Faulty Memory and the 'Clinton Blame Game'

"Our leaders attempt to blame their failures on circumstances beyond their control, on false estimates by unknown, unidentifiable experts who rewrite modern history in an attempt to convince us..." - Ronald Reagan - Announcement of his Candidacy, at the New York Hilton, for 1980's Presidential Election

"Our friends in the other party will never forgive us for our success, and are doing everything in their power to rewrite history." - Ronald Reagan - Gala for His 83rd Birthday, 1994

Well, we are about to enter the 6th year of the Bush Presidency and it seems the 'Clinton Blame Game' continues apace...

Whenever some difficulty arises, it seems the most rabid supporters of the current Administration feel it important to blame it on Clinton. Of course, anyone with sense begins to wonder about that logic, if the Administration's pundits are right that 9/11 changed everything, and if it's been over 4 years since that event? I have to begin to wonder what Bill Clinton ISN'T responsible for and moreover how all these things he did are now impossible to change in what they assert is now a supposedly completely altered post-9/11 world. It's as if somehow the attack on 9/11 both made us more aware of threats we ignored and created a post 9/11 political world akin to a petrified forest, where initatives and reality were constrained by a wholly solidified reality.


It's just impossible for all those assertions to logically hold. In fact, it's logically and intellectually dishonest to continue this way. It's time for this Administration and its supporters to accept responsibility for their own screwups.

In one trenchant example, many are now blogging, in defense of the current President Bush ordering warrantless NSA wiretaps, about how the Carter and Clinton Administrations claimed to have the same legal authority for warrantless wiretaps (funny how they tend to skip the Reagan and Bush 41 Administrations who asserted the same authority - has politics become so partisan that simple intellectual honesty and logical wholeness are impossible? - never mind, I digress) the Bush 43 Administration is exercising. Let's be real. NO Administration ever gives an inch on the issue of Executive Authority (very different from Executive Privilege). They assert the rights to do all kinds of things they know that if they di, would, in practice, get them pilloried.

However, in practice, the distinction between a conroversial and/or questionable authority an Executive asserts, on the one hand, and one on the other, which they actually use, is the difference between the existence of a case or controversy and pure legal theory. In fact, ironically, when the Clinton Administration asked for broader wiretap authority and easier ways to effectuate wiretaps of computer networks, many Republican political leaders were amongst those who fought most adamantly against those attempts. In some instances, the very same Republican leaders are now willing to make George W. Bush an absolute Caesar on anything even tangentially related to the war powers, during the balance of, what they say is, an indeterminate and indefinite War on Terror. How convenient... ..and how hypocritical...

I will herein simply note that, John Yoo, the same individual at the Department of Justice who drafted these assertions of unlimited Presidential authority, is one of only two serious legal scholars of any note who take such an extreme position, the other is Robert Bork, who, no surprise there, wrote a glowing blurb for Yoo's recently published book on Executive Power, nuff said!

If any of the excesses of this Administration or the troops engaged in the fight against terror are ever prosecuted, I suggest strongly that John Yoo should be prosecuted for the most serious of war crimes: for providing those who violated the law with the belief that their actions were not only acceptable but completely legitimate and justified. The President may have signed the orders, the troops may have gone over the edge, but even Colin Powell said that would happen if we accepted John Yoo's arguments as even facially valid. John Yoo is as guilty of conspiracy, violating the law himself, and ethical violations of the Bar's Code of Professional Reponsibility, as ANY attorney who knowingly gives counsel meant to provide legall cover, to a client seeking to break the law. It matters not whether that counsel is simply meant to provide arguable legal cover for the actions of ENRON executives, a common street criminal, or the President. If Dick Cheney is George W. Bush's Alexei Kosygin, and Don Rumsfeld is Bush's Andrei Gromyko, and Paul Wolfowitz is his Andrei Kirilenko, then John Yoo is his Mikhail Suslov (or more darkly, his Hans Fritzsche, to Wolfowitz's Alfred Rosenberg).

How do you tell a communist? Well, it's someone who reads Marx and Lenin. And how do you tell an anti-communist? It's someone who understands Marx and Lenin. - Ronald Reagan

(note to John Yoo - your book is being DEEPLY discounted by booksellers - guess it will be in the discount bin at bookstores soon)

But, back to our story in chief...

I think it is well nigh time that we factually clarify the record on electronic spying by the Clinton Administration, as many of the current occupant of the White House's online supporters say that Clinton was engaging in the same activities and no-one ever complained. As they say in sports, "let's go to the video tape."

I went back to the archives for some relevant articles, showing EXACTLY the opposite, about opposition to the Clinton White House & DOJ on these matters, from what the Bush sycophants have. People WERE yelling and screaming then, but computer networks simply weren't yet considered by everyone as ubiquitous enough for it to be mainstream news (the vast majority of people in the US were still on dial-up, if on the 'Net at all).

However, you can see in these articles, that various organizations like: the ACLU, EPIC, EFF, the House and Senate Republican leadership, CPSR, and other groups were fighting the Clinton Administration in it's policies and attempts to expand and make easier government wiretapping (I should probably point out that, in addition to serving on a State Cabinet-level interagency task force on information privacy, and the NSA review group I mentioned in an earlier blogpost, I was a very early member of EFF, as well as a charter member of EPIC and CPSR).

But, I won't tell you what to think, please take a few moments to read the articles for yourself and come to your own conclusions about history. That's what is nice about having primary sources available. Every reader can make up their own minds. As I now invite you to do...

March 1998
Telcos Tussle with Feds over Surveillance
Janet Reno threatened Telephone Carriers with court action if they do not build surveillance features the FBI wants into their systems. Senator Pat Leahy and EPIC were arguing the FBI was going to far.

May 1998
Senators Introduce E-Privacy Bill
Please note that then-Senator John Ashcroft (later the Bush Administration Attorney General) was a prime sponsor and is quoted in the article. Republicans and others fought the Clinton Administration on e-snooping.

January 2000
Clinton Aides fight for Cybersecurity Bill
A bill, I shall note, Dick Armey and Republican House leadership opposed because of privacy and commerce concerns.

July 2000
White House Submits Wiretap Law Revisions

ACLU Wants Congress to Block FBI e-snoops

FBI Demos Carnivore
I should point out that many in the press and blogs (especially supporters of the White House on this NSA mess) are confusing Echelon with Carnivore. Carnivore was the domestic program. Echelon is operated with the United Kingdom and other European Union member/partners. Echelon is much more intrusive, given the lack of warrant oversight exercised upon its operation when compared to Carnivore.

Let's get history right before we start attacking or defending people based upon our independent recollection of it.

Just to round out the day, here's a few more links on these topics which may be of interest.

Since some of the President's supporters on this issue have alleged a conspiracy by the NY Times to ruin passage of the Patriot Act, by releasing info on the NSA's warrantless wiretapping, how about some potential conspiratorial motives on the side of the WH in nominating Alito? Alito Urged Wiretap Immunity

How about a little exposé on the Pentagon spying on peace groups, including Quakers "for Chrissake" (no pun intended), in actions that may have violated specific law prohibiting such domestic spying by the Pentagon? Pentagon to review spy files after NBC report

Then there's news from NBC News that the NSA has not only been gathering info from wiretaps, but that they have been actively breaking into the computers of US persons (basically US citizens, legal residents, and corporations operating or domiciled in the US) without warrants. Not Your Father's NSA

But, I'll close with the NY Times again, who I know many neo-cons and members of the religious right-wing will once again accuse of treason, for a new article showing that the NSA's warrantless operations are MUCH broader than the White House has admitted. In other words the White House explicitly downplayed the scope of these efforts. That's called "lying" (whether a particular lie is justified or not does not change it to something other than a lie).
Spy Agency Mined Vast Data Trove, Officials Report

"It's time we asked ourselves if we still know the freedoms intended for us by the Founding Fathers. James Madison said, 'We base all our experiments on the capacity of mankind for self-government.' This idea that government was beholden to the people, that it had no other source of power, is still the newest, most unique idea in all the long history of man's relation to man... .. The Founding Fathers knew a government can't control the economy without controlling people. And they knew when a government sets out to do that, it must use force and coercion to achieve its purpose. So we have come to a time for choosing." - Ronald Reagan - A Time for Choosing

Warrantless Wiretaps on Americans: Weak Legal Authority

"I hope we have once again reminded people that man is not free unless government is limited. There's a clear cause and effect here that is as neat and predictable as a law of physics: as government expands, liberty contracts." Ronald Reagan - Presidential Farewell Speech from the Oval Office

The Department of Justice has tendered a letter to the House and Senate Intelligence Committees, which defends the President's authority to order warrantless wiretaps of US persons on US soil. The timing of this affair is certainly terrible for the neo-cons. Given the case law they are citing, a lot of this will turn on how Rumsfeld v. Padilla is interpreted. Even though the Department of Justice (DOJ) has just recently won a civilian indictment against Padilla in Florida, the courts have not allowed the DOJ to thereby effectively moot the Padilla appeal to the Supreme Court, and take it out of the Court's hands.

My bet? If Padilla is ruled on by the US Supreme Court, the White House will lose. If they lose Padilla, they almost certainly lose any hope of the NSA's warrantless wiretaps being held as constitutional. The Court will know that too (which actually bodes poorly for the White House, as the Court is not going to be looking to effectively cede a review authority, they have held since Marbury v. Madison, for until they rule, if ever, on the NSA wiretaps, or, alternatively, until the end of the War on Terror). Of course, the Supreme Court might take a tack from Marbury v. Madison, and avoid the controversy for now, by ruling that the Appeals Court erred in not transferring Padilla to civilian custody and binding him over for civil trial. They would thereby moot the case themselves, before being forced to rule on it. But I wouldn't bet on it. You might have seen such a move in the immediate aftermath of 9/11, but I sincerely doubt the Court will do so now, some four years later.

No wonder the Administration is blowing a collective cork over the fact that the Fourth Circuit Court of Appeals has refused to transfer Padilla to civil custody. The result means that Padilla's case remains in the hands of the Supreme Court. Of course, it's interesting that the Court of Apeals, in their opinion, scathingly attacked the Administration for using different evidence to convince them that Padilla should stay in custody than they used to indict him in civilian criminal proceedings in Florida. It seems Gonzales and Rumsfeld believe playing Three Card Monte on cases with the Supreme Court is ok.

The letter from DOJ to the Intelligence Comittees reads well enough on its face, but it's a bad joke when you start checking the cites. They cite The Prize Cases, an Admiralty case that deals with property rights of the owners of belligerent vessels in the short period following the attack upon Fort Sumter and BEFORE Congress declared war - about all the cases might do was provide more latitude in Presidential response for a short time after 9/11, they never established that the President can simply make up the rules as he goes along. Even worse, the letter cites Hamdi v. Rumsfeld a case they lost on exactly the scope of Constitutional safeguards for US citizens as they relate to the availability of civilian judicial review. It cites Youngstown Sheet & Tube Co. V. Sawyer too, a case that explicitly said the President can't make up the rules.

As they are using quotes that support the opposite of the Court's holding in those cases, what the letter cites from those cases is therefore obiter dicta - commentary by a court, that sounds nice, but is irrelevant to the core case or has no practical legal effect in each instance. Lawyers cite obiter dicta when they have little else to throw around, not when they have a strong case. (Of course there is one famous incidence where apparent obiter dicta has later become seminally controlling: the famous Footnote 4 in Justice Stone's opinion in the Carolene Products case. But it's famous as the exception that proves the rule.) I mean, the Department of Justice might as well play Russian Roulette with 5 bullets chambered.

Given all the supposed legal opinions the President had supporting his authority to order warrantless wiretaps by the NSA, I would have expected much more in the DOJ letter. I would expect a student on the law review of a third tier law school would do better. But, perhaps the Washington Post was right in saying the DOJ just couldn't come up for arguments justifying these wiretaps at all. One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

'For FISA, they had to put down a written justification for the wiretap,' said the official. 'They couldn't dream one up.'"

The Administration, in the DOJ letter, makes much of the Authorization of Use of Military Force' (AUMF) passed by Congress after 9/11 authorizing the President to use military force in the struggle against Al Qaeda. However, Congress can easily FIX the problem, of the supposed loophole big enough to drive Rush Limbaugh through, that Congress created in FISA, by explicitly making wiretaps of American persons, where the White House does not apply for a FISA warrant within 72 hours after the execution of the wiretap, illegal. The easiest way? Amend the Patriot Act next month, when it comes up for passage and debate, to close the loophole and watch the President turn blue.

There are those now making the point that the Carter and Clinton Administrations, as well as earlier Administrations, were monitoring phone and data communications. They miss the proverbial forest for the trees. To begin with, unfortunately, even the current White House makes a significant distinction between actually wiretapping an individual's communications, and simple network or radiowave monitoring. There are significant distinctions between monitoring: for traffic going to specific individuals, or for foreign traffic, all electronic communications, on the one hand, and scanning for code words and targeting an individual or phone number for ongoing wiretaps, on the other:

1) When a number or individual is specifically targeted for a wiretap, records are kept of all the indiviual's or number's conversations.

2) Legislation, Federal Regulations/Administrative Code, and Executive Orders required (until this Administration secretly changed some of those rules) that materials scanned randomly were purged from the system unless they identified something of explicit value. In the cases of targeted US persons/numbers, in the US, that meant a warrant existed covering: that person, the other person involved, or one of the numbers involved.

3) There is also a serious technological issue. To scan the emails and phone conversations of foreigners, given the way these networks work, we HAVE to scan everything. Otherwise you cannot identify, from the data headers, whether the data is from or to an American person, for whom we require a warrant, and communications solely between non-US persons, for whom we do not require a warrant. It's not as if foreign electronic communications go through different networks than purely domestic ones. (In fact, as one of the articles I cite today points out, the NSA pressured communications carriers to route foreign communications through switches in the US to make tapping into said communications easier.) You MUST monitor simply to find the foreign commo amidst all the domestic stuff.

To analogize, and sum up the difference between monitoring and wiretapping, it equates roughly to the difference between my setting up videotaping of you exiting and leaving your house and scanning those tapes in the hope that I eventually see a particular person leave, keeping one I find that on, destroying the tapes if I don't find any, and on the other hand, aiming video cameras into every window of your house and keeping the resulting tapes forever, just in case someone in Government may find them of use later.

I'm sorry, the former is legitimate surveillance. The latter is simply Big Brother, especially when, without having to apply for a warrant, the Government can take action based on pure hunch or conjecture, without any shred of supportive evidence.

We live in a nation that operates on the premise that government shall not invade our homes and violate our Fourth and Fifth Amendment rights UNTIL and UNLESS they have reasonable evidence that justifies it. That is why FISA Court oversight is essential.

However much we may disagree, I wish all of my readers Merry Christmas and/or Happy Holidays!!

Secrets & Lies: "No Such Agency"

"The people who make wars, the people who reduce their fellows to slavery, the people who kill and torture and tell lies in the name of their sacred causes, the really evil people in a word—these are never the publicans and the sinners. No, they’re the virtuous, respectable men, who have the finest feelings, the best brains, the noblest ideals." - Aldous Huxley

It has certainly been another strange week through the looking glass. I attended the final class sessions for my "Philosophy of Criminal Law" and "Advanced Topics in Ethics" graduate courses this past week. Perhaps age has softened me somewhat, but I have to honestly say that I enjoyed the two courses more than any I have ever taken. With all due deference to the stature of Professors like Derek Parfit (being able to take a course taught by him was I must say, without any hesitation or equivocation, in my estimation, a singular opportunity), Douglas Husak, and Larry Temkin (and I should here thank Larry and Doug sincerely for their support regarding a student-status which hung in the balance almost the entire term - an uncertain status which placed me under significant additional pressures), a great deal of the success of a seminar course axiomatically depends upon the quality, interest, and participation of the students sitting for the course.

On that note, during my 13 year absence from the halls of academe, Rutgers University has improved the quality of the Graduate Philosophy program immeasurably. Having gone from a barely remarked program all the way up to the #1 ranked program in the United States (this year Rutgers currently sits a close #2 to NYU's program - a pairing which has prompted some to call this geographical centering of philosophical talent "Edinburgh [or Athens] on the Hudson). Nothing can make a graduate level course more enjoyable than the kind of student body this ranking has attracted. They are easily on a par with the best and brightest students I knew at Stanford and the University of California, Berkeley and a real joy to study with. I frankly wasn't sure I could hold my own with this new crop of brilliant students. I can only thank them all for their tolerance, patience, and forebearance. I learned a great deal from each of them this term. I may only hope that I acquitted myself intellectually and personally by the end of the term, and that my presence added, instead of detracted, from the overall course value. But, as I so often do, I digress. Back to the main topic at hand of today's blog.

When I arrived home from class on Wednesday I realized I had lost, from my suit jacket, a lapel pin that I rarely even wore. It was a National Security Agency pin that always reminded me of when I had served as the only state government employee in the US on one of the NSA's review groups. (If you haven't gone to an NSA convention and watched them feed sharks during the cocktail hour - I'm not making this up - you haven't lived.) How strange, I thought, a few days later, when news from that agency reached headlines across the globe.

I was enraged to learn that the NSA (an agency so cloaked in secrecy, that for many years it was sardonically referred to simply by the cryptic - pun intended - moniker "No Such Agency") had broken from past practices under which spying was conducted only against foreign nationals and foreign targets, to now actively spy without: warrant, subpoena, judicial review, or Congressional oversight, upon American citizens. In my preceding column, I spoke of Secret Laws, Secret Warrants, Secret Trials, and Secret Prisons. Well, it's now clear that not only were the Fourth and Fifth Amendments to the US Constitution being violated but the explicit terms of a 1978 law intended to prohibit domestic spying by the CIA and NSA was purposely violated. I will note, for the record, that I am pleased that some of my old colleagues at NSA refused to have anything to do with this program.

The Bush Administration argues that the law is irrelevant in this case, that the President's wartime authority trumps the law, yet, I would hasten to point out the following quote from the Supreme Court decision in a case where the President's wartime powers were squarely at issue: "The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand." Youngstown Sheet & Tube v. Sawyer.

But, this isn't just about hiding secrets. No, it is about an Administration in the White House that believes they have the right and even duty to lie outright to the US Congress (I already noted, in my last post, their refusal to accede to justifiable demands from the courts for copies of appropriate laws/regulations they created) as well. During Senate hearings last April concerning the renewal of the Patriot Act, Senator Barbara Mikulski asked Attorney General Alberto Gonzales and FBI Director Richard Mueller directly about the NSA spying on Americans, asking: "Can the National Security Agency, the great electronic snooper, spy on the American people?" "Generally," Mr. Mueller said, "I would say generally, they are not allowed to spy or to gather information on American citizens."

This is not the first time those speaking for the Administration have been caught lying to Congress outright. Clearly and demonstrably, those in this White House believe that they are above the Courts, above the Congress, and above the American people themselves, i.e. they believe they are above the Constitution. They obviously believe that, as long as they deem the matter vital enough, the President's War Powers make him a dictator of all matters foreign and domestic during wartime, simply by dearth of the fact that a war is in progress (although I doubt any Supreme Court would agree; see how President Truman faired, by going to the State Department's own site to check out the aforementioned Youngstown Sheet & Tube v. Sawyer or how the Supreme Court ruled on President Lincoln's illegal suspension of habeas corpus in Ex Parte Merryman). A war which they say is: everywhere, indeterminate, and indefinite. How convenient for them.

But this is hardly surprising, when one considers the pervasive and corrosive influence of unalloyed and unleavened Christian fundamentalism at play in this Administration. As former President Jimmy Carter has been quoted (and also makes clear in his newest book Our Endangered Values: America's Moral Crisis) : "There is an element of fundamentalism involved, which involves the belief on the part of a human being that [his or her] own concept of God is the proper one. And since [he or she has] the proper concept of God, [he or she is] particularly blessed and singled out for special consideration above and beyond those who disagree with [him or her]. Secondly, anyone who does disagree with [him or her], since [he or she is] harnessed to God in a unique way, then, by definition, must be wrong." Crusades anyone? ..And you thought it was simply another Bush slip of the tongue when he called this War on Terror a Crusade (check out the original remarks on the White House's own site) or an understandable faux pas when the US Army General assigned to track down Usama Bin Laden, Lt. General Jeremy Boykin, called Islam evil and more? Silly you.

This turns a statement once made by Abraham Lincoln on its proverbial head. At a White House dinner, a minister from the North is said to have told the president, after the pre-dinner benediction, that he "hoped the Lord is on our side." Responded Lincoln, "I am not at all concerned about that," he replied, "for I know the Lord is always on the side of the right. But it is my constant anxiety and prayer that I and this nation should be on the Lord's side." That, my friends, as expressed by the Great Emancipator, is the true spirit of righteousness and introspection Christianity, and all just and true religions, asks of each person.

But, back to the legal playing field. If one accepts the Bush arguments, I guess the Judicial and Legislative branches should just wrap up shop until this White House declares the war is at an end? Oh, and you voters? If the war is still raging in 2008, perhaps it doesn't make any sense to vote in that year's Presidential Election either? Those voting provisions are also only Constitutional and the White House does, by their argument, make all the rules if we are engaged in a war.

I once took the commentary of former White House Plumber John Dean, that the Bush Administration was criminal, with a grain of salt. But today, I must agree with Dean that their pattern of abuses is far Worse than Watergate. They have reached a level of hubris and imperial disdain that makes the Nixon Administration's Watergate criminality look like cheating during a parlor game of Old Maid on The Waltons.

To add insult to injury, President Bush has now said that reporting the existence of this illegal spying operation is illegal. If that is so Mr. President, I hereby announce that I am intentionally revealing the existence of this program and calling it illegal. Feel free to file charges any time Mr Gonzales.

Well, the President began to learn some of the costs of violating the law while flouting the will and authority of Congress when his beloved Patriot Act provisions went down faster than his approval ratings, which is to say faster than a hooker on a Lake Minnetonka Vikings boat cruise.

What I really enjoy though is a President as Whiner in Chief. Bush signs a memorandum that violates US law, as well as Constitutional guarantees, and then complains about Congress not trusting him when his Administration says they will "respect the rights of Americans." Am I the only person who thinks that working in the White House these days must be akin to somehow falling into Superman's Bizarro World? The Administration argues that some members of Congress knew about the spying and therefore oversight was sufficient. This is the same Administration that is now prompting a Republican Senator to block legislation forcing the Administration to reveal to Congress where its secret prisons are? The depth of hypocrisy here is quite literally unfathomable.

To paraphrase Captain Willard from Apocalypse Now: "the shit pile(s) up so fast (from this White House) you need wings to stay above it."

"What! Would you make no distinction between hypocrisy and devotion? Would you give them the same names, and respect the mask as you do the face? Would you equate artifice and sincerity? Confound appearance with truth? Regard the phantom as the very person? Value counterfeit as cash?" - Molière, Tartuffe

Secret Wars, Secret Laws, Secret Warrants, Secret Courts, & Secret Prisons: The New America?

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety" - Benjamin Franklin, Pennsylvania Assembly: Reply to the Governor, November 11, 1755

It seems that, since 9/11, the Bush Administration has created laws and/or regulations to which the government says they may subject you, which at the same time they don't need to prove to you the existence of, or even show to the courts. This has come to light in the case of Gilmore v. Gonzalez (formerly, Gilmore v. Ashcroft), where the Government refused to show: an airline passenger, his defense attorney, or even a trial court, the regulation that required him to show identification. In other words, you could be held responsible for violating a secret law or regulation.

Secret laws..? 'How do I know if I might break one?' 'Oh, the police or other authorities tell me that there is such a law.' When I ask to see it, they say, "nope, it's secret"... If the government refuses to admit that a law exists, but reminds someone of some other non-secret public law, in a way or at a time that they know will likely lead that person to take actions that violate a secret law, that person is unaware of, how does one defend oneself? If the police lie to me during interrogation, as the Supreme Court says they may (see the section: Deceiving the Suspect), and cites a phony secret law to get me to confess to what I may believe is a lesser crime than is some secret law they say exists, what does that say about justice?

There goes the concept of notice (one example is the requirement of publishing a law before holding people to it) the courts have developed from the Fifth Amendment's due process clause and from the Fourth Amendment's implicit expectations of due process.. What happens if I violate a secret law that no-one could have known about UNTIL they actually violated it, if no officer told them they were about to violate it, for example?

Can you say "Spanish Inquisition?" (I only WISH this were simply a Monty Python skit instead of reality)

In the post 9/11 world, the US Government has created: secret warrants, secret subpoenas, secret courts & secret trials (reminiscent of the Star Chamber abolished by England in 1641), and secret jails. They've also tried to prevent access to attorneys to people that they hold prisoner (See also: US asks Judge to Deny Suspect Access to Lawyer).

The government has not won all these cases (See also: Judge tosses Detroit terror cases), so much for the idea that they would only use these mechanisms, procedures, and institutions against the assuredly guilty and the most dangerous of criminals. People have been held for years and been apologized to by judges in cases where supposed terrorists were found innocent. Now we need secret laws too? Is this justice? When do we stop being a truly democratic nation?

Does our Constitution no longer mean anything? Or is it simply what some Republican Congresspeople reportedly heard George W. Bush call it recently? "Simply a goddamn piece of paper?" (See also: Where There's Smoke... ).

The most basic provision of any JUST and civilized society is that the members of that society must be able to KNOW what the rules are and verify them. When the laws are secret, how does one do that? It sounds like "Double Secret Probation" from Animal House, or, on a more sinister note, The Trial by Franz Kafka.

Let me be clear, I have less problems than does Mr. Gilmore with the government making someone show ID to allow them to fly on an airliner. I find that a reasonable request given security concerns. I DO, though, have a HUGE problem with ANY government saying they have secret regulations that mandate something that the public is expected to adhere to, and that they then tell the very same public that they, for whatever reason, cannot be allowed to even see those regulations. In my mind, there is no logical reason not to simply establish a public rule/law to accomplish the goal of requiring one to show identification to take a commercial airline flight. That is, of course, unless one is PURPOSELY trying to set a precedent allowing the government to establish secret laws for the violation of which a citizen might: lose some right to liberty/property, be detained, fined, arrested, or even jailed. That's a VERY scary prospect.

Thomas Jefferson told us that: "Free government is founded in jealousy, not confidence. It is jealousy and not confidence which prescribes limited constitutions, to bind those we are obliged to trust with power.... In questions of power, then, let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution."

As recognized by the Founding Fathers, in the Sixth Amendment, a public system of justice is one of the most axiomatic guarantees of our rights and freedoms. Limitations on secretive "justice" are a Constitutional constraint intended to ensure that government itself is just. A secret system of justice is simply unjust and inconsistent with any conceptualization of a free society.

But, perhaps the words of Jefferson are considered too distant, from a simpler time, and out of date? Therefore, I ask you to also consider the words of a more recent President, speaking amidst the dangers of the Cold War, who said: “You and I are told we must choose between a left or right, but I suggest there is no such thing as a left or right. There is o­nly an up or down. Up to man's age-old dream -- the maximum of individual freedom consistent with order -- or down to the ant heap of totalitarianism. Regardless of their sincerity, their humanitarian motives, those who would sacrifice freedom for security have embarked o­n this downward path... ..The American people recognize that it is the denial of human rights, not their advocacy, that is the source of world tension." A Time for Choosing, Ronald Reagan

Have we already forsaken and forgotten all we once believed in and stood for? Have we covered and shuttered the beacon that once shone from this lighthouse for liberty and the rights of all humankind?

Yes, we are engaged in a war of sorts with those who would destroy the societies we cherish, but have there not always been those who would do so? Yes, we are right and just to defend our societies, but we must also temper that defense with the knowledge that, as Thomas Paine put it: "The greatest tyrannies are always perpetrated in the name of the noblest causes."



Keith


"Just some guy," caretaker of the Multiverse's largest EPSON printer User Community (highly recommended by Vogon Poets and MegaDodo Publications), at:
http://groups.yahoo.com/group/EPSON_Printers/
and the Multiverse's largest Canon printer User Community at:
http://groups.yahoo.com/group/Canon-printers
"For the rest of you out there, the secret is to bang the rocks together guys"

American Culture Wars: Christmas, the Holidays, and the "War on Tolerance and Diversity"

Two weeks exactly till Christmas and I'm getting REALLY tired of DittoHeads, fans of The O'Reilly Factor, and their fellow travelers talking about a supposed "War on Christmas." They're worried about whether a store clerk says "Happy Holidays" instead of "Merry Christmas" when over 2000 American servicepeople have died in a REAL war in Iraq? They're kidding right? To extrapolate: whether the vendor calls a tree I drag into my house a "Christmas Tree" or a "Holiday Tree," is worthy of as much of their attention as Americans dying in combat half a world from home? To say I am dumbfounded is an understatement.

But, ok, let's discuss this shall we?

First out of the box, I should mention that FOX's own online store sells "Christmas Ornaments" strangely called "Holiday Ornaments." Until recently, even the "Christmas Balls" on O'Reilly's own portion of the site, and the FOX "Christmas Balls" were called "Holiday Balls." Do I smell the offensive scent of hypocrisy wafting off of the commercial offal heap that is FOX's so-called "News Operation?"

Moreover, I question the reality perceived by these individuals whom I might describe as: "homophones of residents of the Isle of Crete." If one looks at recent court rulings, municipalities actually have MORE latitude to erect sectarian Christmas displays, as long as they also include things like a secular plastic Snowman and Tree as well, than they had during the 90s. Did I mention that Supreme Court nominee Samuel Alito, guarantor of the right to exercise negative racial bias in hiring and promotion, self-described opponent of Roe v. Wade, and defender of in school proselytizers of public grade school children, wrote one of these pro-Christmas rulings? (NJ v. Schundler) Is anyone surprised at how this issue of the "War on Christmas" is suddenly the right-wing cause celebré in advance of Alito's confirmation hearings? Does anyone doubt an increasingly marginalized Bush Administration with poll numbers in the 30's would try to use Christmas as political smokescreen, that no-one could seemingly in fairness oppose, to hide issues of real import that are pummeling the President's numbers; a position that, at the same time, seeks to also galvanize their core constituency into lock-step support of Judge Alito's nomination? Rememember, these are the same guys whose campaign brought us those requests for the mailing lists of 1600 Pennsylvania churches during the 2004 Presidential election.

Let's be honest about this, Alito is an unabashed apologist for whatever policy the majority happens to whim. He even wrote a dissenting opinion in one case that, if it had been the opinion, would have ostensibly allowed prayer in school if the students voted for it. He sees Constitutional limits on the power of government or the actions of individuals as extremely narrowly circumscribed.

But I see an 800 pound gorilla in all this discussion of the "War on Christmas," and it's a particularly OLD and UGLY 800 pound gorilla. What's really going on is not a "War on Christmas" but a "War Against Tolerance and Diversity" - a war against those who are different from ourselves, or more specifically different from the majority, and this hype over the holiday season eventuating an attack on Christmas is just another battle in that larger war. The fact is that no court or government has limited private individuals in their Christmas displays, no-one has been arrested or fined for saying "Merry Christmas," nor have the courts, or government more broadly, limited the rights of any church/congregation to hold Christmas services or put sectarian displays on their property. What the courts have said is that the majority cannot simply expect the government they elect to be able to display and endorse the religious beliefs of those who elect them. To do so, would infringe on the rights of the minority and make them outsiders. The courts have essentially said, you can't simply spend tax dollars or use government property for these displays because the tax dollars supporting this come from Christians and non-Christians alike.

The reality is that this is all simply another side-battle in the larger "culture wars." On one side, traditionalist white Christians predominate, whose concept of the United States is axiomatically that of a white, northern European descended, Christian nation. Those on that side believe that, instead of diversity and protecting the minority, we should be encouraging the minority to simply accept the same viewpoint and cultural values, even if that means using state power and money to do so. These are often the same people who see immigrants from non-European lands as alien and threatening to the jobs of "real Americans." On the other side of the issue, we see many of differing religions, a polyglot of cultural backgrounds, and even some atheists. They are those who believe that this nation's strength and future prosperity has always lay in its ability to: assimilate diversity, draw upon the strengths and uniqueness of varying cultures, incorporate new values/cultural traditions, and become stronger thereby. In the final analysis, it is a classic political rearguard action of a majoritarian coalition that is facing change protected by the Constitution. It is the cry of those looking for a pastoral utopian all-Christian-all-the-time America which never existed, as they see the status quo ante threatened by change they don't understand, dislike, and even fear. Reactionary political movements like this always threaten the freedom of the individual and must be opposed by anyone who truly supports the true core American values of tolerance and freedom.

Additionally, if FOX and its ilk TRULY believed in the meaning and spirit of Christmas, they would be opposing the utter commercialism of the Holiday/Christmas Season by refusing to be a part of the commercialization of Christmas. I wouldn't suggest anyone holding their breath. FOX's own website and shows send exactly the opposite message, endorsing and supporting that over-commercialisation, to the detriment of the real human and/or sectarian message of Christmas and Christ, in almost every conceivable sense.

Lastly, to be linguistically and philosophically whole, I must ask: "what is so offensive about the phrase 'Happy Holidays'"? Christmas IS a Holiday during the "Holiday Season." From a simply logical standpoint, if Christmas is a subset of the set of holidays, saying "Happy Holidays" during the season in which Christmas occurs, implicitly means, among other things: "Merry Christmas." Just don't expect the neanderthals wearing reactionary blinders, as they fight the cultural war of their generation, to understand that.

Merry Christmas AND Happy Holidays to all!

Keith

"Just some guy," caretaker of the Multiverse's largest EPSON printer User Community (highly recommended by Vogon Poets and MegaDodo Publications), at:
http://groups.yahoo.com/group/EPSON_Printers/
and the Multiverse's largest Canon printer User Community at:
http://groups.yahoo.com/group/Canon-printers
"For the rest of you out there, the secret is to bang the rocks together guys"

UK Enforcing NeoCon Groupthink by Criminalizing Free Speech

Our most basic democratic principle of government: the understanding that government and politics are merely constructs of the governed, is being sacrificed daily in pursuit of expediency in the name of victory. Freedom of speech and the principle of consent of the governed are more and more often being trammelled, and even trampled daily, as a matter of course.

In the latest dispatch from the front lines, we learn the following from the pages of Britain's Daily Mail newspaper:

"Maya Anne Evans, a 25-year-old cook, became the first person to be prosecuted under the law which bans unauthorised demonstrations within one kilometre of Westminster after reciting the names of British soldiers killed in Iraq outside the gates of Downing Street...

..She was found guilty of breaching Section 132 of the Act, given a conditional discharge and ordered to pay £100 towards costs.

The vegan cook from Hastings, Sussex, was arrested on October 25 as she stood next to the Cenotaph, outside Downing Street, reading out the names of 97 British soldiers killed in Iraq."

As a BBC NEWS documentary, concerning the NeoCons and Radical Islamists, still effectively banned in the United States, has put it: such is "The Power of Nightmares" in a world where we allow fear to dominate our civic lives, that those with the darkest imaginations become the most powerful.

I urge anyone with an open mind to view this documentary, and/or read the associated online content. The series may be downloaded at no cost from here: http://www.archive.org/details/ThePowerOfNightmares

Welcome to what was formerly Mr. Orwell's purely literary nightmare. Your clock has now been synchronized to read 1984.

Keith

"Just some guy," caretaker of the Multiverse's largest EPSON printer User Community (highly recommended by Vogon Poets and MegaDodo Publications), at:
http://groups.yahoo.com/group/EPSON_Printers/
and the Multiverse's largest Canon printer User Community at:
http://groups.yahoo.com/group/Canon-printers
"For the rest of you out there, the secret is to bang the rocks together guys"

A sharp real world rejoinder...

.. from the streets of Iraq, to those who might posit that philosophy, and particularly ethics, are marginal, near irrelevant, and/or cloistered pursuits.

I point to the following from a Los Angeles Times piece on the death of an American Military Ethicist, and West Point Professor, in Iraq - a death apparently brought on by an irresolvable collision between moral imperatives and the real world predominance of cold hard cash in unfettered capitalism.

"'Despite his intelligence, his ability to grasp the idea that profit is an important goal for people working in the private sector was surprisingly limited,' wrote Lt. Col. Lisa Breitenbach. 'He could not shift his mind-set from the military notion of completing a mission irrespective of cost, nor could he change his belief that doing the right thing because it was the right thing to do should be the sole motivator for businesses.'

One military officer said he felt Westhusing had trouble reconciling his ideals with Iraq's reality. Iraq 'isn't a black-and-white place,' the officer said. 'There's a lot of gray.'"

While some may see his suicide as driven by some psychological fault, his inability to sacrifice consistent ethics for economic or political expediency, I am heartened to some degree that, apparently, in the US Military I had once been proud to serve in, unlike the Israeli scholar who visited during Derek Parfit's portion of the syllabus of one of my current graduate courses in philosophy, some Americans, even when faced with the harsh realities of the MidEastern political and social landscape, cannot abide by a simple calculus whereby the ultimate or more immediate motivations of police officers are irrelevant, so long as they "get the bad guys off the streets."

Sometimes, the brutal force of economics, and reality, may ask us to sacrifice too much of the core values that make us ethically decent or laudable individuals, or even too much of our central moral tenets as a society. When Colin Powell, Wesley Clark, and others have argued against military and political policies (i.e.: pre-emptive war without imminent threat, prosecution of a war with reference to a real world jus ad bellum, and sacrificing elementary ethical principles in the pursuit of victory or profit) that run counter to our supposed core American principles, those of us who, when serving had internalized the ethical constructs or truly just behavior understood them as not simply speaking to a loss to the image of the United States and its military in the eyes of the world, nor simply to the dangers of retaliation by one's military adversaries such policies might bring about, some of us who had served, or whom serve today, understood the danger inherent to a post-Vietnam officer-corps steeped in a belief in the inviolability of honorable and ethical behavior when posited against empirical expediency. The toll extracted is not purely theoretical or academic. but an incoherence, a schizophrenia if you will, that threatens to rend the or unseat our firmest convictions and/or the very ethical underpinnings that make our society and/or our individual actions just.

What many who have not served in the post-Vietnam American military often fail to understand is that the spirit of ethical rightness and moral imperative, that drove John Kerry as a young veteran, and countless others who served, to oppose the tactics and prosecution of the war in Vietnam, so personally and vehemently that they felt incontrovertibly compelled to literally throw back their ribbons and medals at the Pentagon, had become, to a great extent part of the ethical fabric of the American Officer Corps. When placed in that context, the calls of Marine Veteran and conservative Democratic Congressman John Murtha, following a recent trip to Iraq where he met with senior military officers, to withdraw from Iraq or risk untold damage, was not simply the expression of marginal or peripheral qualms of a man worried about the obvious human and financial costs to our military of continuing along our current path in Iraq. No, his voice was that of the proverbial canary in the coal mine, warning of an ethical incoherence so deeply troubling that it threatens to: as began to happen during Vietnam, leave our military, both as individuals and communally, adrift upon a nihilistic existential and amoral sea, with no ethical rudder nor anchor. To accede to no greater guiding principle other than might IS right. Such a disjunction between beliefs we internalize as essential to our concept of self and membership in a just society, is far more destructive to our military than open public debate of the Iraq war might be to the morale of our military community, and will bear poisonous fruit, both within our military community and across our society more generally, for years to come.

As Albert Camus and the French nation learned so painfully in Algeria, and we should recall as part of the legacy of our own communal experience in IndoChina, philosophy, and more particularly ethics, is not simply some sheltered esoteric or academic pursuit practiced by geeks and gadflies, with time to waste, from the parapets of some "ivory tower." It is not simply some sort of disconnected debate over how many angels can stand upon the head of a pin. It is an imperative pursuit central to our very concept of who we are as individuals, a civilization, a race, or our planet.



Keith

"Just some guy," caretaker of the Multiverse's largest EPSON printer User Community (highly recommended by Vogon Poets and MegaDodo Publications), at:
http://groups.yahoo.com/group/EPSON_Printers/
and the Multiverse's largest Canon printer User Community at:
http://groups.yahoo.com/group/Canon-printers
"For the rest of you out there, the secret is to bang the rocks together guys"