Hail Caesar ... err ... the President

Whether you call it Washington's Birthday (the official federal holiday) or Presidents Day (the common name and a holiday recognized in many states), the third Monday in February is set aside to honor the person in whom the executive power of the United States federal government is vested. That's reason enough to be leery of the day, offset just a bit by the happy fact that many Americans are spared a day of school or work as part of the celebration (not to mention the sales!). I say "leery" not just because of the particular individual who holds the office -- however disappointing the guy may be, he's hardly the worst of the bunch -- but because the office itself is so suspect, bloated with more power and expectation than any individual can handle, and any free society can survive.

Jimmy Breslin might have put it best when he said, "The office of president is a bastardized thing, half royalty and half democracy, that nobody knows whether to genuflect or spit."

Half of us might be willing to spit at any given moment, but usually only when the other side's guy has power. The rest of the time, we're busy genuflecting and larding the presidency with vast power to ... well ... wage wars unilaterally, hold enemy combatants terrorism suspects without trial or charges -- and subject them to torture, seize control of private companies, engage in domestic espionage...

And, while he's doing all this, the president is also supposed to act as an example for our children, spokesman to the world, spiritual leader and national recruiter for international sporting events.
As Gene Healy, author of The Cult of the Presidency, put it:

The chief executive of the United States is no longer a mere constitutional officer charged with faithful execution of the laws. He is a soul nourisher, a hope giver, a living American talisman against hurricanes, terrorism, economic downturns, and spiritual malaise. He--or she--is the one who answers the phone at 3 a.m. to keep our children safe from harm. The modern president is America’s shrink, a social worker, our very own national talk show host. He’s also the Supreme Warlord of the Earth.

This is insanity, of course. Only a thoroughgoing egomaniac could even want such an impossible job. Which may be why we get the presidents we've been getting.

It wasn't supposed to be this way. The Constitution mentions the presidency only after describing the powers and structure of Congress. While urging the adoption of that document, James Madison assured Americans in Federalist Number 48, " the executive magistracy is carefully limited; both in the extent and the duration of its power." Presidents before Woodrow Wilson didn't even dare deliver the State of the Union address to Congress in person, fearing that was a bit too monarchical.

The presidency didn't assume its current, monstrous, proportions through a coup. It gained greater power and prestige, slowly at first, and then rapidly through the twentieth century. Frankly, many Americans seem to like it that way, preferring a king to a president when all is said and done.

Maybe, deep down, most humans like doffing their caps and quaking in the presence of a mighty chieftain. Hiring and firing temporary administrators just isn't sufficiently majestic.

So enjoy your Presidents Day/Washington's Birthday. Just don't get carried away with the celebration.

Who is a terrorist? Whoever we need to be a terrorist

Who is a terrorist? Just as important: How do we differentiate terrorists from freedom-fighters, mere criminals, outspoken political dissidents and soldiers, and keep the "war against terror" from poisoning everyday life? A recent report from a watchdog group suggests that federal agencies can't agree on just what defines a terrorist -- and that their confusion endangers civil liberties.

In Who is a Terrorist?, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University reports that, looking back over the last five-and-a-half years, "a comparison of all of the terrorism cases listed by three separate and independent agencies — the courts, the prosecutors and the [National Security Division (NSD) — an office in the Justice Department] — found that there were only 4% of the defendants in common."

The problem is that these different agencies use the words "terrorist" and "terrorism" to mean different things, so that overlap between their various lists can sometimes seem purely accidental. As a result, one-third of defendants who were charged in federal court for specific terrorism offenses were not categorized as having any connection to terrorism by prosecutors. Just as troubling, more than a quarter of people listed as terrorism defendants by the NSD were not ultimately classified as having anything to do with terrorism by the prosecutors in their cases.

Ultimately, federal prosecutors refuse to pursue two-thirds of the terrorism cases referred to them by investigative agencies. The minimal overlap between lists of terrorists, refusal of prosecutors to label defendants as terrorists and rejection by prosecutors of supposed terrorism cases suggests that large numbers of people are being improperly labeled as terrorists or potential terrorists at a time when federal officials can't even agree what it means to be a terrorist or to commit terrorism. People so labeled are subject to special scrutiny, restrictions on travel, and other impositions that are troubling in themselves when applied to people convicted of no crime, and are even worse when the arbitrary nature of such labeling is revealed.

As TRAC points out:

[W]hile the treatment of the comparatively small number of terrorism detainees held in Guantanamo has for many months been the central focus of an intense political debate between President Obama, former Vice President Dick Cheney, members of Congress, civil liberties organizations and others, the subject of the government's poorly focused and often inept handling of the far larger number of individuals drawn into the traditional criminal process or improperly listed on the government's watch list has received comparatively little attention.

In fact, the prosecution of "terrorism" cases with no connections to actual terrorists may be no accident. As TRAC reveals, U.S. attorneys were issued a directive just last year saying that federal terrorism cases "may have, but are not required to have, identifiable links to terrorist activity." NSD lists of suspected terrorists include people charged with fraud, drug offenses and violations of immigration statutes. These names make up 43% of the total.

Of course, anti-terrorism resources expended to track and prosecute non-terrorists are resources that aren't available for use against the real thing. The government's refusal to settle on a firm definition of what constitutes a terrorist may put us in danger from both the authorities and from the real terrorists.

Politicians may hate us, but we should trust them anyway

Deputies of Arizona's Maricopa County Sheriff's Office are being, rightfully, lambasted, for confiscating a journalist's camera even as they tell him, "We're not on the same level, here. I'm up here, you're down here." But there's more to that dismissive comment than the arrogance of one cop or one agency; there's an insight into general government attitudes toward the public. Officials entrusted with the power of the state often develop open contempt for the people they coerce -- which raises big questions about the wisdom of giving them an even bigger say in our lives.

There's an awful lot of quasi-theological nonsense in circulation these days about how "we are the government." The premise seems to be that, because the country was set up by founders invoking nice words about "we the people," and we get to cast votes from time to time, the governing apparatus that exists today is a sort of direct expression of the will of the population.

Does the population even have a single will? Well, never mind.

But, if the people are the government, officeholders seem to miss that point -- frequently.

It's a moment of truth when a police officer admits his disdain for the public in a recording he mistakenly believes is about to be destroyed. But what does it mean when elected officials voice their contempt in front of a room full of people -- or reporters?

Indiana's Rep. Baron Hill currently faces a wave of criticism over his answer to a question about why he'd forbidden recording a town hall meeting with members of the public.

"This my my town hall meeting for you. And you're not going to tell me how to run my congressional office. Now the reason why I don't allow filming is because usually the films that are done end up on YouTube in a compromising position."

Fortunately, Hill's refusal to be recorded was secretly videotaped -- and posted to YouTube.

Sometimes, officials of sufficient power don't care who is listening. Last December, Senate Majority Leader Harry Reid raised a fuss with his off-the-cuff comment in front of journalists that the new Capitol Visitors Center will make visits by constituents a little less offensive.

"In the summertime, because of the high humidity and how hot it gets here, you could literally smell the tourists coming into the Capitol."

And just as often, government officials don't want to do any listening themselves. Under former President George W. Bush, people critical of the government were shuffled off into "designated free-speech zones" out of sight or hearing of the president. According to the American Civil Liberties Union, which sued over the practice:

[P]eople expressing views critical of the government were moved further away from public officials while those with pro-government views were allowed to remain closer; or everyone expressing a view was herded into what is commonly known as a ""protest zone,"" leaving those who merely observe, but express no view, to remain closer.

In 2003, the Department of Homeland Security warned law-enforcement agencies to look out for anybody who "expressed dislike of attitudes and decisions of the U.S. government."

That's not a far cry from House Speaker Nancy Pelosi's recent complaint that critics of the current administration are "un-American."

Let's face it. Government officials high and low alternately fear and despise the people over whom they rule (and supposedly serve). They'd much prefer that we let them get about the business of setting the laws and regulations by which we have to live, without raising any peeps of protest about the details -- or straying too near their exalted selves.

They want to rule without excessive interaction with the ruled.

We can discuss all day why people with such attitudes rise to positions of political and legal authority -- there's a PhD thesis or three in there. But the fact is that people who look down on the public demonstrably occupy positions of great power.

So, given what we know about government officials' attitudes toward us, why would we even consider allowing them to expand their reach into our lives? Do we really want people who hold us in contempt to legislate our morality? To control how and when we receive medical care? To monitor our communications? Regulate our businesses?

Could it be that allowing them the extensive say they already have in the conduct of everyday life has helped to create the contempt in which government officials hold the public? After all, a shepherd may tend a flock of sheep, but he's unlikely to hold the creatures in great respect -- respect he saves for the independent creatures prowling beyond his control.

Maybe I'm wrong. Maybe powerful officials who despise us really can be trusted with even greater authority over our lives. You go first and tell us how it works out.

But, for now, it's worth considering the idea that people who think they're "up here" and we're "down here" already have too much power.

Hey, Mr. President, leave those kids alone

President Reagan spoke to school children when he was in office over two decades ago; so did President Bush the first. Sadly, there's little doubt that many (but not all) of the people screaming about President Barack Obama's nationally broadcast classroom snooze-inducer had, or would have had, no problem with the speeches given by Republican office-holders in educational settings. But beyond partisanship, there's good reason to object to today's presidential eat-your-veggies nag-fest. Frankly, mere government officials have no business bypassing parents and speaking directly to children.

There's something unseemly about the idea of politicians in general eating up valuable school time for a one-on-one with kids. Most of us seem to know that it's wrong to let a city councilman or a state legislator pretend to have any moral high ground on which to stand while addressing tots and teens. "What's that SOB up to?" we ask ourselves. "Is he planning a Senate run ten years out and already stroking future voters?"

But that healthy skepticism seems to evaporate when it comes to whatever ethically challenged work-dodger is currently resident in the White House. For some reason, we've laden the office of the presidency with far more prestige and respect than the founders ever thought appropriate. From an office that George Washington simply described as "chief magistrate," the presidency has mutated into what presidential scholar Gene Healy snarkily refers to as "a soul nourisher, a hope giver, a living American talisman against hurricanes, terrorism, economic downturns, and spiritual malaise."

The presidency has taken on the characteristics of a secular papacy -- an unhealthy quality in a republic where free people are supposed to take responsibility for their own lives.

Remarkably, even after scrubbing the originally worshipful lesson plan (PDF) for President Obama's speech, the Department of Education wants students to ask of themseves, "How will he inspire us?"

Inspire us? He's a politician. At best, we can hope he doesn't put everybody in the classroom into a coma and then steal their iPods.

And all this before we even get to the fact that the Constitution gives the federal government, of which the president is just one part, no authority whatsoever over education. Go ahead and check: war, diplomacy, commerce -- but nothing about education. That's a state, local and family matter. There's no more reason to let President Obama nag children about their futures than there is to hand an hour of classroom time to the head of the plumber's union.

Whether you approve or disapprove of any given president's policies isn't the issue. What's important is that the president is a government official with no authority over schools, and no business speaking directly to kids.

Government is your friend (just keep saying that)

The Tuskegee Syphilis Study, in which federal officials denied proven treatment for syphilis to African-American men just to see how the disease progressed, came to a belated end in 1972, so Ezra Klein, the high-school intern ... err ... young columnist at The Washington Post can perhaps be forgiven for failing to recognize the officially sanctioned 40-year abomination as evidence that we do indeed have a "government capable of madness." But government officials have engaged in other horrors in recent memory, so his astonishment that many Americans distrust the state can only be taken as appalling naivete -- or incredible idiocy.

On August 11, Klein wrote:

What we're seeing here is not merely distrust in the House health-care reform bill. It's distrust in the political system. A healthy relationship does not require an explicit detailing of the "institutional checks" that will prevent one partner from beating or killing the other. In a healthy relationship, such madness is simply unthinkable. If it was not unthinkable, then no number of institutional checks could repair that relationship. Similarly, the relationship between the protesters and the government is not healthy. The protesters believe the government capable of madness. There is no evidence for that claim, which means that there is no answer for it, either. That claim is not about what is in this bill, or what government has done in Medicare and Medicaid and the VA. It is about what a certain slice of Americans think their government -- and by extension, their fellow citizens -- capable of.

Leave aside, for the moment, the wisdom of the various health care proposals rattling around the chambers of Congress at the moment. Can anybody with even a passing knowledge of the past century's history say with a straight face that governments -- very much including the one under which we live -- are not capable of madness?

R.J. Rummel, Professor Emeritus of Political Science, University of Hawaii, has made a rather depressing name for himself by calculating the number of people murdered by governments during the course of the twentieth century. His latest estimate, revised upwards, stands at 262,000,000.

Yes, that mountain of bodies can mostly be blamed on the world's totalitarian governments, with bloody additions tossed in by merely authoritarian political systems. But democracies are capable of madness, too. The American Civil Liberties Union is currently digging through memos written by the late, unlamented Bush administration, which authorized the use of torture against detainees. The Obama administration is still resisting efforts to shine some light on just who is being held under brutal conditions at Bagram, in Afghanistan.

And then there's Tuskegee, which continued for decades under presidents and congresses from both major political parties.

Ezra Klein may ridicule public doubts about the wisdom of allowing the government further control over health care as the equivalent of demanding "what will prevent you from beating your wife?" of elected officials. But the truth of the matter is that government has been an abusive and untrustworthy partner for as long as it has existed. That doesn't mean that everything politicians touch ends in horror and bloodshed, but it's hardly an exercise in paranoia to voice the "distrust in the political system" that Klein finds so worrisome.

In fact, our political system was built on an (imperfect) system of checks and balances meant to minimize the toll it takes on life, liberty and property since the founders didn't trust what they were creating. So when Klein objects that "A healthy relationship does not require an explicit detailing of the 'institutional checks' that will prevent one partner from beating or killing the other," we have to wonder just how long he's been skipping Social Studies class to pen his oh-so-earnest columns.

In the end, maybe the Obama administration's proposals for a greater government role in health care will prove to be a good idea. I doubt it, but I've been wrong before. But in the course of the debate over those proposals, questions about the trustworthiness of the government -- and its potential for madness -- should take center stage.

Caught up by our overcriminalized society

In 2007, reported Idaho's KIDK, Channel 3, Krister Evertson was "convicted of illegally transporting and storing hazardous waste. ... Evertson failed to properly dispose of sodium metal, and the EPA was called in to clean up the mess." In a press release trumpeting the case, the Environmental Protection Agency was more specific, saying, Evertson was found guilty of "violating the Hazardous Materials Transportation Safety Act and illegally storing and disposing of hazardous waste, violations of the Resource Conservation and Recovery Act." But wait! Just last week, Evertson testified before a bipartisan congressional hearing on how federal law has crept into every nook and cranny of life and overcriminalized conduct. What's going on here?

As it turns out, Evertson's conviction was the federal government's second try against him in an effort that has all the appearances of a vendetta based on over-vigorous application of a spiderweb of petty rules. It all began when the inventor and fuel cell entrepreneur was run off the road in Alaska on May 27, 2004, by armed federal agents. As he says in his testimony (PDF) to the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security:

The charge against me was that I hadn’t put the right label on the box when I shipped some raw sodium that I had sold on eBay. Stored improperly, sodium can be hazardous, so it usually has to be shipped by ground. I carefully packaged the sodium that I sold and even checked “ground transportation” on the bill when I went to ship the packages. But what I didn’t know was that, in Alaska, UPS actually ships its “ground” packages by air. And that was against the law.

Rather than charge me with a violation and collect a fine, the government decided to bring the full weight of the law down upon me. I refused to plead guilty, because I was not, and so the prosecution pushed for years in prison. It took two years, but finally the jury acquitted me of every charge.

That's right, acquitted.

But Hell hath no fury like a government official frustrated -- and the feds weren't out of tricks. You see, while Evertson was detained and tried in Alaska, his chemical supplies were stored in a facility back home in Idaho. And since he was behind bars and unable to visit the storage facility, he could be charged with ... abandoning hazardous waste? Really?

Really.

As the Washington Examiner reported earlier this year:

Despite his acquittal in Alaska, federal authorities filed new charges against Evertson in Idaho for allegedly illegally transporting his materials the half mile from his home to the storage facility and improperly disposing of “hazardous” waste, all based on strained readings of EPA regulations.

Evertson claimed he had stored the materials properly and they were perfectly secure.

“My expert witness said the stainless steel container could safely contain the intermediate process stream indefinitely, that means forever. The stainless steel was 3/8 of an inch thick. I bought it from the Long Beach, California, Naval Yard. It was completely enclosed…. I could have neutralized all of it for $200,” Evertson said. ...

Never mind that Evertson had clearly saved the material for future use rather than abandoning it. Never mind that it would be potentially dangerous only if taken out of the storage materials Evertson had so carefully constructed.

And never mind, finally, that, in the words of Evertson’s appellate brief, none of the materials were “discharged into the air, land or sea,” and the government failed to produce any evidence “that the defendant intended this to happen.”

Indeed, the brief notes, “the EPA witness, Marc Callaghan, testified that the materials became hazardous waste [only] when the EPA disposed of them.”

Note that Evertson was researching fuel cells with an eye to developing cleaner energy. His violation of environmental law in the first case was technical and inadvertent, and in the second case could be charitably described as -- oh Hell, forget charity -- it was BS.

But the feds got their way the second time around. With a law that required no criminal intent on the part of Evertson, the violation of which was entirely because Evertson had been detained by the people now charging him with criminal activity, the man was convicted. Off to prison he went.

The reason we're hearing about Krister Evertson is not because his case is atypical, but because he is lucky enough to have strong allies. His case has been taken by the Washington Legal Foundation, which is appealing his conviction. The effort of which the appeal is part is supported by the American Civil Liberties Union, the Federalist Society, the American Bar Association, the Cato Institute and the Constitution Project. Out of public view, many many other people have suffered arrest, trial and imprisonment based on a host of regulations both too numerous and too obscure to be knowable.

Testifying before the same subcommittee, Professor James Strazzella, President of the Temple University Beasley School of Law, said (PDF):

The amount of individual citizen conduct that is now potentially subject to federal
criminal control has increased in startling proportions in the last several decades, beyond any understandable interest in dealing with federal programs, truly interstate issues, or international crime. ...

Strazzella knows of what he speaks. In 1998, he authored a report on the metastasizing mass of federal crimes for the American Bar Association. The Federalization of Criminal Law (PDF) found, in part:

So large is the present body of federal criminal law that there is no conveniently accessible, complete list of federal crimes. Criminal sanctions are dispersed in places other than the statutory codes (for example, rules of court) and therefore can not be located simply by reading statutes. A large number of sanctions are dispersed throughout the thousands of administrative "regulations" promulgated by various governmental agencies under Congressional statutory authorization. Nearly 10,000 regulations mention some sort of sanction, many clearly criminal in nature, while many others are designated "civil."

The federal government's excuses for arresting you and locking you behind bars have only increased since the publication of that report.

So the next time you see a brief news blurb about some "evil" offender who ran afoul of the law with seeming disregard for public safety, and who is publicly vilified in government press releases, keep in mind that there may be more to the story. You could well be looking at another Krister Evertson, who hurt nobody, intended no legal violation, and was tripped up by a maze of laws of the sort that you yourself may unknowingly violate every day.

The tough job of bossing us around

White House officials are so busy wielding vast government power that they barely have time to see their kids! That's the gist of a New York Times human-interest piece, that portrays Obama administration apparatchiks as overburdened by the demands of their ambitious agenda, to the point that their home lives are somewhat neglected. Let me suggest that the bunch of them should punch out and let the policy wish-list gather a bit of dust. It's OK; we'll survive.

Says the Times:

White House advisers often work 60 to 70 hours a week and bear the scars of missed birthdays and bedtimes, canceled dinners and play dates, strained marriages and disgruntled children, all for prestigious posts that offer a chance to make an impact and unparalleled access to the president. At a time when the nation is in recession and at war, the public expects no less, many argue.

Color me unmoved. If access to the latest resident of 1600 Pennsylvania Avenue is more important to them than watching their children grow up, that's their choice. Plenty of people in this country work even longer hours out of necessity; when powerful people do so voluntarily, we get an insight into personal preferences, as opposed to hard realities.

And those preferences are clear. The article reveals that Christina Romer, the chair of the Councilof Economic Advisors, made "her first visit to her son’s school this year ... at 10 p.m. on a Friday." And "Peter R. Orszag, the White House budget chief who is a divorced father of two, works so many weekends that he often imports his parents to help care for his 9-year-old daughter and 7-year-old son." White House Chief of Staff Rahm Emanuel apparently squeezed in a swim with his daughters -- at 5 a.m. I'll bet that was quality time.

The implication in the Times piece is that we're supposed to feel sorry for these hard-working public servants.

But what are the apparatchiks working so hard at? Remember, these people work at the highest levels of government. The very essence of their jobs is to wield coercive power against the rest of us, because that's really all that government does. If you want to do (supposedly) good deeds, you start a charity. If you want to force people to support your (supposedly) good deeds, you get the government to pass a law mandating funding for and cooperation with your charity.

Which is to say, government jobs are all about twisting arms.

And what arm-twisting we've seen from Romer, Orszag, Emanuel and company! They've put the previous administration's sailor-on-a-bender spending ways to shame with federal check-cutting that seems to tack on zeros on a dare. That doesn't just pick Americans' pockets now, but binds us to a policy of massive pocket-picking in the future (unless the peasants finally get smart and revolt).

In a move that looks like an attempt to turn the U.S. economy into an industrial museum, they've effectively nationalized a major part -- the least competitive part -- of the automobile industry.

And they're moving toward a policy that would let the federal government apply the efficiencies it brings to mail delivery and train service to the health care system -- whether we want it or not. (Of course, little mentioned is that there are a few revealing laboratory experiments along those lines already).

Oh yes, these public servants really are hard-working, damn them. But hard work can be good or bad, depending on the ends to which it's put. Ultimately, given that government officials work at making people do things they wouldn't otherwise do, and hard-working officials put in overtime at ordering people around, we could probably stand a little less midnight-oil burning in government offices.

Ms. Romer, Mr. Orszag, and the rest of you, your kids need you more than we do. Go home.

Perfecting society, one law at a time

From Washington, D.C., comes news that the Obama administration plans a massive program of new government-imposed financial regulations. Just a week ago, the federal government stepped up its war against people who enjoy games of chance by freezing online poker winnings. And Germany's latest effort to "save the children" involves a nationwide ban on violent video games. It's clear that, for good or ill, we live in a control-minded age. But has anybody stopped to ask the human cost of the growing web of laws in which we're ensnared?

Over 2,000 years ago, Tacitus, a Roman senator and historian, warned, "The more numerous the laws, the more corrupt the government." Even earlier, the Chinese philospher Lao Tzu cautioned, "The more artificial taboos and restrictions there are in the world, the more the people are impoverished.... The more that laws and regulations are given prominence, the more thieves and robbers there will be."

For millennia, anybody with a brain has known that weighing people down with laws -- even well-intentioned laws -- is expensive. Regulation extracts a price in wealth, in liberty and in blood. Laws and their enforcement can be tailored to suit well-connected constituencies, providing ample opportunities for bribery and malicious prosecution.

This isn't some abstract problem -- the cost of laws comes with names like John Adams, who was killed during a drug raid on the wrong house, Kathryn Johnston who was gunned down by cops working from a bad tip, and Salvator Culosi, who took an unprovoked bullet during an investigation of sports gambling.

To the ranks of those killed, you can add the many more names of those deprived of property, or imprisoned or otherwise damaged by enforcement of laws that somebody thought were a good idea. People like Linda Dorman, for instance, who was robbed of $4,000 by authorities in Tenaha, Texas, because she couldn't explain the source of the cash to their satisfaction.

Some of these people, like Dorman, Adams and Johnston, were innocent bystanders deprived of life and property during misfired attempts to enforce (or corrupt attempts to misuse) regulations that reach their tentacles deep into people's lives. Others, like Culosi, may have violated laws that they just found obnoxious and unworthy of respect.

The fact is, even the best-intentioned laws will meet some degree of noncompliance. The more contentious the passage of any given law is, the more likely a large segment of the population will defy legislation that many people oppose. That means plenty of contact between the public and enforcers, with handcuffs, bars and bullets potentially in store for people who might be your friends, neighbors or family.

The income tax in the United States has a relatively high rate of compliance by world standards at 84%. That still means millions of people are at risk of conflict with the Internal Revenue Service.

About 42% of Americans have smoked marijuana, and about 16% used cocaine, despite the illegality of both.

Teens risk child pornography charges for sending nude pictures of themselves to their friends, yet 20% of them still engage in the practice.

And European gun control laws, sometimes pointed out as models for the United States, have actually resulted in a situation where many more guns are held illegally than legally, by significant percentages of the population.

Even petty smoking bans have bred an underground culture of smokeasies where people puff away, risking violent arrest at the hands of authorities claiming concern for improving the public's health.

Such widespread defiance of laws breeds escalated enforcement efforts by the authorities. Policing becomes more drastic, more intrusive, more violent -- and always less just. People go to prison, assets are seized, businesses destroyed, and some folks are killed, all in the name of somehow making the world a better place with just one more law. Some of the people paying the price will be "criminals." Others are just in the wrong place at the wrong time.

We certainly need some rules of the game to deter the predators among us. A grim price is worth the protection we hope to receive from murderers, rapists, muggers and the like.

But any proposal for a new law (or for maintaining an old one) should come with a question attached: How many people are you willing to kill to see this enforced?

The company you keep

From Reuters:

Venezuela's President Hugo Chavez said on Tuesday that he and Cuban ally Fidel Castro risk being more conservative than U.S. President Barack Obama as Washington prepares to take control of General Motors Corp.

During one of Chavez's customary lectures on the "curse" of capitalism and the bonanzas of socialism, the Venezuelan leader made reference to GM's bankruptcy filing, which is expected to give the U.S. government a 60 percent stake in the 100-year-old former symbol of American might.

"Hey, Obama has just nationalized nothing more and nothing less than General Motors. Comrade Obama! Fidel, careful or we are going to end up to his right," Chavez joked on a live television broadcast.

It's probably not true in some sort of absolute sense. I don't expect America's fearless leader to out-nationalize Venezuela's fearless leader, and there's no talk yet of President Obama inserting hosannas to himself in school texts or sending the Obamatons out to pound on the opposition.

But it is telling, I think.

Detention just in case is OK if it's Obama's idea (cuz he's so dreamy)

It's hard to improve on Rachel Maddow's commentary about President Barack Obama's new, improved idea for indefinitely holding terrorism suspects who haven't necessarily done anything, to make sure they commit no dastardly deeds in the future. Yes, it really does sound like the Department of Precrime.

Olbermann wishes he was this sharp.

With the Constitution, what you see is what you get

When asked about President Barack Obama's just-begun process for selecting a Supreme Court nominee to replace Justice David Souter, senior presidential advisor David Axelrod backed Obama's suggestion that constitutional considerations might play a secondary role to giving the "powerless" a "fair shake." That's red meat for conservatives seeking evidence that the new president wants to impose a radical agenda on the country through judicial decree rather than through legislation subject to constitutional limits. Of course, not long ago, many of those same righties warned that the Constitution "is not a suicide pact" and shouldn't stand in the way of the war on terrorism. When they're in power, right and left alike tend to read whatever they please in the seemingly clear words of the Constitution.

Back in Barack Obama's franker days, when he was a relatively unknown Illinois state senator, Obama told an interviewer from Chicago's WBEZ 91.5 FM:

[I]if you look at the victories and failures of the civil rights movement and its litigation strategy in the courts. I think where it succeeded was to vest formal rights in previously dispossessed people. So that I would now have the right to vote, I would now be able to sit at a lunch counter and order and as long as I could pay for it I’d be okay.

But the Supreme Court never ventured into the issues of redistribution of wealth. And served more basic issues of political and economic justice in this society. And, to that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it has been interpreted.

And the Warren Court interpreted it in the same way that generally the Constitution is a charter of negative liberties—it says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf...

Many observers have credibly interpreted Obama's words to mean that he regretted the courts haven't been more creative in their interpretations of the Constitution, and that he wanted judges to go further. He seems to want the judicial branch to find mandates for a specific vision of socio-economic justice in words that don't explicitly say anything of the sort. His comments after Souter announced his resignation, in which he called for a nominee to have "that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes" reinforced speculation that he was looking for an extra-constitutional approach to the law.

Of course, Obama isn't the only one to treat the Constitution as a Rorschach test. The Bush-era Office of Legal Counsel famously found constitutional authorization for massive unilateral executive authority in a document penned by people who had just recently thrown off a monarch, as well as justification for torture alongside a ban on "cruel and unusual pubishment."

Judge Richard Posner, who wrote a whole book, Not a Suicide Pact: The Constitution in a Time of National Emergency, arguing that constitutional protections for personal liberty should give way to national security concerns in times of danger, has been known to discuss the supposed tradeoff between liberty and security in purely utilitarian terms, without regard to the plain language of the Constitution.

So when David Axelrod argues that "fidelity to the Constitution is paramount, but as with any document that was written no matter how brilliantly centuries ago, it couldn't possibly have anticipated all the questions that would be asked in the 21st century," he's breaking no new ground. Republicans and Democrats, liberals and conservatives -- all have a history of praising the Constitution as a nice historical artifact that needs to be carefully stored out of the way lest anybody trip over it while going about the important business of creating a Brave New World.

They just differ on how that world should look.

None of this is to say that the Constitution is perfect or should be immune from modification. In fact, the founders installed a whole amendment process in Article V for the purpose of keeping the document up-to-date. The process works, we know, because it has been used. If you really want to turn the country into a socialist ant hill or transform the president into a sadistic god-king, the appropriate method is to amend the Constitution accordingly.

But that's hard work -- intentionally so -- and requires an open debate about the merits of the proposed changes. There's no predicting just how a debate might conclude. It's much easier, after all, to slide under the radar and appoint judges who simply "interpret" the Constitution in peculiar ways.

So, for the forseeable future, the creatures who roam the halls of power in Washington, D.C., will continue to voice pretty words about the Constitution, while seeing in it reflections of their own agendas that have nothing to do with the words actually written on its pages.

Photography in a courthouse may not be illegal, but it can land you in jail

It's important to know that Sam Dodson isn't being charged with filming inside a courthouse in defiance of the law. That's important, because he was arrested for videorecording in the lobby of the Keene District Court, in Keene, New Hampshire, during the course of media coverage of a case there. Dodson's camera use defied the wishes of a judge who banned photography anywhere in the courthouse despite a state-wide policy permitting cameras in the courtrooms themselves. To top it off, it's likely that the judge's policy is rooted in nothing more than embarrassment that one of his courtroom tantrums was filmed and uploaded to YouTube last year.

Dodson, a professional videographer, independent journalist, and member of the libertarian Free State Project, was at the Keene District Court on April 13, 2009, to cover the arraignment, ironically enough, of Dave Ridley, another Free Stater, for video recording at court. In the lobby, camera in hand, he was ordered to turn off his equipment based on a flyer taped to the wall banning photography. Seeing that the flyer cited no legal basis, he refused. And so he was arrested -- as were several other people supportive of Dodson. Only Dodson remains in jail, on a hunger strike, a month later. Officials keep him confined on $10,000 cash bail because he refuses to formally give his legal name -- an exercise of his right to remain silent -- as a protest against his arrest. Of course, his identity is known to the authorities.

The arrest seems to fly in the face of court policies clarified and formalized just last year. As the Keene Sentinel reports:

The rules for recording public hearings in courtrooms are relatively clear: The Supreme Court says it’s allowed unless “there is a substantial likelihood of harm to any person or other harmful consequence.”

But those foggy gray areas beyond the courtrooms remain untouched by state law.

The specific district court rule states:

The presiding judge should permit the media to photograph, record and broadcast all courtroom proceedings that are open to the public. The presiding judge may limit electronic media coverage if there is a substantial likelihood of harm to any person or other harmful consequence.

If recording is permitted inside the courtroom, why would it not be permitted in the lobby and hallways open to the public, where security concerns would seem to be minimal?

According to the Sentinel, Judge Edward J. Burke banned photography in the courthouse "in an effort to protect juveniles and victims of crimes walking through the lobby from being caught on film without their consent." That seems like a tenuous excuse given that people run the risk of being photographed in any public place at any time.

A more likely reason for the ban is Burke's mortification over a video of him throwing a courtroom tantrum in November of last year. In that video, Burke repeatedly snapped "have a seat" at a defendant before ordering the man arrested just seconds later. The seemingly confused defendant had begun to sit in compliance with an order to do so, then stopped and began to stand when his name was called. Viewed over 58,000 times, the video portrays Burke as petulant and petty.

That video just slightly predates Burke's February general ban on photography in the courthouse.

As of today, Dodson is charged with disorderly conduct, resisting arrest or detention and refusing to be processed. All of these charges would seem to be related to the arrest itself and its aftermath, not to Dodson's supposedly forbidden camera use. Perhaps the authorities aren't as certain about the legal basis for Burke's photography ban as they'd like the public to believe.

And, as of today, photography remains forbidden in the lobby of the Keene District Court -- not as a matter of law that anybody can cite, but to spare a hot-tempered judge further shame.

Dodson's docket number is 09-CR-01825-1828. An audio recording of Sam Dodson's arrest can he heard below.

Yes, the new boss really is the same as the old boss

Last week, I reported that the Obama administration is continuing Bush administration arguments that evidence of some government abuses is a "state secret" beyond the reach of the courts. Recently, Justice Department lawyers made just that claim in a case involving allegations of warrantless wiretapping by the National Security Agency. But the Electronic Frontier Foundation, an online civil liberties group which represents plaintiffs in that case, says the Obama administration has also raised novel arguments that the government can't be sued even if it did engage in illegal wiretapping.

According to Tim Jones, EFF's Activism and Technology Manager:

Previously, the Bush Administration has argued that the U.S. possesses "sovereign immunity" from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government's ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

The specific language referred to by Jones is found on page 13 of the government's motion to dismiss the wiretapping case (PDF):

As set forth below, in the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions, primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C. § 2712, but this attempt fails. ...

Congress has expressly barred suits against the United States for damages and equitable relief based on alleged violations of the Wiretap Act and ECPA, in both cases by permitting relief against only a “person or entity other than the United States.” See 18 U.S.C. § 2520(a); 18 U.S.C. § 2707(a). Congress enacted these express reservations of sovereign immunity in Section 223 of the Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.

The only exception to sovereign immunity, the Justice Department argues, is "a willful, unauthorized disclosure of information by a Government agent." As a result, the government argues,"the Court lacks subject matter jurisdiction to grant plaintiffs’ claims for equitable relief under FISA, the Wiretap Act, and ECPA pursuant to Section 702 of the APA."

Taken together, the federal government's position boils down to an argument that the evidence people require to prove that their rights have been violated by the government is a state secret that can be withheld from them, inherently crippling their case. And, even if they could acquire the evidence to prove their point, the government can't be sued for whatever it does in terms of wiretapping.

The Obama administration's position is really a remarkable one: It doesn't matter if the government engaged in violations of civil rights, since there's nothing anybody can do about it.

For anybody still hoping that a change of parties and presidents would represent a revival of respect for civil liberties, the government's actions represent a cold rain of reality.

Concern over highway spy-eyes goes national

The Wall Street Journal clues in to a concern near and dear to our Arizona hearts: traffic cameras.

Once a rarity, traffic cameras are filming away across the country. And they're not just focusing their sights on red-light runners. The latest technology includes cameras that keep tabs on highways to catch speeders in the act and infrared license-plate readers that nab ticket and tax scofflaws.

Drivers -- many accusing law enforcement of using spy tactics to trap unsuspecting citizens -- are fighting back with everything from pick axes to camera-blocking Santa Clauses. They're moving beyond radar detectors and CB radios to wage their own tech war against detection, using sprays that promise to blur license numbers and Web sites that plot the cameras' locations and offer tips to beat them.

That's an issue I've given a nod or two in the past myself, of course.

In which we discover that 'constitutional' is not a synonym for 'good idea'

With regard to the constitutionality of Rep. Charles Rangel's crowd-pleasing bill imposing a 90% tax on bonuses received by AIG executives, I'll defer to the legal experts. So far, most of the professional Constitution-parsers who have sounded off on the measure say it's unlikely to be knocked down in the courts. That said, I'll chime in with agreement to the addendum that many of them add: the laser-targeted tax is an abuse of the system that violates the spirit of the Constitution.

Rangel's H.R. 1586, imposing a 90% tax on bonuses paid out by companies receiving assistance under TARP, and clearly aimed directly at AIG employees, passed in the House yesterday by a vote of 328 - 93. That overwhelming vote is a reflection of the understandably widespread unpopularity of government-subsidized companies paying out massive bonuses to their executives with the very tax money injected into their coffers to keep them afloat.

The vote is also a sign that many members of Congress are happy to have a pinata to beat on in the business sector to divert attention from the fact that the federal government either failed to perform due diligence before buying up the faltering AIG, or -- more likely -- happily signed off on the bonuses at the time and is only suffering buyer's remorse now that the public is in a rage.

Legal A-lister Lawrence Tribe told the Wall Street Journal that he saw few potential legal hurdles to the bill. The only Constitutional provision he considered likely to pose real difficulties is Article I's ban on "bills of attainder" -- laws targeted directly at specific individuals or groups -- but that "Congress (and the Executive Branch) could avoid serious Bill of Attainder problems by passing a sufficiently broad law … rather than targeting a closed class of named executives..."

Edward McCaffery, a tax expert at the USC Gould School of Law, agreed. He told the Los Angeles Times, "The courts are very reluctant to strike down tax legislation. I think a tax this high and this targeted raises some difficult questions, but at the end of the day, I would bet a constitutional challenge would not work."

Rangel was careful to avoid language in his bill that would single out AIG and its employees, referring instead to "an employee or former employee of a covered TARP recipient." That language might well meet the rather low bar set by Tribe, especially with regard to tax legislation, as mentioned by McCaffery. We all know who the law is intended to whack, but some clever crafting makes it pass muster.

And therein lies a major problem with the AIG bonus bill. If it survives legal challenges -- as seems likely -- it will do so not by being good legislation, but by being just clever enough.

As Howard Gleckman writes for the Tax Policy Center:

The AIG bonuses are an outrage. But the bigger scandal is that a grandstanding Congress wants to use the tax law to punish the companies that paid them and the employees that got them. ...

Long ago, people were rightly outraged when Richard Nixon tried to turn the IRS into a weapon to punish his enemies. This gotcha tax is another variation on the theme, and nearly as inexcusable.

The Miami Herald agrees, saying:

Using the tax code as a weapon to exact revenge on a select few, no matter how badly they've behaved, is a horrible idea. Slapping heavy taxes on the bonuses and on the company that issued them may satisfy enraged taxpayers who see incompetent executives being rewarded for failure, but it sets a bad precedent.

Remember that the constitutional ban on bills of attainder is intended to prevent the government from bypassing established laws and trials and legislatively imposing punishments on people who have done wrong -- or have offended the powers that be. Nobody is pretending that this law is anything other than a punishment imposed on people who are seen as gaming the government's (ill-considered) financial bailouts. That legal experts think such an effort will pass judicial scrutiny just means that Rangel and company are smart enough to figure out a way to violate the spirit of the Constitution and pass a law of a type that the founders considered despicable.

Gleckman points out that the tax really is retroactive, since the bonuses were agreed to last year under rules that existed then. Writing in the Washington Post, Charles Krauthammer makes the same point:

[T]here is such a thing as law. The way to break a contract legally is Chapter 11. Short of that, a contract is a contract. The AIG bonuses were agreed to before the government takeover and are perfectly legal. Is the rule now that when public anger is kindled, Congress will summarily cancel contracts?

The Constitution also bans ex post facto laws -- laws retroactively punishing behavior that was legal at the time it was done. But the courts have historically made up a loophole for tax legislation. Charles Rangel couldn't pass a law jailing AIG executives or seizing their homes as penalties for taking the bonuses, because those would be recognized as ex post facto laws. But the courts say he can use the tax code to confiscate their money.

Clever -- and wrong.

So Congress is busy throwing red meat to the mob and using constitutionally suspect means to punish business executives for taking bonuses that the government should have known about and could have addressed through regular channels such as bankruptcy -- or simply not bailing out AIG -- months ago. And the government will probably get away with its abuses of the law.

I'm sure that won't set any bad precedents for the future.

Meanwhile, the same lawmakers playing fast and loose with the Constitution to penalize the recipients of $165 million in bonuses are poised to spend us into a hole made up of a deficit of $1.8 trillion. That's in addition to the trillions in debt they've already run up.

So that's why there's a tank at the DUI checkpoint

Rightfully so, attention after the recent mass shooting in Alabama focused on the trail of blood left by Michael McLendon, a former police officer on a rampage. But several Reuters photos taken after the incident, showing Army troops from nearby Fort Rucker patrolling the streets of Samson, Alabama, are starting to draw attention. The use of military personnel in a police role often raises concerns given their different missions and training. The practice is also, despite loosening of statutes in recent years, almost certainly illegal under federal law.

Passed in the wake of Reconstruction, when formerly rebellious regions of the country chafed under military occupation, the Posse Comitatus Act reads:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

The motivation for the law is clear. Military personnel are trained and equipped to wage war against an enemy. Police are trained to maintain order and keep the peace among their neighbors. The two roles don't interchange very well -- as has been amply demonstrated by the carnage resulting in recent years from increased police use of military tactics.

The Posse Comitatus law was specifically crafted to prevent the federal government from exercising direct, armed control over states and localities. As such, it doesn't apply to the National Guard, unless those state troops are federalized and placed under the command of the Army.

The Posse Comitatus Act "remains a deterrent to prevent the unauthorized deployment of troops at the local level in response to what is purely a civilian law enforcement matter."
-- Major Craig Trebilcock, a member of the Judge Advocate General’s Corps in the U.S. Army Reserve

The federal government has also moved in recent years to erode restrictions on the use of the military's vast assets for law enforcement operations. The military is now explicitly authorized to participate in drug enforcement efforts, as well as to help control immigration and collect tariffs. States can also call on federal troops to put down insurrections or help with natural disasters. The federal government can send troops of its own accord to suppress rebellions or when "major public emergencies" render state and local authorities incapable of protecting people's constitutionally guaranteed rights.

That's a lot of exceptions, but the Posse Comitatus Act remains in force. Even Major Craig Trebilcock, a member of the Judge Advocate General’s Corps in the U.S. Army Reserve, in an article otherwise dedicated to defending the domestic use of the military in anti-terrorism operations, conceded the law "remains a deterrent to prevent the unauthorized deployment of troops at the local level in response to what is purely a civilian law enforcement matter."

And the mass murder of ten people, horrible as it is, is a civilian law enforcement matter that simply doesn't rise to the level of a natural disaster or a regional insurrection.

Acknowledging the political tempest and tricky legal issues stirred up by sending troops to patrol civilian streets, the U.S. Army has released a statement acknowledging that military police were in fact dispatched to the city after the mass murder there, and that an inquiry into the use of those troops is under way.

On the Tenth of March, after a report of the apparent mass murder in Samson, 22 military police soldiers from Fort Rucker, along with the Fort Rucker Provost Martial, were sent to the city of Samson.

The purpose for sending the military police, the authority for doing so, and what duties they performed, is the subject of an ongoing commander's inquiry, directed by the commanding general of the U.S. Army Training and Doctrine Command, General Martin Dempsey.

In addition to determining the facts, this inquiry will also consider whether law, regulation and policy were followed. Until those facts are determined, it would be inappropriate to speculate or comment further.

In the aftermath of this horrific crime spree, the military community of Fort Rucker joins the greater Alabama Wiregrass community in its grief and concern for the victims and their families.

Well, an inquiry is a nice start -- if it goes anywhere.

The fact remains that there is a law restricting the use of military personnel in a law-enforcement capacity, and that law is based in sound reasoning. Troops trained and equipped for combat are a less than ideal choice for filling the roles of civilian police. If it turns out that the Army did, indeed, patrol the streets of Samson, Alabama, we should be concerned about the government's willingness to stretch or exceed the law to put troops where they don't belong.

Nationalizing charities?

Over at Reason's Hit & Run, Jacob Sullum has already pointed out an interesting facet of President Obama's tax changes, but I think it's worth highlighting. From The Washington Times:

Democrats and Republicans poured cold water on President Obama's budget plan to cut down on wealthy taxpayers' charitable giving tax deductions, the second of his ambitious cost-savings plans to earn lawmakers' scorn, and underscoring the legislative minefield he is entering. ...

Roberton Williams, senior fellow at the Tax Policy Center, said it's impossible to calculate the exact effects of all the tax changes, but said the overall result is clear - less philanthropic giving.

"This will lead people to give less to charities if they behave the way they've behaved in the past," he said. "We've already seen a drop in giving as a result of the economic collapse. On top of that, this will just reduce the amount of giving."

Asked about that, Office of Management and Budget Director Peter Orszag said Mr. Obama took care of that by giving charities government money to make up part of the difference.

"Contained in the recovery act, there's $100 million to support nonprofits and charities as we get through this period of economic difficulty," he said.

Not that I'm a huge fan of social engineering through the tax code, with a deduction for this, that and the other righteous cause to encourage us all to do supposedly good deeds. But isn't this a move toward cutting a major part of civil society -- private charitable organizations -- off from their sources of independent support and making them dependent on the good will of government officials?

Oh, and I'm sure the tax dollars will be directed by politicians to precisely the same recipients that each and every one of us would have chosen of our own free will ...

It's plausibly deniable, of course, since private individuals could keep giving at old rates and private organizations could refuse government money, but the overall effect will be to strengthen the power of the state without ever twisting an arm -- outside the oh-so-gentle enforcement of the tax code, of course.

Our legacy to the kids

The national spending spree, by which the U.S. government will seek to get the country out of a slump caused by too much spending and debt by running up the credit cards and letting the kids and grandkids worry about the bills, is now law. It's a truly remarkable effort, not just because of the questionable economics behind the whole idea of stimulus spending, but because of the troubling ethical implications of trying to buy our way out of today's problems by binding the Americans of tomorrow to foot the bill for our idiocy. By doing so, it spends not just money, but the liberty of generations to come.

Respected economist Robert Barro calls the massive spending bill "probably the worst bill that has been put forward since the 1930s." Hundreds of economists, including three Nobel Laureates, joined Barro in denouncing the bill and calling instead for lower taxes and reduced government spending. Many of them say the spending spree is a doomed effort (PDF) to prop up a bubble economy that bad government policies created to begin with.

But even if (unlikely) there's some small degree of truth to Keynesian fantasy that prosperity can be purchased through a ritual involving throwing stacks of cash out the window, the money we've just committed to throwing out the window doesn't exist. The cash will have to be borrowed from people who expect a return on the investment. With interest, the cost of the final $789 billion stimulus bill rises to over a trillion dollars. And if, as is likely, the new spending programs created in the bill prove as hard to kill as government boondoggles of the past, the cost rises, according to the Congressional Budget Office (PDF), to include $820 billion in planned deficits, $1.7 trillion in additional deficits for the extended spending, plus $745 billion in interest costs. Total cost: In the neighborhood of $3.27 trillion. And that's on top of the existing national debt.

Do you have children? Do you have grandchildren? Cute buggers, aren't they? Let them enjoy themselves now, because they're going to have to work hard to pay off that bill.

That means higher taxes for years to come. That means an intrusive tax collection apparatus to service the endless demands of interest and principal payments. That means constrained choices and a big hole in the nation's wealth dedicated to paying bills the politicians ran up long years in the past.

It means life with a big, fat monkey on your back, placed their by your irresponsible parents.

If they choose to accept the burden.

I don't think they should. I've written before that I think those of us disgusted by the government's efforts to bind us into debt slavery should make it clear that we won't accept the obligation to pay of that sea of red ink. That goes double for my three-year-old son and all the other children living and yet to be born who had no say in this act of insanity.

My son can't be compelled to pay off my credit card bills or his mother's student loans; he certainly has no obligation to shoulder the cost of bad choices made by government officials for whom he never voted.

The "stimulus" bill signed this week is an assault on the liberty and prosperity of our children. When they grow old enough to respond, they should treat that assault with all the contempt it deserves, and shrug off the burden they've been handed.

And if that shrug hobbles the U.S. government's future efforts at financial creativity? Well. I guess I'd call that a feature, not a bug.

New boss slides into old boss's shoes, finds them comfy

Will we ever know what the Bush administration was doing to whom, and if the situation will improve under the new Obama administration? The short answer is: "no." At least when it comes to the "extraordinary rendition" of terrorism suspects to countries lacking inconvenient laws against torture, President Barack Obama is every bit as enthusiastic about keeping mum about embarassing "state secrets" as his predecessor.

As the American Civil Liberties Union summarizes the issue:

The Justice Department today repeated Bush administration claims of "state secrets" in a lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in the extraordinary rendition program. Mohamed et al. v. Jeppesen was brought on behalf of five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture.

The Bush administration had argued that the lawsuit brought by Binyam Mohamed, an Ethiopian native, and four other detainees should be dismissed as a threat to national security.

What does that mean?

In a letter to Senator Patrick Leahy dated March 31, 2008, opposing a congressional challenge to state secrets privilege, then-Attorney General Michael B. Mukasey wrote (PDF):

The state secrets privilege long has been recognized by United States courts as a method of allowing the Executive branch to safeguard information regarding the Nation's security or diplomatic relations. See Totten v. United States, 92 U.S. 105, 107 (1875) (dismissing contract claim to protect civil war era espionage relationship). Over fifty years ago, in United States v. Reynolds, 345 U.S. 1 (1953), the Supreme Court articulated the basic contours of the state secrets privilege. The Supretne Court held that the United States may prevent the disclosure of information in a judicial proceeding if "there is a reasotiable danger" that such disclosure "will expose military matters which, in the interest of national security, should not be divulged."

Mukasey proceeded to argue:

It is far from clear that Congress has the constitutional authority to alter the terms and conditionsof the state secrets privilege, as the bill purports to do.

Legal experts and civil libertarians were hopeful until yesterday that the Obama administration's promises to review the "state secrets" doctrine would let a little sun shine on the nastier transgressions of the U.S. government against individual rights and simple decency, and help to prevent a recurrence in the future.

Along those lines, on Monday, Justice Department spokesman Matt Miller said, "It's vital that we protect information that if released could jeopardize national security, but the Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know."

Well, apparently Attorney General Eric Holder's new, improved Justice Department thinks Americans don't have a right to know that the U.S. government was outsourcing its torture needs to experts in some of the world's hell-holes.

That this flies in the face of the new president's promises goes without saying. Running against the record of a Bush administration that cloaked its misdeeds in secrecy, Barack Obama talked repeatedly about "transparency" and the need for open government. Airing out civil liberties violations by the previous administration would seem to be a pretty basic baby step in that direction.

But, apparently, that's not to be.

In response to the Obama administration's move, Ben Wizner, a staff attorney with the ACLU, who argued the case for the plaintiffs, said:

We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration's practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government's false claims of state secrets and allowing the victims of torture and rendition their day in court."

It should be noted that "state secrets" privilege has also been invoked to shield illegal government wiretapping operations. With the new occupant of the White House apparently eager to hide official misdeeds from prying eyes, you have to wonder just what he has in mind.

Make way for the new boss

We've come along way since the early days of the republic when it comes to inaugurating a new president. In 1829, when Andrew Jackson took the oath of office, the public milled around him, offering personal congratulations and blocking his path to the White House. In 2009, after Barack Obama takes the oath, any member of the unwashed masses so unfortunate as to stray through the imperial-style security surrounding the new president is likely to be hustled off to an unpleasant fate -- if he survives the security breach.

Washington socialite Margaret Smith described Andrew Jackson's inauguration in a letter to a friend:

The south side of the Capitol was literally alive with the multitude, who stood ready to receive the hero and the multitude who attended him. . . When the speech was over, and the President made his parting bow, the barrier that had separated the people from him was broken down and they rushed up the steps all eager to shake hands with him. It was with difficulty he made his way through the Capitol and down the hill to the gateway that opens on the avenue. Here for a moment he was stopped. The living mass was impenetrable.

After a while a passage was opened, and he mounted his horse which had been provided for his return (for he had walked to the Capitol) then such a cortege as followed him! Country men, farmers, gentlemen, mounted and dismounted, boys, women and children, black and white. Carriages, wagons and carts all pursuing him to the President's house. . . . [W]e set off to the President's House, but on a nearer approach found an entrance impossible, the yard and avenue was compact with living matter."

By contrast, President Bush has declared a state of emergency to make extra federal funds available for organizing and controlling the inauguration of his successor. Even members of Congress are being told what they can and can't carry on their persons on the big day. The list of items forbidden to lawmakers includes pocket knives, backpacks, alcoholic beverages, signs, posters and thermoses.

Those are the restrictions on politically powerful people.

As for the rest of us ... After decades of increasingly tight security, the crowning of a new emperor ... errr ... president is getting tighter still. Thousands of active-duty military troops supplemented by National Guard personnel will join the ranks of the D.C's 4,000 police. Another 4,000 police are coming in from around the country. Streets will be blocked, bridges sealed, and people hoping for a distant glimpse of Obama will have to pass through security checkpoints.

There haven't even been any terrorist threats to trigger the Iron Curtain-ish ambience of the nation's capital.

In light of the police state implemented to inaugurate a new president for a republic, Time magazine poses a question more of us should be asking:

Is the unprecedented security a wise move given the historic nature of Obama's swearing-in and the tempting target it provides or is it overkill, an indication that the terrorists have already won?

It's not that we should necessarily return completely to the free-for-all that marked the Jackson inauguration -- the White House was ransacked during the party that ensued. But police should be able to clear the streets and watch the doors to the presidential residence without bringing in tanks and modeling the nation's capital on North Korea. Is it too much to ask winners of political office to take a few chances? To ask that they mix and mingle a bit on their way to assuming vast power?

If that's too much for them, if they insist on Praetorian Guards, roadblocks and troops in the street as a necessary display of their new authority as they assume the highest political office in the land, maybe they're just the wrong people for the job in a country that is supposed to be, after all, a republic.

Valkyrie and Rogue Male

Valkyrie, the Tom Cruise vehicle about an attempted assassination of Hitler, is drawing comparisons with the 1939 novel Rogue Male by critics and commentators apparently out to prove their literary bona fides. Unfortunately, the only thing being proven is that the critics haven't actually read the classic Geoffrey Household book. But the comparison is worthwhile, if only for the opportunity to restate old lessons about the evils of all systems that despise individual liberty.

Unlike the movies made from the book (and the lesser sequel, Rogue Justice), Rogue Male is careful to avoid being specific about the dictator the protagonist sets out to stalk and assassinate of his own accord. The country ruled by the dictator is powerful and adjacent to Poland, so it's clearly either Hitler or Stalin that Household has in mind, but he doesn't say which. Just as important, it's clear that Household doesn't think it matters whether it's the Nazi thug or the Communist thug, because the two regimes are essentially indistinguishable.

That's a consistent theme throughout Rogue Male. That totalitarians of any sort, who glorify the collective over the individual, are the problem. The specifics of the ideology are irrelevant. At one point, Household's unnamed protagonist comments:

It was, in a sense, not unlike being stuck in the club with some bore whose opinions are very left or very right. You can't do anything but listen to the man. You know he is wrong, but since you argue from the standpoint of individuals and he argues about a mythical mass, there is no common ground.

During a diatribe by Quive-Smith, a servant of the dictator, the protagonist thinks:

In fact, it was a speech that would have gone equally well in the mouth of his boss's opposite number on the other side of Poland.

But what does Household himself advocate -- at least in the form of his character? There are hints throughout the novel, but a fairly clear statement comes during another exchange between Quive-Smith and the protagonist.

"My dear fellow," he protested. "There's all the difference in the world! It's the mass that we are out to discipline and educate. If an individual interferes. certainly, we crush him; but for the sake of the mass -- of the State, shall I say? You, you don't give a damn for the State. You obey your own taste and your own laws."

"That's true enough," I admitted. "But I have respect for the rights of other individuals."

"Of course. But none at all for the nation. Admit it now, my dear fellow, you could get along perfectly well without any State!"

"Yes, damn you!" I answered angrily -- I hated his pseudo-Socratic cross-examination. "Without the shameless politicians who run this country or the incompetent idiots who would like to, or your blasted spotlight Caesars."

Household's anonymous hero was an increasingly rare specimen in the 1930s: a genuine liberal of the old sort. That is, he believed in individual liberty and was distrustful of politicians and government power. We forget today what a remarkable position that was for 1939, but that was an era when liberal democracy was widely seen as a doomed model and democratic governments -- including the Roosevelt administration in the U.S. -- openly included partisans of Stalin and Mussolini.

In fact, it's a remarkable position today, although we're careful to bury our worship of unlimited state power in easy words about democracy and responsible liberty. It's all for the masses, of course. Ooops! I mean, for the good of the people. (Must be careful about those words).

I look forward to seeing Valkyrie -- it's a fictional representation of an important historical event that has people justifiably playing "what if?"

But the story of Rogue Male -- the real story -- has a larger message about the value of the individual and the dangers of government power with implications for generations to come.

The imperial bailout

Well, I guess last night's Senate vote on the auto industry bailout was just for form's sake. Senators last night rejected (on a procedural vote) bipartisan schemes to subsidize some of the more uncompetitive manufacturers in the country and their ossified union allies. But when legislators vote the "wrong way," there's always an imperial president to don purple robes and pick up the slack through the powers of his executive branch minions.

White House spokeswoman Dana Perino said the administration would consider tapping the $700 billion government pool -- known as the Troubled Asset Relief Plan, or TARP -- that was created ahead of the November election to calm turmoil in financial markets.

"Under normal economic conditions, we would prefer that markets determine the ultimate fate of private firms," Mr. Perino said. "However, given the current weakened state of the U.S. economy, we will consider other options if necessary -- including use of the TARP program to prevent a collapse of troubled auto makers." Ms. Perino added, "A precipitous collapse of this industry would have a severe impact on our economy, and it would be irresponsible to further weaken and destabilize our economy at this time."

Separately, Treasury spokeswoman Brookly McLaughlin said, "Because Congress failed to act, we will stand ready to prevent an imminent failure until Congress reconvenes and acts to address the long-term viability of the industry."

So the Bush administration will go ahead and do on its own what Congress declined to authorize until such time as lawmakers change their minds and votes?

Ummm ... Why bother to convene Congress anymore?

Prohibition repeal ain't a done deal

The good folks at Bureaucrash have produced one of the better video celebrations of the repeal of Prohibition (on this day in 1933) that I've seen. It rightly notes the importance of the end of one of the nastier violations of personal liberty in this country's history, but it also, cleverly, emphasizes the growing litany of prohibitions great and small in these sadly overregulated states of America.

On a range of issues from guns to plastic bags to cigarettes, our supposed public servants have appointed themselves not only our masters, but our nannies and nags. Rather than permit us to make our own choices, they prefer to substitute their own judgment, with a boot on the neck, fines and prison time the threatened penalty for those among us who dare to tell them to get lost.

And no matter the reasons why each specific good or service is targeted by the finger-waggers, the intrusion by politicians is a violation of our rights -- and one that's doomed to fail if enough people, as is usually the case, refuse to comply.

Prohibition is an awful flop.
We like it.
It can't stop what it's meant to stop.
We like it.
It's left a trail of graft and slime,
It won't prohibit worth a dime,
It's filled our land with vice and crime.
Nevertheless, we're for it.

-- Franklin P. Adams, 1931

And so the eternal war between would-be rulers and those who won't be ruled continues.

Stationing troops at home -- maybe not such a great idea

In a move foreshadowed by the September announcement that 3rd Infantry Division’s 1st Brigade Combat Team would be stationed at home as a rapid-response force for "natural or manmade emergencies," the Washington Post reports, "[t]he U.S. military expects to have 20,000 uniformed troops inside the United States by 2011 trained to help state and local officials respond to a nuclear terrorist attack or other domestic catastrophe." The move makes additional resources available in the event of crises at home. But it raises serious concerns about the potential use of the military in situations that could put Americans at risk.

It's not the first time that active-duty military personnel have been deployed at home. Troops went to New Orleans in 2005 to respond to the aftermath of Hurricane Katrina. And thousands of regular-Army soldiers and Marines were dispatched to Los Angeles in 1992 to help subdue riots sparked by the "not guilty" verdicts in the trials of police officers charged with beating Rodney King.

But most troops are trained to wage war and destroy an enemy -- not maintain the peace and enforce laws. And they work under the command of federal government officials, not those in state and local office. The founders were wary of having a standing army at all, for fear that it would seize power or become a tool with which the federal government would dominate the population.

Even after a standing army was established, its domestic deployment was restricted by the Insurrection Act, which initially limited the use of military forces under federal command to deal with "insurrection, domestic violence, unlawful combination, or conspiracy," and then only if state authorities were unequal to the task. The law was recently reworded to permit the use of troops in cases of "natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition."

The domestic deployment of federal troops was further restricted in the wake of Reconstruction by the Posse Comitatus Act, to prevent the use of military personnel in a law-enforcement capacity. Rather than a peace-time policing mission, though, the purpose of the 20,000-strong force described by the Washington Post would seem to fall within the parameters of the revised Insurrection Act.

But even if a sizeable domestic deployment of troops is legal, is it wise?

There's still the undeniable fact that the main mission of the military is to subdue an enemy. The circumstances under which military personnel are expected to serve are very different than the legally defined, constitutionally constrained, roles played by police officers.

That's not to say that military personnel can't be trained along first-responder and police lines, but it seems likely that they would then become federal police officers rather than soldiers. It's difficult to imagine them smoothly transitioning back and forth between the two roles without the training for one bleeding into the performance of the other. If they try to act like cops on the battlefield, they may put themselves and their comrades at risk. But if they behave like soldiers while responding to problems at home, life and liberty could be in danger.

In recent years, many police forces have deliberately adopted military weapons and tactics, and the result has too often been excessively violent law-enforcement responses to peaceful legal transgressions -- sometimes with lethal results. As Professor Peter Kraska, an expert on police tactics based at Eastern Kentucky University, told the BBC for an article on the militarization of American police forces, "The problem is that when you talk about the war on this and the war on that, and police officers see themselves as soldiers, then the civilian becomes the enemy."

If the people responding to domestic crises really are soldiers, such violent overreactions stand to become even more common.