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Text and Subtext

Today we celebrate not the 234th anniversary of the birth of this nation, of our declaration of independence—that was two days ago on July the 2nd, the date that the Continental Congress unanimously passed Mr. Richard Henry Lee's resolution of independence, the day on which the United Colonies of America became the United States of America. No, we celebrate the 234th anniversary of the publication of the formal text stating the reasons for that independence. We celebrate not the act but the explanation, not Independence but the Declaration. Today we celebrate the power of words, of ideas, of reasons and reason. The great acts were on April 19th, 1775, which is commemorated as Patriots Day only in the Massachusetts, our offspring state Maine, and for the past decade, the state of Wisconsin, and July 2nd, 1776, which is not to my knowledge celebrated, despite John Adams' prediction.

The precise words of the Declaration and their history has been in the news lately as modern technology has shown what has been long suspected, that while writing the rough draft, Jefferson obliterated the word "subjects" and replaced it with "citizens". This change along with several others shows how new the ideas in the declaration were, how even the authors of the document, among the most eloquent speakers and writers of their day struggled to overcome the linguistic conventions of the ideas and mindset that they were overthrowing.

Elsewhere in the draft we find a reference to George the Third that reads:
The History of

king of Great Britain
Jefferson was obviously having trouble shaking off the styles of monarchy, of thinking of, or at least referring to the King as "his Majesty" and the people as his subjects. His original phrasings presume that authority flows down from God to King to subject to slave, but the very words of the document declare that "governments are instituted among men, deriving their just powers from the consent of the governed", who in turn are "endowed by their Creator with inherent & inalienable rights" in the words of the draft. Jefferson and the Founders were in the process of standing the social order on its head. No longer did authority come from the divine right of Kings, but from the natural rights of the people, the governed. This was a whole new theory of rights, authority, government and law.

This mistake of thinking in terms of authority deriving from the inherent power of those who govern is still made today, in the pages of our newspapers, the seat of our government and the maunderings of our pundits. It was not long ago that the Attorney General of the United States made the deplorable assertion in sworn testimony before Congress that "there is no expressed grant of habeas in the Constitution" as if the Constitution grants rights to the people rather than ceding the power of the People to the government. How often do we hear the President referred to as "Commander in Chief of the American People" as if he has the right to command, rather than being the servant and tool of the people? How often do we hear that foreigners, immigrants or terrorists should not receive the "rights the Constitution grants citizens"? According to the theory that Jefferson was struggling to fit his words to, these questions and claims are nonsense. Nature or Nature's God endows us with rights. The Constitution protects them, and grants limited power to the government that it creates, that it "constitutes".

That theory is basically the same as that found in Thomas Paine's "Common Sense", written a few months earlier, and derives in large part from the writings of John Locke, who crystallized the Enlightenment thinking that was evolving in the coffeehouses and the Freemason lodges and private clubs of England, Europe and the colonies. Here's what Locke wrote in the second chapter of "On Civil Government":

§ 6. But though this be a state of liberty, yet it is not a state of licence: though man in that state have an uncontrolable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent and infinitely wise Maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy another, as if we were made for one another's uses, as the inferior ranks of creatures are for ours. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice to an offender, take away or impair the life, or what tends to the preservation of life, the liberty, health, limb, or goods of another.
Locke had two basic formulations that he used most often to describe the natural rights of man: "Life, Liberty and Property" and "Life, Health, Liberty and Possessions". Jefferson uses a slightly different formula. In the draft he initially writes of "the preservation of life, & liberty, & the pursuit of happiness", but he, or one of the others, shortens that to the pithier "life, liberty and the pursuit of happiness". The difference is worth noting. According to the natural rights reasoning, life and the ability to enjoy it are fundamental rights, rights that we can deduce from the very act of Creation. The rights to liberty, health and property are essential rights because they provide the necessities for life and its enjoyment. All of these are inherent and inalienable, whether they are primary or secondary. And so, Jefferson replaces health and property with "the pursuit of happiness" and in doing so presages the Utilitarian philosophy of Jeremy Bentham and John Stuart Mill. (This makes Bentham's mocking "Short Review of the Declaration" a little ironic.)

Interestingly, Jefferson didn't see the inspirational second paragraph of the Declaration as being all that important. For him, the key purpose of the Declaration was to air and enumerate the grievances that forced the colonies to declare their independence. His first paragraph basically says that declaring independence is a drastic step and we owe to the world to explain why we take it. The last paragraph actual declares independence. The bulk of the document lists the causes, the grievances. The second paragraph is there simply to lay the groundwork for the list of grievances, to set forth the philosophical assumptions and reasoning. It is merely the background. And therein lies its tremendous value. It is a one paragraph summary of the revolutionary philosophical underpinnings of the birth of a nation, the first nation conceived in and dedicated to a philosophy, rather than being an expression of raw power.

The Macintosh comes with a service for summarizing any document or text. If you set it to summarize by paragraphs, feed it the Declaration, and restrict it to one paragraph, it chooses the last, but if you set it to two, it chooses—rightly—the second and last. The first is preface, the bulk just a list of complaints. The second is the philosophical grounding and the last is the concrete action.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.  --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.   Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.   But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.  --Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.   The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.   To prove this, let Facts be submitted to a candid world.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.   And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
There is another whole section that was being reworked in the rough draft, but which was eliminated in toto from the final version of the Declaration, namely the reference to slavery, which read,

he has waged cruel war against human nature itself, violating it’s most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. this piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.
And while this section was removed, and slavery continued on for another four score and seven years, the words of that inspiring second paragraph, that all men are created equal, as the great modern orator Byron Rushing has pointed out became the property of others, of posterity and the law, and when combined with the legal reasoning at the heart of Anglo-American Common Law, ultimately resulted in the abolition of slavery, as we could no longer deny that "All men are created equal and endowed by their creator with certain inalienable rights" means just that—ALL people.

And so on this Independence Day, it is worthwhile to reread the Declaration of Independence, in all its drafts, to reflect on the text that is there and the subtext that is revealed as we study the context, the other writers, the other documents and the history of the times.
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Of Persons, Corporations, Money and Speech

These are the times that try men's souls. On the one hand we have the Supreme Court of the United States empowering corporations at a time when they already come far too close to owning our representatives, our government and our country. On the other, we have a populace that doesn't understand how our most fundamental principles tie to either this question or the trying of accused terrorists.

Someone MUST speak out about the nature of our Rights and our Constitution.

We seem to have forgotten the truths that our founding fathers took to be self-evident, the principles to which our nation was dedicated. Many on the left are decrying the recent Citizens United Supreme Court decision, while at the same time civil libertarians often thought to be on the left have spoken in defense of the decision. As it turns out the questions here are not simple, and to work them out requires really knowing both how the system works and what the underlying principles are. It's not easy stuff, and we seem unprepared for it.

Let me start by agreeing with those who fear undue influence and power is given to the corporations, domestic, foreign and multinational by this decision. This decision does, in fact, remove important safeguards against the super-rich corporations overwhelming our electoral process with huge amounts of money. Not only that, but it opens our government to the influence of foreign money and foreign-owned corporations. It's easy to sneer at that last accusation (one Supreme Court Justice did just that), claiming that the decision only applies to US corporations, but that ignores the fact that being incorporated in one of the United States is very different from being owned exclusively or mostly by US citizens. Citgo, for instance is incorporated in the US, but it is owned by Petróleos de Venezuela. It is a "US corporation", ye, but it is also an entirely "foreign owned corporation". If Citgo has a right of free speech that allows it to finance political campaigns in the US, then Hugo Chavez who runs the government of Venezuela, who owns PDV, who owns Citgo, has that right. Many people think that this is not a good thing.

But let me also say that people like Glenn Greenwald and Jonathan Turley also have a very real and valid point that the decision in Citizens United, which empowers Citgo, and PDV and Venezuela and Chavez is based on long standing principles of Constitutional law, law that has both important practical justifications and a basis in our most sacred principles. Greenwald has written on the topic at "What the Supreme Court got right" and "Follow-up on the Citizens United case". I recommend reading both, though I do not agree with everything that he wrote. Turley wrote a lengthy commentary in his blog and spoke about the topic on a segment of Countdown.

Greenwald makes the point that none of the nine Justices agree with those of us who argue that it is a problem that the law holds that corporations are people and that money is speech. On the latter he lays out a rather specific challenge. He says that if we are to claim that speech isn't money then we have to explain what will protect us from laws like the following (he gives several hypothetical examples, I'm using one for brevity):

"It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent;"
My own response is that this is absolutist rhetorical flummery, that if money is speech, you get into problems just as deep:

If money is speech, then the First Amendment must give me the right to pay my Congressman to take an action I wish him to, because I have the right to tell him what I want him to do.

Clearly I have a right to tell my representative what I want him to do. If I cannot, I have lost not only the right of free speech, but also the right to representation, which is definitionally inherent in a Republic. But that doesn't give me the right to put my money where my mouth is and pay him to vote my way. That's bribery and corruption.
In the end, I do not believe that either absolute extreme, that money is speech or that money has nothing to do with freedom of speech is tenable, but, and it is a big "but", but Constitutionally protected rights, natural rights tend to be absolutist. That is one of their strengths. "Congress shall make no law..." like "Thou shall commit no murder" (I hope you'll forgive my slightly non-traditional, but I believe accurate translation of the Commandment) is strong because it is a prohibition. once you get into qualifying them you start allowing loop holes and we all know where that gets you.

I think we need to recognize that Constitutionally protected rights are not an artifact of law, are not granted by the government, judges or the Founders, but are rather natural rights, with which we are endowed by our Creator, whatever you consider said Creator to be. Corporations, are NOT natural, though. They ARE social constructs, the product of law, goverment and the consensus of society. When we constitute them, when we incorporate them as entities within our legal system, I think we have to say that they have rights, but that those rights are not inherent, that they derive from the rights of the people they comprise, and who create the corporations. We endow the corporations with rights and we can limit them.

Similarly, money is a social construct and while there are certainly moral aspects to money and to its use, it is not, in and of itself, speech. It can be used to enable or discourage speech and can be used to violate the rights of others, or with deference to their rights or to empower people, ourselves or others with regard to their rights. "Money is speech, speech is protected, money is thus protected" is a nice syllogism. It is simple and understandable, it is easy to derive conclusions from it. But it is oversimplified.

Einstein was right. "Make everything as simple as possible. And no Simpler."

Where does that analysis get us? Certainly NOT to a Constitutional amendment. But, given that corporations are created by legislation, Why can't legislation explicitly limit and define the rights and obligations they have? And since corporations are primarily commercial in nature, why can't regulating them be a federal function? The state laws define and control corporations and the methods of incorporation, but in the name of regulating interstate commerce, cannot the federal government set certain limits on corporations and the laws that control them?

This ties in to a number of issues before us today:

  1. The empowering of corporations on the grounds of free speech.
  2. Regarding money as speech and thus giving the extremely rich a greater practical right to "speak".
  3. The influence of foreign money through the free speech of US incorporated, foreign owned corporations.
  4. The right of all US citizens and anyone in the US to habeas corpus and trial by jury.
  5. "Getting FISA right" and the potential abuse of the USA PATRIOT Act.
  6. A system which allows the government to try accused terrorists in whichever court they know they can convict them in.
For all of these, it is important to understand the nature of rights in US Constitutional principles. We need to ground these discussions not only in what makes us safe from terrorists or corporations or corruption, but in terms of the natural rights that all men are endowed with and which we the people do not allow our government to violate. Our fundamental, natural rights are not granted by the government, the King, or the Constitution, and understanding that, and the principles our whole system is based on is both important and sadly lacking in the discussion of a lot of these and other critical issues.
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In the last couple of weeks very important things have been going on in the realm of Civil Liberties, and our concern for issues like Health Care, Iran, Afghanistan and the Chicago bid for the Olympics have distracted us from it. And it is not going well. You can help. Help put pressure on the US Senate and House of Representatives to put important protections of the rights of "US persons", our citizens and resident aliens into the law as it is renewed.

If you listen to Fox News, "Some on the Left" or "Some Democrats" want to strip the federal government of critical powers to protect us from terrorists. Unfortunately, as they are making these claims in defense of the USA PATRIOT Act, they get most of the facts wrong. Julian Sanchez of the CATO Institute has a video and blog posting that tears their coverage apart.

So what is really going on? If the Democrats aren't trying to completely eliminate valuable anti-terrorist tools, what has been happening the last two weeks?

First of all, several sections of the USA PATRIOT Act are up for re-authorization, because they were passed with a "sunset clause" that makes them expire at the end of the year. According to even official Inspector General reports from both administrations, the Patriot act has lead to substantial abuse of US Citizens constittution rights. In response to these abuses Senators Feingold and Durbin introduced an act called the "JUSTICE Act". "JUSTICE, like "USA PATRIOT" is a goofy acronym, in this case standing for "Judicious Use of Surveillance Tools In Counterterrorism Efforts. Note that while I'll call the acronym goofy, but the act itself is far from that. It basically insures that a number of these special powers authorized in the USA PATRIOT Act and other post-9/11 legislation are only used against terrorism, that the government has to establish a connection to terrorists in order to use "John Doe roving wire taps", "sneak and peek" secret searches, "National Security Letters" and other procedures.

A broad coalition supported the JUSTICE Act. Senator Leahy, however, submitted his own bill that offered fewer limitations and protections and the Senate Judiciary Committee (SJC), which Leahy heads, decided to use it as a starting point. Many of us started to agitate to get pieces of the JUSTICE Act supported as amendments to the Leahy bill. The evening before the bill was taken up by the committee, Diane Feinstein, chairman of the Senate Intelligence Committee made a deal with Leahy. An even weaker bill that she largely wrote, and which he cosponsored, replaced the Leahy bill as the starting point. Only a small amount of work happened on that bill last Thursday, before it was postponed until this coming Thursday, due to conflicts caused by the Senate also doing markup on the Health Care bill which was drawing Senators away.

Resources: Comparisons of the JUSTICE Act and Leahy's bill from Center for Democracy and Technology, Julian Sanchez on Cato@Liberty, and Marcy Wheeler on Emptywheel.
Resources: Reactions to last week's SJC meeting from the EFF, the ACLU, David Kravetz, Wired's Threat Level

And that brings us to this week and Thursday's coming second round of markup on the bill. We, that is grass roots civil libertarians, Get FISA Right, the ACLU, the EFF and others, would like you as citizens, as bloggers, as Facebook and Twitter users to make you voices heard. We'd like you to blog, tweet and write about this effort in order to get as many people as possible involved, and for all of you and them to bring pressure to bear on your senators, especially if one of your senators sits on the Judiciary Committee, and your Congressmen and any other Senators and Congressmen you may support, contribute to or know, to do the right thing. To work for and support amendments, whether they come from the JUSTICE Act or other sources that restrict the circumstances and the purposes under which these powers can be used.

Why? Well, I started out bashing Fox coverage on this, let me now shift to praising one Fox commentator and recommending that you listen to his highly knowledgeable and impassioned speech against the USA PATRIOT Act and National Security Letters. Please watch Judge Andrew Napolitano's speech on "Natural Rights and The Patriot Act", shown here. His explanations of the history of our Constitution, laws and the abuses of citizens' rights regarding the USA PATRIOT Act and National Security letters are well worth listening to whether your politics are left, right or center. I recommend watching all three parts.

As ever, I don't want you to just believe what I say. I want you to read and listen and learn. Form your own opinions. I've included a number of links to pertinent resources in the posting above and the two videos. Get FISA Right has a resource page with more links and more calls to action. Please read there. Join us when several of us live blog during the hearings on Thursday. If you agree with us sign and retweet our Twitter petitions. Blog about what you believe, but above all, be a Free Voice. Be a voice for freedom.
Resources: Our Twitter Petition: "@RussFeingold and @SenDurbin, thanks for your tireless efforts to reform the #patriotact (please RT)"
Resources for activists: Get FISA Right's "How to help bring JUSTICE to the PATRIOT Act" page.
Resources for bloggers: Get FISA Right's "JUSTICE Act blogger resources" page.
Resources: For live-blogging: Get FISA Right's Patriot Act Action Hub
Vox Libertas,
Jim Burrows
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Re: Jim, I need your voice on health care--Sorry, sir

Mr. President,

It is with great sadness and regret that I must decline your emailed request. I do this with intimate and personal knowledge of how important this legislation is. I am a computer consultant by profession, and with the downturn in the economy, my income has been slashed to a small fraction of what it once was. In fact, our family has had to rely heavily on my wife's part-time income while I attempt to build a whole new business. Last week, that reliance ended. In a fall down the cellar stairs, my wife broke one ankle and the other foot. Because I have been self-employed for the last 2.5 years and my wife is only a part-time employee with no benefits, our only health insurance is what we can afford to pay for out of pocket. The bills arising out of her injury and her inability to work combine put us in a precarious position.I find myself having to rely on the charity of others, on the Council for Aging in our small town, on volunteer organizations such as Household Goods Recycling of Massachusetts, and the support of family members.

Believe me, sir, I know how important health care reform is. I understand intimately how critical the Recovery and Stimulus plan are. I could not believe more in the important work that lies before you economically and with regard to health care. I understand that health care was, quite understandably your primary object during much of the campaign and that the economy has become both a problem of its own and an obstacle to the extremely hard work of making progress on health care.

Sadly, sir, while I believe all that, and my own livelihood and home are threatened by the dual threat of healthcare costs and the collapsed economy, none of that is my primary concern. No, sir. My concern is for the health of our Republic and not of the body or the economy. I love my wife, and I love my family, and I love my home. But we are strong and we will survive, somehow. My deepest concern is for the heart and soul of this country, for the Rule of Law, for the principles upon which this great nation was conceived, and to which it is dedicated. And that, sir, I believe is endangered. It is endangered by torture; by indefinite detention; by warrant-less surveillance, search and seizure; by kangaroo courts that fail to uphold either our civilian laws or the uniform code of military justice; by the notion that the highest ranking officials can break our laws and not be investigated, let alone prosecuted; by a government that clouds its crimes in claims of secrecy and unspecified nationally security. Today, sir, it is endangered by you.

After eight years of a Presidency that plumbed depths of deceit, greed, corruption, war crimes and the arrogation of raw power, I voted for you in hopes that we could turn the page, that we could heal this land, that we could restore the rule of law. Sadly, sir, it seems that we cannot; that your view of the presidency, of executive privilege, of state secrecy, of the immunity of the powerful from the rule of law is too tainted by the power illegitimately accrued by your predecessor. It seems, sir, that the old adage is true. Power corrupts and absolute power corrupts absolutely.

So, no, sir, you may not have my voice on health care, nor on the economy. You may not have it even though the woman I love is in bad need of better health care, even though this economy is depriving me of the ability to support my family. At this time, even in the face of those great crises, I have only enough voice for this: "Return us to the Rule of Law, not men." Close Gitmo. Stop the Military Commissions. Try the prisoners or free them. Forswear prolong and preventative detention. Investigate the War Crimes and prosecute the guilty.  Stop hiding behind Executive Privilege and National Security. Save my country. Save it for my children and their children. Save it for your children. This is not a distraction. Without our Soul this country dies.

I will find some way, through the charity of strangers, the support of my family or the Hand of Providence to get my wife the care she needs. I will find a way to join with others to build a company to employ us all and save our homes and livelihoods. It will be hard, but since they brought my multi-great grandfather to these shores in chains for the crime of being a Scot and supporting the wrong absolute ruler, my family has found a way to do those things. Somehow, I and mine will find the way to protect and fend for ourselves. What you, sir, must do, is defend this country, and despite all that has been said in this new century, the threat to this country is not foreign fanatics. It is domestic fanatics. It is power misused, law abandoned. It is forgetting what makes this nation great. It is abandoning our principles.

I am not of your party. I am an independent. Yet, I voted for you, and worked for you and wept with joy to see a man with your background, both in heritage and in principle, elected President. The promise of it! The hope. Live up to that hope, sir. Give us back our Country. That, above all, is what we need. Then, sir, I will join you in working for health care and the economy and the other great works there are before us.

Jim Burrows, aka Brons - Vox Libertas

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Republicans, Republicanism and the Republic

The news last week was that only 20-30% of Americans are willing to identify themselves as "Republicans".

When John Dvorak's blog polled its users as to their politics and party affiliation and asked them what the Republicans needed to do about this, the first response included the following,
Its likely a third party…conservative, will rise, if the Republican party cannot cleanse itself of Democrats aka RINOs

Then we would have no choice but form another party…however we are hopeful we can expel them…and recover those who left.
The Republican party is shrinking and losing votes, and the response of an ardent advocate of the party is that what they need to do is "cleanse itself" of the "Democrats aka RINOs" that are inflating its membership. Somehow, if the party can expel the Democrats in their midst they can then recover the true Republicans who left the party because of all these Democrats in their midst.

If I may, "WTF?!"

As an Independent who vote about 40/60 Republican/Democrat for the last three decades of the 20th century and who has voted 100% Democrat for the 21st, I think we Independents may not have made ourselves clear. The problem, dear Republicans is not that you aren't extreme enough, not pure enough, too infiltrated by Democrats. So, let me lay out what I, as an Independent who has stopped voting with the Republicans am looking for. It sure isn't a purer stricter, more conservative Republican party. And, by the way, it isn't what the Democrats of today are. They are second only to the current Republican party in needing to be torn to bits and rebuilt from scratch. I'm looking forward to turning on them. But not until there is something better.

So who the Hell am I, anyway? I'm an Independent. I do not consider myself a Conservative or a Liberal, a Republican or a Democrat. I might call myself a "Progressive" except that that label is used by Liberals who are afraid to use the word "Liberal" to describe themselves because the Conservatives have made it a dirty word.

So, labels being useless, let me say what I believe in:
  • I am a fervent Civil Libertarian
  • I am vehemently pro Habeas Corpus, pro-Posse Comitatus
  • I am just as vehemently anti-torture
  • I am anti-Big Government, Big-Business, Big-Labor
  • I am pro-choice
  • I am anti-abortion
  • I am anti-war
  • I am pro-veteran
  • I am pro-gun
  • I am pro-decriminalization of marijuana
  • I think that ethics, and family values are in a shambles
  • I am pro-marriage equality
  • I am an agnostic. I'm sick of the religious right and the fundamentalist atheists
and so on...

In all of that, the key concept is that very few things are Black vs White, harsh dichotomies wherein one side represents virtue and the other all that is wrong wit the world. I tend to feel that truth is found in medias res, as they would say back when it was more popular to pepper your American with Foreign.

With the nomination of a Souter replacement on the horizon, we are soon to be blessed with the spectacle of the Democrats and Republicans beating each other with the absolute and diametrically opposed values of "a woman's right" with "baby killing", just as if that made sense. And the Media will egg the two sides on, just as if there were two sides. It's all very simple, really. You either believe in freedom or tyranny, life or death. You are on the side of the Angels or of the Devil himself.

Except that real life is nothing like that. As I said above, I am pro-choice and pro-life. In the 42 years since someone facing the decision first asked my advice, I have always said that it is the woman's decision, the woman's choice, her moral conundrum, and I have always advised for life, and against abortion. I have offered my support, my sympathy, my hand to hold and my shoulder to cry on, regardless of the decision. I do not believe in abortion. I have yet to encounter in life a time when I thought it was the right choice. That is my ethical judgment. I may disagree with a woman's judgment, but I refuse to judge her as a person for any difference that her judgment has from mine.

And the vast majority of the country agrees with me. And every woman that I have known who has faced the decision has known to her very core, that it is not a black and white issue, that there is no 100% unquestionable right or wrong for all people for all time. They see the decision, the choice, the responsibility, they weigh it, they are tormented by it, and they come to a decision. They need our respect and our support and our love. Not polarized polemic.

But we will not see that in the next few weeks, not unless we are very very lucky, not without the hand of Providence, I'll warrant.

Having looked of the future of Supreme Court nominations, lets turn to the recent past, the big "debate" of the last couple of weeks: the tortuous wrangling over torture. Since when has torture been a core Conservative value? When did the "Rule of Law" become the sole purview of the Left? How do you reconcile the "Inherent and Unenumerated Power of Sole Supervisor of the Unitary Executive, and Commander in Chief of All the American People" to detain and torture enemies of the state without trial, without probable cause, without right to counsel, without the right of habeas corpus or His right to spy in absolute secrecy on enemies of the state without warrant or probable cause with the Conservative values of small government, states rights or personal liberty?

When did the Republican Party become the party of Party Loyalty over the Rule of Law? When did Tyranny, the rule of a supreme leader in Washington DC dictating to the states become a Republican value?

There is one perspective that I can see that as making sense from. If you regard the Republicans as the Party of Lincoln, and do so from the perspective of a loyal Confederate, you can see where that trend has always been present in the party. If you view Lincoln as a modern day Caesar, tyrannically turning the Army on the citizenry, suppressing the rights of states and individuals in favor of a unitary federal power and the interests of New York bankers, then I suppose you can regard the Republican Party as having a tradition of choosing strong central authority over freedom. It's a fairly narrow view of the party, but it makes a certain amount of sense. BUT! But the people who are most prone to see things that way, to take the states rights position, to view the Republican party heritage as one of federal tyranny are conservative Southern whites. And they are the ones most embracing this modern authoritarian abuse. The party of Lincoln and northern banking interests is strongest among Southern white males. If I may, "WTF!?!"

I'm a heterosexual who will be celebrating 36 years of marriage in just over a month. I am grossly disheartened with the state of marriage and the family today. I swore before God and my family to love honor and obey in sickness and health all the days of my life, and I meant it. And too few people do that. I have watched dozens or scores f marriages break up over problems less severe than some my wife and I have worked our way through. for the last 7 or 8 years we have taken in other people's children, given them a roof over their head and a bed (or couch or bean bag chair, depending upon crowding) to sleep on, when their own families wouldn't.

I believe in family values. Deeply. And I am aghast at the state of disrepair and neglect that they have fallen into. I'm a philosopher by training and an ex-lay minister. Ethics and values are as important to me as my family and family in general. And so, I support the right of any couple to marry. Back when I was a teenager, that right was guaranteed even for mixed racial couples. I remember that event and I was enormously proud when that guarantee was extended to same-sex couples in my Commonwealth.

If marriage is in a sorry state today, it is not because of the efforts of those who have been denied access to it. It isn't the fault of them, of queer ("strange and unusual" in Joe the Plumber's words) others, it is due to people like me, to the majority of us, to people who were permitted to marry, who did so and made a terrible mess of it, to people who were permitted to marry and didn't bother.

I won't claim that I am typical of the Independents of this country. I know that I'm a little eccentric. Many of my values are a bit out of the mainstream, and when they are mainstream, they are often a mixed bag, a collection that many would see as in conflict with each other. But if my specific beliefs are not themselves typical, the fact that they are diverse, complex, involving shades of gray, that is typical. That is the character of Independents as a group, of the middle ground of American political belief. America may not agree with me. No other American may share all of my values or opinions, but the truth is that the swing voters, the Independents, the moderates, and probably the majority of Americans as a whole are like me than they are like the black and white, simple minded dichotomy that the Republicans, Democrats and Media present us with.

This country is becoming more diverse with every passing day. We are becoming a majority-minority country. We are becoming more ethnically diverse. More opinions, religions, sexual orientations, ethnic backgrounds are becoming empowered and active in the political scene, and the parties had better figure out how to deal with that.

It is totally in keeping with the traditions of this country. Our Founding Fathers were a diverse and squabbling lot. This isn't a Christian country, for instance. It is a country founded on Religious freedom specifically because it was a country in which Catholics and Protestants, Puritans and Quakers, Deists and Jews all had to tolerate each other when all other countries were Protestant or Catholic or divided between two, with Catholics and Huguenots in a deadly embrace or some such. We are the place where citizenship went from being just for land-owning members of the local parish to any land owner, to any freeborn man, to any man to any human. We can cope with universal rights, with diversity, with personal responsibility.

JimB. aka Brons
Jim Burrows
Vox Libertas
WorldBender office

What does it mean to “get FISA right”?

[In order to get the discussion moving I posted this at GetFISAright and yesterday. Today, it is going to all versions of Vox Libertas except DKos. It will follow there. Please join the discussion in any or all of these. It is important that we get this right.]

As a member of "Get FISA Right", I find myself asking, "What does 'get it right' mean?" I don't have a definitive answer, but let me give a few thoughts as a basis for a discussion of the topic.

The Foreign Intelligence Surveillance Act (FISA) was originally passed in 1978 order to balance the legitimate need to spy on the nation's foreign enemies, with the Constitutional rights of her citizens, and especially to curb existing abuse. Technology has changed dramatically since it was written, and our enemies are different. Also, there has been a new round of abuse. All of these must be addressed.

To "get it right", let me suggest that we need:

  1. One law that covers all spying
  2. Require warrants when the US spies on
    1. Anyone in the US
    2. US persons (citizens and resident aliens) anywhere
  3. Allow the intelligence agencies to spy freely on foreigners oversees, even if the taps are in the US
  4. Require Executive, Judicial and Congressional oversight when protected and unprotected communications are entangled.
  5. Criminalize violation of the Constitution.

Item #4 is a knotty one. Since foreign and domestic traffic flows through the same "pipes" and is in the clear, and it is not easy to tell just from the content who the participants are, software that sorts what can legally be captured from what cannot can violate the Constitution and the law if it uses the wrong algorithm or has a bug. This is what the "targeting" and "minimization" procedures are all about. There must be diligent oversight, and it requires esoteric expertise. It requires nerds and Constitutional Law experts. And the jurisdiction to oversee.

#5 may seem superfluous, but is important. If your Constitutional rights are violated, you can sue, but only if you prove you have "standing". If the violation was done in secret, that can be hard to prove. If the criminal law is violated, the Department of Justice and Law Enforcement can and should investigate and prosecute.

That's my framework. What do you think?

For a longer discussion, let me recommend the following blogs from last summer (disclaimer: #3 is by me):

  1. David Kris's "A Guide to the New FISA Bill", Part I, Part II and Part III.
  2. Wes Walls' "Understanding Recent Changes to FISA -- A Visual Guide (Flowchart)"
  3. Jim Burrows' "I think I understand the FISA bill. Do I?" (at Blogspot. Also on Daily Kos, LiveJournal, MySpace, and Vox)
  4. Wes Walls' "FISA Revisited"
  5. Paul Russell's three-part "Figuring Out FISA"
    1. Part I - A Guy Named George
    2. Part II - The Unitary Executive Strikes Back
    3. Part III - The Pride of Rube Goldberg
WorldBender office

On Sex and Evolution and Politics

And now for something completely different... Usually I write here in Vox Libertas about politics, about the Rule of Law, the Constitution, the behavior of our elected leaders and the dangers that I see in the growing trend to authoritarianism, oligarchy, the cult of personality and the centralization of power. Today, I am going to write about politics, too, but also about evolution and science, homosexuality, morality, philosophy and love. I do so inspired by Proposition 8, and reading an article about altruism and evolutionary psychology, and because a new yet dear friend asked me if I knew any other lesbians. And perhaps because it is a time of family and holidays, and the darkest days of the year.

In a discussion of marriage and the law a few weeks back, someone cited the notion that "marriage is between one man and one woman", and I asked,

"What about the others?"
"What others?"
"Those that are neither a man or a woman."
"What do you mean?"
What I meant was that if you look at the purely physical level, at our genes and our hormones, you find that the simple notion of "men" and "women" as a black and white concept doesn't quite hold up. Genetically, men are XY and women XX in terms of the 23rd chromosome pair. But that's not all of the possibilities. There are X0, and XXX, XXY, XYY and so on. These are quite rare and may add up to something like .3% of live births. There are also a number of hormonal and fetal development conditions, such as Androgen insensitivity syndrome, wherein people who are XX or XY end up with the "wrong" genitals. These folk, along with the extremely rare chromosome types are called "intersexed". I've seen estimates that between .6% and 1.3% of live births are "intersex" by somewhat varying definitions and counts.

And thus the question, "What about the rest, the interesexed?" What rights should they have? Most people don't ask or think about that question, after all, each of these conditions is quite rare, occurring in one in a thousand or ten thousand or twenty or more thousand births. But stop and think. If the number is, say .3% to pick a nice low number, in America that's still about a million citizens, a million people not matching the definitions, not even in the debate about traditional vs same-sex marriage. What about the others?

In chasing tweets over on twitter, I found myself on the web site of the journal, "entelechy", which is devoted to mind and culture, to evolutionaty psychology. One article there started out,

When it comes to altruism, the party line in evolutionary psychology goes something like this: True altruism doesn’t really exist — it’s not an evolveable quality of organisms given how natural selection works her magic (which is by selecting features of organisms that have the effects of replicating their own particular genes). The two predominant kinds of altruism discussed by evolutionists both clearly represent “gene selfishness” when examined closely. On one hand, kin selection, the helping of genetic relatives, is essentially the helping of one’s genes as they exist in the bodies of others. On the other hand, reciprocal altruism, the helping of a non-relative with an implicit understanding of being helped in return by that individual at some future point, has an obvious selfishness as well.

Two important recent theoretical developments within evolutionary psychology give pause to evolutionists who stick by this orthodoxy. First, David Sloan Wilson, NEEPS’ esteemed inaugural keynote speaker, makes the case that natural selection can, in fact, work at the level of groups of organisms to the extent that competition between groups is a salient feature of the species. Under such conditions, altruistic behaviors that reduce one’s fitness within the group but that provide benefits to the group can actually evolve under some conditions.
This brought me in mind of a discussion that I've had occessionally regarding the "unnaturalness" of homosexuality, as viewed from a "selfish gene" evolutionary standpoint. Homosexulaity, since it works against reproduction, must the arguemt goes, be an "unfit" strategy, from a selection of the fittest evoltionary perspective. It must then from a purely scientific viewpoint be an unnatural and unhealthy trait, or so the argument goes.

Yet, as the quote above points out, among humans, who are very social creatures, groups--tribes, villages, extended families--compete with each other, and when they do traits that may work against reproduction of the individal may still work to the advantage of the gnepool from which they arose. Specifically, childless aunties and uncles, surrogate parents to orphans, childless hunters and gatherers, may lead to the survival of the group. Homosexuality at the level of one in twenty may produce valuable group members, increasing the chance of survival of all members while only mildly reducing the number of individuals in the next generation.

If, in fact, one of the biological and evolutionary roles of homosexually individuals is to serve as surrogate parents to children whose parents are absent, dead or busy insuring the groups survival, should they not be permitted to serve that function, to fulfill those instincts in the modern world?

A couple of years ago, two very old and dear friends of mine got married, because being citizens of the Commonwealth of Massachusetts, they could for the first time in the 25 years that they have been together. The wedding, a church wedding, was extremely beautiful, not only for the love the brides felt for each other, the physical beauty of the surroundings, or the sense of justice fulfilled, but also beacuse of the large number of people who came "as family". Many people of many ages came to share the wedding of two women, whom they called "mom". My friends have always taken in strays, offered home and motherly advice, both warm and stern, to those who need it. More recently, I made some new friends of another lesbian couple, and soon met the young people they called their "godsons". And as I thought about it, it seemed to me that this is a pattern that we see a lot, extended volitional "families" centered around homosexual and especially lesbian couples.

As a philosopher and social psychologist by training, it has always bothered me when scientists interpret "natural selection" to mean "survival of the fittest" in a dog-eat-dog competitive world, resulting in notions like "True altruism doesn’t really exist". The problem with this is that it always seems like a theory that doesn't fit the observable facts. When we hear that infants don't smile--"it's just gas", and only humans understand speech, or animals don't lie or only humans have a sense of self, it leaves me wondering if the speaker was ever a parent or lived with a cat or dog. And inevitably, after the clever theory-based truism has been repeated into triviality, some clever wight goes off, conducts a study and shows that it just ain't so.

The first Neanderthal fossils included the skeleton of a lame, half blind old cripple. How did he survive to old age? What selfish gene preserved him long beyond the point of reproduction, when he was likely more a burden to his juniors than the other way around? The answer would seem to by love, charity and altruism. The answer would seem to be natural selection of the functional group, the evolutionary advantage of love.

A week or two back amid the brouhaha over Proposition 8 and Rick Warren, while some anti-same sex marriage advocate was worrying about how accommodating same-sex marriage would lead to embracing pedophilia, incest, polygamy and maybe even bestiality, a marriage equality advocate rebutted that what people don't get about same-sex marriage is that it is about love, not sex, or not just sex. I think that one of the reasons that people lose track of that is that they have a hard time really embracing the notion that there is more than one way to be OK, that in fact it is normal for human groups to comprise diverse individuals. Different is taken to be abnormal, and abnormal to be perverted from the norm.

But, the truth is there isn't just one (or two) way(s) to be human. There are men and and women and others. There are straight, homosexual, bisexual, and transgendered folk. Some of us marry and reproduce and some of us care for those whose parents can't or won't. And at the heart of being human is love, both erotic love and the charity of human kindness. We revere and care for the aged and infirm. Enlightened self interest, with a goodly emphasis on enlightened, makes us more successful and more human. Cut-throat dog-eat-dog competition is not the fundamental way of nature, even for dogs, who exhibit remarkable amounts of compassion, empathy and love themselves.

And so the Deist in me, lead by reason, science, and nature tells me that all men were created equal, even if they were not created alike, and that Nature's God, Nature's Law and Nature's Justice teach us that we should allow our brothers, sisters, and even the others among us who were created different to fulfill the need for love, the need to nurture, the need to join together in eternal bonds the right and the dignity so to do. With that I return to the roots of this blog, the Vox Libertas, the free voice of our Founders.

As ever, don't believe me. Research, learn and decide for yourself, but do not turn a deaf ear to what Reason and Faith, Hope and Charity teach us.

Vox Libertas.
WorldBender office

Commander in Chief of all the American people?

On Thursday, I noticed something on The Verdict that really bothered me. The next day, Josh Marshall of Talking Points Memo commented on the same general issue, though he did not mention the particular incident that had caught my eye.

On the Verdict, they were discussing Barack Obama's speech in Berlin, when Dan Abram's asked,

ABRAMS: So, what‘s the problem?

WATKINS: The problem is this—speeches like that are reserved for the commander-in-chief of the United States. The commander-in-chief speaks with the American people. Barack Obama is not just a citizen of the world or citizen of the United States, he is the presumptive Democratic nominee.

They know he‘s running for the presidency and what you do when you give a speech like that and you‘re not the commander-in-chief of all the American people, is that you undermine the institution of the president.

All together, Watkins used the title "Commander-in-Chief" six times, and the way he used it was also revealing, What he said was:

  • commander-in-chief of the United States.
  • commander-in-chief speaks with the American people.
  • commander-in-chief of all the American people
  • commander-in-chief of all the American people.
  • commander-in-chief, president of all the people.
  • commander-in-chief of the United States
Please note that what the US Constitution says in Article I is,

The President shall be Commander in Chief of the Army and Navy of the United States
There is a not so subtle difference between the notion of "the Commander in Chief of the US military" and "the Commander in Chief of all the American people". As Josh Marshall points out in his article,

The point of the constitution's explicitly giving the president the title of commander-in-chief was not to make him into a quasi-military figure. It was precisely the opposite -- to create no doubt that the armed forces answered not to a chief of staff or senior general or even a Secretary of Defense (originally, Secretaries of War and Navy) but to a civilian elected officeholder who operates with the constrained and limited power of that world rather than the unbound authority of military command.
The civilian Commander in Chief of the armed forces is an elected representative of the people who commands and sets the strategy of the military, insuring that it serves the will of the people. The Commander in Chief of all the American people begins to sound a whole lot like the Roman Emperor, the "Imperator" or Commander who commands the people and the armed forces.

If you combine this image of the President as the Commander in Chief of the American people, with the image suggested by an audio clip that was aired on the Verdict a few days before, you get a really interesting picture. According LexisNexis, this is what the McCain Campaign said on Tuesday:

RANDY SCHEUNEMANN, MCCAIN ADVISER: This is really an amazing statement. He believes that deferring to commanders on the ground is not the job of commander-in-chief. He believes that deferring to the best military judgment of commanders is rubber stamping. He refuses to credit General Petraeus and General Odierno for their leadership. He disparages their strategic judgment and trumpets his own.
He finds it amazing that Obama "believes that deferring to commanders on the ground is not the job of commander-in-chief", which certainly suggests that Scheunemann believes that it is the Presidents job to so defer. That, my friends, is what happens when a country is ruled by a military junta. In America the civilian populace directs the military through their civilian representative, the President.Apparently in the McCain world the military directs, at the very least in military matters, the President.

There's a serious conflict in these two images of the Presidency, but both reveal a militarism that is very scary. As Josh Marshall points out these images, this language is becoming more and more pervasive and they dangerously distort the public view of the President, the military, the nation and civil liberties.

The time has come to speak out against this mindset. Be a free voice.

Vox Libertas
WorldBender office

I think I understand the FISA bill. Do I?

By way of disclosure, I am something of a Civil Liberties fanatic, and am firmly convinced that Obama did the wrong thing on retroactive immunity and am angry about that. Also, I haven't trusted George W. Bush since the first 10 secs I saw him speaking. He reminded me of the arrogant lying bullies who used to break my bones when I was a youngster. He set off all my alarms just by the way he talked and moved.Obama was something like my 4th choice in the primaries, ahead of Clinton.

So, I'm not an apologist for any of the current crop of politicians, and not at all well disposed towards anything that looks to weaken the rule of law, the Constitution or our civil liberties. All that being said, the brouhaha over FISA and the accusations of cowardice, lack of principles and political opportunism has started sounding a whole lot more like heat than the light of reason. A recent claim claim by Lawrence Lessig, a Civil Libertarian with a background in law made me stop and think.
[Obama's] vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important.
People on the left, people like Glenn Greenwald, Jonathan Turley, Russ Feingold and Chris Dodd keep painting the recent FISA as a false compromise, a capitulation to Bush, and a blot on the fourth amendment. So why do Lessig and former Constitutional Law lecturer Obama say that it is important? Who is right?

Well either you can pick your authority figure and believe them—you pays your money and you takes your chances—or roll up your sleeves, wade into the bill and make your own decision. I never was the "argument from authority" type. So why should I pick one camp or the other?

I've been working on this posting for more than a week, and I think I have a handle on a line of reasoning that shows that the FISA amendment makes sense and may very well be a "Good Thing™". I don't find the argument compelling, but I think that it really deserves to be fully explicated, discussed and weighed, and as of yet, I think that I can respect and understand anyone who feels either that it outweighs the argument that FISA as a whole or as amended is so damaging to civil liberties and the rule of law that it outweighs the benefit or the other way around. I would really like to hear people who are passionate on both sides after they understand this reasoning.


There are a number of assumptions regarding the level of protection that should be afforded communications depending upon the people and jurisdictions involved. In terms of the three major combinations, the following breakdown seems to by the default assumption:
  1. Spying on foreign/foreign communications is OK.
  2. Intercepting US/US communications requires a warrant or constitutional equivalent.
  3. Intercepting US/foreign communications is the purview of the FISA court and law
  4. The location where the spying is done is not as important as who is communicating.
In the next couple of subsections, I will lay out each of these, at least briefly.

1. Spying is OK

Some would argue that "spying is important" or even "spying is necessary". For the purposes of this analysis, all we need to assume is that it is legitimate for the foreign intelligence services to spy on foreigners when that is in keeping with their mission, our relationship to the foreign nations involved, so long as they do so in accordance with their regulations and charter. Such spying is conducted beyond the jurisdiction of the United States and beyond the guarantees of our constitution. Thus "foreign/foreign" communication, by which I mean communications between two people, neither of whom is a "US person", should not be controlled by US warrants or restricted by Constitutional rights. International laws may apply.

It is certainly possible to disbelieve in spying, but we have done foreign spying for a very long time and the foreign intelligence services have always been unencumbered by the US courts and Constitution, so long as they were operating outside the US and the subjects were foreigners.

2. US/US requires a warrant

On the other hand, spying on Americans in America requires a court order. In essence, whenever the US Constitution is the ruling law, Warrants are required, otherwise it is "unreasonable search and seizure". The simplest version of this is communications between two US citizens, in the US, but resident aliens in the US are by precedent also protected by the Constitution. The term "US persons" is used in many laws as a shorthand for US citizens, US resident aliens and US corporations, since corporations are generally treated as "persons" in US law at present. For the purposes of FISA, "US person" is defined as follows:
“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.
The requirement for warrants is a fundamental right in America, and the Constitution specifically limits the power of the government within its jurisdiction. There are certain questions about where the Constitution holds sway, but it at the very least applies within the sovereign jurisdiction of the United States and in all dealings between the US government and US citizens regardless of location.

3. FISA controls US/foreign surveillance

One may think, either as a civil libertarian or as a proponent of a strong federal executive that FISA in principle is bad law, but since 1978 in order to balance the government's legitimate foreign intelligence interests with the need for judicial oversight, FISA has been the law. It's basic charter is to control spying that occurs between US persons and foreign powers or agents. The simple Wikipedia summary of FISA is pretty much in keeping with my understanding and reads as follows:
The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed warrantless surveillance within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.
In short, if no US person is involved, even if the surveillance occurs within the US, assumption #1 applies, if a foreign agent power and US person are both involved, a FISA order is required. If not foreign agents or powers are involved, assumption #2 rules. FISA arose because the line between all-foreign and all-US can be blurry. FISA adds assumption #3 as the middle ground.

4. Location is now unimportant

When the mindset behind FISA was formed, location was pretty much static. If you were spying on two foreigners who were outside the US, you pretty much could be assumed to be outside the US. If you were listening to the conversation between two Americans who were inside the US, then you were probably there, too.

Today, this is less true. Main communications lines are often centered in the US and communications between foreign locations can often be picked up in the US. Similarly, Internal US communications may very well travel outside the US en route. It is generally assumed that this shouldn't change the situation vis a vis rights and Constitutional protections. The US government shouldn't be able to spy on Americans who are in America just because the act of spying occurs outside the US. Likewise, if traffic between known terrorists in Pakistan and agents in Spain happens to flow through the United States, the CIA should be as free to spy on it would have been if the bits/electrons had never crossed over our borders.

This is at the heart of the "FISA must be modernized to keep up with technology" argument that you often hear. And generally, I think that it is correct. The rights and protections should be determined primarily by who the actors are and who the subjects are, and secondarily where the subjects are located. Anything done in the US or to Americans must take the Constitution into account. From an ethical perspective we might like to say that, just for instance, all people are created equal and are naturally endowed with certain unalienable rights, and so the US Constitution should protect the rights of all of humanity everywhere. There are,however, myriad practical and political problems with that view.

What is "private"?

Beyond jurisdiction, the other thing that determines the legality of information gathering is the question of privacy. Gathering public information is merely being well informed. Gathering private information is spying, or at least searching. And so the notion of an "expectation of privacy" enters the picture.

Current law holds that while the content of electronic communications such as phone calls and emails is generally protected (where US Constitutional and other protections apply), the addressing of the messages are not. The court generally has held that the average citizen has less of an expectation of privacy regarding the numbers called than regarding what is said. The address and return address on a postal envelope along with the postmark information is even less protected.

In the purely telephonic days, the devices that were used in this area were "pen registers" and "trap and trace devices". Pen registers recorded the numbers that a phone dialed. Trap and trace devices could determine and record the numbers from which incoming calls originated. These concepts have been adapted to digital messaging and networking. Thus, capturing and recording the addresses that computer traffic flows through is less protected than examining and recording the content of the messages. Example postcard

This brings us to the illustration of the post card that accompanies this article. Most Internet traffic isn't encrypted, and the address and data portion of a network packet are the same sort of things. In many ways, it is as if mail was accomplished with postcards rather than envelops. Imagine if you will, that the law applied to the information on a postcard the way it does to the Internet or phone call. Without a warrant, it is OK to capture and record the address and return address and the postmark information, but not the text.

Further, let us apply our assumptions above. If the sender and recipient are foreign nationals, operating outside the US, then it is OK for the intelligence services to read the whole postcard, but if either the sender or recipient is a "United States-person", then a warrant or other authorization is required. One can envision a peculiar device that covers the left half of the card or the handwriting on the left, exposing the printed return address, scans the address and postmark and determines the identity and location of the sender and recipient, compares that with suitable records and makes the decision as to whether the hidden portion can lawfully be photographed and recorded.

Mr. Kringle is a native of the North Pole, territory claimed by the Russians. Records show that the postcard arrived on a plane from Canada, but the postmark shows that before that it was mailed within the US. Young Mr. Dough is a US-person, possibly a US citizen. Before such phrases as "keeping a little list" and "fellow travelers" can be used as evidence that Mr. Kringle is a "Red", Mr Dough's rights must be accounted for.

My fanciful steam punk postcard scanner is actually not all that fanciful. It is rather analogous to the sort of software you would need to use in order to capture email. Email messages are just streams of bytes organized into packets and messages according to a whole hierarchy of standards and protocols, and the way that the addresses are encoded is not particularly different from the way that the message content is. In the outer couple of protocol layers,IP addresses are encoded in binary, but the to and from fields of an email message are encoded in exactly the same sort of human readable text as the body of the message. The most simple minded search programs that you could use to search an email stream could readily scan unprotected addresses and protected contents with equal ease.

To implement the intent of our laws, that foreign/foreign messages can be scanned, searched and recorded by our intelligence services, without a warrant or the involvement of the courts, but insure that US/US email requires an ordinary warrant and US/foreign-agent email can be handled in accordance with the FISA law, a moderately intelligent and carefully crafted program needs to be used.

Basically such a device would consist of a "pen register" to determine who the message addressed to and a "trap and trace device" to determine where it came from. An analyst or analytical engine of some sort then determines if at least one "US person" is involved, and if any foreign agents are involved. If both are "United States Persons", then a list of applicable warrants determines if the contents can be saved or analyzed. If no US person is involved, then the message can be freely analyzed. If a mixture, then a check for the FISA process must be made.

Any system for scanning the Internet trunk feeds that we have access must be very carefully controlled. The software wants to be carefully designed and implemented, and the people operating and maintaining it must be carefully vetted. The policies and procedures for authorizing and monitoring its use must be carefully written and and enforced with appropriate oversight.

Personally, if I were with the federal government, my approach would be to split the trunk and send the duplicate feed into a highly secured room, control who had access to that room, staff it only with people who had serious background checks, make sure there was a field manual and oversight. Given their charter, the combination of technology and surveillance would suggest that the NSA be the agency chartered to handle this. I'm thinking it would look a whole lot like the whistle-blower described. The question is can the feds be trusted? Given my  dedication to civil liberties and my view on the lawless behavior of the current administration,  I'd have to say, no, not in the current instant. But that doesn't mean that no US Attorney General and no National Security Adviser can be trusted. It just means that we know that they can't all be. We have illustrative examples.

Now a bunch of Senators, Representatives and the odd Presidential candidate probably have more faith in the notion that the federal government can be structured and run in a way that is trustworthy. In the end, most of us trust ourselves and some fraction of folks like us. So, with that in mind, how does the recently passed FISA amendment stand up?

What is the new FISA?

While working on this posting I've read Title I of the recently passed FISA amendment bill a couple of times and tried to chart out the differences. While doing so, I came across someone who has done the same thing and published his completed flow chart of the original and amended FISA, skipping the short-live Protect America Act. Let's have a look at his analysis along with the actual text. The original article can be found on Wes Walls' blog Ketchup and Caviar. Here are the two flowcharts:

In his analysis, Wes says:
"The focus of change is the bolded red line marked “U.S. or non-U.S. Persons Located Inside or Outside the U.S.” Currently a warrant is required in this case. Notice the changes involving the bolded blue lines and text in the [second] chart. What New FISA does is create a special case involving our bold red line in the first chart. It provides a way for the executive branch to engage in warrantless (but “certified”) wiretapping of wire and cable (including email and phone) of any Foreign-to-U.S. communications collected inside the U.S. You’ll see the new set of criteria for certification in this special case. It does add new protections for U.S. Persons (citizens or greencard holders) by requiring the typical FISA warrant in all cases in which they are targeted."
I would have worded the change differently. What I would note is that the upper middle section of the flowchart changes from being based on location (the one rounded corner box and the three red lines) to a simpler pair of boxes based on whether any US person is involved. As a result, there is now a relatively simple three way decision regarding foreign surveillance. (Note that there is a fourth case, the "normal" one: If no foreign agents are involved, surveillance requires an ordinary warrant.)
  1. If any US person is involved or the communications is domestic, a FISA warrant is needed
  2. If no US person is involved, the communications is email or over cables, a special "Certification of Mass Acquisition" is available.
  3. Otherwise, no warrant is needed when no US person is involved.
Paths 1 and 3 represent the simple cases. One no US persons are involved and the communications is foreign, the foreign intelligence services are unencumbered by US law (#1). Generally, if the foreign intelligence services want to spy on Americans or in America, then a FISA warrant is needed (#3). One exception for this is allowed. Spying on electronic communications of non-US persons outside the US by means of surveillance inside the US can be done under the new "Mass Acquisition" process. Note that this is specifically the case where communications that is fair game to our spies is embedded in a system that is known to contain protected US communications that is not targeted. (This is pretty much my case where the combination of a pen register, trap and trace device and analytical engine can be used to separate the two.)

And that brings us to the blue box in the bottom right. Here's what Wes has there:
  1. Is the target reasonably believed to be located outside the United States?
  2. Is the purpose of the targeting to acquire foreign intelligence information?
  3. In the particular case, will "minimization procedures" adequately balance the privacy of US citizens against foreign intelligence needs?
  4. Will there be a good-faith effort to avoid domestic targets and domestic communications? Will other limitations be observed?
I've removed the struck out text and the pointer to part II of David Kris's "A Guide to the New FISA Bill". I will address these shortly.

Questions #1 and #2 basically reiterate the decisions that got us through the flow chart to Mass Acquisition. The new act's jurisdiction has gone from searches involving a "foreign power or agent thereof" to focusing on non-US persons outside the US (question #1). This is actually a good thing for the civil liberties of US persons, since as previously defined, a foreign agent could be a US person working for a foreign power. The question now is just "US person or non-US person". Without the struck out text, question #2 is basically a restatement of part of the logic that got us to this section. It becomes "Is the purpose of targeting [foreign communications between non-US persons believed to be outside the US by capturing traffic within the US] to target foreign intelligence information?"

With Question #3 we get to the heart of the issue, the "minimization procedures". These are spelled out in the bill in section 702 e, as follows (via OpenCongress):
(e) Minimization Procedures-
  1. REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).
  2. JUDICIAL REVIEW- The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).
Section "301(4)", mentioned in #1 refers to physical surveillance, so the relevant section is 101(h), as follows (via Thomas):
(h) “Minimization procedures”, with respect to electronic surveillance, means—
  1. specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
  2. procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
  3. notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
  4. notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
In essence, this is the requirements document for the pen register, trap and trace device and analytical engine device. Where as question #3 is "will the procedures be adequate?", question #4 is "will a good-faith effort be made to see that they are applied?" Two changes in the law would seem to attempt to speak to this question.

First, throughout the document, things that used to be the purview of the Attorney General or "the Attorney General or the National Security Advisor" are now "the Attorney General and the National Security Advisor" or at least "the Attorney General with the advice of the National Security Advisor". This doesn't guarantee the good intentions or competence of the two people, but it at least requires the collusion of two Senate approved officials, and one can see why the Senators might want that.

Second, the bill explicitly states in a number of places that the actions taken "shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States." This may seem frivolous. After all, all US laws must be consistent with the Constitution, and no federal action may legitimately violate Constitutionally protected rights. However, the inclusion of this specific proviso in the FISA law means that violations of the 4th amendment in carrying out these procedures is not only a violation of Constitutionally protected rights, with all that entails, but a federal crime under this statute as well. This provides an additional means of prosecution.

It remains to be seen whether these changes will have the beneficial effects that the Senators and others who support it hope, but I begin to see why they might think that this is an important improvement to the FISA laws. It
  • brings all foreign surveillance under this law
  • aligns the law with the jurisdiction and protections of the Constitution
  • requires explicit procedures be defined for winnowing protected US communications from unprotected foreign communications
  • makes the AG and NSA jointly responsible
  • requires review
  • makes explicit the criminal nature of stepping outside this law or the Constitution
  • increases senate oversight
  • makes explicit the grounds for criminal proceedings
While it may be argued that this law can be abused, that the government can use it as cover for domestic surveillance, the law explicitly addresses that. The law makes it a crime to target any of the following (from section 702(b)):
(b) Limitations- An acquisition authorized under subsection (a)--
  1. may not intentionally target any person known at the time of acquisition to be located in the United States;
  2. may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
  3. may not intentionally target a United States person reasonably believed to be located outside the United States;
  4. may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
  5. shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.
Making it a crime doesn't stop it, but it does give us a handle for dealing with it.

In the end, given the need to balance the Constitutional protections of US persons and anyone in the US with the need to allow the foreign intelligence services to spy on foreigners overseas, and the facts of the mingling of foreign and domestic traffic and that email is more like postcards than letters in envelopes, I am left wondering  what alternative there is other than a law something like this one.
WorldBender office

Quiet Revolutions

Today the rule of law, the checks and balances and the rights reserved in the Bill of Rights were damaged as the FISA act was once again altered and retroactive immunity was authorized for law breaking telecoms. A lot has been written about this. I will not add to that.

Instead, I thought I would point out a pair of quiet revolutions that took place over the last couple of years that got very little coverage. I do so for two reasons. First it is worth noting that not all of the battles for civil liberties in the last couple of years have been lost, and second, it is important to realize that major changes both for good and ill can happen with virtually no one noticing.

The day after the Military Commissions Act was passed and habeas corpus damaged, a second important protection was virtually wiped away—Posse Comitatus. If the weakening of habeas corpus dredges up images of King John, Runnymede, and the Magna Carta, Posse Comitatus should put us in mind of Julius Caesar and the crossing of the Rubicon. The Posse Comitatus Act of 1878 basically forbids the use of the US military or the National Guard under federal control within the United States. It keeps the government from using the miltary on its own citizens. It is essentially the modern version of the Roman law that forbade the legions from crossing the Rubicon into Italy proper.

The Insurrection Act of 1807, on the other hand, authorizes the use of the military and the federalized militia to deal with lawlessness, insurrection and rebellion within the country. The tension between the two acts defines the ways in which the President may legitimately use the military domestically.

The expansion of the Insurrection act came on the "John Warner National Defense Authorization Act for Fiscal Year 2007". Section 1076 of that law rewrote Section 333 of title 10 of the U.S. Code, the Insurrection Act. I wrote a blog posting dealing with the changes a year ago, and also produced a page showing the changes in detail. To summarize quickly, the circumstances under which the President could use the military within the US was expanded from insurrection and rebellion to include "natural disasters, public health emergencies and terrorism", and most alarmingly of all "other circumstances" and left the determination of whether these circumstance pertained to the President.

In short, under the new law, if the President determined that a situation of domestic violence, conspiracy or "unlawful combination" has hindered or obstructed the execution of the laws, and that this is one of those "other circumstances cited in the law, he may federalize the National Guard and use it and the armed forces. This basically made the power to declare martial law and arbitrary power of the President.

The good news is that the "National Defense Authorization Act for Fiscal Year 2008" (HR 4986) which was passed and signed by the President in late January completely undid these changes, and the Insurrection Act and Posse Comitatus have returned to their original balance. The bad news is that it had to be done on the QT. Nearly a year before HR 4986 was passed, Senator Leahy, with the support of Kit Bond, Senator Hagel and 10 Democratic Senators introduces S. 513, a bill that would have done the same thing. It died in committee. Only by burying it in the defense authorization act could they sneak it through.

Civil Libertarians would have celebrated this victory except that it went unheralded, and in fact if you look for news stories about the change which was signed at the end of January, you will find that many are dated at the end of April.

Those of you who paid attention to the Senate debate over the last couple of days on the FISA and telecom immunity legislation will recognize the names of the senators who were willing to stand up for Posse, as sponsors or cosponsors of S 513:

  • Sen. Patrick Leahy [D-VT]
  • Sen. Christopher Bond [R-MO]
  • Sen. Sherrod Brown [D-OH]
  • Sen. Robert Byrd [D-WV]
  • Sen. Maria Cantwell [D-WA]
  • Sen. Thomas Carper [D-DE]
  • Sen. Robert Casey [D-PA]
  • Sen. Russell Feingold [D-WI]
  • Sen. Charles Hagel [R-NE]
  • Sen. Mary Landrieu [D-LA]
  • Sen. Blanche Lincoln [D-AR]
  • Sen. Ken Salazar [D-CO]
  • Sen. Ron Wyden [D-OR]

I'm afraid I cannot say what nameless aide put the language into HR 4986. Such is the reality of modern stealth legislation.

We must continue to fight the good fight, just as the three or four dozen senators who voted today to support civil liberties did, just as the sponsors of S 513 did, and at times quietly as the author of HR 4986 § 1068.

As ever, don't believe me.
Research for yourself.
Be a free voice.
Cry for Freedom