On Sex and Evolution and Politics

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

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

"What about the others?"
"What others?"
"Those that are neither a man or a woman."
"What do you mean?"

What I meant was that if you look at the purely physical level, at our genes and our hormones, you find that the simple notion of "men" and "women" as a black and white concept doesn't quite hold up. Genetically, men are XY and women XX in terms of the 23rd chromosome pair. But that's not all of the possibilities. There are X0, and XXX, XXY, XYY and so on. These are quite rare and may add up to something like .3% of live births. There are also a number of hormonal and fetal development conditions, such as Androgen insensitivity syndrome, wherein people who are XX or XY end up with the "wrong" genitals. These folk, along with the extremely rare chromosome types are called "intersexed". I've seen estimates that between .6% and 1.3% of live births are "intersex" by somewhat varying definitions and counts.

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

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

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

Two important recent theoretical developments within evolutionary psychology give pause to evolutionists who stick by this orthodoxy. First, David Sloan Wilson, NEEPS’ esteemed inaugural keynote speaker, makes the case that natural selection can, in fact, work at the level of groups of organisms to the extent that competition between groups is a salient feature of the species. Under such conditions, altruistic behaviors that reduce one’s fitness within the group but that provide benefits to the group can actually evolve under some conditions.

This brought me in mind of a discussion that I've had occessionally regarding the "unnaturalness" of homosexuality, as viewed from a "selfish gene" evolutionary standpoint. Homosexulaity, since it works against reproduction, must the arguemt goes, be an "unfit" strategy, from a selection of the fittest evoltionary perspective. It must then from a purely scientific viewpoint be an unnatural and unhealthy trait, or so the argument goes.

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

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

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

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

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

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

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

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

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

Vox Libertas.

Commander in Chief of all the American people?

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

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

ABRAMS: So, what‘s the problem?

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

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

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

• commander-in-chief of the United States.
• commander-in-chief speaks with the American people.
• commander-in-chief of all the American people
• commander-in-chief of all the American people.
• commander-in-chief, president of all the people.
• commander-in-chief of the United States

Please note that what the US Constitution says in Article I is,

The President shall be Commander in Chief of the Army and Navy of the United States

There is a not so subtle difference between the notion of "the Commander in Chief of the US military" and "the Commander in Chief of all the American people". As Josh Marshall points out in his article,

The point of the constitution's explicitly giving the president the title of commander-in-chief was not to make him into a quasi-military figure. It was precisely the opposite -- to create no doubt that the armed forces answered not to a chief of staff or senior general or even a Secretary of Defense (originally, Secretaries of War and Navy) but to a civilian elected officeholder who operates with the constrained and limited power of that world rather than the unbound authority of military command.

The civilian Commander in Chief of the armed forces is an elected representative of the people who commands and sets the strategy of the military, insuring that it serves the will of the people. The Commander in Chief of all the American people begins to sound a whole lot like the Roman Emperor, the "Imperator" or Commander who commands the people and the armed forces.

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

RANDY SCHEUNEMANN, MCCAIN ADVISER: This is really an amazing statement. He believes that deferring to commanders on the ground is not the job of commander-in-chief. He believes that deferring to the best military judgment of commanders is rubber stamping. He refuses to credit General Petraeus and General Odierno for their leadership. He disparages their strategic judgment and trumpets his own.

He finds it amazing that Obama "believes that deferring to commanders on the ground is not the job of commander-in-chief", which certainly suggests that Scheunemann believes that it is the Presidents job to so defer. That, my friends, is what happens when a country is ruled by a military junta. In America the civilian populace directs the military through their civilian representative, the President. Apparently in the McCain world the military directs, at the very least in military matters, the President.

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

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

Vox Libertas

I think I understand the FISA bill. Do I?

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

So, I'm not an apologist for any of the current crop of politicians, and not at all well disposed towards anything that looks to weaken the rule of law, the Constitution or our civil liberties. All that being said, the brouhaha over FISA and the accusations of cowardice, lack of principles and political opportunism has started sounding a whole lot more like heat than the light of reason. A recent claim claim by Lawrence Lessig, a Civil Libertarian with a background in law made me stop and think.

[Obama's] vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important.

People on the left, people like Glenn Greenwald, Jonathan Turley, Russ Feingold and Chris Dodd keep painting the recent FISA as a false compromise, a capitulation to Bush, and a blot on the fourth amendment. So why do Lessig and former Constitutional Law lecturer Obama say that it is important? Who is right?

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

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

Assumptions

There are a number of assumptions regarding the level of protection that should be afforded communications depending upon the people and jurisdictions involved. In terms of the three major combinations, the following breakdown seems to by the default assumption:

1. Spying on foreign/foreign communications is OK.
2. Intercepting US/US communications requires a warrant or constitutional equivalent.
3. Intercepting US/foreign communications is the purview of the FISA court and law
4. The location where the spying is done is not as important as who is communicating.
   

In the next couple of subsections, I will lay out each of these, at least briefly.

1. Spying is OK

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

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

2. US/US requires a warrant

On the other hand, spying on Americans in America requires a court order. In essence, whenever the US Constitution is the ruling law, Warrants are required, otherwise it is "unreasonable search and seizure". The simplest version of this is communications between two US citizens, in the US, but resident aliens in the US are by precedent also protected by the Constitution. The term "US persons" is used in many laws as a shorthand for US citizens, US resident aliens and US corporations, since corporations are generally treated as "persons" in US law at present. For the purposes of FISA, "US person" is defined as follows:

“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

The requirement for warrants is a fundamental right in America, and the Constitution specifically limits the power of the government within its jurisdiction. There are certain questions about where the Constitution holds sway, but it at the very least applies within the sovereign jurisdiction of the United States and in all dealings between the US government and US citizens regardless of location.

3. FISA controls US/foreign surveillance

One may think, either as a civil libertarian or as a proponent of a strong federal executive that FISA in principle is bad law, but since 1978 in order to balance the government's legitimate foreign intelligence interests with the need for judicial oversight, FISA has been the law. It's basic charter is to control spying that occurs between US persons and foreign powers or agents. The simple Wikipedia summary of FISA is pretty much in keeping with my understanding and reads as follows:

The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed warrantless surveillance within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.

In short, if no US person is involved, even if the surveillance occurs within the US, assumption #1 applies, if a foreign agent power and US person are both involved, a FISA order is required. If no foreign agents or powers are involved, assumption #2 rules. FISA arose because the line between all-foreign and all-US can be blurry. FISA adds assumption #3 as the middle ground.

4. Location is now unimportant

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

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

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

What is "private"?

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

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

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

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

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

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

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

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

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

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

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

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

What is the new FISA?

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

In his analysis, Wes says:

"The focus of change is the bolded red line marked “U.S. or non-U.S. Persons Located Inside or Outside the U.S.” Currently a warrant is required in this case. Notice the changes involving the bolded blue lines and text in the [second] chart. What New FISA does is create a special case involving our bold red line in the first chart. It provides a way for the executive branch to engage in warrantless (but “certified”) wiretapping of wire and cable (including email and phone) of any Foreign-to-U.S. communications collected inside the U.S. You’ll see the new set of criteria for certification in this special case. It does add new protections for U.S. Persons (citizens or greencard holders) by requiring the typical FISA warrant in all cases in which they are targeted."

I would have worded the change differently. What I would note is that the upper middle section of the flowchart changes from being based on location (the one rounded corner box and the three red lines) to a simpler pair of boxes based on whether any US person is involved. As a result, there is now a relatively simple three way decision regarding foreign surveillance. (Note that there is a fourth case, the "normal" one: If no foreign agents are involved, surveillance requires an ordinary warrant.)

1. If any US person is involved or the communications is domestic, a FISA warrant is needed
2. If no US person is involved, the communications is email or over cables, a special "Certification of Mass Acquisition" is available.
3. Otherwise, no warrant is needed when no US person is involved.

Paths 1 and 3 represent the simple cases. One no US persons are involved and the communications is foreign, the foreign intelligence services are unencumbered by US law (#1). Generally, if the foreign intelligence services want to spy on Americans or in America, then a FISA warrant is needed (#3). One exception for this is allowed. Spying on electronic communications of non-US persons outside the US by means of surveillance inside the US can be done under the new "Mass Acquisition" process. Note that this is specifically the case where communications that is fair game to our spies is embedded in a system that is known to contain protected US communications that is not targeted. (This is pretty much my case where the combination of a pen register, trap and trace device and analytical engine can be used to separate the two.)

And that brings us to the blue box in the bottom right. Here's what Wes has there:

1. Is the target reasonably believed to be located outside the United States?
2. Is the purpose of the targeting to acquire foreign intelligence information?
3. In the particular case, will "minimization procedures" adequately balance the privacy of US citizens against foreign intelligence needs?
4. Will there be a good-faith effort to avoid domestic targets and domestic communications? Will other limitations be observed?

I've removed the struck out text and the pointer to part II of David Kris's "A Guide to the New FISA Bill". I will address these shortly.

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

With Question #3 we get to the heart of the issue, the "minimization procedures". These are spelled out in the bill in section 702 e, as follows (via OpenCongress):

(e) Minimization Procedures-

1. REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).
2. JUDICIAL REVIEW- The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).

Section "301(4)", mentioned in #1 refers to physical surveillance, so the relevant section is 101(h), as follows (via Thomas):

(h) “Minimization procedures”, with respect to electronic surveillance, means—

1. specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
2. procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
3. notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
4. notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

In essence, this is the requirements document for the pen register, trap and trace device and analytical engine device. Where as question #3 is "will the procedures be adequate?", question #4 is "will a good-faith effort be made to see that they are applied?" Two changes in the law would seem to attempt to speak to this question.

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

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

It remains to be seen whether these changes will have the beneficial effects that the Senators and others who support it hope, but I begin to see why they might think that this is an important improvement to the FISA laws. It

• brings all foreign surveillance under this law
• aligns the law with the jurisdiction and protections of the Constitution
• requires explicit procedures be defined for winnowing protected US communications from unprotected foreign communications
• makes the AG and NSA jointly responsible
• requires review
• makes explicit the criminal nature of stepping outside this law or the Constitution
• increases senate oversight
• makes explicit the grounds for criminal proceedings

While it may be argued that this law can be abused, that the government can use it as cover for domestic surveillance, the law explicitly addresses that. The law makes it a crime to target any of the following (from section 702(b)):

(b) Limitations- An acquisition authorized under subsection (a)--

1. may not intentionally target any person known at the time of acquisition to be located in the United States;
2. may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
3. may not intentionally target a United States person reasonably believed to be located outside the United States;
4. may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
5. shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

Making it a crime doesn't stop it, but it does give us a handle for dealing with it.

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

Quiet Revolutions

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

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

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

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

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

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

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

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

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

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

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

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

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

A house divided against itself cannot stand.

Just over 150 years ago, Abraham Lincoln warned us that "a house divided against itself cannot stand". While the image of national disunion, prophetic as it was, was what captured the national imagination, his actual message was not that the house would fall, not that the Union would crumble, but that

It will become all one thing or all the other. Either the opponents of slavery will arrest the further spread of it... or its advocates will push it forward, till it shall become alike lawful in all the States...

His speech was a call to action, a warning that the Union was on a path that would lead to that which the North felt was inconceivable, the full legalization of slavery. It was a warning of the course the Republic was on, unless direct and strong action was taken to avert it. Sadly his speech was not strong enough to rally him the support needed to attain the Senate, let alone achieve his goal. Rather, it wasn't until the house actually began to fall, that states seceded, that a war was fought, that he achieved his goal and then paid its price.

I can easily imagine the horror he felt as his nation trod relentlessly towards slavery or disunion. I can imagine it because our house, our houses today are divided. The nation is divided, the Republican and Democratic parties are each divided, the proponents of civil liberties are divided. Polarization is rampant, and it endangers what we cherish.

A bit over 250 years ago Franklin wrote the following

As to the other two acts. The Massachusetts must suffer all the hazards and mischiefs of war, rather than admit the alteration of their charters and laws by parliament. "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety".

The last quote, which he published in slightly altered form a few years later, is reminiscent of his maxim of 270 years ago to "Sell not virtue to purchase wealth, nor Liberty to purchase power."

All of this is advice that is extremely timely. All of it came to mind as I read Glenn Greenwald and Keith Olbermann, two staunch and outspoken defenders of our civil liberties and tradition of the rule of law not men, bickering with each other, sparked by Senator Obama's abandonment of his pledge to fight against retroactive immunity and the expansion of presidential power, presumably to increase his chances of being elected. All this while we as a nation take step after inexorable step away from habeas corpus, away from posse comitatus, away from the separation of powers, away from the rule of law towards the rule of men, the ever strengthening unenumerated inherent power of the man who is the decider in unitary executive.

The time has come to put aside the bickering between Obama Democrats and PUMA "Clintonians" and put a stop to the Republican advancement of the authoritarian destruction of our civil liberties. The time has come for civil libertarians such as Greenwald and Olbermann to put aside the bickering between them. The time has come for Obama to refuse to sell liberty to purchase power. The time has come for virtue over greed. The time has come to realize that it is not immigrants, legal or illegal who are stealing our jobs, but corporations and wealthy CEOs that are shipping those jobs overseas. The time has come to realize that Islamic radicals cannot steal our freedom, only we can sell it out of fear and greed.

The time has come for Republicans to stop sacrificing every conservative principle, every liberty in the name of party loyalty. Authoritarian rule by a unified executive that can at a whim nationalize the National Guard, and employ the Armed Forces in the US in "other circumstances", augmenting that with mercenaries who operate outside both American law and that of the nation they are "helping", and law breaking public carriers immunized at the word of the unified executive--these are not conservative values. Crippling national debt is not fiscal conservatism whether it is brought on by a spendthrift congress or a Commander in Chief who refuses to budget or collect taxes for America's longest war.

The Supreme Court recently reaffirmed that the Constitution valued habeas corpus even before it affirmed the Bill of Rights. And out of party loyalty, and fear of stateless terrorists, Republicans and Conservatives pilloried them for it. What conservative principle is served by fear mongering, of surrendering our most fundamental rights? None! The only reason that Liberals and Conservatives are fighting over this issue is because of what side the other is on.

A house divided against itself cannot stand. PUMA, Greenwald, Olbermann, Get A Grip! Sell not Liberty to purchase power. Obama, stand firm! Do not capitulate on principles for fear of being soft on terrorism. It is not "Strong on Terrorism" to give up essential liberty to obtain a little safety! It certainly isn't soft on terrorism to hold law breakers accountable--even if they were asked to break the law by the president.

We have allowed polarization to divide our country and our parties. We have allowed fear to cause us to sell out our principles and our liberties. Great Republics do not fall to small bands of fanatics. They fall when fear and divisiveness cause the people to surrender their rights and freedoms to the Leader, the Dictator, the Emperor. They fall when they allow their armies, their mercenaries, their spies, their police to be turned on them. They fall when they allow the government to keep a "little list" of people who cannot move freely, when they allow free speech to be confined to zones, when the leader's agents are immune from the law. They fall when the wealthy can buy the law.

Franklin, Jefferson, Washington, Hamilton, Lincoln, Eisenhower all have warned us repeatedly against fear, greed, manipulation, the combination of money and military power. People! Stop! Think! Stop hating the enemy. Stop fearing the bogeyman. Dear me. Obama and Clinton differ in the details. Greenwald and Olbermann are on the same side of all the issues. They're calling each other names over who should be blamed for what. It doesn't matter who is blamed! What matters is what we do! Anthony Kennedy is a Conservative for great Ghu's sake.

When did it become a great Conservative value to fear monger!? Scalia says that Americans will die if we follow habeas corpus? The McCain campaign thinks it would be good for Republican political aspirations if after 8 years of the Republican Bush administration a terrorist attack was successful!? Republicans are rooting for Al Qaeda? Huh? The failure of the Republicans to keep us safe means we need more years of them? What?

Stop! Take a breath. Let's take a quick survey: Small government, low taxes, balanced budgets, states rights, free market economics, original intent, strict constructionism. Aren't those conservative values? Where did they go? The Republicans are so afraid of dissent among the ranks that they are willing to sell conservative principles for party unity and loyalty and follow a Republican president wherever he will lead.

The Democrats have so sanctified and so demonized their own leaders that they are willing to follow the Republicans into the same unprincipled "rule by men, not laws" future. The Dems, and the advocates of civil liberties are so focused on casting blame that they will attack their own allies.

Fear and division.

A House divided against itself cannot stand.
Sell not virtue to purchase wealth, nor Liberty to purchase power.
We have nothing to fear, but fear itself.

Please, get a grip.

Thank you. I'll be quiet now. We return you to the civil war, already in progress.

School Girl vs "Professional Journalist"

Two news stories recently caught my eye, not only for what each one told us about the state of the Republic, but even more so, what comparing them tells us about the sorry state of journalism today. In the first story, Chris Wallace of Fox News managed to be so obsequious that it made even George W. Bush uncomfortable to accept the gesture.

WALLACE: I want to follow up on that. Whether it is interrogation of terror prisoners or the intercepting of surveillance among al Qaeda members, are you ever puzzled by all of the concern in this country about protecting of rights of people who want to kill us?

BUSH: That is an interesting way to put it. I wouldn't necessarily define some of the critics of my policy that way. I would say that they want to be very careful that we don't overstep our bounds from protecting the civil liberties of Americans.

In the same interview, Bush grossly misrepresented Senator Obama's foreign policy:

WALLACE: Do you think there's a rush to judgment about Barack Obama? Do you think voters know enough about him?

BUSH: I certainly don't know what he believes in. The only foreign policy thing I remember he said was he's going to attack Pakistan and embrace Ahmadinejad, which -- I think I commented that in a press conference when I was asked about it.

WALLACE: I hope not. But so you don't -- you don't think that we know enough about him or what he stands for?

Bush's summary of what Obama supposedly said is patently false. The Senator actually said of Pakistan exactly what the President himself said, that if there were actionable intelligence that Osama bin Ladin were in a known location in Pakistan he would go after him, preferably with Pakistan's support, but even over their objection. As to "embracing" the Iranian president, what he actually said that started all the brouhaha was that he would be willing to meet with the leader of Iran (and 4 other countries hostile to the US) "And the reason is this: that the notion that somehow not talking to countries is punishment to them -- which has been the guiding diplomatic principle of this administration -- is ridiculous." (Transcript available at CNN.)

Wallace did not challenge the President on this misrepresentation, but rather encouraged him. The interview was a segment on the Feb 10, 2008, edition of "Fox News Sunday with Chris Wallace" is available in pieces on YouTube, and a partial transcript is available on FoxNews.com.

The second story involves Karl Rove's recent appearance at Choate, the exclusive prep school. Rove had originally been scheduled as a commencement speaker, but was rescheduled to make a longer public appearance, dining with a group of students and giving a public speech followed by a question and answer period.

The article describing the event in the February 12, 2008 Hartford Courant contained the following account, which was picked up by a number of other journals, including Rolling Stone, who hailed the student as a hero.

Then there was Marla Spivak.

Spivak, a senior from Hamden, was one of the students invited to have lunch earlier with Rove. That left her somewhat emboldened as she stood before the crowd and asked Rove to explain how giving gay people the right to marry would endanger other people.

Rove took issue with the way the first gay marriages came about, through the Massachusetts Supreme Court. An issue as important as the definition of marriage should be resolved by a legislature or a referendum, not a court, he said.

Gay couples could gain the legal rights of married couples through legislation without actually getting married, he said.

But wouldn't creating a separate body of legislation for gay people be creating a separate but equal system, a step back?, Spivak asked.

Rove replied with an answer about Mormons changing their views on marriage to conform with the nation's laws.

Spivak kept pressing. "You never actually answered, how does it threaten anyone?" she asked.

Rove asked, what's the compelling reason to throw out 5,000 years of understanding the institution of marriage as between a man and a woman?

What, Spivak countered, was the compelling reason for society to allow interracial relationships when they had once been outlawed.

Then Rove invoked the Declaration of Independence before Spivak interjected that its reference to "life, liberty and the pursuit of happiness" seemed to support her claims.

Their verbal pingpong match tapered off after Rove brought up polygamy and Spivak acknowledged that she did not know enough about polygamy to answer. Rove later asked when she planned to run for political office.

Whereas Wallace was a disgrace to journalism, young Marla did her school proud. Having Rove on campus was somewhat controversial, but this exchange shows why it was a good idea. Marla and her classmates as well as the readers of the Courant, Rolling Stone and the others who covered it all learned a valuable lesson. Ignorance, bigotry, hypocrisy and their like will always be with us, but the light of truth, reason and justice can be shone upon them by youngsters who haven't even finished school. It is about time that journalists and Congressmen learned to have the backbone and persistence that Marla showed. Where is the threat? Where is the danger in same-sex marriage? Where is the justice in denying it? These are questions worth asking, be they asked by school girls, journalists, comedians or Supreme Court justices.

Chris Wallace, a second generation journalist should know better than to suck up to the President with such drivel. He should know enough to press when the President lies during an interview. He should not be shown up by a high school student. Shame on him! Shame on Fox for letting him! And shame on us for putting up with all of them. Marla Spivak should put them and us all to shame.

Feel free not to agree with the disdain I feel for the man who lies from the Oval Office. Feel free to not share my pride in my Commonwealth that its Supreme Judicial Court recognized the conflict between our Constitution and our laws and forced us to reconcile them. This is a free country and each of us should be a free voice. Each of us should raise that voice and ask the questions that we have, and make power answer those questions. Hard questions, honest questions, voiced freely and persistently is what keeps this country free, and keeps our voices free.

Thank you, Marla Spivak. You are a free voice, one that should make us proud.

Vox Libertas