Class action re NSA surveillance

Let's see what happens:

Former Justice Department prosecutor Larry Klayman amended an existing lawsuit against Verizon and a slew of Obama administration officials Monday to make it the first class-action lawsuit in response to the publication of a secret court order instructing Verizon to hand over the phone records of millions of American customers on an "ongoing, daily basis.

The newest complaint is embedded in an article update here. (You may find it easier to read if you choose the download option, unless the trouble I'm experiencing scrolling on-screen is only a function of the nearby thunderstorm today.)   The lawsuit is a class action brought by a self-described public advocate who runs an organization called Freedom Watch in D.C.; he's also a Verizon customer.  His co-plaintiffs are Verizon customers who also happen to be the parents of a Navy Seal Team VI member who was killed when his helicopter was shot down in Afghanistan in 2011.  All three claim to be targets of hostile government attention as a result of their sharp criticism of the current administration.

The suit names President Obama, Attorney General Eric Holder, NSA director Keith Alexander, and federal judge Roger Vinson (the FISA court judge who approved the NSA surveillance order recently leaked by Edward Snowden and The Guardian), as well as the communications companies who divulged the data.   It alleges violations of the First, Fourth, and Fifth Amendments as well as a couple of federal statutes restricting communications companies from revealing data about customers.   It's framed as a "Bivens" suit, which refers to a 1971 Supreme Court case acknowledging a private right of action for damages against the federal government for the violation of constitutional rights by federal agents.  The starting bid is $20 billion.

This case is of special interest to me just now, because I've spent the last few weeks boning up on how to sue a federal agency:  very tricky business in light of the government's sovereign immunity, to which the exceptions are quite limited.  There is a maze of law addressing the differences between federal agents, federal agencies, and the Unites States itself, as well as the "discretionary function" exemption that shields the government even when there is a specific waiver of sovereign immunity.  So by taking time off to look into this lawsuit, I don't feel I'm entirely playing hooky today.  "Bivens" was on my list of subjects to master this week anyway.

I read the complaint closely to see whether it mentioned the issue raised by MikeD's recent post, about the illegality of NSA domestic surveillance, but there's nothing in it on that subject.

What I've not seen mentioned at all in this scandal

All debate of the rightness of Snowden's disclosure aside, there's one key piece of information I've not seen mentioned anywhere.  The President, the Speaker of the House, and many members of the Senate have come out saying that this program was legal, it was approved by congress, vetted by the courts, and the idea that this is somehow illegitimate has absolutely no basis.  But I think it does.  You see, the one missing element in all of this is that this sweep of meta-data is being handled by the NSA.

So what?  The NSA is certainly well equipped to handle this volume of data.  Communications Intelligence is their mission after all.  But there's one sticking point, and it's a doozy:

"The COMINT mission of the National Security Agency (NSA) shall be to provide an effective, unified organization and control of the communications intelligence activities of the United States conducted against foreign governments, to provide for integrated operational policies and procedures pertaining thereto. As used in this directive, the terms "communications intelligence" or "COMINT" shall be construed to mean all procedures and methods used in the interception of communications other than foreign press and propaganda broadcasts and the obtaining of information from such communications by other than intended recipients, but shall exclude censorship and the production and dissemination of finished intelligence."

The NSA may not, by its own charter, perform Communications Intelligence operations upon the United States or its citizens.  It's target, and mission, is COMINT ops on foreign targets.  Now, I am certain the Administration will claim that the actual targets of this program are foreign terrorists.  However, the one overriding law that the NSA must follow is the United States Signals Intelligence Directive (or USSID) 18.  I would draw your attention specifically to the unredacted portions of Sections 4 and 5, which specifically deal with how communications collected from sources known to be US citizens are to be handled.  I won't quote directly (you can read it all there) but in short, they can't.  They are forbidden by federal law from collecting, processing and disseminating Signals Intelligence gathered from US Citizens.  And I don't really care how the Administration spins it, this meta-data collection and processing, especially as laid out in everything we've seen, is in direct contravention of USSID 18.  And that makes it a federal crime.

Ideological Turing test

Clark at Popehat volunteered to answer questions about liberal policy, with the aim of challenging readers to distinguish between his answers and those of a true believer.  His purpose is to test whether he is able fully to understand his opponents' positions.  I find his assumed positions true to life.   I don't know of a liberal commentator who could do as well with small-government or libertarian viewpoints.

NYT, new and even more content-free

The New York Times is struggling with inconvenient climate data, but it's not ready to give up yet.  The caption to this week's environmental blogpost reads: "Despite a recent lull, climate scientists say it is an open question whether the pace of warming has undergone any lasting shift."

That sentence is almost entirely free of meaning.   Let's assume for the sake of argument that there was in fact warming in an earlier period, and not just jimmied data:  the sentence still is meaningless.   For one thing, the acknowledged "recent lull" would be more honestly described as a "period in which not even partisans can find evidence of warming in the actual data."   Discovering a flatline where you badly wanted to find an increase doesn't mean that the "pace" of warming has changed.  It means that any warming that might have been taking place earlier has stopped.  It has not merely "reduced its pace," it has stopped.

What's more, the question isn't whether a "change of pace" will "last," but whether the current lack of warming will shift into actual warming at some point in the future.   Again, assuming the prior warming period was genuine, what we have is a warming period followed by a flat period.  Does it make sense to assume that the previous warming trend was the true reality, and the recent flat period merely a "shift" in the reality that may or may not "last"?  It would be at least equally valid to say that the current flat period is the norm, and that the previous warming was the fluke that wouldn't "last."  That's especially true if your model is completely incapable of explaining or predicting either one.

The whole thing is just a muddleheaded way of saying the NYT believes that warming will occur in the future. When they believed they had a warming trend to point to in the past, they could with some credibility insist that there was no reason to believe it would not continue. What's the excuse now that the recent trend is flat? Why is the trend that suited their purposes decades ago more predictive than the more recent trend, which doesn't?

Particularly surprising is the casual reference to how the climate system is "still dominated by natural variability." Back when they thought the temperatures were still rising, "natural variability" was the refuge of denialist scoundrels.  Now it's back in fashion to explain why rising CO₂ didn't result in warming after all -- even though it's surely going to someday.

Finally, the old straw man:  the NYT sneers at denialists who dispute the role of CO₂ as a greenhouse gas.  News flash:  no one disputes the role of CO₂ as a greenhouse gas.  Lots of people do point out that it is a very weak greenhouse gas in comparison with the far more abundant greenhouse gas known as water vapor, and that there is good reason to believe that initial warming from  CO₂  causes an increase in cloud cover, which operates as a negative feedback mechanism to slow or even stop any warming that gets started.  All of which merely explains why the climate tends to cycle over very long periods rather than to run away in any direction.

Behind the veil

I've had the great pleasure of reconnecting with someone I knew in college:  a self-described "tunnel rat" who knew how to navigate all over campus using the underground steam tunnels.  Though I recalled that he knew all about the phone system, I didn't realize that he was paying his way through school by working for Southwestern Bell.  It's good to learn that he got his electrical engineering degree, got married, and recently retired in rural Southwest Colorado, where he volunteers for a narrow-gauge railroad.

What pleasant memories I have of his taking me under his wing and showing me how things worked behind the scenes.  It's odd that I never had any hesitation about following him into dark underground places.  He always gave off a simple big-brother vibe:  a Morlock checking to see if he could make friends with one of the Eloi.

Oathbreaker

This week's news raises an interesting question of ethics. Let's say that you are a citizen of some country, and take a job with a contracting firm who assigns you to a government agency belonging to that nation -- or you join the government agency directly. A condition of your job is that you take a high-level security clearance. As a part of this job, you give an oath to keep the secrets with which you are entrusted by your nation.

Now let's say that you learn a secret that you feel brings your duty to keep your oath into conflict with your duty to your fellow citizens. To be sure we don't just end up arguing about the politics of this case, let's say it's something really horrible. Say you discover that your elected government is brutally applying tax powers and audits to suppress political opposition... no, that won't do, it really happened.

Well, say you discover that the government is secretly recording the contents of every email or other electronic communication sent by anyone in the world... er, no, that one happened too.

Well, say that you discover that the government has a secret death program that it has been employing even though it can't be sure of who it is killing, and doctoring the records to make it look like the killings are justified... no, wait, that one's true too.

Well, OK, let's leave it hypothetical. Something really bad. Even worse than the things we've been learning are really true.

There's no question that your oath binds you to the duty of keeping the secret. You can't opt out of your oaths. The problem arises when we discover that there is a conflicting duty, a duty to your fellow citizens. In this situation, you will violate the one duty or the other: either you will fail to keep your oath, or you will fail to warn your fellow citizens of a great evil.

The question, then, is how to violate one of your duties in the least immoral way. Which one, and just how?

Two things make the Snowden case and the Manning case different in my mind. Manning strikes me as someone who should have been shot by firing squad, while Snowden is not for me in the same category. The first is that Manning broke faith with other soldiers, so that there were not two but three duties involved: his duty to keep his oath, his duty to keep faith with other soldiers under fire, and (he apparently believed) his duty to his fellow citizens.

The other thing that strikes me as an important difference between the Snowden case and the Manning case is the question of knowledge. One of the things that makes me believe that Manning is objectively worse is that he didn't even take the trouble to be sure just what he was releasing. He behaved recklessly by simply transmitting hundreds of thousands of documents he hadn't even read. He had no idea what or whom he was putting at risk.

So perhaps that's one criterion: being discriminate, rather than indiscriminate, in the violation of whichever one of your duties you choose to violate.

If so, though, doesn't that imply that it is better to release the information in a discriminate way than to keep the secret? Keeping this horrible secret -- whatever it is -- is to cause harm to every one of your fellow citizens, whereas releasing the secret is not. Thus, it would seem that someone who comes into possession of a truly terrible secret normally ought to violate the duty of oath-keeping, rather than the duty of a citizen.

Perhaps we could say that there can be no duty to keep an immoral secret, which would align with the above finding. However, we don't agree as a polity about just what morality entails. You would have to act on your own moral code, but as you are acting as a de facto agent of the government, you ought to be acting in accord with the morals of the polity as a whole. If you aren't doing that, it's hard to claim that you're acting in their interest.

If this is true, then you might release the secret, but only on the condition of submitting yourself to a trial by a jury of your peers. They would be the proper authority for evaluating whether the secret you released was indeed a severe enough violation of morality that your duty to your fellow citizens was more important than your duty to keep secrets.

For the current case, I think Hot Air is right about the proper route; maybe it mitigates the oath-breaking that the leak be given to a duly-elected representative rather than to some journalist (especially one who is himself immoral and hostile to your country, as Greenwald is). But again, I'm interested in the general question rather than the specific case.

Oath-breaking is a severe and serious moral crime. Is it ever appropriate if another duty conflicts with keeping your oath? If so, on what terms?

Three Birds With One Stone

I was very pleased today to drop a tree in the wooded section of the property just so that it would fall on another, standing dead, and get them both. They took down a smaller third tree on the way, which I wasn't planning to cut, but it'll do for firewood since it's down.

Now to buck them into logs and split them up, so they can season over the summer.

A Doggish Interlude

Normally I would not post videos of dogs here, but in honor of Tex's new companion and act of charity, I will relent and soften my humorless expression for just one moment.



There are your training goals, Tex!

Old-fashioned clean

Remember when your laundry and dishwasher detergents actually worked?  Phosphates weren't doing good things for the rivers and bays that our wastewater gets dumped into, because algae blooms like nothing better than a nice shot of fertilizer.  Municipal systems concentrate on removing pathogens like e. coli and largely ignore nitrates and phosphates.  If you're like me, though, and send your wastewater to a septic tank, all phosphates do is make the grass happier in the south meadow.  So I'm free to add tri-sodium phosphate back into my detergents.  Like magic, the stains are coming out of my cotton t-shirts and my dishes--even that pesky tupperware--come clean without any oily film.  Hardware stores carry TSP, or you can easily buy it online and have it shipped.

Now if only my toilets would flush the way they used to.  Well, it's my own fault for not installing composting toilets when we built here.

New member of the household

My homeless guy gave up and hopped a bus back to San Antonio, but not before leaving his little dog at the shelter.  It's a no-kill shelter, and he thought he was doing right by her rather than making her walk everywhere in the heat, but she's 11 years old, and I didn't feel good about her chances of adoption.  After a sleepless night and fruitless attempts to feel better about her by handing money to the homeless guy and the shelter, I got permission from my peerless husband, the best husband ever, to bring her home.  She's the first little dog I've had, about 18 lbs.  She seems cool with the big dogs.

My young traveller left the phone number of his ex-inlaws with the shelter, so I hope I've succeeded in getting a message to him that she's found a home.  He was pretty broken up about having to leave her.  No more life on the road for you, sweetheart.

You can see why I had to bring her and her human in out of the rain.

On Vegetarianism

Actually, I can think of several reasons why plants might be opposed to vegetarianism.

Muhammad and the Mangonel

It turns out that Islamic Law jurisprudence on the use of human shields begins with an extremely specific example. Once upon a time, Muhammad brought this mangonel into use against a city that had Muslim inhabitants...

Someone tell the Donovan.

Revenooers

Martin Bashir is upset about the recent bloom in anti-IRS sentiment.  He thinks "IRS" is the new euphemism for the n-word (whacka whacka), but anti-revenooer sentiment is nothing new.



Now the revenue man wanted grandaddy bad
He headed up the holler with everything he had
It's before my time but I've been told
He never came back from Copperhead Road


It's a lot older than Steve Earle, too:

 

Wake up, wake up, Darlin' Corey
What makes you sleep so sound
The revenue officers are comin'
Gonna tear your stillhouse down.

For that matter, tax collectors weren't popular in the Bible.  That seems to have been a function not so much of an unwillingness to pay one's fair share of public expenses as of their unpleasant habit of overcharging for personal gain, but there you are.

I notice that a YouTube search for either "Copperhead Road" or "Darlin' Corey" yields a fair sprinkling of videos touching on the current IRS scandals.  I'd be careful about with whom I tried to associate the IRS in the public mind.

What's an Education For?

On his retirement, Donald Kagan explains the purpose of education as several generations of our ancestors have taken it. It turns out there are some commonalities that regularly recur.

[For the ancients] free men must know something of everything and understand general principles without yielding to the narrowness of expertise. The Romans’ recommended course of study was literature, history, philosophy, and rhetoric....

The seven liberal arts of the Middle Ages consisted of the trivium (grammar, rhetoric, and logic) and the quadrivium (arithmetic, geometry, astronomy, and music). The discovery and absorption of Aristotle’s works in the twelfth century quickly led to the triumph of logic and dialectic over the other arts.... [For the Medievals] An ambitious scholar could hope to achieve some semblance of universal knowledge. This was good in itself, for to the medieval men God was the source of all truth and to comprehend it was to come closer to divinity. They also placed great value on the practical rewards of their liberal education....

[Renaissance students] thought these studies delightful in themselves but also essential for achieving the goals of a liberal education: to become wise and to speak eloquently....

No more than the ancients did the Humanists think that liberal education should be remote from the responsibilities and rewards of the secular life of mankind. Their study should lead to a knowledge of virtue, but that knowledge should also lead to virtuous action in the public interest, and such action should bring fame as its reward....

That is a surprising degree of agreement! However, with the coming of the modern age, the trouble started.

You can read the rest and think it over, but I suggest you appreciate the strength of the frame Dr. Kagan has built. If you were to ask me what you ought to study, given the costs of education and the need to focus on a particular areas, I would say that some people who are especially good at it ought to study particular sciences where they find they have a great talent; but that most people, and especially those who intend to be men of the world and to act rather than think and experiment, could do little better than to study the Romans' recommended course, plus the most of the Medievals' annotations: "literature, history, philosophy... grammar, rhetoric, logic... arithmetic, geometry, astronomy [one might say instead the sort of physics necessary to understand astronomy], and music."

This provides you with the best rooting in Truth as we have known it [in history, philosophy, logic, arithmetic, geometry and physics], and with the best we have thought about Beauty [in literature and grammar, rhetoric and music, but also in history and philosophy].

At the union of Truth and Beauty is, I think, what Plato called The Form of the Good, or goodness itself; it is where the Medievals thought they would find the divine. You will get all you need to know about men, and -- as Maimonides said of such a course of study -- a chance at a vision of God.

We're all redistributionists

That's according to Matthew Ygglesias, anyway.  Of course, to get there, you have to redefine "redistribution" to mean "any social mechanism by which individuals don't end their lives with exactly the zero material resources they were born with."  Iglesias doesn't see an important distinction between redistribution by a government that takes money by force and parcels it out to favored groups, and redistribution that occurs as a side product of people's decisions to form generous family groups with intimates, or to trade freely with their more distant acquaintances.  In both cases, money starts out in one spot and ends up in another, right?  So why should we care whether the movement is controlled by a central government or by the choices of all the citizens acting freely via non-government institutions and cultural habits?

Ygglesias's conflation of these two ideas leads him to this aphorism:

Patriarchal family structures make it possible to get by without a generous welfare state, and an expansive welfare state tends to undermine women's dependence on men.

I guess that's true, too, if you think the only alternative to a welfare state is a patriarchal family.  But don't we have the option to structure families differently, if we choose?  My family is an excellent alternative to a welfare state, but it's hardly patriarchal.  And does an expansive welfare state really undermine women's dependence on men?  I'd say it just tends to make women dependent on more distant and uninvolved men.  Or does Ygglesias think that people who depend on a welfare state aren't really dependent?

It's hard to understand why so many people believe that the only realistic alternative to a welfare state is a lot of naked savages living alone in forests eating grubs.

None of this is the ostensible subject of his article, by the way.  He's actually trying to argue that Obamacare properly redistributes wealth from rich to poor and from men to women--so anyone who objects to Obamacare loves the 1% or hates women.

The "R" word

When is limiting the amount of purchases of food and other staples in order to stop contraband trading different in some way from rationing?

Never.

I know something they could try, though.  The state could assume ownership of the production of food and other staples, and distribute them to people fairly.  Then there would never be any shortages or any inequality.

Mental purity

Glenn Reynolds has it exactly right.  The zero-tolerance approach even to tiny gun-like objects that no one could possibly mistake for a real gun has less to do with physical safety than with the extirpation of dangerous concepts from the minds of children.  Of course it doesn't matter whether the "gun" is an inch long or made of Poptart or formed with a thumb and fingers.  All that matters is the idea.  Soon the word itself will be taboo, if it isn't already.  They'd punish the thought itself if they could read minds.

Children will have to be taught that guns do exist, and are not inherently evil, but that the people who run their schools are incapable of remaining calm if the concept of a "gun" enters their heads, and therefore must be protected from the very thought.  (But cross-dressing and Che Guevara?  Totally OK.)  They can then draw their own conclusions about the value of the other ideas they are receiving from these people every school day.

The Bush Doctrine Pays Off

I have some good friends who are Turks, and they are quite invested in this uprising.  The hope is not necessarily to bring down the government, but to bring to justice some of the worst criminals -- including, of course, the highest officials such as the Prime Minister.

I'd like to ask you to pay attention to it, and if you know people who follow such things, get them interested in it too.  The whole area -- from Turkey to Syria to Egypt, from Syria to Iraq to Iran -- is a highly unstable powderkeg at this point.  In a way that's what we wanted, and indeed just what we expected, when we overthrew Saddam.  There are democratic revolutions in every country in the region.

Too bad we have no leadership with the vision to, well, lead.  We could really use it just now.

What turns out to be in the bill after you pass it

What Oklahoma discovered in the fine print of Obamacare, but is having to sue to enforce:

The ACA contains an assortment of carrots and sticks, the pertinent ones here being the subsidies available for the purchase of health insurance through state-created exchanges, and the penalties for individuals who do not buy insurance and employers who do not provide it.  The employer taxes are triggered when employees use the tax credit, and in some cases the individual taxes are triggered when the credit is available to them.  The tax credits apply only to those using exchanges created by the states.  The federal government can create its own exchanges within states; however, it has no authority under the law to use them to offer subsidies and inflict the accompanying taxes. 

But there was an unforeseen development:  Some 33 states have refused to create those exchanges, Oklahoma among them.  If a state’s residents are not eligible for exchange subsidies, then its employers are not subject to the associated punitive tax.  Contra the administration’s amen corner in the media, this was not a rookie drafting error in the legislation — it was an intentional feature of the bill.  The law is explicitly written to deny subsidies to states that refuse to create exchanges.  The president and congressional Democrats simply failed to anticipate that the majority of states would refuse to create exchanges.

Funnies

And two recent Jay Leno cracks:  "I know how President Obama can shut down Guantanamo Bay.  All he has to do is turn it into a government-sponsored solar power company."

-and-

"Fox News has changed its motto from 'Fair and Balanced' to 'See!  I told you so.'"