security

noteworthy wrote:
Joseph L. Hoffman and Nancy J. King:

The never-ending stream of futile petitions suggests that habeas corpus is a wasteful nuisance. We need a new approach.

You can see this appeal fatigue in the recent radical expansion of police search powers at the border. You usually don't get to raise a constitutional point unless you're guilty because the only consequence of illegal searches is that evidence is expunged and you can't expunge evidence from a trial that isn't happening. So judges see guilty people trying to get out of it and they come up with rationalizations for upholding those convictions that aren't carefully considered. It is enormously frustrating the see the quick and sloppy logic with which appeals courts hack away at our fundamental rights. Over time the police find themselves with the power to randomly drill holes in people's cars and read through their private emails without suspicion because the alternative is that the courts would have to let a guilty person go, and the courts are clearly being asked to do that so frequently that a kind of blindness has developed wherein they are no longer trying to recognize when it is appropriate anymore.

RE: Justice, Too Much and Too Expensive

noteworthy wrote:
Bob McDonnell:

Americans were shocked on Christmas Day to learn of the attempted bombing of a flight to Detroit. This foreign terror suspect was given the same legal rights as a U.S. citizen, and immediately stopped providing critical intelligence.

As Senator-elect Scott Brown says, we should be spending taxpayer dollars to defeat terrorists, not to protect them.

I am frankly appalled that candidates and officials continue to score points with this rhetoric. Back in the heat of the 2008 campaign, Palin got cheers for making a quip of it, and Obama responded:

"The reason that you have this principle is not to be soft on terrorism. It's because that's who we are. That's what we're protecting."

I was bothered by this too - Palindrome and I discussed it last night, it bothered her even more.

Whats odd is that as far I know there has been relatively little political hay made of the recent criminal conviction of a Georgia Tech student for providing material support for foreign terrorism. If the Republicans truly believe that all terrorism suspects should be denied trials, why aren't they speaking out about that conviction. I see two possibilities:

1. Its not politically expedient because the prosecutions where started by the Bush administration and their goal is more about scoring political points against the other party than actually articulating a substantive policy position.

2. They are drawing some kind of line. They see the two situations as being different, possibly because the Tech student was a "U.S. Person" and not a foreign national or because the nature of the offenses is different? (While people are often stalwart in the defense of their own civil liberties, the civil liberties of others are more rarely defended.)

Last night I was leaning toward 2 but now I'm leaning toward 1.

Its also worth pointing out that while the Obama administration might have better sounding political rhetoric, its not clear what their actual position is. They have decided to hold 50 detainees forever because any potential trial has been tainted by the use of torture, they've engaged in an effort to shut down Gitmo, which is both ill considered and phony, and they seem to have picked up the Bush Administration's line everywhere regarding the use of state secrets to absolve themselves of responsibility for illegal acts.

If there is some sort of substantive difference between Obama and Bush on civil liberties and the treatment of detainees its not clear to me what it is. It seems to me that both parties are offering us the exact same operational policies and the real difference is just the spin they put on what they are doing - what color bottle the sugar water comes in.

RE: Bob McDonnell's Appalling GOP Response

Amy Goodman, host of Democracy Now , a radio and television show aired by public and college broadcasters across North America, was entering Canada around 6 p.m. Pacific time Wednesday evening, set to speak at the Vancouver Public Library in an event co-ordinated by a campus radio station at Simon Fraser University.

“When I handed our passports over the border guard, they told us to pull over. We had to go over to the border facility. And they started asking me questions about what I was going to be speaking about. I was totally taken aback. They wanted to see my notes,” Ms. Goodman told the Globe Thursday, recalling the encounter...

She claimed the officer persisted in questioning her about Vancouver's upcoming Games...

They began to search her notes and computers and those of her two colleagues, Ms. Goodman alleged. They then photographed the journalist and gave her a stipulation to leave the country by Friday night. They were delayed over an hour...

“There's supposed to be a separation between the state and the press. The fact that the state was going through my documents, that they were rifling through notes, that they were asking me what I was planning to speak about, is a very serious issue,” she said.

“If journalists fear they will be…monitored, it's more difficult for the public to get information. And information is the currency of a democracy.”

For several years the ACLU has been fighting a U.S. policy that empowers CBP to exclude foreign nationals for ideological reasons. As the US has failed to take the right position on this issue, we cannot be terribly offended when our allies take a similar position to our own. Even when it includes potentially excluding our journalists from their countries...

This case also highlights the risk of allowing suspicionless border searches of laptops. These laptops were not searched for child pornography. They were searched in order to determine what the journalists planned to speak about. As U.S. policy provides for ideological exclusion of foreign nationals, it is reasonable to expect that laptops of foreign nationals might be inspected to determine their thoughts and views. This puts the term "politically correct" in a whole new light.

U.S. journalist says she was delayed at Canadian border, questioned about speech - The Globe and Mail

Matthew Hoh, in September:

It is with great regret and disappointment I submit my resignation from my appointment as a Political Officer in the Foreign Service and my post as the Senior Civilian Representative for the US Government in Zabul Province.

Success and victory, whatever they may be, will not be realized in years, after billions more spent, but in decades and generations.

Karen DeYoung, yesterday:

While he did not share Hoh's view that the war "wasn't worth the fight," Holbrooke said, "I agreed with much of his analysis."

George Packer:

Richard Holbrooke must know that there will be no American victory in this war; he can only try to forestall potential disaster. But if he considers success unlikely, or even questions the premise of the war, he has kept it to himself.

DeYoung continues:

Late last year, a friend told Hoh that the State Department was offering year-long renewable hires for Foreign Service officers in Afghanistan. It was a chance, he thought, to use the development skills he had learned in Tikrit under a fresh administration that promised a new strategy.

The Economist on Obama, from last November:

He has to start deciding whom to disappoint.

Ahmed Rashid, last month:

For the first time, polling shows that a majority of Americans do not approve of Obama's handling of Afghanistan. Yet if it is to have any chance of success, the Obama plan for Afghanistan needs a serious long-term commitment -- at least for the next three years. Democratic politicians are demanding results before next year's congressional elections, which is neither realistic nor possible. Moreover, the Taliban are quite aware of the Democrats' timetable. With Obama's plan the US will be taking Afghanistan seriously for the first time since 2001; if it is to be successful it will need not only time but international and US support -- both open to question.

Lucian K. Truscott IV, in 2005:

The Army will need this lieutenant 20 years from now when he could be a colonel, or 30 years from now when he could have four stars on his collar. But I doubt he will be in uniform long enough to make captain.

If you keep faith with soldiers and tell them the truth even when it threatens their beliefs, you run the risk of losing them. But if you peddle cleverly manipulated talking points to people who trust you not to lie, you won't merely lose them, you'll break their hearts.

Andrew Lahde:

Today I write not to gloat. Instead, I am writing to say goodbye.

Frank Sandoval:

My heart swells in my chest and while I laugh,
I feel fear, smell a faint stench of insanity.

A very clear argument against staying in Afghanistan

Supreme Court Justice Antonin Scalia, in 2006, voted with a majority to uphold the death penalty in a Kansas case. In his opinion, Scalia declared that, in the modern judicial system, there has not been "a single case--not one--in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops."

Apparently, that innocent person's name is Cameron Todd Willingham.

Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the “execution of a legally and factually innocent person.”

Justice Scalia in 2009:

"This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

I wrote previously that:

I think this is one of those moments when there is a clear division between right and wrong.

In 2003 I recommended an interesting web site:

Here you can see the last statements of people executed in Texas.

Sure enough, this site is still in operation, and today, Cameron Todd Willingham's Information Sheet and Last Statement are there, although the Statement is incomplete because the government omitted part of it "due to profanity."

No shit?

Click through for Noteworthy's post, and then through again for the article.

Executing innocent people