Year: 2005

I’M ABOUT TO FALL VICTIM TO ONE OF THE CLASSIC BLUNDERS!

Most famous, of course, is “never get into a land war in Mesopotamia.” But only slightly less well known is: “Never get into a Fourth Amendment argument with the guy who literally wrote the book on government seizure of electronic evidence.” Still, I want to take a quick look at Orin Kerr’s analysis at Volokh Conspiracy of the NSA eavesdropping program.

Kerr offers two arguments for why the program might pass Fourth Amendment muster. First, he suggests that wiretaps of communications between persons in the U.S. and interlocutors abroad might fall under the “border search” exception that permits the government to inspect, without a warrant, persons and packages entering or leaving the country. I have no idea whether the courts would rule as Kerr suggests—intuitively the primary border-search rationale of preventing contraband from entering the country doesn’t apply straightforwardly to communications surveillance, though, of course, there is such a thing as digital contraband. But the logic of the Fourth Circuit case Kerr cites certainly seems to leave that door open—hell, it stands in the doorframe beckoning—and the prospect that a court might rule this way is a little disturbing. In the physical world, crossing a border is a relatively clear-cut proposition—you don’t, as a rule, do it by accident, so you at least know when you’re going to be potentially subject to a search. But do you know where every packet of e-mail or VoIP conversation you exchange goes? I sure don’t. But if I send an e-mail to my aunt, who’s in New York for the holidays, there’s a pretty good chance that it makes a stopover on a server in Madrid somewhere. Online, our private communications are routinely crossing borders, at least sometimes without our knowledge. And never mind the “we’re at war here” jazz; the border-search rationale would apply any time.

Next, Kerr turns to a potential “national security” exemption, citing a case that denied the executive domestic warrantless surveillance powers, but explicitly refrained from ruling “on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.” Now, declining to deny a power is not the same thing as granting it, but leave that for the moment. A footnote in the same case observes:

No doubt there are cases where it will be difficult to distinguish between “domestic” and “foreign” unlawful activities directed against the Government of the United States where there is collaboration in varying degrees between domestic groups or organizations and agents or agencies of foreign powers. But this is not such a case.

But this, surely, is. And The New York Times‘ description of who was targeted leaves some doubt that the surveilled parties were all “agents of foreign powers”:

In addition to eavesdropping on those numbers [captured from terrorists’ cell phones] and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.

We don’t know what the criteria were for “expanding” that “chain,” but it does begin to sound a bit like a massive game of Six Degrees of Qevin al-Baiken. Maybe evidence for some sort of connection to a “foreign power” in each case was sufficient that the targets all would’ve passed muster before a FISA court. But if so—if ther NSA wasn’t just lowering an electronic dragnet into the bitstream—then, as others have observed, it becomes mysterious why they wouldn’t just do that (at least retroactively, as FISA allows). Assume we think executive wiretaps of agents of foreign powers are per se reasonable. Don’t we still want some kind of oversight to ensure that those who’re eavesdropped upon are at least justifiably suspected of being such agents? Of course, if we add oversight, then (Catch 22), it’s not really an “executive” search anymore.

Now, fortunately (as Kerr observes), even if these arguments were to fly, we have statutory restrictions on wiretaps that go further than the Fourth Amendment might require. Still, at a time when the statues are in flux, it’d be nice to have a little constitutional double-bagging.

If you’re looking for views from people with actual qualifications to talk about this, by the by, Dan Solove has a good roundup of analysis.

—posted by Julian

DARWIN AND DESIGN

Just in time for the Intelligent Design decision to be handed down, Cardinal Christoph Schonborn – who penned a New York Times op-ed earlier this year that was widely criticized (by Andrew, for instance, and by Stephen Barr in this First Things essay) as an unwarranted attack on evolutionary science, and possibly a brief for ID – has a longer piece in First Things clarifying his take on Darwinism. It turns out, as far as I can tell, to be roughly the same take that the Church has held for the last century or so – namely, that that “a metaphysically modest version of neo-Darwinism could potentially be compatible” with Catholicism, but that there is “a difference between a modest science of Darwinism and the broader metaphysical claims frequently made on its behalf,” and that the Church must necessarily reject a Darwinism that insists, as Schonborn quotes an American scientist putting it, that “the world is organized strictly in accordance with deterministic principles or chance” and that “there are no purposive principles whatsoever in nature.”

It seems as though much of the confusion resulted from Schonborn using the term “neo-Darwinism” in his original op-ed to characterize the militant philosophical atheism of – well, of nearly every prominent defender of Darwinism, from Dawkins and Dennett to Wilson and Watson, all of whom insist that reasoning about nature, biology, and so forth leads inexorably to a disbelief in divine design. This was interpreted to mean that Schonborn was attacking the science of “neo-Darwinism” – the mainstream consensus among biologists concerning evolution through natural selection and how it works. In fact, Schonborn says in his FT essay, the original op-ed was about our “philosophical knowledge of reality,” not our scientific knowledge of the same. The Cardinal wasn’t critiquing evolutionary biology’s ability to explain how homo sapiens evolved from an australopithicene ancestor; he was critiquing modern science’s claim to be an all-encompassing explanation of existence:

Let us return to the heart of the problem: positivism. Modern science first excludes a priori final and formal causes, then investigates nature under the reductive mode of mechanism (efficient and material causes), and then turns around to claim both final and formal causes are obviously unreal, and also that its mode of knowing the corporeal world takes priority over all other forms of human knowledge. Being mechanistic, modern science is also historicist: It argues that a complete description of the efficient and material causal history of an entity is a complete explanation of the entity itself-in other words, that an understanding of how something came to be is the same as understanding what it is. But Catholic thinking rejects the genetic fallacy applied to the natural world and contains instead a holistic understanding of reality based on all the faculties of reason and all the causes evident in nature-including the “vertical” causation of formality and finality.

This is obviously not a way of approaching the study of the world, and man’s place in it, that many evolutionary biologists would be inclined to accept – but neither does it represent a significant change in the Catholic approach to evolution, or to science generally. Indeed, it’s hard to see how Catholicism could approach science in any way other than this – that is, treating it as a valid approach to knowledge that goes a long way toward explaining the world, without going nearly far enough.

– posted by Ross

IN SEARCH OF THE MISSILE GAP

While more legally-minded types bicker over the legitimacy of the Bush wiretapping, it’s worth pointing out that the odds of this fracas redounding to the Democrats’ long-term benefit are somewhere between slim and none. Let’s suppose, for the sake or argument, that John Dean is right, and Bush just became “the first President to admit to an impeachable offense.” The Democrats aren’t going to try impeaching him for it – they aren’t that stupid, are they? – so all that the offense does, in the public mind, is add to the existing perception of the GOP as the party that sometimes goes too far and skirts the law in the pursuit of national security objectives. And it’s almost always better to be tagged as “the party that might go too far” than as “the party that won’t go far enough” – which is how the Democrats are perceived these days. This explains why the GOP can weather controversy after controversy, from Iran-Contra down through Iraq War intelligence and the secret prisons and CIA waterboarding, and still hang on to the public trust on foreign affairs – because in each case, they’re perceived as having gone too far with good intentions, 24-style, and in an arena that most Americans perceive as being slightly outside the law anyway.

One way for the Dems to change this landscape, I suppose, would be to find a Watergate-style case where Republicans go too far and break the law for obvious personal or political advantage and nothing else. In this sense, the Michael Moore crowd is on to something with their Halliburton conspiracy-mongering: If you want to turn Americans against the GOP, you don’t want to convince them that Bush manipulated intelligence to oversell the threat posed by Saddam Hussein; you want to convince them that he manipulated intelligence to make Dick Cheney or some Texas oil companies richer. But absent convincing evidence of that level of chicanery – and no, the script of Syriana doesn’t count – the Democrats have to find a non-scandal-related way to capture the label of “the party that does too much,” ideally by finding a place where the GOP is doing way too little and hammering away at it.

This is what John Kerry tried to do during the campaign, of course, but I think his arguments – that we need to spend more money on defense, that the Iraq War is making terrorism more likely – were way too general to gain traction. The Dems need something specific, something easy to understand, something that captures the imagination of the public – something like JFK’s “missile gap.” (As the JFK experience shows, it doesn’t even have to be real.)

And then, once there’s a Democratic President in the White House, his first act should be to have his trusted aides break several laws in the pursuit of al-Qaeda – just to show he means business. Either that, or make Jack Bauer his Secretary of Defense.

-posted by Ross

BARBIE TORTURE

I suppose we’ll have to wait until after the holidays for Andrew to weigh in on the morality of this phenomenon. Of course, it’s important to consider the case where we know—by direct apprehension of the Platonic form of truth—that aliens will destroy the Earth and everyone on it unless Barbie is microwaved. Also, the Barbie in question parks in handicapped spaces.

—posted by Julian

AND THE BANDOW PLAYED ON

One of the things that had been bugging me about the recent pay-for-play kerfuffle surrounding Doug Bandow and Jack Abramoff (beyond, that is, the professional seppuku of a guy who’d struck me as generally likeable in our few interactions) was a post at The New Republic‘s blog by Franklin Foer, who says he’d investigated the Bandow/Abramoff connection for an article that appeared in the magazine last May. Says Foer:

I asked Bandow point blank about his relationship with Abramoff, and he denied any financial relationship. (When I brought the matter to the attention of CATO officals, they declined to pursue it.)

And Foer declined to pursue whether “Cato” is an acronym. But I’ll confess, the post made me uneasy. Full disclosure: I used to work at Cato; I like and respect the folks who run it, and was more than a little disturbed by the charge that they had turned a blind eye to a fairly serious charge of conflict of interest. Well, Executive VP David Boaz writes to say that they didn’t:

Frank’s memory is mistaken. Or maybe we never got back to him. But in fact, as soon as we heard the allegations, we investigated them. Apparently the answers [we got] were not entirely accurate. As soon as we did find out the reality, we acted.

That sounds like a pretty reasonable response under the circumstances; it sounds like they got scammed too. I’d hope (though probably shouldn’t expect) that this would limit the amount of this muck from this that splashes on their glass foyer.

—posted by Julian

WILL YOU, WON’T YOU, WILL YOU, WON’T YOU, WILL YOU JOIN THE DANCE?

An interesting observation over at Daily Kos about Attorney General Alberto Gonzales’ defense of the NSA eavesdropping program: On the one hand, Gonzales argues that Congress had already implicitly authorized such a program. On the other hand, he says the administration declined to seek explicit authorization because “we were advised that that was not likely to be—that was not something we could likely get.” So Congress had authorized it… but they wouldn’t authorize it. Presumably victims of false consciousness in the latter instance. This must have something to do with that general-will/will-of-all distinction I never quite grokked.

—posted by Julian

WIDMERPOOL’S WAY

This week’s Weekly Standard contains, by happy coincidence, an essay by one of my favorite writers, Chris Caldwell, about one of my favorite novelists, Anthony Powell. The author of the multi-volume tragicomedy of manners, A Dance to the Music of Time, Powell is sometimes called the English Proust – a claim I’m in no position to judge, never having made my way through Remembrance of Things Past. What I can say, however, is that Powell’s series of novels, which tracks the fortunes and misfortunes of the British upper crust from the First World War through the 1960s, is unquestionably one of the great (and underappreciated) literary achievements of the century. As Caldwell puts it, the sprawling series is “dedicated to answering the big question that draws people to novels, as surely as it draws them to high school reunions: What becomes of people?” And it has as its anti-hero one of the most delightfully odious literary creations of all time – Kenneth Widmerpool, a sweating, bumbling man on the make, embodying the triumph of the will-to-power over all obstacles.

Powell’s concerns, like Proust’s (and Evelyn Waugh’s, to whom he’s also often compared) are almost entirely confined to a single social class: his work “spans the socioeconomic ladder of midcentury Britain from its 99th percentile to its 98th,” as Caldwell wryly puts it. Which is perhaps why there have been so few recent American novelists like him: Our writers are often obsessed with class, but they tend to either zero in on the anxieties of a single character (a Gatsby or a Swede Levov) or region (Faulkner’s South, Wharton’s New York), or else pan outward, as in Twain and Tom Wolfe, to offer a panorama of society entire, from top to bottom. This makes sense, in a way, since class is so much more fluid in this country than in Europe, and people move relatively easily from level to level, rank to rank – or at least they’re encouraged to try. And the overall bigness of America, too, threatens to overwhelm the pointillism of the novel-of-manners.

But even so, it would nice to see someone attempt to do for the contemporary American elite, fluid and hard-to-pin-down thought it may be, what Powell did for the British upper class, and pen A Dance to the Music of Time that follows, say, the Ivy Leaguers of the 1960s down to the present day – or my own generation out to 2040 or so. Caldwell notes that Powell’s books, like many English novels, satisfy a voyeuristic American appetite for brighter lines of class and conduct than we possess – and indeed, they may even inspire us to “envy the intricacy and elaboration of a social system that can create such beautiful patterns of charm and power.” But our voyeurism and envy – and our self-satisfaction at having left many of the cruelties of class behind – shouldn’t blind us to the intricacies and elaborations that American society, too, affords its artists, particularly as our meritocracy becomes less permeable and more inherited. Caldwell writes that Americans “tend to look at social systems as annoying impediments to the poetry of life,” and that “Powell may have been the last novelist to realize that the system is the poetry, under certain circumstances.” But there are systems here as well, and no less deserving of their poets.

– posted by Ross

OSAMA, PHONE HOME

I listened to the president’s press conference this morning, and I’ll confess I’m still perplexed at precisely why the New York Times needed to hold its story about the NSA’s warrantless eavesdropping program (other than to provide a marketing tie-in for James Risen’s forthcoming book, after the G.I. Bush with kung-fu grip and detatchable Carnivore terminal fell through), or how its publication constituted a dire threat to national security. Bush suggested that the revalation was “helping the enemy,” but the analogy he offered in support of that contention seemed distinctly disanalogous.

Bush’s point of comparison was the disclosure that the U.S. had been tracking Osama bin Laden’s satellite phone—which was, self-evidently, news to him, since he subsequently stopped using it. But even those of us who, as of a few years ago, thought FISA had something to do with erectile dysfunction medicine are well aware that the government seeks to eavesdrop on suspected terrorists’ conversations—and that it can do so without a warrant for up to three days before applying for a retroactive secret warrant under the Foreign Intelligence Surveillance Act. So it’s a bit hard to understand the claim, unless we make use of Bush’s idiosyncratic definition of “helping the enemy” as “causing people to question me.”

—posted by Julian

ETERNAL RECURRENCE

First, let me second Ross in thanking Andrew for the invite to play shopping-mall Santa surrogates to his blogospheric St. Nick. We’ll try not to leave footprints on the sofa.

Since The Christmas Wars—like most solstice festivals—are ultimately about cyclical renewal and resurrection, I have no real qualms about just reiterating what I said last year around this time: The overarching “War on Christmas” is a bogus narrative cobbled together from a smattering of half-true anecdotes because there are a few activists for whom it’s convenient that people more broadly share the “siege mentality” Ross talks about.

There’s an old Michael O’Donoghue column in which he suggests that (courtesy of Judy Garland) there’s a nefarious principle loose in American culture: “The person in the most pain wins.” The religious right seems to have learned that lesson well enough from the left; if you want to mobilize a relatively moderate population, it helps to convince them they’re under attack. So, hark, the herald pundits sing the advent of a nefarious secularist assault on people of faith, like clockwork, starting about a month before Christmas each year. (Though like storefront Christmas displays whose debut creeps closer to Halloween each year, it may be starting progressively earlier.) You’ll notice the same framing contest in battles over gay rights: Gay couples need to be painted as “flaunting” their sexuality, or being “in our face,” or otherwise acting as aggressors.

Let me suggest as a final point, though, that there may be a connection between “the real de-Christianization of Christmas” via “the frenetic pace of modern life, and the crassifying tendencies of commerce,” which bothers Ross, and an insistence on a faith-saturated public sphere. It is utterly mysterious to me when people of faith exult that some sectarian symbol—a Ten Commandments momument or an invocation of “one nation under God” in a schoolchild’s morning fealty oath—survives judicial scrutiny as mere “ceremonial deism.” Isn’t that precisely an acknowledgement that, by a kind of inverted transubstantiation, those symbols have been stripped of their meaning? The problem with pushing to embed your favored symbols in the mass culture is that you cede control of them to the mass culture—which I rather doubt is what the activists would want, on reflection. Forgive them; they know not what they do.

—posted by Julian