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by danps

U.S. spying on Americans: Unpopular, and unlikely to end

4:04 am in Uncategorized by danps

Two recent stories have made for an interesting juxtaposition. First, the map of America’s intelligence underworld had some important contours filled in last Sunday with the New York Times’ report on the secret body of law that it called “almost a parallel Supreme Court.” Then on Wednesday a Quinnipiac poll showed a substantial increase in support of civil liberties. Taken together they might suggest a new dynamic in how the federal government relates to Americans on these issues.

Spy vs. Spy

Spy vs. Spy

Government has historically had free rein based on a general public ignorance of the policies; it looks like going forward those policies will exist in a cloud of popular disapproval. Such opposition puts the continued presence of the surveillance state in a new light: Following the Constitution on civil liberties and human rights has to this point basically been on the honor system. We don’t have any mechanism that springs to life when there are credible allegations of wrongdoing in these areas; it’s up to the leaders in the relevant institutions to have the will to follow through on their obligations. They will not face any sanction if they fail to, though.

For instance, look at the Convention Against Torture. Congress passed it, Ronald Reagan signed it, and under the Constitution it is the law of the land. Yet there have been credible allegations of torture for at least a decade now. No action has been taken. We like to pretend the Constitution has some sort of compulsion or force to it, but in the end it is only relevant to the extent it is willingly followed. Ultimately, all that matters is what those sworn to defending the Constitution decide to enforce. If officials responsible for investigating torture don’t feel like investigating torture, it won’t be – Constitution be damned.

Violations of civil liberties have been a little trickier for the federal government to dismiss, but so far so good. We now have an established precedent that those who are unjustly spied on cannot show standing to sue – even when they can. That technicality disposed of, the NSA and other intelligence agencies have carte blanche to snoop to their hearts’ content.

Now that its scope is becoming clearer, though, public opinion is turning pretty decisively against it. That is not necessarily a problem for the government. As with torture, it is largely on the honor system. The visible legal system has established its Helleresque logic of no one having any standing, the shadow legal system has its rubber stamp pretty much set up for drive-thru approval, and a whole infrastructure is in place according to a novel understanding of what law is. (We’ve come a long way from the “tricky legalisms adopted in classified memos” that Jane Mayer wrote about in The Dark Side.)

This is the age of impunity. If you manage to get to a certain critical level of importance, you are above the law. It’s true in the political world, as with torture and spying, and it’s true in the financial world as well. In the late eighties, the Savings and Loan crisis – which was of a far smaller scale than the 2008 meltdown – produced 1,100 criminal prosecutions and 839 convictions. Yet the most recent crisis produced zero of either. (And incidentally, as we approach the five year anniversary of the meltdown in October, keep in mind that statutes of limitations on what happened will begin to expire.)

Officials have not had to follow much more than their own moral compass in any of these matters. It isn’t as though anyone in Congress will go to jail for failing to provide robust oversight. And it’s not as though that body’s approval rating could go much lower. What’s one more failure at this point?

But the creation of a shadow government is not going over well, and that widespread public disapproval is a new complication. Many were initially cowed with ticking time bomb scenarios and other fearmongering into acquiescing to an awful lot immediately after 9/11. The populace seems to be getting its bearings back, though.

Leaders could just say damn the torpedoes, full speed ahead – and that is probably the most likely outcome at the moment. In which case, we will have begun something of an experiment: seeing just how contemptuous of the citizenry elected officials can be (and how corrosively cynical citizens can in turn become towards those representatives) and still retain the consent of the governed.
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by danps

Dianne Feinstein, Ted Cruz and the value of principles

2:09 am in Uncategorized by danps

Cross posted from Pruning Shears.

The sharp exchange between Ted Cruz and Dianne Feinstein at last week’s Senate Judiciary Committee hearing produced somewhat typical partisan reactions: conservatives thought Cruz had the better of the exchange; liberals, Feinstein. There was a definite gender angle as well though. A number of women noted Cruz’ condescending attitude towards Feinstein and wondered if a man would have had his qualifications and experience so breezily dismissed. Some on the right obliged in supporting this point by breezily dismissing Feinstein’s qualifications and experience.

Steve M, a liberal at No More Mister Nice Blog, wrote a minor dissent from the left. Before continuing, though, I would like to make the FOLLOWING QUALIFICATION IN BOLD AND ALL CAPS: These observations are general and not meant to be taken as categorical. Writing that men gravitate towards one kind of argument or women another is not meant to be taken as meaning that all men or all women think a certain way.

Here is the generalization. Men generally gravitate towards (and find more persuasive) arguments that proceed from abstract principles, whereas women generally gravitate towards (and find more persuasive) arguments that proceed from lived experience. That’s not to say men don’t value lived experience or women don’t value abstract principles, just that they seem to be more persuaded by one than the other.

OK, so Steve writes that “Feinstein [came] off as dodging [Cruz'] opening question,” that “faced with the opportunity to trump what Cruz regards as his ace, Feinstein fails,” and concludes: “Democrats have to be able to refute this cloacal tsunami of bad ideas on their own terms. If a guy like Ted Cruz is going to go all ‘constitutional’ on Dianne Feinstein, then she and her fellow Democrats need to know precisely how to throw the way the Constitution has actually been applied in the real America (as opposed to Tea Party Fantasy America) back in Cruz’s face.”

Also note how he frames Feinstein’s response:

“I’m not a sixth grader,” she told the freshman Tea Party favorite. “I’m not a lawyer, but after 20 years I’ve been up close and personal to the Constitution. I have great respect for it … it’s fine you want to lecture me on the Constitution. I appreciate it. Just know I’ve been here for a long time. I’ve passed on a number of bills. I’ve studied the Constitution myself. I am reasonably well educated, and I thank you for the lecture.”

He omits some key comments between “I’m not a sixth grader” and “I’m not a lawyer” though (emph. added):

I’m not a sixth grader. Senator, I’ve been on this committee for 20 years. I was a mayor for nine years. I walked in, I saw people shot. I’ve looked at bodies that have been shot with these weapons. I’ve seen the bullets that implode. In Sandy Hook, youngsters were dismembered. Look, there are other weapons. I’ve been up — I’m not a lawyer, but after 20 years I’ve been up close and personal to the Constitution. I have great respect for it. This doesn’t mean that weapons of war and the Heller decision clearly points out three exceptions, two of which are pertinent here. And so I — you know, it’s fine you want to lecture me on the Constitution. I appreciate it. Just know I’ve been here for a long time. I’ve passed on a number of bills. I’ve studied the Constitution myself. I am reasonably well educated, and I thank you for the lecture.

When Cruz makes his argument from a purely Constitutional perspective, he is arguing from abstract principle – and choosing his preferred rhetorical ground. If Feinstein answers in the same language she is ceding the rhetorical advantage to him. Instead she answers in the way the issue is rhetorically pertinent to her, which denies Cruz the advantage he tries to seize.

Feinstein’s highlighting the impact of those principles in the real world is not (as Steve M. suggests) dodging the question or responding with a non sequitur. She is answering in the language that is most persuasive to her. Perhaps as a man Steve would have liked an answer from abstract principle, but Feinstein’s answer seemed to resonate pretty widely.

In any debate where both of those weigh heavily I suspect the public will ultimately side with whichever seems more compelling. Feinstein’s answer struck me as very compelling since the human cost of our gun violence is so horrific, and Cruz’ appeal to the Constitution dry, and even somewhat callous, by comparison We’ll have to see how it plays out though.


The debate might be altered by the one interesting bit of news from the exchange: Cruz’ apparent blanket extension of First Amendment protection to all books. He clearly believes it would not be Constitutional to say “the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights.”

That is an eloquently stated principle. But it is also one that would extend First Amendment protection to a book full of child pornography. Ted Cruz did not voice any kind of qualification, so evidently he believes Congress ought never, under any circumstances, say that a book or category of books lies outside the protection of the First Amendment.

Principles by themselves do not have values; invoking something on principle is ethically neutral. A principle is simply “a comprehensive and fundamental law, doctrine, or assumption.” For instance, here is a principle: African Americans are more ignorant and criminally inclined than other Americans. It is a bigoted principle, one unsupported by any reputable research, one contradicted by the research that does exist, and one that has been used to justify a staggering amount of evil throughout our history. But it’s a principle!

Similarly, “state’s rights” is a principle. Is it a good one or a bad one? Well it doesn’t have to be either, but it has been invoked to defend some of the most morally abhorrent practices in our nation’s history. So no matter how fine it may sound in the abstract, in our lived experience it drags a considerable amount of freight behind it.

That’s what is happening now in the gun debate and the broader debate about the Constitution. Some people, apparently unlike Ted Cruz, believe that the First Amendment is not absolute and doesn’t, for instance, protect child pornography. Similarly, some people believe that assault weapons are the Second Amendment equivalent of child pornography and therefore are not eligible for that Amendment’s protection.

Those who believe otherwise and wish to invoke the principle of the thing are welcome to do so. But they will need to counter those like Feinstein who remind everyone of just how much blood has been shed in support of that principle. They will also need to accept that there are certain downside risks to the pure invocation of principle, and that even a well formed one is not a shield against all arguments. Some principles are bad; others can lead to inconvenient places. That would be the case if, for example, Ted Cruz’ positions on assault weapons and child pornography are different from the ones logically implied by his stated principles.

by danps

What Is the Real Reason for Firearms at Town Halls?

2:13 am in Uncategorized by danps

No Associated Press content was harmed in the writing of this post

Since Barack Obama’s election there has been a sharp increase in the level of irrational, paranoid conspiracy mongering on the right. Much of it is at least ostensibly grounded in defense of the Second Amendment, so just for review here is its text:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

It begins with a clause that greatly confuses what follows. If it had simply read, "the right of the people to keep and bear Arms shall not be infringed" then all would be clear. But as written, should firearms only be borne by those participating in a well regulated militia? Or should they only be permitted to be kept in anticipation of being (and presumably as part of a formal arrangement to be) used in such a capacity? Those who invoke it the loudest seem to usually only concentrate on the second half of the amendment, not the first.

In any event, the craziness was initially stoked by the National Rifle Association during the campaign. By lying with differing degrees of brazenness it created several falsehoods (Obama would increase taxes on guns and ammunition, ban handguns for individuals’ use in defending their homes, etc.) which have since metastasized into the complete fantasy that a gun ban is imminent. It has already resulted in multiple murders. The plain fact is, as a Senator, candidate and president he has not proposed any such new taxes. He briefly flirted with the idea of reinstating a lapsed ban on assault weapons, but backed off. More broadly, the only recent Supreme Court ruling on the issue was a ringing endorsement of an individual right to gun ownership. Last year both candidates staked out firmly anti-gun control positions. No one in or running for Congress will even bring the topic up. Gun ownership has never been more protected, more celebrated or less stigmatized. Those who claim their Second Amendment rights are endangered are either entirely uninformed or not telling the truth.

Why then have some started showing up armed to political meetings? Is there some danger requiring an armed presence? Of course not. Or at least, there is none that they do not create themselves by showing up openly carrying loaded guns (file under "self-fulfilling prophesy"). Unfortunately, some in the media rushed to legitimize such actions by interviewing those involved. Even when done skeptically it still amounts to validation. As Rick Perlstein asked of the press corps (via):

if they were reporters in Weimar Germany when Nazi street thugs starting using violence as a way to settle political disputes, when would you begin to report–not opine, report–that democracy was under threat? (Because that is the definition of democracy: the ability to settle political questions without violence.)

Once armed supporters start turning up to political events we are perilously close to just such a scenario. Yet those involved – even when they have remarkably disturbing histories – are offered mainstream platforms to broadcast their messages. Those considered well away from the fringe, such as gun-rights expert Dave Kopel, only offer nonsensical justifications as well (via):

"While I think it’s really paranoid for some of the media to falsely characterize this as people trying to threaten the president, I think it shows bad judgement to carry [guns] near a presidential speech," he says. Protesters are "trying to make a statement about Second Amendment rights, but they’re doing it in a way that probably sets back that cause."

Why does Kopel consider it to be bad judgment that sets back the cause? He throws it out there as a way to seem reasonable to those he surely knows are put off by such displays, but under the Maximum Armament logic being extolled how could it possibly be bad? Devil’s advocate arguments aside, he cannot know what those individuals are thinking, and considering our history of political assassination it strains credulity to deny that someone legally carrying at a presidential event might just have a fleeting thought in that direction. But even for those with no such intent it makes no sense to say they are trying to make a statement about the Second Amendment; there is absolutely nothing under consideration – or even on the horizon – that would curtail even the most permissive interpretation of it.

People who show up packing heat to town hall events are not defending their homes from invasion, resisting a government attempt to seize their arms, deterring crime in a hazardous environment, providing personal security when traveling to the bad part of town, or otherwise assuring the security of a free state. They are doing something much more primitive: trying to intimidate their political opponents through the threat of violence.