Sunday, August 31, 2008

Barr holds strong -- if Palin doesn't steal his thunder

Libertarian Presidential candidate Bob Barr is holding on to strong poll numbers in ten battleground states, according to a recent Zogby poll.

His best state remains New Hampshire, where he's at 11%, but he's showing strong support in enough states to potentially make a big difference in November's general election. He's pulling 10% in Nevada and 8% in both Colorado and Ohio.

The big question is whether that support -- or any significant share of it -- will remain firm as the campaign turns serious and voters are bombarded with messages to not "waste" their vote by choosing a candidate they actually support rather than one or the other of the Coke and Pepsi of politics. (Isn't there room for an RC Cola?)

Complicating the race is the -- probably calculated -- sudden weird vibe to the effect that Sarah Palin is a sort-of libertarian.

Don't get me wrong -- I think Palin was a smart pick for McCain. She's an unexpected break from the smarmy, rich, old, white-guy brand the GOP has been peddling. She's actually owned businesses that have to navigate the tax and regulatory policies passed down by the likes of McCain, Obama and Biden. She seems like a real person with interests in common with people who spend their lives outside the Beltway -- especially when compared to ... well ... McCain, Obama, and Biden. She also has more executive experience actually managing things than the the other three major-party contenders combined.

But that doesn't make her a principled believer in personal freedom in all matters, strictly limited government as, at best, a necessary evil, and the rights of the individual as the primary concern of any political system.

Although I think Alaska politicians probably start off closer to that point than their counterparts in most places.

But I can't help but thinking that marketing Sarah Palin as something like a younger, prettier, Ron Paul may just have something to do with polls like the one released by Zogby.


Don't tick off those St. Paul cops

Last week, after violent arrests and mass corralling of protesters at the Democratic convention, I wrote, "We'll have to watch events at the Republican convention to see if this is a trend."

Well, it appears to be a trend.

In the Twin Cities, police haven't even waited for protests -- they've moved in to raid building where political activists are gathering in anticipation of the Republican gathering. Says the Pioneer Press:

Bruce Nestor, president of the Minnesota chapter of the National Lawyers Guild, said he doesn't know whether the people arrested are RNC Welcoming Committee members, but he criticized the searches and arrests.

"To go in and arrest people on conspiracy charges without any solid evidence is to start to criminalize protected political activity and speech," Nestor said.

People planning to protest at the convention and St. Paul City Council Member Dave Thune called the actions a pre-emptive strike before the RNC. The convention is slated to start Monday.

"This is all about free speech," Thune said. "It's what my father fought in the war for."

Protesters have pointed to other examples of what they view as police interference in the run-up to the convention. Three videographers who document police activities were detained and their cameras confiscated in Minneapolis, and an activist said he was "viciously attacked" by police while he was observing officers outside a homeless shelter.

The police claim they found caltrops to puncture tires and buckets of urine to splash on delegates -- justification, they say, for pre-emptive raids in the absence of any criminal activity. They may well have found some such items, but eyewitness accounts of peaceful protesters rousted by paramilitary raiders don't really square with official accounts of impending revolution in the streets. Writing from the scene of one raided house, Salon's Glenn Greenwald reports:

In the house that had just been raided, those inside described how a team of roughly 25 officers had barged into their homes with masks and black swat gear, holding large semi-automatic rifles, and ordered them to lie on the floor, where they were handcuffed and ordered not to move. The officers refused to state why they were there and, until the very end, refused to show whether they had a search warrant. They were forced to remain on the floor for 45 minutes while the officers took away the laptops, computers, individual journals, and political materials kept in the house. One of the individuals renting the house, an 18-year-old woman, was extremely shaken as she and others described how the officers were deliberately making intimidating statements such as "Do you have Terminator ready?" as they lay on the floor in handcuffs. The 10 or so individuals in the house all said that though they found the experience very jarring, they still intended to protest against the GOP Convention, and several said that being subjected to raids of that sort made them more emboldened than ever to do so.

Video interviews of the subjects of one of the raids can be seen here:

This is going to be an interesting week.

But more than that. This is further evidence that First Amendment rights -- speech, assembly and petition -- have been converted into privileges to be allowed only if their practitioners don't annoy the political class.

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Friday, August 29, 2008

There's a hurricane coming and you're waiting for what?

Do people learn from experience? Somehow, I doubt it. Says the New Orleans Times Picayune:
Aiming to show tangible improvements in reacting to disasters since Hurricane Katrina hit three years ago today, the Bush administration's top two disaster response officials were in Louisiana on Thursday to help prepare for Gustav.

Homeland Security Secretary Michael Chertoff and FEMA Administrator R. David Paulison met with Gov. Bobby Jindal in Baton Rouge, then hashed out plans with Mayor Ray Nagin and his preparedness team in New Orleans.

As Gustav churned Thursday over Jamaica, officials at all levels of government in south Louisiana drafted contingency plans to anticipate, head off and, if necessary, repair any damage Gustav might cause.
Excuse me? At this late date, who in their right mind is waiting for government officials to take care of them when potential disaster looms?

Governments excel at perhaps two things: Spending vast amounts of money and killing people. Spending vast amounts of money to kill people is, of course, something of a politicians' dream job.

But saving your sorry butt from floods, tornadoes, high winds, collapsing infrastructure ...

No, that's really not a government specialty.

The Red Cross is better at this sort of thing. So are any number of private charity organizations.

If you really want to wait, helplessly, for somebody to do for you, that is.

Ultimately, though, when a hurricane is bearing down on you, it's a good idea to do something on your own initiative.

You could pack up and leave. If that's difficult or impossible, you could get to higher ground in a secure setting. At least, you could stockpile enough water, food, medicine, fuel and other supplies to get you through a tough period.

Fundamentally, though, it's your responsibility, not that of some bureaucrat who's just not up to the job no matter what he or she says.

Read me in the Las Vegas Review-Journal on the government's performance after Hurricane Katrina.


McCain's surprisingly inspired VP pick

Sarah Palin for VP? Her political positions aside -- social conservatism, in particular -- I think that's an inspired choice. She's young(ish), attractive and has executive experience. And, oh yeah, she's a woman. Is that a big deal this year?

I really didn't think John McCain had it in him to throw a curve ball like this.

Of course, this means I'm not going to hear the end of it from my wife between now and November. She'll be practicing the phrase "President Palin" non-stop ...

Update: I was right. My wife said, "Now you have to vote for him!"

No. No, I don't.


Thursday, August 28, 2008

Musing about the crowds at Invesco Field

Wow. That's a lot of people turning out to hear yet another politician -- yes, Barack Obama really is just another guy who lusts after political power with which to push other people around -- "accept" the nomination he fought for tooth and nail over the course of a year and locked up, at great expense, months ago.

Isn't there anything good on TV?


Martha's Vineyard: Case study of an underground economy

It's no secret that it's expensive and difficult to do business in Massachusetts. Taxes and regulations are onerous -- as of 2004, the Bay State was ranked 41 out of 50 on the Pacific Reserach Institute's Economic Freedom Index (full report here in PDF), which defines economic freedom as "the ability of an individual to allocate his resources according to his preferences without outside interference."

That has resulted in a bit of an exodus from the official economy into the shadow economy, where transactions are untaxed, unregulated (and unprotected by the force of law -- a tradeoff people are still willing to make to escape taxes and regulations). In response, the state has launched a crusade against underground economic activity, headed by a Joint Task Force on the Underground Economy and Employee Misclassification. The goal is to pull in some of the vast quantities of money that flow freely through the subterranean world, such as the estimated $152 million that is kept out of the hands of tax collectors each year simply by illegally classifying workers as independent contractors who then underreport their income.

That's the big picture. But what does the underground economy look like on a local level?

We can answer that question now, because a report (PDF) was recently released on the economy of Martha's Vineyard, an off-shore tourist mecca where, it turns out, the numbers just don't add up. It appears that there's a lot more economic activity than official figures allow for.

Throughout most of the year, there are roughly 40 percent more employed residents than there are wagepaying local jobs. Given that relatively few workers commute off-island, this discrepancy suggests a high level of self-employment and a relatively high level of contract labor and unreported work.

But how does that ultimately break down in terms of aboveground and underground activity? After looking at the figures, the report's author "estimates the underground economy on Martha’s Vineyard conservatively at 12 percent of reported wages and 16 percent of reported jobs. This represents at least 1,200 unreported jobs and $34 million in unreported wages. The actual numbers could be dramatically higher if the unsubstantiated estimate of 5,000 year-round undocumented foreign residents is close to accurate."

The off-the-books jobs appear to be fairly evenly distributed across the economy, with the logical exception of government positions. Basically, in every industry where it's possible to do so, a large chunk of the workforce is going about its business without paying taxes or worrying about red tape.

One of the interesting implications of these numbers is that people are better off than official numbers suggest, since they're earning far more from jobs, businesses and home rentals than is formally acknowledged.

With the equivalent of at least 1,200 jobs and $34 million in wages, this conservative estimate of the island’s underground labor market is as large as the reported size of the Accommodation and Food Services or Retail industries. By comparison, the informal practice of renting one’s home on a weekly basis during the summer adds $60–$100 million/year in largely unreported income, much of which accrues to non-residents. The underground economy is directly linked to the perception that the island houses more residents than are officially reported. It also contributes to the sense that there is more money circulating, and that conditions for young adults and poorer residents may not be as bad as official reports indicate.

And the the number of people working in the shadows is destined to grow since, as the report concedes, the underground economy is growing faster than its formal counterpart.

There are costs to underground work, of course. The report points to nebulous concerns about "community stability," but there are more serious problems when the fastest growing sector of the economy is one that enjoys no protection for contracts and no access to legal recourse in the courts.

But as long as governments impose high taxes and crippling regulations, some people -- growing ranks of them in fact -- will take their chances in the shadows.

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Denver police: record this!

It's disturbing enough when police push regular people around for doing nothing more than exercising their First Amendment rights to speak, assemble and petition government officials. It's worse when law-enforcement authorities don't seem to care who's watching.

This week, at the Democratic convention in Denver, we've already seen a mass arrest of almost 100 people, which is expected to result in a lawsuit against the authorities.

We've also seen Code Pink demonstrator Alicia Forrest assaulted by a police officer before being arrested and dragged away even as cameras were very obviously recording the incident.

Are the police getting more comfortable throwing their weight around, no matter who's watching?

They must be, if they're willing to roust network news producers accompanied by camera crews that are guaranteed to get their footage on the evening news. ABC's Asa Eslocker, who was standing on a public sidewalk, was forced into the street by officers before being wrestled into handcuffs and hauled off. His crew captured the whole incident on video.

That demonstrates a remarkable lack of concern about being recorded while violating people's rights.

No, I'm not saying that it's worse to harass professional journalists than it is to assault college kids and average people walking down the street. I'm saying that it should be assumed to be incredibly stupid to attack people who have access to satellite transmission facilities and teams of lawyers.

But the police in Denver seem perfectly comfortable doing their worst in front of camera lenses.

Do they not get it? Or do they just not care?

We'll have to watch events at the Republican convention to see if this is a trend.

Update: I'm among the "left-wing" bloggers vilified over at Little Green Footballs for spreading the story of the assault on Alicia Forrest by Denver Police Officer Scott Stewart. (It's interesting to be characterized as such, by the way, just a few days after I wrote about underground economic activity as a logical response to excessive taxation and overregulation.) Copious additional photos and video are provided to demonstrate that Officer Stewart whacked Forrest in the head with a truncheon only after she provoked him terribly. And, besides, she wasn't badly hurt anyway.
But Forrest simply would not obey him (nor any of the other officers). Instead of backing up, she actually leaned forward, and started taunting Officer Stewart even more aggressively. As seen in the photo above, he had just finished trying to push her backwards, using his baton, which Forrest didn’t like, so she dared him to “Fuckin’ do it again!” At that point, Officer Stewart simply lost his patience with this annoying gadfly who obviously felt her pink clothes rendered her immune to criticism or to police enforcement. It was moments after this photo was taken that the scene depicted in the Rocky Mountain News video took place.

Here’s the contextless video again. You can hear Forrest saying “Fuckin’ do it again!”, and then Stewart taking her up on her offer and saying “Back it up, bitch!” as he clonks her on the forehead or on the sunglasses, causing her to fall backwards. The “crack” you hear is not the sound of his baton on her skull, but rather that of her pink plastic bullhorn hitting the pavement and all its batteries falling out.
Unfortunately for my critic, the scales haven't fallen from my eyes, and I have yet to embrace the righteousness of whacking women over the head with clubs when they're rude.

Instead, my reaction after seeing more footage of the incident is: Officer Stewart really is a jackass.

Here's the deal: If you can't endure a little taunting without degenerating into a violent rage, put down the badge and get another job. And stay away from high-stress situations. Really.

Read me at on the proper role of police.


Wednesday, August 27, 2008

You meet the nicest nuts running for Congress in Arizona's CD1

There are interesting advantages to living in a small-towny area -- advantages like meeting congressional candidates in person while you (and they) are shopping at Home Depot. So when Barry Hall, a retired Baptist minister with plastic hair who is contending for the GOP congressional nomination, pressed his business card into my hand by the refrigerator display, it was no great surprise. I promised to check out his Website and went on my way.

Unfortunately, his Website ( is off-line, so I had to rely on Google's cache to discover that the Reverend Hall is a bit ... off. The cache of the site promises that "Barry has already sat in Congress for 70-80 hours" and the front page is half-consumed by a more-in-sorrow-than-in-anger diatribe against PACs.

What does he plan to do? Who knows. I give him credit for admitting, "Some of my concerns are like rough boards that might need your help to build upon or improve." His similes could use improvement too, of course. But one of those rough boards he might want to sand or polish or whatever is this: "Social Security must be fixed, not destroyed or allowed to go bankrupt. I wish I knew exactly how."

There aren't a lot of firm proposals on his political views page although -- interestingly for a conservative preacher -- he appears open to same-sex civil unions as long as they aren't called "marriage."

Maybe I'm being mean by focusing on Hall. After all, he isn't really a viable contender.

The "serious" candidates in the race consist of the usual sort of Republicans (generally good on economic freedom, sucky on personal liberty, and want to blow everybody up) and Democrats (decent on civil liberties, lousy on economic freedom, don't want to blow up other countries except for, maybe, Sudan).

Ann Kirkpatrick appears to be positioning herself as the "moderate" (read, electable in a Republican district) Democrat, by being not so socially tolerant and not so economically idiotic. Her Website follows in the fine tradition of American moderation by being unconscionably vague. For instance, on education, she promises to "make education a priority" and "work for real change." On Gitmo, surveillance and the PATRIOT Act she ... makes no mention whatsoever.

Sandra Livingstone combines an insistence on calling herself a "doctor" (her Website is despite a total lack of medical credentials (her PhD is in law) with close ties to the Bush administration (she worked for the State Department) and a hefty dose of "fair trade" economic populism (in an interview she specifies the Cato Institute as a think tank whose lead she would not follow).

Guess who I'm not voting for!

Howard Shanker seems to fall in line with a recent local Democratic tradition of running congressional candidates who meant to file in Manhattan but accidentally submitted their paperwork in Arizona's CD1. (Ellen Simon, an attorney active with the ACLU, was the previous holder of this honor). Shanker's particular interest is environmentalism of the sort that's hostile to property right, private enterprise and modern civilization, and his Website complains "Our economic instability is due largely to the government's failure to provide comprehensive planning."

Comprehensive planning? Oh goody. Can we announce your plan on May Day?

Shanker's Positions page also includes nothing -- nada -- about privacy, the PATRIOT Act, or other civil liberties.


Sydney Hay appears to be the most free-market of the Republican contenders (and of the candidates in general). She sat on the board of the Goldwater Institute and wants to abolish the income tax. She also wants to get the feds out of funding and regulating public schools and expand school choice. Of course, she also touts her endorsement by Arizona Right to Life and praises the idea of a border fence to stop brown folks and drug smugglers.

Why not just dig a moat while you're at it? You could fill it with what's left of the Colorado River.

And Mary Kim Titla, a Democrat, may be the most photogenic of the candidates. The Democrat's attractive mug -- she's a former spokesmodel ... err ... TV newscaster -- stares from posters all over the district. She's also the most tech savvy -- her ad pops up on Facebook whenever I sign on to taunt an old college friend.

Titla's Website actually endorses the use of spending earmarks. Otherwise, it speaks in broad generalities -- except for a promise to "protect Social Security from the jaws of privatization."

Tom Hansen, a rumpled-looking electrical engineer, combines a stereotypical Republican vague nod toward something resembling free choice in economic matters -- he criticizes "a myriad of rules, regulations, reports, legislation, tax incentives, tax disincentives, standards and paperwork that adds costs to American business," for instance, but hedges his bets on Social Security -- with an equally stereotypical Republican disdain for anybody who might want to follow his grandparents' path into this country. He also doesn't like gay marriage or abortion.

So there you have it. A choice between economic liberty and social thuggery or economic authoritarianism and social ... Hey, didn't I say Democrats are good on civil liberties?

Actually, the Democrats are a bit better on personal freedom issues than their Websites suggest. When pressed by the Daily Sun, they do concede that, sure, they have some concerns about the PATRIOT Act and the death penalty. They're just not going to advertise the fact that there are any attractive elements to their candidacies. (Republican Hansen also seems to object to the PATRIOT Act -- I think.)

There's no Libertarian in the race, but Independent Brent Maupin thinks our problems will be solved once we elect "incorruptible leaders."

Yeah. Good luck with that.

Hmmm ... Maybe the Reverend Hall doesn't stand out so much from the pack after all.

What about that 'civil libertarian' Biden?

Senator Joe Biden had barely been named as Barack Obama's running mate before he was winning praise as a civil libertarian addition to the Democratic ticket. Almost as quickly came the push-back, saying that the senator from Delaware is really not so great a champion of liberty -- terrible really.

So which is it? Is the VP wannabe a champion of liberty or its enemy?

The answer, it appears, is that he's a bit of both, depending on the issue and whether he's in the opposition or a member of the ruling majority.

For starters, Biden has an impressive 91% score in the 110th Congress from the ACLU, and a lifetime rating of 86%. Specifically, he opposed Bush administration efforts to expand the use of warrantless wiretaps (breaking with Obama in the process), tried to block "massive, untargeted collection of all communications coming in and going out of the U.S." and supported increased safeguards for Americans' private communications. He also voted in favor of restoring habeas corpus rights to detainees.

Concern about privacy seems to be the common theme here. As Wired magazine reports, "during the fall 2005 senate confirmation hearings for Supreme Court Chief Justice John Roberts, Biden grilled Roberts in his views of privacy in the high-tech age -- an issue Biden said was of equal importance to Roe v. Wade."

But ratings are only as good as the votes included on the scorecard -- and the votes cast. Oddly, the ACLU gave Biden thumbs-up for supporting efforts to increase penalties for violent criminals if they were motivated by hatred of certain protected classes of people. That comes perilously close to thought crime, and it's not obvious that the ACLU should be awarding high marks for such a vote.

Biden also managed to miss an important vote on Real ID -- an effort by the federal government to turn driver's licenses into de facto national ID cards.

Some of Biden's gloss of civil libertarian righteousness also seems a tad situational. At his The Agitator blog, Reason magazine's Radley Balko points out that "the 1994 crime bill [Biden] sponsored created several new federal capital offenses."

Biden has also voted for the PATRIOT Act -- twice. That shouldn't be surprising since, as The New Republic revealed in 2001:

In the wake of the 1995 Oklahoma City bombing, Biden did, in fact, champion an anti-terrorism bill similar to the one now before Congress (though it was, as he complains, badly watered down by anti-government conservatives and leftist civil libertarians). And Biden doesn't let you forget it. "I introduced the terrorism bill in '94 that had a lot of these things in it," he bragged to NBC's Tim Russert on September 30.

In some areas, Biden is clearly not such a strong fan of individual liberty. Gun rights for instance. The Delaware senator's grade from the NRA is a big, fat, "F" based on votes to retain the "assault weapons" ban, impose background checks on private sales by individuals at gun shows and ease lawsuits against gun manufacturers. This is not a guy who's enthusiastic about the individual right to self-defense.

Biden is also a proud fan of drug prohibition. Balko points out:

Biden has sponsored more damaging drug war legislation than any Democrat in Congress. Hate the way federal prosecutors use RICO laws to take aim at drug offenders? Thank Biden. How about the abomination that is federal asset forfeiture laws? Thank Biden. Think federal prosecutors have too much power in drug cases? Thank Biden. Think the title of a “Drug Czar” is sanctimonious and silly? Thank Biden, who helped create the position (and still considers it an accomplishment worth boasting about). ...

Biden sponsored the RAVE Act, a bit of legislation that makes sponsors of events liable if attendees consume illegal drugs. As RU Sirius reminds us, "A month after Biden's act was signed into law, DEA agents in Montana used it to intimidate the owners of a venue into canceling a benefit to raise money for Students for Sensible Drug Policy and the National Organization for the Reform of Marijuana Laws."

And even Wired's initially positive piece on Biden concedes that he "doesn't seem to have strayed from the rest of the judiciary committee democrats' stance of being more of a friend to Hollywood than to Silicon Valley."

Back in 2002, Biden also authored a controversial anti-counterfeiting bill that was amended to include a draconian provision that would have made it a de facto crime to replicate a digital-rights management under any circumstances. Critics decried the idea because they said it would crimp individuals' ability to play their media on devices of their choosing. Violators of the law would have faced prison sentences of up to five years and civil penalties of up to $25,000.

Writing for CNet, Declan McCullagh bluntly concludes, "By choosing Joe Biden as their vice presidential candidate, the Democrats have selected a politician with a mixed record on technology who has spent most of his Senate career allied with the FBI and copyright holders, who ranks toward the bottom of CNET's Technology Voters' Guide, and whose anti-privacy legislation was actually responsible for the creation of PGP."

Overall, I think that Biden is good on privacy issues -- when he's opposing intrusive proposals originating in a White House held by the other party. As a check on the Bush administration's surveillance agenda and its violation of due process guarantees, Joe Biden can be a valuable ally of individual freedom against state power. On other issues, and as a member of a ruling majority, the almost-vice-president is no reliable friend of liberty.

And don't get me started on economic freedom ...

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Tuesday, August 26, 2008

Candidate ratings don't reveal much about the next president

With the Democratic National Convention in full swing and the Republicans eagerly awaiting their turn, political silly season has officially commenced. That means it's time for everybody with an axe to grind to rate the candidates' positions on issues near and dear to their hearts. Based on those positions, and by peering into crystal balls and divining the future from the entrails of sacrificial animals, we then forecast the candidates' likely performance in the White House.

There's just one problem with this approach: It's crap.

I've played this game before, myself, assessing presidential candidates' sensitivity to concerns about free speech, privacy, due process, the right to bear arms, etc. for the online publisher that employed me in 1996 and 2000. I skipped 2004, though that year might have proved a bit easier than most.

My 2000 comparison is no longer available online, but I remember digging through the stances taken by Bush and Gore (as well as Harry Browne, Ralph Nader and Patrick Buchanan) and concluding that, when it came to the two big contenders, the difference was more a matter of emphasis than overall impact. That is, Bush might be terrible on reproductive freedom, but he was decent on guns, while Gore sucked eggs on the right to bear arms but supported a woman's right to choose.

But that was before 9/11.

Y'see, all those positions the candidates take mean very little until they've actually been tested and had to make some hard choices. When President Bush was put to the test, it turned out that legal niceties like due process, privacy and the humane treatment of prisoners didn't matter to him much at all. But we had no way of knowing that until he was put in a position to respond to a crisis.

Does that mean a theoretical President Gore would have been better? It's hard to believe that any serious contender for the U.S. presidency would have been worse than George W. Bush, but we'll never really know. After all, in his pre-prophet-of-environmental-doom incarnation, Gore was part of the administration that produced many of the legal proposals that were later taken off the shelf and plugged into the PATRIOT Act.

But Gore was later critical of the PATRIOT Act, so maybe he had second thoughts.

Or maybe not being in power gives you a different perspective than when you're the head honcho.

Candidates can certainly telegraph their future performance, but the message is often mixed -- and we tend to see what we want to see. Woodrow Wilson, whose administration was perhaps the most abusive of individual rights in American history, wrote for decades in favor of greatly expanding the power of the presidency. But Wilson is also known for saying, "Liberty has never come from Government. Liberty has always come from the subjects of it. The history of liberty is a history of limitations of governmental power, not the increase of it."

Which was the real Wilson? We only found out when he started throwing critics of his administration into prison.

Francis Biddle, FDR's Attorney General, remarked as the government was sticking Japanese-Americans into concentration camps, "The Constitution has never greatly bothered any wartime president."

And "war" tends to get interpreted rather broadly by politicians; wars on poverty, drugs and terror can become justifications for nasty actions -- all just for the duration of the "emergency," of course.

With Barack Obama and John McCain, we have two presidential contenders who have served their political careers as legislators -- one person among many. We really don't have the slightest idea how they'll act when placed in positions of executive power. Will the ultimate winner of the White House wield his vast power as an angel or a monster? I suspect that even he doesn't know.

In the days to come, you'll see plenty of ratings of the candidates' stances on a variety of issues, including those involving the preservation of at least a modicum of liberty in this fading republic. But don't expect those comparisons to be much of a guide to how the next president will ultimately behave when put to the test.

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Monday, August 25, 2008

Famous in Cornville

Hey, just a brief note that a trimmed version of my post on doomed legal crusades leading to an escalation in law-enforcement tactics has been picked up by Arizona's Verde Valley Newspapers as "Unenforceable laws lead to police abuses."

I hope other papers run it too, although I have no control over that, beyond distributing the pieces to opinion-page editors. My new affiliation with probably raises my credibility in the eyes of mainstream journalists, though, so I'm curious to see if pick-up on my OpEd distributions improves now to something like the success I enjoyed the last time I had a formal affiliation. It's interesting how a commentator can be considered a serious voice if on the staff of a two-person operation based out of a boiler room, but just another crank in the wilderness if writing on his/her own.

I'm old enough that print publication still somehow seems a bit more "real" to me than online publishing, even though the Web is a vastly superior medium in terms of reach, speed, elimination of the middle man (editors -- sorry, you ink-stained wretches) and the ability to write as much or as little as I like without worrying about trimming or stretching to fill a hole.

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Who wouldn't trust the FBI?

Last week, four United States senators wrote to Attorney General Michael B. Mukasey, objecting to draft guidelines, set to take effect in October, that, they warn, will set the Federal Bureau of Investigation loose to use intrusive investigative techniques against Americans even without suspicion of wrongdoing.

We are concerned about the extent to which such authority might, for example, permit the FBI to conduct long-term physical surveillance of an innocent American citizen; interview such an individual’s neighbors and professional colleagues, including based on a “pretext” or misrepresentation; recruit human sources to provide information on that individual; or conduct commercial database searches on that individual – all without any basis for suspicion. ... We are particularly concerned that the draft guidelines might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on protected First Amendment activities.

Pointing to what seems to be the continuing evolution of the FBI's role in the wake of the 2001 terrorist attacks, the senators add:

We are concerned about the extent to which the FBI may be permitted to gather or use information about Americans under the rubric of foreign intelligence gathering when there is no suspicion of a crime, threat to national security, or any other wrongdoing.

It's difficult to judge the validity of the senators' fears about the proposed guidelines, because they're not yet available to the public. In fact, Senators Russell Feingold, Edward Kennedy, Richard Durbin and Sheldon Whitehouse say they've had limited access to the guidelines, even though implementation is imminent. The draft guidelines have been made available to members of Congress and their staffs "only a few hours at a time over the course of a week and a half" during the August recess.

Responding to congressional concerns that lawmakers are being shut out of what appears to be a major shift in law-enforcement policy, Mukasey says he'll hold off on signing the guidelines until after FBI director Robert Mueller testifies before the Senate Judiciary Committee on September 17. But implementation remains on schedule for October.

Legislators may be almost as much in the dark as us mere peons, but we can still read between the lines -- both from the senators' letter and from Mukasey's own statements.

In remarks made this month at the Oregon Anti-Terrorism Conference and Training, the AG boasted, that "[t]he implementation of new Attorney General Guidelines will help in the Bureau’s transformation into an elite national security organization." He specified that the new guidelines will eliminate the distinction between criminal and national security investigations, so that the same techniques and resources will be available in all cases.

In his remarks, Mukasey recognized that "[s]ome may objact to these new Guidelines precisely because they expressly authorize the FBI to engage in intelligence collection inside the United States." But he countered that the FBI has always had this power, and that it's necessary to pursue domestic intelligence in the wake of 9/11. He also promised that all activities will be conducted "in conformity with the Constitution and all applicable statutes, executive orders, and Department of Justice regulations and policies."

But the FBI's record on this count isn't very good. As the senators point out in their letter, FBI guidelines were first implemented to remedy domestic surveillance abuses in the 1960s and the 1970s. John Lennon was among the people monitored by the feds for their political views. So was Martin Luther King.

We don't have to delve into the past to find evidence of FBI overstepping, and there's no grounds for Mukasey to pretend that abuses of surveillance powers are ancient history. Just two weeks ago, Senators Arlen Specter and Patrick Leahy wrote to FBI Director Mueller, complaining that "the Federal Bureau of Investigation (FBI) misused so-called 'exigent letters' to obtain the telephone records of reporters working in the Jakarta, Indonesia, bureaus of The Washington Post and The New York Times."

That letter cited a scathing March 2007 Department of Justice Inspector General's report which found extensive abuses of the use of national security letters and exigent letters to obtain information. Mueller has apologized to the Times and the Post for his agency's interception of the phone records, and the use of exigent letters has been suspended. But the FBI remains an agency -- like most any government body you can imagine -- with a history of misusing whatever power it has and pushing its mission to the extreme.

That's the FBI that Mukasey wants to explicitly unleash as a domestic spook operation.

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Friday, August 22, 2008

Bar owners tell anti-smokers to take a hike

In an inspiring display of civil disobedience, more than a dozen bars in Kanawha County, West Virginia, joined together this week to commit the currently subversive act of simply allowing their patrons to light up within the confines of privately owned establishments whose owners don't oppose the practice:

Nobody's going to tell Kerry "Paco" Ellison's customers they can't smoke at his bar.

The Black Hawk Saloon is Ellison's bar, and he'll run it as he sees fit.

"If I don't want to pray, I don't go to church," Ellison said. "If you don't want to smoke, don't come in here."

Today, Ellison and at least a dozen other bar owners across the county defiantly encouraged their patrons to smoke in violation of the Kanawha-Charleston Health Department's six-week-old smoking ban.

Not long ago, it wasn't considered all that controversial for business owners to decide for themselves the nature of the service that they'd offer and the environment in which it would be offered -- and for potential customers to either patronize the establishment or else satisfy their preferences elsewhere.

If enough people liked what the business had to offer, it thrived. If they didn't, it either changed or failed.

But the trend in recent years has been to substitute legislated majority preferences -- the more faddish, the better -- for individual choices. When the Kanawha-Charleston Health Department handed down its smoking ban (PDF) last year, it was simply going along with the cool kids, who have made public regulation of conduct on private spaces a de rigeur legal accessory for every modern government.

The argument for smoking bans is usually made on health grounds -- the dangers of second-hand smoke, in particular. Accordingly, the Kanawha regulation is salted with language claiming an urgent need to:

(a) protect the health of the public by minimizing exposure of individuals to a proven harmful environmental toxin, i.e. secondhand smoke, while they engage in public indoor commerce; and (b) direct and/or strongly encourage the proprietors of public places of indoor commerce to provide a smoke-free environment to minimize public exposure to this harmful toxin.

But the only way members of the public can be exposed to such a "harmful environmental toxin" is if they choose to enter an establishment, to do business or to seek employment, where people are allowed to smoke. In every case, there's that all-important moment at the threshold when they get that first whiff of Marlboro and have to decide whether to take the next step.

Should I stay or should I go?

Or, if you're concerned about that single whiff, health concerns could be addressed by following the advice of Barbara Lutes, one of Ellison's customers, and "Just have a sign on the door: 'This is a smoking establishment.' "

In the end, banning smoking in private businesses starts looking a lot like banning bars from playing loud rock music because you're worried that people's hearing might be harmed (and, besides, you prefer jazz). Maybe that's what you want, but why should your preferences trump other folks' choices?

Enough people understand that point that there's significant support -- minority support, to be sure -- for business owers like Ellison who tell the law to take a hike. Maybe that's why Kanawha officials wisely decided to avoid making anybody a martyr. They've declined to issue any citations over the mass act of defiance.

That's probably a good idea. In Cleveland, when authorities got tough, the result was a proliferation of underground "smokehouses" which also feature strippers.

Hmmm ... Maybe the law is on to something ...

Forbidding bar owners to permit their customers to smoke might be very trendy, at the moment, and certainly it's a democratic expression of what today's majority wants.

But, you know, the whole point of freedom is letting individuals choose -- and telling the majority that it can, from time to time, go fuck itself.

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Thursday, August 21, 2008

Defying the state as a matter of course

When they become part of our day-to-day life, some of the smallest acts of seemingly apolitical rebellion can be especially powerful. Acts such as warning on-coming drivers of a lurking police officer, for instance.

I was driving into town to pick up my son from day care yesterday. The road I was on is relatively lightly traveled and has a long, straight stretch that just begs for a little speed. In a relatively short distance, though, the 45 MPH limit plummets to 25 MPH, which it remains along a wide, straight stretch that services a new housing development, lined by masonry walls, landscaping and not a single driveway.

Speeding through here is endemic, because you feel like you're pedaling a tricycle down a hallway if you don't.

Anyway, I hadn't yet begun to decelerate when the driver of an oncoming pickup truck signaled with his hand for me to slow down. I figured he had a reason, so I did -- quickly.

Sure enough, a sheriff's deputy was parked over the hill, just waiting for anybody to come barreling through a few miles over the limit. I gave the deputy a grin as I went by at exactly 25 MPH, and promptly passed along the warning I'd received to two cars coming from the other direction.

I've written before that my piece of the Earth is populated by people not overly impressed by the petty posturing of law enforcement -- the last (and only, so far as I remember) radar trailer to be parked down my road ended up tumbled on its side, in need of an overhaul. So a friendly warning that the county mounties are around the corner was hardly unusual.

And it was much appreciated.

But it's just such small acts that make life bearable in an increasingly overgoverned society. That warning certainly saved me a few minutes of getting hectored by the side of the road by one of Yavapai County's finest, as well as some money and possibly a bit of hassle with the insurance company. It also reaffirmed the connections I have with my neighbors, at the expense of government authority. And last, but not least, it was an important thumb in a petty official's eye -- that deputy certainly knew what was going on as traffic improbably crawled by him at precisely the speed limit.

As the laws that ensnare us and the enforcement efforts for those laws become ever-more intrusive, such small acts of defiance as warning your neighbors about patrolling cops become necessary lubricants for life. To the extent that they're internalized in our day-to-day behavior and become normal activity rather than explicitly political statements, they transform the culture and fuurther undermine government authority.

And that's always a good thing.

By the way, while your mileage may vary, at least one court has found the act of flashing headlights to warn other drivers of a the presence of police to be protected free speech. Of course, you should help your neighbors out anyway, whether or not the law approves.


Flagstaff peace activist wins free-speech battle

A law intended to muzzle an Arizona anti-war activist has itself been hobbled on First Amendment grounds, freeing the t-shirt vendor to continue selling items that feature the names of fallen soldiers.

Like several other states, Arizona recently passed a law making it illegal to "knowingly use the name, portrait or picture of a deceased soldier for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent to the use by the soldier or by the soldier's spouse, immediate family member, trustee if the soldier is a minor or legally designated representative." The law was aimed at a Flagstaff-based political activist, Dan Frazier, who produced anti-war, "Bush Lied, They Died," shirts featuring the names of soldiers killed in combat.

That law, always constitutionally dubious, was the subject of a preliminary injunction issued by U.S. District Judge Neil Wake based on the finding that "Frazier had standing to challenge the State’s law and that the controversy was ripe for review" and that "Frazier had shown a strong likelihood of success on the merits."

Given Judge Wake's earlier ruling, it's no surprise that he has issued a permanent injunction (PDF), preventing the state of Arizona from enforcing the law against Frazier and his enterprise.

In his ruling, Wake dismissed lawmakers' claims that Frazier's speech was unworthy of full protection since he's engaged in the commercial activity of selling shirts. Says Wake:

Frazier’s T-shirts are themselves core political speech fully protected by the First Amendment, notwithstanding the fact that he offers them for sale. ... His website is like a streetside table used to disseminate anti-war and political messages in a variety of ways, including displaying and selling his message-bearing T-shirts. The State has criminalized part of his display because the shirts are offered for sale. But if the shirts “would otherwise be constitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a[n] . . . advertisement.” New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964).

This is an important point, since excluding commercial activity from First Amendment protection would raise the possibility that free speech protection extends only to those activities that are not economically self-supporting -- essentially preserving speech as a privilege of the well-funded.

Wake further found that "Frazier’s product is his message, and his customers’ message," recognizing that the use of the soldiers' names is at the core of Frazier's anti-war activism.

Unfortunately, Wake's decision is a narrow one. It protects Frazier's activity, but doesn't find the law in and of itself unconstitutional. A year or two or three from now, another political activist may find him or herself fighting the same battle that Dan Frazier has already won.

Also, Frazier still faces a civil lawsuit in Tennessee filed by the parents of a man killed in Iraq. That lawsuit seeks $40 billion in damages (yes, billion).

Wednesday, August 20, 2008

Let Bob Barr debate!

That's what a majority of Americans say, according to a Zogby International poll.

New York - More than half of likely voters nationwide - 55% - want Republican-turned-Libertarian Bob Barr to participate in presidential debates this fall, while nearly half - 46% - said they think Ralph Nader should be allowed into the on-stage fray, the latest Zogby Interactive polling shows.

Among political independents, 69% said Barr should be at a lectern with Republican John McCain and Democrat Barack Obama, and a majority of Republicans and Democrats agreed. Among Democrats, 52% said they think Barr should participate, while 50% of Republicans agreed.

It's not going to happen. The Republicans and Democrats don't want any competition, thank you! They've stacked the deck quite nicely to minimize the chance of anybody ever again crashing their party.

But how encouraging that the public actually wants to hear other voices ...

Update: In response to a query from Keeper:
The interactive online survey was conducted Aug. 12-14, 2008, and included 3,339 likely voters nationwide. It carries a margin of error of +/- 1.7 percentage points.
A bit more technical detail here.


You are not so free to move about the country

It was bad enough when the airlines started running all of our names against "watch lists" of potential terror suspects -- lists so troublesome that they ensnared anybody named "David Nelson," subjecting them to an extra dose of hassle at security checkpoints. Even Senator Kennedy found himself on the watch list -- a measure of rough justice that, nevertheless, demonstrated the TSA combines incompetence with a lack of an institutional survival instinct.

The matter doesn't seem to be improving, either. Just last year, the Department of Justice's Inspector General examined the watch lists and found (PDF):

[O]ur examination of the routine quality assurance reviews revealed continued problems. We examined 105 records subject to the routine quality assurance review and found that 38 percent of the records we tested continued to contain errors or inconsistencies that were not identified through the TSC’s quality assurance efforts.

As if that wasn't bad enough, the TSA now plans to centralize the process of checking names against the watch lists in its own offices. Under the Secure Flight program, airlines will be required to supply lists of scheduled passengers to the TSA's crack clerical staff, who will then issue a "yay" or "nay" to each individual's travel plans -- essentially formalizing the process of making air travel a privilege to be dispensed by government officials.

Hmmm ... Passing more personal data through the hands of bureaucrats. What could go wrong with that?

Well, in case you have a lack of imagination on the subject, you could ask the Government Accountability Office. Two years ago, as Secure Flight was being planned, the GAO warned (PDF):

Secure Flight’s system development documentation does not fully explain how passenger privacy protections are to be met, and TSA has not issued the privacy notices that describe how it will protect passenger data once Secure Flight becomes operational.

Not so encouraging, eh?

Oh, but it gets worse.

The information the government compiles on travelers -- in particular, their comings and goins -- is about to get a lot more detailed. The Border Crossing Information system, recently announced by the Department of Homeland Security, will track, to the extent possible, everybody's movements into and out of the United States:

BCI shall contain border crossing information, as that term is explained above, for all individuals who are admitted or paroled into the United States, regardless of method or conveyance, and information for all individuals who depart the United States by air or sea and, in certain circumstances, by land. ...

For records first collected through APIS, the BCI record will contain all the data of the APIS record (including complete name, date of birth, travel document type (e.g., passport), travel document number and travel document country of issuance) as well as information pertaining to the instance of the border crossing (for example, airport or place of embarkation, where the person began their travel to the United States; for persons destined for the U.S., the location where the person underwent CBP clearance). Such data will also be maintained in accordance with the APIS SORN, DHS/CBP-005 August 23, 2007 72 FR 48349.

The tracking of land travelers -- including casual shoppers and day-trippers across the Canadian and Mexican borders -- is a new development, and one that will give the government expanded knowledge of people's movements to retain (for 15 years, under current plans) and use as it pleases.

That weekend you snuck away from your wife to go to Rocky Point? It'll be a matter of public record.

And given the government's track record on securing data, all of that information really will be public.

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Tuesday, August 19, 2008

Pick xenophobe A or xenophobe B

Arizona Senator Tom O'Halleran is a tired old hack with a miserable "Needs Improvement" (update: his latest rating is an even worse "Champion of Big Government") score on spending issues from Americans for Prosperity who cast his vote for the latest red-ink-soaked state budget that threatens to put taxpayers on the hook to cover a looming $1.5 billion deficit. So what's his primary opponent Steve Pierce challenging him over?

Who will be meaner to brown people, of course. My wife being a registered Republican, I have mailers from both candidates touting their tough-tough-toughness on border issues. That's all these mailers address.

Too bad I support immigration -- even illegal immigration.

Yes, Pierce does -- oh yeah -- say he's a bit more conservative on spending. But then in the next breath he promises to throw more dollars at government schools.

Which leaves primary voters choosing between two candidates who are campaigning on their dislike of Mexicans.

The Democratic candidate, Pat Chancerelle, doesn't seem to hate Mexicans, and she probably wouldn't be any worse on spending than O'Halleran -- but she'll need to take time off from starring in the latest Mummy movie to compete for the office. And as a candidate she ... oh ... well ... I'm sure she's a very nice person.

I can't find a Libertarian candidate, or I'd park my vote there on general principle.

With so much at stake, isn't it nice to know what issues excite the candidates?

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A little jury nullification in Boston

This past March, a remarkable thing happened. A juror in a federal trial in Massachusetts actually exercised his responsibility to question the government's authority to prosecute a defendant. Apparently pressed by fellow jurors to address his doubts to the bench, Thomas R. Eddlem sent a note to US District Court Judge William G. Young asking: "Where – if two-thirds of both houses of congress voted in 1919 that it was necessary to amend the constitution to give congress the power to ban mere possession of a substance (prohibition of alcohol in that case) – is the constitutional grant of authority to ban mere possession of cocaine today?"

Taken aback, Judge Young essentially replied that the government has the power because courts say it does -- based on the infinitely malleable Commerce Clause. Unmoved, Eddlem persisted, and was ultimately yanked from the jury for his troubles and replaced by an alternate.

It's impressive enough that a juror had the temerity to question the grounds for a prosecution -- most jurors today grudgingly serve their time as rubber stamps for the judge, doing what they're told and neglecting their role as representatives of the people in the courtroom.

Even more impressive is that Eddlem -- a radio talk-show host and former research director for the John Birch Society -- raised a valid objection that has been a legal sore point for many scholars. No less an authority than Supreme Court Justice Clarence Thomas raised a similar concern in his dissent (PDF) in Gonzales v. Raich:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.

So Eddlem's question to Judge Young is one that has been echoed at the highest level -- hardly a fringe concern. He exercised his responsibilities as a juror and did so in an extremely credible way. Nevertheless, Judge Young was so shocked that he penned a 41-page legal memorandum (PDF) denouncing Eddlem's presumption, as well as the doctrine of "jury nullification" that he accused Eddlem of espousing.

Jury nullification is when jurors are so offended by a law or by the application of a law that they refuse to bring a conviction, even when a defendant is clearly guilty. During American history, juries have nullified (refused to enforce) laws against assisting runaway slaves, peddling alcohol in violation of Prohibition, dodging the draft and smoking marijuana, among other laws that draw the scorn of a sizeable portion of the population.

Young's memorandum cited chapter and verse about alleged abuses of nullification and the dangers it supposedly poses to American democracy -- though in doing so, he managed to completely ignore Clay S. Conrad's Jury Nullification, the definitive book on the subject, which ably addresses such objections. That's an odd omission, since Young does cite a minor article by Conrad as an example of political advocacy for nullification.

Eddlem denies that he supports nullification and, in fact, says he would have voted to convict in a state court -- his objections were constitutional in nature. But that clearly puts him in the tradition of a long line of jurors who have refused to do the government's bidding in cases of prosecutions they considered unjust.

But whether it was nullification or not, was Eddlem's action such a good idea?

Remember, every step along the way, all of the other participants in the criminal justice system exercise discretion based on their own sense of what's right. Police officers look the other way, prosecutors decide not to pursue cases, judges dismiss or reduce charges and pass down light sentences. These officials are all representatives of the state. It's only the jury, the representatives of the people in the court, that Judge Young and his colleagues say should behave like automatons. That makes no sense -- or rather, it makes an unfortunate self-serving sense when argued by a judge, whose power is diminished by independent jurors.

Really, there's every reason to recognize the jury's right to exercise at least as much mercy as the other participants in the criminal justice system -- especially given their role as the last check on the power of the state. That right was not just recognized, but celebrated by the founders. John Adams, the nation's second president, said it is the juror's "duty ... to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

In fact, there's some evidence that more jurors than we usually realize appreciate their power to mitigate the impact of the law. In 1999, the Washington Post reported:

The most concrete sign of the trend is the sharp jump in the percentage of trials that end in hung juries. For decades, a 5 percent hung jury rate was considered the norm, derived from a landmark study of the American jury by Harry Kalven Jr. and Hans Zeisel published 30 years ago. In recent years, however, that figure has doubled and quadrupled, depending on location. Some local courts in California, for example, have reported more than 20 percent of trials ending in hung juries. Federal criminal cases in Washington, D.C., averaged 15 percent hung juries in 1996 (the most recent year for which data were available), three times the rate in 1991.

A hung jury is simply one in which the 12 men and women around the table disagree over whether to convict or acquit. But judges, lawyers and others who study the phenomenon suspect that more and more differences are erupting not over the evidence in these cases, but over whether the law being broken is fair.

Eddlem may have drawn the headlines, but jurors across the country are quietly exercising the discretion he publicly advocates.

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Monday, August 18, 2008

Just a dog?

I love my dogs almost as much as I love my kid. I have no compunctions about breaking traffic laws to get beloved members of my family urgent medical care. And I don't like police officers on power trips who are dismissive of the value of the lives of members of my family. So if I had been in Michael Gonzalez's shoes, I don't think Officer Paul Stephens would have survived the encounter captured in this video.

Stephens is "undergoing counseling"? I'll be happy to give him a session or two.


Popular support for censoring 'public' airwaves

Almost half (47%) of Americans think the government should dictate the political content of radio and television broadcasts in the name of "balance" between liberal and conservative views -- and 31% think the same controls should be imposed on Websites and bloggers. That's according to a Rasmussen Reports survey released last week. All this despite the fact that most Americans (71%) think it is "already possible for just about any political view to be heard in today’s media."

My guess is that many people miss the connection between the lack of a modern "Fairness Doctrine" -- a government mandate to provide "balanced" views in the media -- and the availability of "just about any political view." When the government intervenes -- as it did in the past -- "balance" becomes a matter of airing two flavors of mainstream political views that satisfy the powerful officials who espouse such views, at the expense of ideas that don't easily fit into categories favored by FCC apparatchiks. The easiest way for broadcasters to satisfy the law is to not air too much opinionated discussion, and to keep what they do air within the realm of off-the-shelf received wisdom that is easily packaged with a matching opinion from the "other" side -- as if there are only two sides.

The lethal impact of of Fairness Doctrine-style content regulation on free speech is why Supreme Court Justice William O. Douglas once wrote, "The Fairness Doctrine has no place in our First Amendment regime. It puts the head of the camel inside the tent and enables administration after administration to toy with TV or radio in order to serve its sordid or its benevolent ends."

Americans are probably more tolerant of open, unregulated debate on the Internet than on the air because the airwaves are considered a "public" medium subject to government censorship. Little known, however, is the fact that the idea of "public" airwaves was originally promulgated by the government -- especially by then Secretary of Commerce Herbert Hoover -- to justify government censorship of the (then) new medium of radio when officialdom was still smarting from court decisions reinforcing the autonomy of print media.

In his 1991 book, Freedom, Technology and the First Amendment, Jonathan Emord wrote:

As early as the First National Radio Conference in 1922, Secretary of Commerce Hoover had said that the "ether" was a "public" medium. By the Fourth National Radio Conference in 1925, he had developed a theory that the entire broadcasting industry was one necessarily imbued with a "public" character, that is, a nature that must be under government controls to ensure that it presented programming in the "public interest." ...

In Hoover's view, the broadcaster's freedom of speech had to be suppressed to ensure the propogation of a "preferred" message, one tailored by government for the benefit of the listening public. ...

Hoover's "public airwaves" justification for government control of broadcasting content was as self-serving as a government declaration of a monopoly over newsprint to control the content of newspapers. Unfortunately, it has taken on a life of its own, with people citing the "public" nature of the airwaves as if it were Holy Writ, rather than a political power play by a government official who was more than a bit of a control freak.

So, decades after Hoover made his move, we still have a plurality of Americans demanding that government control the ideas they hear, as if that will somehow be "fair."


Thursday, August 14, 2008

Bad laws breed civil liberties violations

I write a lot about the excesses of law-enforcement officers during the course of their efforts to uphold one law or another. Doors kicked in, people killed, dogs shot, phone lines tapped, curfews imposed -- they're all examples of official overreaching at that unpleasant intersection of private activity and state disapproval. For some people, the implication of a lot of coverage of such abuses is that a little more scrutiny, improved oversight and the right people in charge will make law enforcement a much less perilous, much more respectful enterprise, which the people need not fear.

But what if that's not the case? What if, in many circumstances, we've handed police and regulators and enforcers of many stripes missions that are impossible to fulfill? It may be that we've assigned law-enforcers goals so frustratingly elusive that even angels could not resist the temptation to escalate tactics to insane extremes, trampling liberty and decency along the way.

Deranged escalation may best be represented -- for now -- by the violent raid on the home of Berwyn Heights Mayor Cheye Calvo, during which his dogs were killed by armed and armored narcs apparently fearful that the pooches might resent the marijuana-suppressing intrusion. Yes, worse raids have deprived people of their lives in the past -- Radley Balko has documented the bloody outcomes in Overkill: The Rise of Paramilitary Police Raids in America (PDF). But when a creature of the state, however minor, like Calvo can't protect his own pets from police overstepping, you know we've stepped over a cliff.

But that leap into the void was probably inevitable given the government's obsession with achieving the impossible: eliminating the consumption of marijuana by Americans. Seventy years after Reefer Madness, decades into the War on Drugs, a survey by the World Health Organization still says that 42.4% of us have smoked grass.

That drug prohibition thing isn't going so well. And after a couple of consecutive lifetimes of failure, entering the homes of low-level government officials with guns blazing because somebody tried to deliver a package of forbidden weed to the house may suddenly take on a false patina of sanity to prohibitionists who have lost a bit of perspective.

The fact is, there have been a lot of laws that are essentially unenforceable -- or whose enforcement results in unintended consequences that raise the frustration index for those given the thankless job of making sure we all toe the line. By and large, these laws are unenforceable because a relatively large segment of the population is unwilling to obey them, and they involve activities in which there's no victim -- nobody to file a complaint or cooperate with police.

The dirty little secret of law enforcement is that it's largely dependent on public cooperation -- to obey the law and to help the police bring transgressors to heel. When laws represent something less than a near-universal consensus -- when they're nothing more than a majority preference jammed down the throats of an unwilling minority -- they're doomed to be defied. Cops then are relegated to the role of arm-twisters, trying to intimidate the minority into submission through increasingly brutal tactics, or else they just give up as an act of resignation or corruption.

Prohibition is infamous of course. Thirteen years of illegal liquor brought us mass disobedience, crooked cops, violence and an explosion of organized crime. From a paper prepared in 1972 for the National Commission on Marihuana and Drug Abuse:
Other statistics demonstrated the increasing volume of the bootleg trade. In 1921, 95,933 illicit distilleries, stills, still works and fermentors were seized. in 1925, the total jumped to 172,537 and up to 282,122 in 1930. In connection with these seizures, 34,175 persons were arrested in 1921; by 1925, the number had risen to 62,747 and to a high in 1928 of 75,307 (Internal Revenue, Service, 1921, 1966, 1970: 95, 6, 73). Concurrently, convictions for liquor offenses in federal courts rose from 35,000 in 1923 to 61,383 in 1932.

The law could not quell the continuing demand for alcoholic products. Thus, where legal enterprises could no longer supply the demand, an illicit traffic developed, from the point of manufacture to consumption. The institution of the speakeasy replaced the institution of the saloon. Estimates of the number of speakeasies throughout the United States ranged from 200,000 to 500,000 (Lee, 1963: 68).
A history of that particular legal fiasco should be a required course for any aspiring legislator or law-enforcer. Even without formal instruction, though, you'd think the lesson would stick -- but it hasn't. Lawmakers still insist on sending the police to force people to stop doing things they want to do, even when there's nobody to complain and little interest in compliance.

So we see police breaking up friendly card games with headline-grabbing raids -- even in jurisdictions where the law doesn't prohibit playing cards for money -- only profiting from promoting the same. Sure the games continue, only now a bit further underground -- but at least those nefarious card players had the Hell scared out of them.

People then turn to the Internet for their gambling fix. What's the government going to do about that?

Try something else crazy, it turns out -- like arresting former executives of companies based in countries where online gambling is perfectly legal who merely change planes in the United States. That's like Saudi Arabian cops busting a Playboy employee because naughty pictures published on American Websites are frowned on in Islamic countries.

That enthusiasm for enforcing the unenforceable at all costs should have all of us -- gun control advocates included -- thanking the Supreme Court for saving us from ourselves by taking outright gun bans off the table with the Heller decision.


Because gun owners have a history of defying gun control laws. Because the authorities would be inclined, given their past efforts, to escalate enforcement. And because resistance to such escalation would inherently involve, you know, guns.

In his book, Can Gun Control Work?, James B. Jacobs, Warren E. Burger Professor of Law and Director of the Center for Research in Crime and Justice at New York University, and an advocate of firearms restrictions, looked at the issue logically and concluded, "If black market activity in connection with the drug laws is any indication, a decades-long 'war on handguns' might resemble a low-grade civil war more than a law-enforcement initiative."

And there's drug prohibition again -- the eternally failed crusade to make much of the population change its sinful (in the eyes of the crusaders) ways, or else.

It won't work. It can't work. It never has worked.

But the authorities try, and try and try to make people knuckle under to laws that they find offensive and intrusive. And as people refuse to comply, the authorities raise the stakes, adopting tactics that most of us recognize as violations of civil liberties, of fundamental rights and of simple human decency.

Yes, I have a bone to pick with the cops when they kick in doors, plant evidence and shoot the innocent.

But I suspect that I'd have remarkably little to write about if lawmakers refrained from sending law-enforcers to do the impossible.

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Wednesday, August 13, 2008

Who needs laws when you just know someone 'crossed a line'?

In Marlboro, Massachusetts, a retired chemist named Victor Deeb had the misfortune to call the fire department when his air conditioner burst into flames.

I say "misfortune" because, when the authorities arrived, they discovered that, not surprisingly, a chemist keeps a chemistry laboratory in his home.

And they freaked.

Pamela A. Wilderman, Marlboro’s code enforcement officer, said Mr. Deeb was doing scientific research and development in a residential area, which is a violation of zoning laws.

“It is a residential home in a residential neighborhood,” she said. “This is Mr. Deeb’s hobby. He’s still got bunches of ideas. I think Mr. Deeb has crossed a line somewhere. This is not what we would consider to be a customary home occupation. … There are regulations about how much you’re supposed to have, how it’s detained, how it’s disposed of.”

There probably are regulations about keeping and disposing of chemicals -- there are rules about almost everything these days. But Ms. Wilderman cites not a single violation other than petty zoning infractions, and Mr. Deeb has been charged with no crime. If Ms. Wilderman is somewhat unfamiliar with the regulations, she might want to consult Mr. Deeb, who has patents pending and is likely more familar with the applicable rules for keeping and disposing of chemicals than are the city's employees.

For now, Mr. Deeb is reportedly happy to be able to return home, after being forced from his dwelling for three days while the authorities trucked off his laboratory equipment and supplies for disposal -- presumably without compensation. Actually, the disposal process might pose a real risk, since Mr. Deeb has proven himself capable of handling the chemicals without mishap while the authorites are an unknown quantity. Fortunately, there was nothing especially hazardous among supplies to excite concern.

None of the materials found at 81 Fremont St. posed a radiological or biological risk, according to the state Department of Environmental Protection. No mercury or poison was found. Some of the compounds are potentially explosive, but no more dangerous than typical household cleaning products.

"No more dangerous than typical household cleaning products"? Uh huh. And no citations for regulatory infractions. So Ms. Wilderman and company are protecting the people from nonexistent risks by enforcing rules that may or may not have been violated, if officials can ever figure them out.

Yeah. Somebody "crossed a line somewhere," but it wasn't Mr. Deeb.


Tuesday, August 12, 2008

Cop finally taken to task for killing a dog

Yes, it's true. After all too many stories about police officers who almost seemed to relish killing canines -- like the two pooches gunned down at the home of Berwyn Heights, Maryland, Mayor Cheye Calvo -- Chandler, Arizona, police Sergeant Tom Lovejoy goes to trial for killing a dog.

Don't get too excited, though. Lovejoy is in hot water for killing a police dog. He left the 5-year-old Belgian Malinois in the back of his car for 13 hours on Aug. 11, 2007. Temperatures outside hit an average high of about 103 at that time of year, so the dog never had a chance inside a sheet-metal oven.

It's nice to see prosecutors take a serious view of the death of a dog at the hands of a police officer. It'd be nicer if that concern extended to dogs in private hands.

As for mishaps -- lethal and nearly so -- aimed at mere people ... Well, I'm not holding my breath.


Muzzle rules for GOP convention under fire

Protesters planning a presence at the Republican National Convention in St. Paul, Minnesota, are hoping to do what their counterparts at the Democratic Convention have been unable to accomplish: carve out a little more breathing room for free speech than current "security" regulations currently allow.

It's an uphill battle. Judge Joan N. Ericksen, of the United States District Court, has already ruled against (PDF) a challenge to parade rules on the grounds that they "were content neutral, were narrowly tailored to serve significant government interests, and left open ample alternatives for communication of the Coalition’s message." The language is almost identical to that used by Judge Marcia S. Krieger to turn back a lawsuit against Denver's protest rules, demonstrating that the courts are invoking near-boilerplate when it comes to choking off exercises of free speech that might offend the tender sensibilities of officials of the two major political parties.

The latest two legal challenges are brought independently by the American Civil Liberties Union and the National Lawyers Guild. Among the plaintiffs represented by the ACLU is former FBI whistleblower Coleen Rowley, who made waves with a 13-page memo pointing out how the feds dropped the ball on 9/11. The ACLU also represents Impeach for Peace, an organization whose cause is fairly self-evident.

Plaintiffs in the other suit include the Welfare Rights Committee, Twin Cities Peace Campaign and the Coalition to March on the RNC and Stop the War.

The ACLU and the NLG both have a track record of pushing for greater scope for free speech in an era when "security" is often invoked to trump traditional protections for individual rights. Last year, the NLG published a report (PDF) charging that the federal government is deliberately marginalizing political protesters, even going so far as to paint them as terrorists and subject them to the same surveillance and infiltration as would-be bombers. That jibes all too well with what mainstream news organization have found. In 2006, U.S. News reported that it had "identified nearly a dozen cases in which city and county police, in the name of homeland security, have surveilled or harassed animal-rights and antiwar protesters, union activists, and even library patrons surfing the Web." The "intelligence" activity seems to be fueled by a copious flow of federal funds intended to encourage just such measures.

As with the Denver challenge, the litigants want to take their protests beyond a designated, fenced area where free speech will be allowed as if it were a museum exhibit. They also complain that "free" speech will be managed under rules known only to the police, and violated at the peril of the protesters. The latest challenges are a bit different, however, in that they're brought in state court under the Minnesota Constitution. State constitutions are sometimes interpreted to provide greater protection for individual rights than the federal document, so plaintiffs hold out hope for a better outcome than they've achieved at the federal level.

Unfortunately, the state court will be rendering its decision in the same environment as the federal courts -- one rife with deference to authority and nearly hysterical concerns about security.

Which is to say: Don't hold your breath waiting for the protest restrictions to be loosened at national political conventions.

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Monday, August 11, 2008

Regulating ourselves out of prosperity

It's true that economies naturally go through periods of growth and retrenchment, good times and bad. That said, it's not wise to add dead weight to even a thriving economy, let alone one that's struggling to stay out of recession.

Last week, in Investor's Business Daily, Wayne Crews and Ryan Young wrote:

While the Dow collapses, we have a bull market in government regulations. The 50-plus departments, agencies and commissions are now at work on 3,882 rules; 757 will affect small businesses. More than 51,000 final rules were issued from 1995 to 2007. Those regulations are not free.

Enforcing and overseeing them costs $42 billion per year. A far bigger cost — one that is not counted in the budget — is compliance. Regulatory compliance costs of $1.16 trillion are now higher than Canada's entire 2004 GDP ($1.017 trillion).

At a time of lackluster 1% economic growth, the regulatory state costs 8.5% of U.S. GDP. Combined with the 21% of GDP consumed by federal spending, we have a federal government that absorbs nearly 30% of economic output. None of this includes state and local government, which push the burden of government up to 53.9% of GDP.
So the government is sucking up better than half of economic output, even as it's doing it's best to kill the ailing creature from which it's feeding.

But that regulatory apparatus hobbles only nasty big corporations, right? We shouldn't mind a weakened economy if it means reining-in ExxonMobil.

Well, even if you're a hater of any business too large to fit in your living room, there's no comfort to be found here. Just three years ago, a report (PDF) prepared for the Small Business Administration found:
The research finds that the cost of federal regulations totals $1.1 trillion; the cost per employee for firms with fewer than 20 employees is $7,647. ... On a per employee basis, it costs about $2,400, or 45 percent, more for small firms to comply than their larger counterparts.
An average regulatory cost of $5,633 per employee is staggering for any business; that the cost is 45% higher for vulnerable small businesses that employ about half of all Americans (PDF), generate most new jobs and innovate at a level well beyond their weight class is frightening. That means that regulatory costs aren't just high, they're also threatening to act as a barrier to entry for new businesses that represent the country's economic future.

Crews and Young are right to add, "We need to roll back the regulatory state and free up the wealth-creating sector. We cannot afford today's bull market in government regulations."


Just who is enforcing that Arkansas curfew?

Helena curfew map
Much is being made of a virtual declaration of martial law in a small town in Arkansas -- and of the ACLU's predictable, and commendable, objection to the same. Largely unnoticed, though, is the troubling fact that the "state of emergency" may create an opportunity for local criminals.

Invoking an ordinance relating to civil emergencies in response to a surge of violent crime in parts of the town, Mayor James Valley of Helena-West Helena, Arkansas, imposed an all-day curfew, with "[n]o loitering, standing or 'hanging-out'” permitted.

Less well-covered is the fact that the text of the order, available at Mayor Valley's blog, also allows for forcible evictions of people from homes where crimes have been reported.

The Code Enforcement Department has been directed to pursue Nuisance Abatement (Evictions) for those persons residing in homes, in the affected areas, where at least three (3) criminal violations have occurred within the most recent time period allowed to be considered by law.

People aren't just being driven from the streets -- they're also being tossed from their dwellings as local officials suspend fundamental rights in the name of law and order.

Local police are responsible for enforcing the curfew, of course. The Associated Press reported, "Thursday night, 18 to 20 police officers carrying M-16 rifles, shotguns and night-vision scopes patrolled the "curfew zone." They arrested about eight people and confiscated drugs and loaded weapons."

That's disturbing news all by itself. The cops have been given carte blanche to run roughshod over an already troubled neighborhood -- even angels would have difficulty wielding such power without trampling people's rights, and police are people, not angels.

But there's reason to wonder if some of the uniformed enforcers wandering the streets of that unfortunate community are actually opportunists. Just last month, The Daily World, the local newspaper, warned that uniforms had been stolen during a break-in at an officer's home.

“Unless you know who the person is it is a good idea to find out who’s outside before opening your door to just anyone,” said Col. Fred Fielder of the Helena-West Helena Police Department.

A state of emergency that empowers police is quite an opportunity for anybody nervy enough to simply pretend to be a police officer. It's bad enough to open your door to a government official who wants to force you from your home. It's worse to open your door and discover that those officials you have good reason to fear have simply handed a weapon to the freelance thugs.

Thursday, August 7, 2008

Tagged and tracked at the toll booth

Are you one of those folks who loves the convenience of zipping through the toll plaza with one of those electronic toll-paying systems like FasTrak or E-ZPass?

Then the folks at CNet have a little warning for you. That little convenience may provide a direct line to your bank account or your whereabouts on any given day. Since the electronic toll devices use Radio Frequency Identification (RFID) technology to broadcast information about your account, crooks with the propert technology can steal your information just as easily as the toll booth can receive it.

Strangers with the right transponder reader walking through a parking lot can steal the ID number off the transponders that are visible through the windshield, put the data on their devices and pass through bridge and other tolls for free, with the victim paying the bill, according to Nate Lawson, principal of security consultancy Root Labs.

In fact, your information can be implanted into somebody else's transponder, so that drawing from your bank account is as easy as driving around.

Even above-board uses offer a real danger. With your account linked to the toll-paying transponder, you leave an electronic record of your whereabouts every time you pass a toll plaza. That record can be accessed with a court order, making your movements an open book to your ex-spouse, a disgruntled plaintiff or the government.

As early as 2001, the San Francisco Chronicle reported:

Attorneys recently subpoenaed FasTrak information to identify a car involved in a hit-and-run accident on the Carquinez Bridge in Vallejo for a civil court case. In New York, detectives routinely peruse electronic toll data to track down suspects. And a Pennsylvania programmer recently stumbled across a security flaw that let him browse through thousands of records for a FasTrak-like system in the Northeast, letting him view names, addresses, account numbers and detailed logs noting every time a car breezed through a toll booth.

Nothing had changed by last year when the Oakland Tribune found that, "[A]s the number of cash-free bridge commuters rises, so do the ranks of divorce lawyers and other civil attorneys who have subpoenaed, and received, personal driving records from the agency that oversees the regional e-toll system."

Likewise, CBS reported at almost the same time that "E-ZPass and other electronic toll collection systems are emerging as a powerful means of proving infidelity. That's because when your spouse doesn't know where you've been, E-ZPass does." Only four of the twelve state participating in the East Coast's E-ZPass system restrict the release of records to criminal cases.

Of course, if you do get hauled into court, you might try arguing that wasn't you at the no-tell motel -- it was somebody who hacked your electronic toll account.

Do you find that reassuring?


'Justice' in the Hamdan case

Whatever the justice of the verdict in the case against Osama bin Laden driver Salim Ahmed Hamdan -- and the split decision seems at least defensible -- the process by which that verdict was reached was fundamentally flawed. It's impossible to place much faith in the result of a legal proceeding which stacked the deck in favor of the prosecution, violated fundamental American rules of due process, and in which the outcome was essentially preordained.

One problem is that the sentence came first, with the trial to follow. Early on, the Bush administration labeled Hamdan an "enemy combatant" and ordered him held indefinitely.

So even a total acquittal would have been nothing more than a conversational topic for Hamdan to toss around during the course of an arbitrary sentence that could extend for the duration of his life.

There's also the problem of an impartial proceeding -- the lack thereof, that is. As the ACLU pointed out in its brief (PDF) challenging the military commission that presided in Hamdan's case, "the very same entity that chooses the judge and jury possesses, as the charging prosecutor, a vested interest in the result."

Military commission rules also allow the use of information extracted by coercive means. As the ACLU says, "the commissions have been set up to allow the same people who extract information from detainees through torture to use this evidence to adjudicate the guilt or innocence of the defendant."

That's not just an abstract objection to raise in Hamdan's case. The Los Angeles Times points out:

Hamdan's defense was encumbered by "protective orders" that prohibited even the mention of the CIA or its handling of Hamdan during a month in late 2001 when the defendant disappeared into "a black hole" in Afghanistan, said the tribunal's deputy defense chief, Michael J. Berrigan. He called the two-week trial an "obscenity."

What happened during that missing month? I guess we'll have to use our imaginations.

The U.S. Supreme Court nominally ruled against the military commissions in 2006, finding that they lacked congressional authorization. Congress quickly gave the president the authority to get the process back underway, little changed.

It's not just touchy-feely civil libertarians and defense attorneys who have problems with the proceedings. Col. Morris D. Davis, the former chief prosecutor at Guantánamo Bay, and a man who has described sympathy for detainees as "nauseating," resigned his post in protest of political interference with the legal process. He testified for the defense in the Hamdan case.

The loaded commission apparently remained unmoved by Davis's testimony as to its flaws.

The "trial" went forward. And we'll likely see more such proceedings in the years to come.


Wednesday, August 6, 2008

Government may be the worst threat to privacy

In a recent post on airport security over at the Civil Liberties Examiner site, I mentioned that the Transportation Security Administration recently announced the loss of an unencrypted laptop computer containing pre-enrollment records for approximately 33,000 people, intended for use in the Clear registered traveler program.

I wish I could say that was an isolated incident, or the sort of bumbling confined to a single government program, but it's not. In fact, a report in the latest issue of Consumer Reports finds that "government is among the biggest sources of ID leaks and that penalties are rarely imposed on those who are negligent."

The magazine reports that, just from 2005 to mid-June of this year, 44 million consumer records containing sensitive personal information were lost or exposed by government missteps.

The worst offender appears to be the Department of Veteran Affairs, which leaked 28 million records. The state of Ohio exposed 1.3 million records. Other guilty agencies include the IRS -- and the TSA, which, prior to the recent privacy fiasco, had already lost 100,000 records including sensitive information.

Government missteps include posting information, like Social Security numbers, in public records that are easily available to identity thieves. In fact, a November 2004 GAO report said (PDF):

[A]gencies in 41 states and the District of Columbia reported that SSNs are accessible in at least some of the public records they hold and a few reported this to be the case for as many as 10 or more different records. Additionally, we estimate that more than three-quarters of U.S. counties hold at least one type of record that displays SSNs, which has implications for the 94 percent of the U.S. population that we estimate live in those counties.

Those Social Security numbers may be just a mouse click away, since the GAO reported that "records with SSNs are accessible on the Internet in 15 to 28 percent of U.S. counties. We estimate that 34 to 48 percent of the population lives in these counties."

Often, government agencies seem adept at storing extraordinarily sensitive information on unsecured computers and backup devices, which are then misplaced or stolen. Consumer Reports notes that the 1.3 million records lost by Ohio were stored on a backup device which was taken from the home of a college intern.

A simple Web search found the following news stories, in no particular order, about the loss of government laptop computers containing personal data:

That's only a sample, of course, and doesn't begin to address other forms of data loss.

Government ineptitude with data security may become an increasing problem, now that Homeland Security, with the courts' blessing, has ruled that border agents may seize and search electronic devices without cause. Jeff Vining, writing for Gartner Group, warns that a seized storage device may pass through the hands of any number of agents, working for a variety of agencies. "The only legal limitations to this scenario are to avoid causing exceptional damage to the laptop's hard drive and to conduct the search and investigation in an inoffensive manner. This means that digital information can be downloaded by government agents, never returned or destroyed."

We already know what the government does with its own data; anybody care to bet that it will take better care of information stored on privately owned laptops and flash drives?

And then there's E-Verify, the great hope of border-defenders across the United States. Intended to confirm job-seekers' eligibility to be emplyed in this country, the system necessarily holds an enormous amount of data on Americans -- with more planned. The GAO reports (PDF) that "USCIS and the Department of State have begun exploring ways to include visa and U.S. passport documents in the tool, but these agencies have not yet reached agreement regarding the use of these documents. ...USCIS is negotiating with state motor vehicle associations to incorporate driver’s license photographs into E-Verify, and is seeking state motor vehicle agencies that are willing to participate in an image-sharing pilot program."

Who has access to that treasure trove of data in E-Verify? The GAO reveals that a 2007 review conducted by Westat found "anyone wanting access to the system could pose as an employer and obtain access by signing a MOU with the E-Verify program. USCIS officials told us that taking actions to ensure that employers are legitimate when they register for E-Verify is a long term goal for the program. However, according to USCIS officials, implementing such controls to verify employer authenticity may require access to information from other agencies, such as Internal Revenue Service-issued employer identification numbers..."

It's common to point to malicious actions on the part of government officials when warning of the dangers of state power. Equally dangerous, though, may be the banal incompetence and lack of concern government officials often display in handling the affairs of the people for whom they supposedly work.

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Tuesday, August 5, 2008

Phoenix has better things to worry about than prostitution

2004: 238
2005: 238
2006: 253
2007: 244

Sexual Assaults
2004: 824
2005: 824
2006: 796
2007: 772

Violent Crime Total
2004: 10,504
2005: 10,783
2006: 11,240
2007: 11,127

Phoenix, Arizona, is a growing city with big-city crime problems. These problems aren't out of control; homicides have been relatively steady in recent years, sexual assaults are down a tad, and overall, violent crimes have risen just a bit -- that's not too bad for a city growing as quickly as this one is. But there are real problems in Phoenix that could occupy police time and energy without the need for additional distractions to keep them from becoming bored.

So why are the cops bothering to devote resources to chasing after a business that engages in consensual sexual activity -- namely, prostitution and Internet adult entertainment?

Reports ABC 15:

Investigators said Nichta's organization was providing prostitutes through several websites with titles such as “Desert Divas”, “Az Confidential”, “Hips Tours”, and “Escorts in Action”.

More than 100 people, mostly prostitutes, are believed to be involved in the ring.

The organization filmed pornographic acts with the prostitutes, according to the investigators, and made them available for viewing through the Internet to hundreds of customers, or “johns”, who ordered the service through their various websites.

Charges so far in the case are: conspiracy to control an illegal enterprise, illegal control of an enterprise, money laundering, operating a house of prostitution, employee at a house of prostitution, pandering, receiving the earnings of a prostitute, use of a wire or electronic communication, and prostitution. Not only do none of the charges refer to acts of violence, as far as I can tell, none of them involve doing anything that I would consider wrong.

I say that because there are no rights violations involved in prostitution as such. It's simply the exchange of sexual services for money. You say that some prostitutes are held against their will? No doubt -- but that's a function of the industry operating underground, beyond the reach of open scrutiny and legal protections. Illegality is the culprit there, not the simple act of exchanging money for sex.

In fact, Barbara Brents and Kate Hausbeck of the University of Nevada, Las Vegas, have studied legalized prostitution in Nevada and concluded that legalization reduces interpersonal violence against prostitutes, violence against community order, and the incidence of sexually transmitted diseases. The researchers also emphasize the overwhelmingly consensual nature of the business: many sex workers choose that trade and don't need to be saved -- certainly not by the heavy hand of criminal prosecution.

With Phoenix's violent crime rates stagnant over the past few years, leaving prostitution alone -- or, better yet, legalizing it -- would seem to be an excellent way of getting crime statistics moving in the right direction.


Monday, August 4, 2008

Sorry we shot your dogs ...

Police in Prince George's County, Maryland, are conceding that, just maybe, last week's violent raid on the home of Berwyn Heights Mayor Cheye Calvo, during which officers killed two dogs, was a mistake.

Police raided Calvo's home after he took delivery of a package containing 30 pounds of marijuana.

The package was addressed to Trinity Tomsic, Calvo's wife. But law enforcement sources said last week that they are now investigating the possibility that the mayor and his wife were unwitting recipients and that a deliveryman might have intended to intercept the package as part of a drug smuggling scheme.

The package landed on Calvo's doorstep after police posing as deliverymen brought it to the door and Calvo's mother-in-law asked that it be left on the porch. Police recovered the unopened package from the home Tuesday night but made no arrests. Calvo has said he was interrogated for hours while handcuffed and surrounded by the bloody bodies of his dogs.

OK, let's back up here. Police burst into Calvo's home with guns blazing because ... he took delivery of an officially disfavored intoxicant. There was no hint of violence, no hostages or threats -- just a lot of wacky weed.

So why the "Raid on Entebbe" tactics?

The fact is, the results could have been a lot worse. I'm not trying to minimize the slaughter of the dogs here -- I'm a dog owner myself, and I'd be driven into a murderous rage were anybody to gun the furry beasts down. But if animals died, people could have died too -- they often do in these violent drug raids. Just today, a Lima, Ohio, police sergeant was acquitted of criminal charges stemming from his killing of an unarmed woman and shooting her one-year-old son during a botched drug raid. Cory Maye is currently serving life in prison for killing a housebreaker who turned out to be a raiding police officer acting on bad information.

Violent police raids are dangerous. But marijuana, in and of itself, is not. Even if Calvo was the intended and willing recipient of that package, there's no excuse for enforcing the laws against marijuana by knocking his doors in and shooting his dogs.

As of now, the definitive study of violent, militarized policing in this country is Overkill: The Rise of Paramilitary Police Raids in America (PDF) by Radley Balko, formerly of the Cato Institute, and now of Reason magazine. The study is accompanied by an online map detailing some of the raids researchers have looked into, and their results, including the deaths of innocent people, deaths of police officers, deaths of nonviolent offenders and raids on innocent suspects. (Dogs, sorry to say, are not included).

As of 2006, Balko estimated that as many as 40,000 violent raids of the sort suffered by Calvo and his family take place every year in this country, although not all of them end in blood and tragedy.

I wish Cheye Calvo the best. But I also wish as much attention were paid to the regular people -- non-politicians -- who are usually on the receiving end of these raids.

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'Saving' borrowers from payday loans

Right about now, Arizonans are receiving mailings urging them to vote "yes" on Prop. 16, the Payday Loan Reform Act (PDF). All ballot propositions are sponsored by somebody, and this one is backed by Arizonans for Financial Reform, a group the Arizona Republic reports "has received nearly $2 million in contributions from payday lenders." It's a payday-loan industry group backing a "reform" bill that would impose regulations on the industry and -- oh yeah -- incidentally repeal a state measure that would essentially abolish the industry in 2010.

So that has critics screaming that Arizonans for Financial Reform is an astroturf group defending its evil, exploitative, industry through the appearance of a reform measure -- which it is, except for the "evil, exploitative" part.

If you don't know, a payday loan is a short-term loan people take out, borrowing against their next paycheck at a fee that works out to a very high rate of interest. Not surprisingly, it's the sort of loan people with limited financial alternatives take out -- stereotypically (though not always accurately), the working poor. That makes lenders open to vilification for preying on the needy.

Except that nobody makes people take these loans; they choose to do so, and for a reason. In fact, as Reason magazine reported six years ago, there has always been a market for short-term loans for people who see value in giving up a little money in a few weeks for cash right now.

Today's thriving industry of payday lending looks a lot like the "salary lenders," later renamed "salary buyers," that thrived in the late 19th and early 20th centuries. "In current dollars, they would buy $650 worth of salary by writing a check for $500," says Lendol Calder, a professor of history at Augustana College and author of the 1999 book Financing the American Dream: A Cultural History of Consumer Credit.

These days, if a person wants to borrow $200 on the first of the month, he'll write a check for $234 dated the 15th. When the 15th rolls around, either he pays off the loan in cash or the lender cashes the check. If he can't afford to pay off the entire amount, the lender will roll over the loan for an additional fee.

One hundred years ago, the leading critic of "salary loan lending" called such people "sharks, leeches and remorseless extortioners." Today's consumer advocates call payday lenders "predatory" and "legal loan sharks."

Are borrowers right to seek these loans? Well, you either leave the choice to them, or you substitute the judgment of legislators, do-gooders and government officials who have no idea of the specific needs of the people patronizing payday lenders.

It's not as if the alternatives are so much more reasonable. Bank overdraft fees are now drawing the wrath of the same folks (PDF) who vilify payday lenders. And Tom Lehman, a professor of economics at Indiana Wesleyan University, says bounced-check fees can actually be significantly higher than the fees charged by payday lenders.

Not surprisingly, given that people have long sought out payday lenders and their predecessors, "protecting" people from short-term loans can have serious consequences. In research (PDF) done for the Federal Reserve Bank of New York, Donald P. Morgan and Michael R. Strain found:

Compared with households in states where payday lending is permitted, households in Georgia have bounced more checks, complained more to the Federal Trade Commission about lenders and debt collectors, and filed for Chapter 7 bankruptcy protection at a higher rate. North Carolina households have fared about the same. This negative correlation—reduced payday credit supply, increased credit problems—contradicts the debt trap critique of payday lending, but is consistent with the hypothesis that payday credit is preferable to substitutes such as the bounced-check “protection” sold by credit unions and banks or loans from pawnshops.

Is your blood pressure rising? Are you thinking that, perhaps, all short-term loans are nothing more than legalized loan-sharking that should be abolished for the good of would-be borrowers, whether or not those borrowers appreciate the gesture?

Then let me point out that the logical, final alternative to legalized loan-sharking is illegal loan-sharking, with all that implies. If you think a triple-digit rate of interest is harsh, consider that real loan sharks are known for inflicting broken bones and occasional fatalities on deadbeats.

Franchised payday lenders, no matter how much you hate them, don't do that.

So, it's our choice. We can either leave people free to borrow money at rates of interest that make us shudder, or, to give ourselves warm-and-fuzzy feelings, we can outlaw the practice, hurt some people financially, and drive others to borrow money at rates of interest that make us shudder -- from criminals.

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My new civil liberties site

As of this past Friday, I'm the civil liberties examiner (blogger) for, an online news operation owned by Clarity Media Group, the company behind the San Francisco Examiner, the Baltimore Examiner and the Washington Examiner. The site is still getting up and running, but I've begun to post, to select RSS feeds and to assemble lists of helpful links related to civil liberties issues.

Some few of my readers may remember that, from 1996 to 2003, I ran's civil liberties site, so there's an element of deja vu to my new gig. As should be obvious from the contents of the Disloyal Opposition blog, civil liberties are a passion of mine, along with freedom in general.

Since there's overlap in subject matter, I'll be cross-posting some items on both Disloyal Opposition and the civil liberties site. Other material will appear on only one or the other, as seems appropriate. So be sure to read both sites. Better yet, get your friends and family to read both sites.

It's been a wild few years for civil liberties issues. I don't expect matters to settle down anytime soon.

Check out: Civil Liberties Examiner.


Friday, August 1, 2008

Confound journalists; deviate from the script

Reason's Kerry Howley offers an interesting insight onto the workings of the press by way of a panel discussion on donating ova for cash.

The panel discussion is just the set-up (although it deals with an interesting subject). The payoff is that, because Howley steadfastly refuses to regret or be traumatized by her experience, journalists find her useless.
I spent my allotted time explaining that my emotional response does not seem to conform to the acceptable cultural script. Reporters call and ask “How painful was it?” and “Do you regret it now?” It wasn’t painful, I reply, I’m quite happy to have had the experience. Awkward silence. They ask whether I know someone else they can talk to. I’m never quoted.

The reason, of course, is that many journalists have already written their stories about contentious subjects before they save the first word to a file; they're only looking for pithy quotes to fill in the blanks. Quotes that don't fit in those blanks, and tidbits that contradict the theses of the pre-written stories, are discarded.

When journalists do react to Howley -- or, more to the point, when Huffington Post writer, Melissa Lafsky, reacts to the participants in the above-mentioned panel, it's with a howl of rage that they deviated from the approved script.

But when it came to the messy internal aspects -- whether or not it felt exploitative to sell a piece of their genetic material, whether or not it was humiliating, frightening, or painful to manipulate their bodies with constant drugs and surgeries, whether or not it bothered them to produce genetic offspring that they'd never know or raise -- there was nary a word. ...

[I]t sure would have been comforting if at least one of these brilliant, self-possessed women had admitted, "Yeah, I've been conflicted. I've had strong feelings, and sometimes I wonder if I did the right thing. But I chose it, and that was my choice, so if I burst into tears at the memory of the pain, or the thought that my child could be walking around the world never knowing me, well, I deal with it. And I find a way to laugh."

Howley does a better take-down of Lafsky's presumption than I ever could, and that's not the point of my post. Let me just add that I think a key part of the maturation process is coming to understand that other people are independent creatures who experience life in ways that we don't, and who have different feelings, values and reactions. Some people just never make it to that point of development.

Lafsky's reaction is one of the more self-unaware examples of predetermined outcomes that I've seen one the part of a journalist. Note that one of the tags on her post about women's reactions to egg donation is "Rape." Having already determined that this particular medical procedure is a physical and spiritual violation, she sets out like a legislative whip to browbeat strays into line. The "right" position is the party position, so let's not hear any dissent.

Bus if bias plays a part in the process of tailoring data to fit pre-written stories, so, I suspect, does laziness. It's much easier to rewrite the same received wisdom over and over again than to approach a subject from a new direction. That's especially true if you're just plodding through your day at a media job and don't especially relish the thought of the Melissa Lafskys of the world descending on you like a visitation from the Inquisition for some heretical thought.

Unless you're especially motivated, it's easier, by far, to erase nonconforming interview notes and go looking for subjects who better fit the script.