FISA Courts and Judicial Deference

I'm far from the only one who objects to these Star Chamber FISA Courts. So does Angelo Codevilla, of whom some of you have heard.  His piece also provides an interesting bit of history regarding FISA.

Repealing FISA will not fix the problems it has caused, but it would stop making them worse.

Certainly, but it also doesn't go far enough.

Repealing FISA needs to repeal, explicitly, and in its own section of the Act of Repeal, the FISA Courts, if only for the sake of public psychology and assurance.

But that's not enough, either; there needs to be a precedential correction, and that will require a cultural change in the society of personnel populating our Article III judicial system.

Judicial deference--that system wherein judges meekly surrender their Constitutional position as a coequal branch of our Federal government and explicitly subordinate themselves to another coequal branch, and worse, to the several subordinate formations of that coequal branch--must come to an end.  (Judicial deference, by that abrogation of coequality, is itself unconstitutional, but that's for a separate writing.)  Travesties like Chevron Deference and all of its several variations--every single one of them--need to be reversed. Not tweaked, like Brown did with Plessy, but reversed. Done away with. Bluntly and pithily; only a sentence or two would be necessary.  Reversal of those precedents are the beginnings of the necessary precedential correction.  The act of reversal, with the necessary plain language, would be the beginning of the necessary cultural change.  This may be beginning in other matters regarding other liberties, but the move needs to broaden and the pace quicken.

Pre-authorize surveillance by the Executive Branch? We already have that mechanism: the 4th Amendment. Within that, our Article III courts already have mechanisms for keeping Warrants and subpoenas secret until the police powers are ready to execute them--right down to no-knock warrants (of some practical utility but questionable constitutionality). Our Article III courts already have mechanisms for conducting secret hearings and sealing records so long, and for as long, as all parties to a case agree to the secrecy.

Eric Hines

The news we hear

Can you remember the stories that most caught your attention throughout 2019?  Looking at this list, I'm drawing some blanks.  I had to Google it to remind myself how upset everyone got over Trump's suggestion that the Squad might want to consider living in some other country they don't hate as much as this one.

Progressives and conservatives both reliably paid attention to Dorian's devastating landfall in the Bahamas, and (to my surprise) they both put the "national emergency at the Mexican border" in second place in their remembered attention.  I couldn't even remember which national emergency that was.

After that, the Jussie Smollett "fake news" story captured a lot of attention on both sides of the aisle, as did the somewhat related "you can't believe anything the powers-that-be tell you" story of Epstein's death.

Right-leaning Americans remember a lot about a state-of-the-union address that left-leaners tuned out completely, focussing instead on various shootings and Trump's attacks on John McCain.  The right noticed the shootings, but less urgently, and tuned out the McCain furor completely.

Both sides noticed the Varsity Blues controversy; I remembered it, too, but had forgotten that the college-admission fraud cases were popularly called that after a TV show of the same name, which I had never heard of before this happened.

Below all these stories in the attention cascade on both sides came the scintillating impeachment story. Kind of amazing, considering it's not even over yet, and already a yawner.  Yeah, yeah, you're finally impeaching him, let us know when Nancy Pelosi puts on an orange robe and lights herself on fire on the capital steps.

There was a government shutdown in there somewhere. I'd already forgotten about it, but partisans on both sides noticed it about equally, more or less at the same rate that they noticed state abortion restrictions, which I did remember.

After that, on the left, people noticed that Biden was in the race, while people on the right noticed that Biden was always sniffing women and children's hair. There were some Mexican tariff threats. Michael Cohen testified before someone or other and said something.

Somewhere in this middle-lower tier, people on the right noticed that Mueller issued a report, but it fell off the radar on the left.  For comparison, in my husband's and my life, the Mueller report probably tops the list, followed by the attempted use of the Ukraine phone call to defibrillate the clinically dead Russia hoax story, perhaps followed by the outstanding economic news.

When you've lost Rolling Stone

Rolling Stone has demonstrated its willingness to print nearly anything, but even Matt Taibbi can't swallow this week's raft of relieved MSM pronouncements that the IG report validated their worldviews:

No matter what people think the political meaning of the Horowitz report might be, reporters who read it will know: Anybody who touched this [Russia hoax] nonsense in print should be embarrassed.

The wrong kind of why

Don't get me wrong, I like scientists to go around asking "why."  But if they're to be successful scientists, they have to development an instinct for the most productive why-questions.  This isn't one:

To provide an example of the role that white empiricism plays in physics, I discuss the current debate in string theory about postempiricism, motivated in part by a question: why are string theorists calling for an end to empiricism rather than an end to racial hegemony?

As Powerline says, it's hard to see this as anything but an embarrassing excuse for an unsuccessful career.

Is This a Blow to Determinism?

This is a story that's interesting enough in itself, but the ramifications philosophically are quite profound. A man who had a bone marrow transplant to treat leukemia now carries *only* the DNA of his donor within his sperm cells.  Recent decades since the discovery of DNA has seen an understanding of it grow up that it contains the plans for making us who we are- a pretty deterministic model if taken at face value.  But how much of us is determined (or at least influenced) by DNA and how much goes beyond that- either as 'nurture' or something metaphysical?  It would have really gotten interesting if he'd had children after treatment, but that's no longer possible as he's had a vasectomy after his second child.  This case will certainly create more questions than it answers.

A Gun Measure I Might Be Able to Get Behind

In light of some recent posts, I thought I'd share this idea I ran across on Twitter.  It has merits.

pic.twitter.com/or9b4RN6Sg

— Ghost of Xmas Shipwreck (@markthesnark) December 6, 2019

The Wanderer's Hávamál: A Brief Review

My copy of Dr. Jackson Crawford's Hávamál arrived recently. Here he is introducing the work and giving an argument for why you should read it.



Crawford accepts that the Hávamál can be fairly critiqued as 'cynical.' Instead of 'cynical,' I would describe it as 'pragmatic.' Pragmatism is a highly defensible philosophical position. Formally, it's also a characteristically American one; the frame of it was only spelled out in the late 19th century.

Rather, this points to a current of American thought that, in the years just after the Civil War, blossomed into a formal school of philosophy. This school is called Pragmatism, and it has always been a characteristically American school of thought. Pragmatism is what the American founding showed that the French one did not. Pragmatism holds to the the maxim that all ideas should be tested against their practical consequences. Ideas that do not work out should be abandoned. Ideas that reliably produce bad consequences are bad ideas; in formal applications of the philosophy, they can even be said to be false ideas.

This current of thought explains why the American project succeeded while the French one fell into tyranny. Even when dealing with direct challenges to America’s founding principles, American thinkers responded to those challenges with a careful eye to the real-world consequences of their decisions. The American principles were realized, slowly: slavery was in fact banished, its replacements in Jim Crow and lynching eventually defeated. For those who favor a more principled response to evils like slavery, note that this insistence on considering the practical consequence is one of the principles of Pragmatism. The question How can this work? has to be considered, and the consequences weighed.

But what about the rights that come from the Creator? It might seem that Pragmatism is a challenge to religion, as it looks to the world instead of to God for the test of its ideas. It is certainly compatible with secular philosophy, but what about the Declaration of Independence? I would argue that Pragmatism makes room for religion as well: if God made the world, then to learn the rules of the world is to learn something about the world’s maker. (This approach to religion is called ‘natural theology.’) The only sort of religion that is ruled out by Pragmatism is the sort whose dogma reliably leads to practical disasters. The same is true of ideas in politics, economics, or other fields. Americans are characteristically interested in what works.

I have argued that Aristotle is already pragmatic, in a way that is rarely recognized. In the beginning of the Nicomachean Ethics, Aristotle points out that the lessons of ethics are not certain truths like one finds in the proofs of strict logic. A rich man may be destroyed by his wealth; a brave man may be destroyed just because his courage drives him into places where danger is highest. Nevertheless, for the most part, wealth helps you attain your ends; courage helps you excel in whatever you are trying to do. These things are virtues, in other words, because they work. They work in the world.

It is interesting to find a god who is interested in pragmatics. That's an issue for another day, but it is characteristic of Odin in a way that it is not of almost any other god in any of the many stories that the many nations have told about gods. Zeus or Athena has a role to play in a greater order; the various Hindu gods are just actors in a great script playing out in the dream of the one great God. Odin cares a lot about what works. He has some very good advice to offer.

Ultimately I am not well-fitted to critique Dr. Crawford's translation. My Old Norse is entirely self-taught, as is my Old English and Middle English. His scholarship on this matter passes mine. However, I do have many previous translations of this work to compare against him. In the places where I feared he might give a soft translation in order to appeal to current tastes, he does not. That suggests he is being honest, as I was prepared to believe from having appreciated his scholarship on other questions heretofore.

So if you are interested in some Yule readings, as opposed to specifically Christmas ones, here is one you might consider. Jólnir is one of the names of Odin, with 'Yule' being derived from the antecedent syllable.

You might of course consider it unhealthy to look into the pagan ancestry, but I do not. Tolkien did; and the One who made all things made these things too. That point to the side, I recommend the book to those who are interested in such matters.

Dersh Weighs In

Professor Alan Dershowitz is negatively impressed.

Neither of these proposed articles satisfy the express constitutional criteria for an impeachment, which are limited to “treason, bribery, or other high crimes and misdemeanors.” Neither are high or low crimes or misdemeanors. Neither are mentioned within the Constitution.

Both are so vague and open ended that they could be applied in partisan fashion by a majority of the House against almost any president from the opposing party. Both are precisely what the Framers had rejected at their Constitutional Convention. Both raise the “greatest danger,” in the words of Alexander Hamilton, that the decision to impeach will be based on the “comparative strength of parties,” rather than on “innocence or guilt.”

That danger is now coming to pass, as House Democrats seek for the first time in American history to impeach a president without having at least some bipartisan support in Congress. Nor can they find any support in the words of the Constitution, or in the history of its adoption....

In doing this, they follow the view of Representative Maxine Waters who infamously declared that, when it comes to impeachment, “there is no law.”

Ironically, "rule of law" has been one of the biggest talking points by Democrats supporting impeachment. It is correct to say that there is a basic American principle that "no one is above the law." They apparently forget the principle that no one is beneath it, either.

UPDATE: In fairness, the Progs aren't satisfied either. Then again, when are they ever?

No Politics at the Family Feast

It's bad manners, and Americans by and large didn't put up with it. Good for us.

New Jersey Knows Terrorism

Details are still emerging, but increasingly this shooting today looks like an attack that targeted the Jewish community. They are, of course, disarmed and defenseless under New Jersey law.

UPDATE:  The New York Times story about the following paragraph was apparently entirely wrong on the facts.

Coincidentally, President Trump signed an order today that protects Jews as "a nation" in addition to as a religious minority. There's a bit of upset about that, based on a refusal to recognize that "a nation" is an equivocal term. It does usually refer to one's citizenship, though not always (as e.g. US nationals from American Samoa, who may not be citizens); but in this case it refers to the ancient ambition of a culture that defines a people, rather than to citizenship in a secular polity. Not only here; one may speak of a nation that is not established formally, e.g. Kurdistan, and then refer to 'the Kurdish nation' without referring to either an extant polity or a legally-recognized form of citizenship. One can be both a member of 'the Kurdish nation' and also, by legal citizenship, an American.

There are bad people out there. Not many, and to avoid overreaction it's important to recognize how safe almost all of America is almost all of the time. Still, take care of each other, and be ready if circumstances call you to serve.

Barr: Trump Campaign was "Clearly Spied Upon"

He's extremely clear about how the Carter Page bit ties in to the campaign, even though Page had left the campaign.

He Did What Now?

It's election day in the UK.

Johnson ploughed a British flag-themed digger, marked "Get Brexit done", through a styrofoam wall with "gridlock" written on it, in a bid to ram home his core message in time for Thursday's snap vote.

Now that I've seen the picture I think I understand what that sentence is intended to mean, but the first time through I was a little lost.

Or You Could _Not_ Register It

With respect to Virginians, it's helpful that they're going to be such a powerful good example next year before the 2020 elections.

“In this case, the governor’s assault weapons ban will include a grandfather clause for individuals who already own assault weapons, with the requirement they register their weapons before the end of a designated grace period,” Northam spokeswoman Alena Yarmosky said in a statement Monday evening.

I don't live in Virginia, but I can assure you that I will not be registering any firearms with any governments at any point. Defiance of unconstitutional laws is an important part of the duty of a citizen.

Wings of Gold

Naval aviators refer to their flight wings in this way. Pensacola is the location of Naval aviator flight training. Last week's attack by a Saudi national at Pensacola killed three naval aviators in training. Today, all three were posthumously awarded their wings out of respect for "exceptional heroism and bravery in the face of evil."

I'm confused

An all-girl troop that's part of the Boy Scouts, but they do things completely separate from the boys and no boys are allowed?  As they're saying on my FB feed, "that just sounds like the Girls Scouts with extra steps."

Three perspectives on the IG report

The Inspector General's perspective is that, in pursuing the FISA warrants against Carter Page, the FBI committed 17 significant errors and omissions.  This is in addition to many errors in the "Woods Procedures" that are designed to ensure that a confidential human source's otherwise unverified stories are at least vetted in by specific statements from the source's FBI handler concerning his experience with the source. In this case, the FISA application inexplicably included statements that Steele's handler did not and would not support.

The IG calls these “serious performance failures" and found "unsatisfactory" the explanations it received for the lapses. Nevertheless, the IG cannot quite bring himself to conclude that all these inexplicable errors can be attributed to political bias. Nor is he prepared to "speculate" whether the higher-ups who were duped by the errors of subordinates would have approved the FISA applications if they hadn't been misled. It's hard to understand why he would need to speculate. Why not ask the higher-ups directly: would you still have approved the applications, knowing what your subordinates misled you about? Why or why not?

Attorney General Barr and U.S. Attorney Durham already have weighed in with alternative views. Barr stated:

The Inspector General’s report now makes clear that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken. It is also clear that, from its inception, the evidence produced by the investigation was consistently exculpatory. Nevertheless, the investigation and surveillance was pushed forward for the duration of the campaign and deep into President Trump’s administration. In the rush to obtain and maintain FISA surveillance of Trump campaign associates, FBI officials misled the FISA court, omitted critical exculpatory facts from their filings, and suppressed or ignored information negating the reliability of their principal source. The Inspector General found the explanations given for these actions unsatisfactory. While most of the misconduct identified by the Inspector General was committed in 2016 and 2017 by a small group of now-former FBI officials, the malfeasance and misfeasance detailed in the Inspector General’s report reflects a clear abuse of the FISA process.

Durham stated:

[Unlike the IG investigation], our investigation is not limited to developing information from within component parts of the Justice Department. Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S. Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.

Up the Militia

A proposal to arm (nearly) all Americans.

Inspector General Report

The Federalist raises some issues, first:

These admissions should outrage Americans: The FBI is intentionally failing to document confidential sources’ credibility and reliability problems so defense attorneys do not learn of them! Or, as the IG report concluded, “by withholding potentially critical information from validation reports, the FBI runs the risks that (1) prosecutors may not have complete and reliable information when a CHS serves as a witness and, thus, may have difficulties complying with their discovery obligations.”

Indeed, you can’t meet your obligations to disclose exculpatory information if there is a systematic avoidance of documenting that information.

Read the rest.

Grinding Bones

What could be better for the hound of the Hall than to grind bones by the fire as the evenings run toward Yule?

Gentlemen, we cannot afford a salt-shaker gap

Business Insider must be angling for a Pulitzer with its new expose on condiment equality in Trump's America.