Facts and Opinions

At the risk of stirring the hornets' nest this weblog can sometime be, I want to take a moment to discuss something that is important to debates such as the ones that often rage here. In these debates, as has been true for most of human history, an ongoing confusion of the understanding of fact and opinion has occurred that has served to cloud the debate and make it more vociferous.

Fact and opinion can be hard to define because the difference between the two is often subtle and sometimes imperceptible. An example of where this definition as become extremely difficult is in the use of information in the ongoing warrantless surveillance debate.

Both sides of this debate have reached very clear and opposing conclusions, ones supported by the citation of information from a variety of sources--some reputable, some not--which information itself is also a conclusion based on information gathered from still other sources. This chain of information and supporting conclusion extends back until it, hopefully, reaches facts, such as the citation of specific laws or the Constitution.

The semantics of the above description are important because those semantics represent definitions of logical debate. While conclusions and the information used to support them are powerful and important, they are not facts.

In a way, this is a legal definition as well. Conclusions are opinions, as informed and reasoned as they might be. This is the same definition used by the constitutional courts of the United States (appellate and supreme) in referring to their own conclusions about the law. This terminology is used because the judiciary has always accepted the inevitability that some of their conclusions will be overturned by the conclusions of future courts.

Such conclusions can be deeply held, but ultimately they are still opinion. Such conclusions should be based on facts, but even with a majority of facts, they are still opinions. Because they are opinion, they can still be proved wrong by better conclusions or facts.

Because such conclusions are opinion, how they are used in the course of logical debate is very important. The use of conclusions as a proof of the wrongness of an opposing conclusion is a tricky proposition because of the risk that the conclusion used might yet be proven wrong.

Fact, on the other hand, has none of the potential ambiguity of opinions. Fact is irrefutable and empirical. Semantically, fact is. Fact serves as the basis for everything else including debate.

In the course of logical debate, it is possible for certain opinion to become fact-like, due to agreement or inattention. This conversion does not imply that such opinion is fact; rather, that it is being used as fact in the absence of more obvious fact.

Understanding of these distinctions cannot help but strengthen the nature of logical debate. Conclusions, though opinion, are the inevitable result of the absence of definable fact, but such conclusions must fulfill other requirements before they can be facts. In logical debate, the use of conclusion must be tempered by its nature, or the debate ceases to be anything more that argument.

That’s my opinion. Let the stinging begin...

-=DLH=-

Cuba libre

I had the privilege of seeing the Cuban timba and son band Tiempo Libre perform on 4 April 2008. Their music was engaging, lively, and spirited as one would expect Cubano music to be.

Interestingly, they closed their performance with a song dedicated “to the greatest nation in the world, the United States of America.” Their words, not mine.

This leaves me wondering: What would a bunch of twenty-something natives of Castro’s Cuba think about the assertion of oppression made by some Americans against the Bush administration? What would they think about the political and personal wrangling that has surrounded issues like warrantless surveillance?

Now, I know that the immediate response will be something like “We oppose the Bush administration so that we don’t end up like Cuba.”

Somehow I think the response should be “Yeah, we are the best nation in the world, but we have problems. What can we do about that so that we can be even better?”

Cuba no es libre pero todavía somos. Viva la libertad.

I Lied About Surveillance and So Did Mike Mukasey

In the comments to another post, I made the statement that I was done commenting about the warrantless surveillance issue. I lied. I really didn't mean to, but here I am talking about it again, so there is only one conclusion to draw. I lied.

And apparently so did Attorney General Michael Mukasey when he commented publicly about a pre-9/11 call the U.S. intercepted from Al-Qaeda in Afghanistan. Furthermore, to date, the media has failed to pick up the story demonstrating once again that folks on all sides of the issues of the day have cause to doubt the professionalism of our fourth estate.

It also points out a main reason I've been so shrill about the whole warrantless surveillance issue. Denny has argued here that the action of our government and the telecoms was justified for national security reasons. While I disagree with this view and have taken even greater issue with some of the factual and logical inconsistencies in the arguments he has put forth to make this point, the point itself is not completely without merit. We disagree on the degree of the threat facing us and on the relative priority national security, in this instance, and adherence to the law among our leaders must take in our calculations of right action. Despite some of the harsh words I have lobbed at Denny, this is ground upon which reasonable people can rightly disagree.

What makes me unreasonable is the growing mountain of evidence of the government’s dishonest attempts to avoid any accountability for their actions at any cost. I may have overlooked something, but I have heard no one from the government who was in a position of responsibility for the illegal surveillance they conducted come forth and make precisely Denny’s argument – “we broke the law, but the national security need was so great we felt we had to. Please don’t hold the telecoms responsible for responding to our need. We paid them and leaned on them to comply; it’s not their fault."

No. Instead we have been presented with an array of factual inaccuracies about the law as it exists today and spurious claims of the need to protect state secrets, claims that have persisted even in the face of solutions offered by the House of Representatives to all of the supposed problems. Moreover, the administration has consistently used scare tactics to convince us to comply with their wishes, telling us that we're wide open to threat -- that this is a zero sum game: either pass this new legislation with telecom amnesty or be killed by terrorists. The Mukasey performance was just the latest in this long series of parlor tricks.

Here are a couple of mutually referencing links to another discussion of the situation:

Center for Citizen Media

Glenn Greenwald

Laws of surveillance

The United States of America faces a difficult and ongoing issue that was brought into dramatic focus on 11 September 2001: agents of foreign enemies are operating on American soil with the intention of killing American citizens, and in great part, the government does not know who they are.

Whether or not the current struggle represents the beginning of a long war against fundamentalist Muslim jihadism or a short-term fight against a flare-up of terrorist activity by the same, the United States has a problem: First, it has enemies on its own soil. Second, its laws are not adequate to deal with the existing threat.

In 2001, President Bush decided to address part of that problem by authorizing warrantless surveillance in order to discover who the enemies were and then pursue lawful actions to stop them. This authority was derived from well-established and historical precedent established by many previous administrations and in is in keeping with the actions of administrations throughout American history in dealing with crises that threaten the Republic.

This authority also represents a temporary and constitutionally difficult solution that is far better resolved by better-crafted laws targeted at dealing with the nature of the issues at hand. If there is any mistake in the administration’s handling of these issues, it has been that it did not aggressively pursue legislative remedies to these issues far sooner.

Now, the administration and Congress have no choice. The methods the administration was using have been compromised and legally challenged. In order to resolve these issues, the administration and Congress must craft laws that simultaneously protect the American people from potential abuse and also grant the intelligence agencies the ability to discover who the enemies are so those enemies can be stopped.

Unfortunately, it seems that the politicians and thinkers responsible for crafting such solutions are too fixated on politics to fulfill their obligations. This fixation seems to be a national infection, which results in no solutions being presented even as the threat continues and, perhaps, even grows.

In an effort to counter that infection and help guide the national discussion in a direction that may lead to solutions, here are presented several ideas that can form the basis of those solutions.

First, any law that is created must ensure that the liberty of the American people is preserved to the greatest extent possible and that the Republic is defended so that this liberty can be enjoyed. Therefore, the intelligence agencies must be granted the ability to establish causal evidence against enemies of the United States, but they must be constrained from using that evidence for any other purpose than cause by continual and practical oversight. The most effective way to accomplish this end is to create a function, probably judicial, that reviews gathered evidence and certifies it for legitimate use as causal evidence against agents working militarily against the United States on behalf of foreign enemies.

Second, any law that is created must protect intelligence sources, methods, and means from disclosure to protect intelligence agents and those cooperating with them. Specifically, this law must exempt those who cooperate from civil liability over the collection of causal intelligence in order to ensure continued cooperation for that purpose.

Third, the law must clearly state that any punitive action requires the securing of warranted surveillance and authority to act as clearly established by the Constitution. Due to the sensitive nature of these warrants and resulting cases, federal jurisdiction must be clearly established over them, the FISA court must be greatly expanded to accommodate the legal function of the intelligence services in this capacity, and a parallel court must be established to handle cases resulting from this activity.

Fourth, any law must be clearly set to expire on a regular basis, forcing the existing administration and Congress to review the law for applicability and flaws.

Finally, any law must specifically and explicitly apply only to the gathering of causal intelligence against agents of foreign enemies acting on American soil; however, this law must apply to the activities of both foreign nationals and natural citizens acting in this capacity.

This list is neither exhaustive nor complete. Such a law is very complex due to the nature of the problems it deals with and must be carefully crafted before it is implemented. This list simply gives a place to start the conversation, one that will hopefully happen quickly and for the benefit of the United States and its citizens.

-=DLH=-

Cross-posted on Dennis L Hitzeman’s Worldview Weblog

Laws and surveillance redux

[T]hat government of the people, by the people, for the people, shall not perish from the earth.

-The conclusion to the Gettysburg Address, President Abraham Lincoln, 1 June 1865

The Civil War was the greatest Constitutional crisis the United States ever faced, not just because of the obvious schism of the Republic, but also because of the things the government of the United States, including President Lincoln, decided to do to weather the conflict. Yet, even in the midst of that crisis, the goal of the Union was always clear: to preserve the Republic against forces that would destroy it from within and from without.

That effort was a difficult, costly, and bloody one. Things were said and done during that effort that still reverberate through American society one hundred forty three years after it ended. Broad wounds left from that effort took decades to heal. Some scars are still visible, and some argue that those scars have not completely healed.

In 2008, new threats loom against the Republic both from within and without. Much like the government of 1861 discovered, the counters to these threats are neither always clear nor always the best. Unfortunately, as with all threats in all times, the government of the United States in 2008 must respond with the resources it has available to it, not the resources it wishes it had.

The chief role of the Executive of the government of the United States is to preserve the Republic. Without the Republic, there is no Constitution, there are no citizens, there are no liberties, there are no laws. In 2001, President George W Bush, seeking to fulfill his role against the threats he and his administration perceived as arrayed against the Republic, authorized the warrantless surveillance of individuals in the United States believed to be operating in a military capacity against the United States in cooperation with foreign enemies.

According to the Congressional Research Service (.pdf, 44 pages), every President since Franklin Roosevelt has asserted the right to and used warrantless surveillance against perceived threats to the Republic. Since the Carter administration, warrantless surveillance has been a regular part of every administration’s actions to counter terrorist threats. Warrantless surveillance against agents of foreign enemies is a well established and well documented method for countering the threat these agents possess.

The matter at hand in the several posts on A Host of Contributing Factors has been whether or not the President violated established law by using warrantless surveillance to gather information on the activities on fundamentalist Muslim jihadis working on behalf of al Qaeda and other similar organizations and--I am speculating--working on behalf of some nations against the United States.

Empirically, I do not believe this violation has occurred, for the very same reasons that Lincoln, Roosevelt, Carter, Clinton, and Bush did not believe they had occurred. I believe these violations have not occurred because there is a well-established and historic body of evidence saying that the current administration has acted in accordance with the actions of many previous administrations in dealing with threats against the Republic in times of crisis.

I believe that the current problem that lies before the administration and Congress is that the current body of law that exists to describe the bounds of this well-established and historic authority of the President did not anticipate the contradictions within that body of law itself. A particular portion of this contradiction is granting immunity to telecommunications providers when this authority is exercised. This immunity is important not just to protect telecoms from liability for cooperating, but also to prevent the disclosure of sources, methods, and means in open court, thereby compromising active intelligence operations and personnel.

I also believe that this method of collecting intelligence against foreign agents is the worst solution to a very complicated and ongoing problem. The administration has made countless decisions in implementing and carrying out this program that would have been far better done through better legislation and its accompanying oversight. I have and continue to advocate for those better solutions even as I grant that the existing solution must be allowed to continue until those better solutions exist.

Further, I believe these solutions are necessary because, like any conflict, the current conflict is not isolated to a single front. Certainly, fighting our enemies in Afghanistan and Iraq has substantially reduced those enemies’ ability to bring the fight to us, but they still have some capacity, and it is that capacity these solutions are designed to protect against. In the same way that Civil Defense was organized to combat the domestic threats posed by America’s enemies during World War Two and the Cold War, so these solutions in conjunction with law enforcement combat the domestic threats posed by our enemies now.

I think the problem that has presented itself in the warrantless surveillance debate and is repeated in so many of the debates surrounding the actions of the current administration since 2001 is that one side in the debate typically demands that the other side concede or agree to some significant point before any further debate can be had. As a result, there is no opportunity to move beyond the point of concession because these are often fundamental points that the other side cannot concede.

I do not and will not concede that warrantless surveillance has violated the law, nor will I ask anyone who believes that such surveillance does violate the law to set aside that belief before I am willing to discuss better ways to solve the problems of collecting intelligence against foreign agents on American soil. I also grant, even with as strongly as I state my position, that I may still be wrong; however, I believe that the case for my being right is compelling and I will stick with it.

If those who believe that I am wrong wish to pursue their conclusion to its logical course, that is their right, even their Constitutional responsibility. I find that such a pursuit is destructive in a time of conflict, but I concede that our nation is capable of enduring even that kind of destructive behavior if it sets its mind to it.

In the mean time, my greatest wish is to move beyond the “Bush lied, broke the law, knows the size of my underwear…” debate to come up with solutions to the problems that remain whether anyone concedes or not. It is clear to me that our government and its supporting appendages in think tanks and like organizations are so fixated on one problem that no one is coming up with solutions. In the same way that the border with Mexico remains unsecured because of the Washingtonian fixation on comprehensive immigration reform, so the United States remains vulnerable to the actions of the agents of foreign enemies because one side of the debate wants someone to go to jail.

If someone going to jail is the solution to this impasse, then fine, I volunteer. In the meantime, let’s concentrate ourselves on finding solutions to this mess before it really does destroy the Republic.

-=DLH=-

Of laws and surveillance

Now, O king, issue the decree and put it in writing so that it cannot be altered—in accordance with the laws of the Medes and Persians, which cannot be repealed."

Daniel 6:8

In his post “Code Violations”, Scott asked some pointed questions about the legality of the telecommunications companies’ cooperation with warrantless surveillance with regard to the law as contained in the United States Code. The appeal made in the post was, in my view, to the inviolate nature of the laws that these companies and the current administration purportedly violated and how this violation proves the wrongness of the activity.

Fortunately for us Americans, unlike the Medes and the Persians, our laws are not inviolate. They can be and are often changed for a variety of reasons. This ability to change our laws represents one of our greatest strengths as a republican democracy: the ability to adapt and change our governance to keep it consistent with the circumstances at hand.

When the current body of telecommunications and foreign surveillance laws were originally crafted, their writers did not anticipate the circumstances that currently challenge those laws. Those writers did not anticipate a situation where our intelligence agencies are a fraction of the size and budget that existed at the time the laws were crafted. Those writers did not anticipate a situation where an enemy was present on American soil in numbers sufficient to be a military threat.

Those writers and very few Americans anticipated a situation where 19 foreign militants would take advantage of the protection of those laws to strike and kill nearly three thousand of our fellow citizens. Since 9-11, attempts have been made to rectify the significant shortcomings those laws proved to have in fighting an enemy that is not a state and already among us, but those attempts themselves have failed to appreciate the sheer scope of the threat.

The result of this shortcoming has been that the current administration chose to more widely execute an already existing executive power. From the moment that decision was made, the administration, the legislators in oversight, and the professionals of the executive agencies knew this was an inoptimal decision that would have to eventually be resolved legislatively rather than executively. Before the existence of this temporary solution was made into a headline, the administration and the Congress were already working to resolving the problem.

Now, this resolution is stalled, not because it is unneeded, but because some want an admission that the original laws were broken. Some want the inviolate nature of the original laws to be confirmed before they can be amended to more adequately deal with the circumstances that actually exist now and were not anticipated when they were crafted.

Hypocritically, some of those who want this admission were involved in the crafting of the original laws, were aware of the temporary solution, were involved in the derailed solution, and were part of drafting the current compromise. What purpose does this appeal then serve? Not to make the law better, no to solve the problem, not to give the professionals the tools they need, but to score political points against an opponent that something was done wrong.

Even this desire to score political points would be forgivable if some kind of alternative was being offered, but instead the demand is that the inadequate laws be left in place and wrongdoing be admitted. Meanwhile, America’s enemies continue to exploit flaws in its own laws against it. How many political points are scored with dead citizens?

I know that there will be many, many people who disagree with my view. Some have gone so far as to declare the government the enemy because it violated the law, ignoring the damage the enemy has done exploiting the same. Nevertheless, the one option we do not have is to do nothing, because that option has already been proven not to have worked.

There are compromises that can be reached that would likely make everyone happy. Some options might even leave these much vaunted laws untouched. Of course, any of these alternatives cost the kind of money that very few seem to be willing to spend and require a political will of their own.

What remains is that inadequate laws governing telecommunications and foreign intelligence need to be amended to deal with the circumstances at hand. Will we manage to accomplish that task, or will our belief in the inviolate law simply make us victims of our own rigidity?

Code Violations...

I have to admit, I find it all a little confusing. At the very least I'm experiencing a bit of rhetorical whiplash trying to parse the dialog coming out of Washington.

For the past few years we've heard the collected conservative members of the United States congress practically threatening to tar & feather anyone who mentions the word amnesty with regard to illegal immigration...

"…We will not grant amnesty to illegal aliens in this Congress or, hopefully ever again. We did that once. Everybody said it was a one time deal. We were to never do it again. The problem with doing it was we reward people who violated the law. We reward people who came into the country illegally.”
- Senator Phil Gramm, (R-Texas)

“I thought then [1986] that taking care of three million people illegally in the country would solve the problem once and for all. I found out, however, if you reward illegality, you get more of it." - Senator Chuck Grassley (R-Iowa)
(Quoted in the New York Times)

These are only two that I found when I looked. There are more, lots and lots more. Those two aren't the only ones reciting this mantra or one like it. Anyone who broke ranks was vilified. Even the president. It damn near derailed John McCain's hopes for the White House and might yet. I talk to people all the time, conservatives who are still pissed at him for crossing the aisle.

But that's not the half of it. We were repeatedly warned of the dangers inherent in amnesty, in the rewarding of those who break the law by allowing them to get away with it. And to be frank, it wasn't just the Republicans. This is a bucket of tar that spared few politicians and just about everyone had a slightly feathery look about them at the time... such were the prevailing winds in Washington. But I digress. What I want to focus on here is the sentiment: 'If we let them get away with it... what's to keep them from doing it again?'

That's a hard line, a conservative line. And though I disagree strongly with most of the rhetoric about immigration, at least I can respect a principled stance. And I'm not immune to the conservative thought process here... laws exist for a reason. They're the guideropes that show you the edge of the cliff. If you step beyond this point you're Wile E. Coyote. If you step across the barrier and don't fall... why wouldn't you cross the barrier again? Hey mom! See what I can do?

Look ma! No consquences!

So - somewhat related to our debate here of late - you can understand my confusion when I see that there a Conservative push underway to grant an amnesty by applying retroactive immunity to the telecoms after they violated the laws? Not once, but literally millions of times? Each time carrying a specified penalty under federal law.

USC Section 18,2702 and 2703 lay out the parameters in which a telecommunications company whether internet, wireless or land-based may share information in their possession or moving across their equipment with the government. And it's a pretty clear law...

"A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant."

usc sec 18, 2702 - Cornell Law usc sec 18, 2703 - Cornell Law

So what is in that law that's supposed to make me want to give them a pass? They stepped off the ledge... why shouldn't I want to see them hold up a little sign that says 'Yipe!' and then plummet to the desert floor below?

They might be able to argue a case under 2702, subsection c4, but in order to prove it there needs to be an adjudication by the judiciary and the rest of the two codes are demonstrably written to prevent just such a deviation from the law.

There are laws on the books for a reason, not least of all because information has value. The SEC has an entire body of case law governing who can know what, when and what you can do with what you know for exactly this reason. Information is money. It's also power of a more ephemeral kind, as the columnist at Wired said, and the disparity of power felt by a citizen when they are dealing with someone who knows everything about them when they have no idea who has their information or what uses it's being put toward... well, it isn't going to make us feel safe & secure so much as violated. So the laws were broken.

And because the bulk of information that flows across the electronic hubs of our nation's telecommunications array is unprecedented, and if you're trying to 'find out who the bad guys are' it's a daunting task. I get that, I really do. But I keep coming back to a single salient question... why cut out the judiciary in the first place?

The telecoms should have demanded the legally mandated subpoenas. Because they didn't, they're in legal jeopardy. But I don't buy the argument that if we don't indemnify them after the fact they won't cooperate in the future... in fact, they'll just adhere to the laws. Like they were supposed to do in the first place. If some nice person in a snappy government suit shows up with a writ, you bet your bippy they're going to cooperate... because they won't have a choice. And they will be protected by the code they adhered to...

"No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter."

USC 2703 e

That is how you protect yourself and your shareholders from litigation. You obey the law and the law protects you. You step across the line and... Wile E. Coyote time.

And I'm still wondering and no one has yet answered me... why didn't the NSA just ask for a legal finding on what they were up to? How again did a FISA hearing somehow impede them from protecting us? Before they built a secret router into AT&T's facility to monitor internet traffic (Hi guys!), before they asked (politely, I'm sure) for the 'largest database ever assembled' to thumb through for information... where was the judge in all this? The laws of our land demand one. Explicitly. Do they think Al Qaeda has infiltrated the Federal Bench? Or do they just see the judiciary as a hurdle to be cleared or gone around so they can do their jobs as they see fit...

I've told you most of what I think on the subject of FISA and warrantless wiretaps, not to mention combing the calls and internet postings. But a subject we've largely ignored is the Telecom issue and I think it needs to be addressed because I - for one - am angry at the flagrant abuses I see in all this. The lawbreaking was so profound and the audacity of the legislators trying to double-talk and pretend that it's ok sickens me. Because, as the distinguished gentleman from Iowa reminds us "if you reward illegality, you get more of it."

Sacrifice

PART I
Enemies Foreign and Domestic

The United States is an idea. An idea enshrined in the document that frames it's ideals and protects the people from the government meant to serve them. The United States and our Constitution are an idea worth dying for. So it says in the oaths taken by every soldier and every elected official since it was ratified in 1787. Every fourth January 20th (formerly March 4th), the president-elect becomes president only when he places his hand on the Book and swears this oath before the Chief Justice of the United States Supreme Court and the assembled public...

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

In order to become a citizen of the United States of America, each immigrant must raise their hand before a duely-appointed official and state the following oath:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.

I find it distressing, demoralizing, and deplorable that we ask of the immigrant what we're not willing to give of ourselves. But I'll get to that in a minute.

I often hear - as I have here from Denny a few months back - that the opponents of the excesses of the current administration and those who would oppose the actions supposedly taken in the name of our protection need to 'grow up'. That the pragmatic approach is the only one that makes sense. Frankly... those are fighting words. And the assertion is patently false. I posit instead that those who think that we need to surrender to the terrorists by allowing them to undermine our most basic principles and persuade us through the threat of actions to turn our republic into a police state, handing over vast and unchecked powers to the government... they are the ones who are refusing to make the grown-up choices. All the worse, I find that by refusing to engage fully in this debate, I have certainly been immature, but no more.

As such I am not ready to seek the middle ground for I have yet to fully speak my piece. I've held back to this point because of the very things you recently invoked in your 'finding common ground' post, and I find it is not to my credit. You were trying to tone down the rhetoric, remind us we're all friends here. And I applaud that. We can continue this in the spirit of friendship, that's fine.

But where are all the heroes?

My grandpa Perkins was a great man in a quiet unassuming way. Chris will attest to that. A decorated war hero. Won the bronze star. During fighting on Luzon during the liberation of the Philippines, a unit of my grandpa's battalion was pinned down by Japanese fire. It was a bloodbath. Men were wounded, dying, and there was a crossfire with wounded men lying beneath the arcing streams of gunfire crisscrossing the jungle clearing. Grandpa didn't hesitate. He crawled in on his belly and dragged a half dozen or more men to safety, going back into the firefight repeatedly to get the next guy until the last guy was out. He had a wife at home. If he'd been shot, my dad and my aunt wouldn't exist today and the world would be the poorer for it. But he was willing to risk life and limb. For his buddies. For those who died at Pearl. Because the president told him to. And because he took an oath to defend America and the Constitution.

I look around me at the America that has arisen in the wake of the latest assault on our country and I want to cry. I cannot believe for a moment that my grandpa, my hero, would approve of the torture of enemy soldiers in our hands. I cannot imagine that he would approve of the conduct of the country as it faces this threat. And I cannot help but wonder how I - who am not in the military or part of the shooting-portion of this war - how I am living up to his example... and how I am not.

The arguments for allowing the broadening of police and surveillance powers to the government are so often 'to protect us' and 'because they'll get us if we don't' or other similar arguments. Because if we don't... people will die. And I agree. If we don't allow the FBI, NSA and CIA to have vast and unfettered power, access to every minutia of our daily lives, then people will die.

The pragmatic choice, the choice of the moment, the obvious choice is to hand the executive branch all the power they can fit in their pockets and hide under our beds waiting for them to blow the all-clear. It's still the wrong choice. Because that's exactly what terror is intended to do. Change the people it's aimed against. Whether we capitulate or not, it's aim is to change the playing field, provoke us, make us retaliate in kind, get dirty, fight their way, change what it is that makes us Americans, that makes us not like them.

But people will die.

Yes. They might. That doesn't make torturing detainees the correct choice. It doesn't make setting aside the ideals and the ideas of the America that my grandfathers fought for the correct choice.

It doesn't ok torture.
It doesn't ok illegal and amoral behavior.

And we are not absolved of the sins committed on our behalf and at our behest simply because it seemed like the right choice at the time. Because someone might die if we don't allow it. Yes, they might. And it might be someone I love. It might be me. And I accept that. I'm a citizen. And as such I "support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by law..." And that means even unto death. Without blinking. Without shirking. Without ceding the high ground to my enemies or giving in to their aims to change what makes us not like them.

This is a war about ideals. If it's a global war on Fundamentalist Militant Islamic Fascists or not, it has become a non-shooting civil war of sorts for our own country, a war between the needs of the now versus our contract with the future, our constitutional ideals and the backbone of what made us who we are... were.

I look at my government's actions and I am ashamed. I feel sullied by the acts undertaken on my behalf, bloodied by the innocents dead on 9/11, yes, but soiled by the actions taken by the administration in my name - and allegedly on my behalf - since then. And the two do not equate. I don't care what we're supposedly fighting for.

Denny's right. We need to empower the clandestine forces to act on our behalf. We need common-sense protections and laws that allow the protection of our homeland from the dangers of the world at large. I'm not advocating that we stand aside and look while another airplane ploughs into another building. But such laws and such agencies CANNOT act in an atmosphere without checks and balances. And they cannot sacrifice what they are fighting for in order to win the fight.

Do I think the rest of America agrees with me? That we're all willing to die for the ideals and ideas that have lit the world for over two centuries? No. But then, some people believe that a lapel pin is all it takes to be a patriot.

Nobel Laureate Hans A. Bethe once famously noted (regarding war with H-bombs), "If we fight a war and win it... what history will remember is not the ideals we were fighting for but the methods we used to accomplish them. These methods will be compared to the warfare of Genghis Khan who ruthlessly killed every last inhabitant of Persia." The same can be said of our current course. And it is incumbent upon every citizen sworn of the United States to shoulder their share of that burden.

I find the current debate about warrantless wiretapping and the illegal behavior of the current administration to be part of a larger and far more important debate. And I fear that in the focus on minutia and pragmatism the larger debate is getting obscured.

Our constitution isn't a contract we make with ourselves, it's a contract we make with our kids and our grandkids. We can bequeath to them a country proud and free, protected by a government of, by and for the people, or we can bequeath to them the first tentative steps toward authoritarianism and darkness.

The first step to fighting a war against "Terror" is to stop being afraid.

PART II
The Way It Is As I See It...

We live in a time of vast and far-reaching challenges to our republic. But the greatest threats are not from without, but rather from the manner in which we are reacting to those threats and what it is doing to us as a country.

What does it say to you when the FBI's own inspector general annually comes out with ever more appalling reports on the manner in which the agents of our government are abusing the powers vested in them? And some that most certainly were not. We see our government taking more and more power for itself, law enforcement essentially issuing their own subpoenas on-spec with no oversight, no checks and balances. And now they want more power with less oversight.

The Attorney General of the United States of America has refused to enforce Congressional subpoena and censure, precipitating a constitutional crisis that has yet to be resolved as two branches of our government vie against one another. By refusing the mandate of the constitution for checks and balances and oversight, the executive is shaking the foundations of our country when we can ill afford to do so. As they keep reminding us, we're at war, and we can't afford these distractions. No. Before you ask, no, I do not hold the congress accountable for the crisis. For once, I think they're doing what they're supposed to, exercising oversight. Too late, I fear and for the wrong issue, but something is better than rubberstamping the executive's whims.

I feel this is further compounded by Mukasey taking the chair but refusing to repudiate his successor's arguments for the legality of a practice pioneered the the Inquisition. And I refuse to vote a man for the presidency when he, an officer in our armed force who was captured, imprisoned and tortured as a POW in Viet Nam, who has vehemently opposed such practices has now reversed himself as long as it's the CIA and not the army doing it. ("Abusive interrogation tactics produce bad intel, and undermine the values we hold dear." -John McCain, 2005) Torture's ok for you, but not you. If the CIA gets the bad intel from torturing detainees in black sites, that's ok. As long as it's not Our Boys doing it...

The mistreatment of prisoners harms us more than our enemies. I don't think I'm naive about how terrible are the wages of war, and how terrible are the things that must be done to wage it successfully. It is an awful business, and no matter how noble the cause for which it is fought, no matter how valiant their service, many veterans spend much of their subsequent lives trying to forget not only what was done to them, but some of what had to be done by them to prevail.
- Senator John McCain, Newsweek Op-Ed, 2005
(linked above)

It's pathetic. And in case you had any doubts, this is when he lost all hope of my vote.

We live in a time of constitutional crisis, when the vice president is operating under the illusion that he is a fourth branch of government and a law unto himself (since no laws apply to this fictitious fourth branch) with vast extra-constitutional powers.

We live in a time when dangerous precedents are being sought and set regarding the extra-constitutionality of presidential powers, of the Executive branch as a law in and of itself and of military bases as living outside the scope of federal law governing the manner and conduct of those who reside there or are held there. The president has spent his entire presidency shoring up the belief that he is a law unto himself, that he can create, ignore and set aside laws and policies both foreign and domestic without recourse to constitutional channels. Vast extra-constitutional powers that include the ability and right to choose which laws he shall enforce, the right to act in a complete blackout from congress and the people who elected him. A man who has repeatedly attacked the separation of powers encoded in the constitution and in many ways failed to live up to an oath we all watched him take. Twice, God help us.

This is a time when heroes are needed. Men and women willing to face the fire, willing to shoulder the burdens of life in an uncertain world. Citizens willing to sacrifice all for the ideals and to set aside the terror engendered by that horrible act on that fateful day. America changed that day, yes, but not for the better.

PART III
So... Now what?
There isn't anyone in the political arena who speaks to these issues adequately. Not one. Because no one wants to hear it. No one wants to think about what it really means to fight a war, not at the mall, or in Iraq, but in our own hearts and minds, knowing that it might mean our fellow citizens might die horribly before our very eyes... that we might be sacrificing ourselves for a higher ideal.

As Denny has noted, our diplomatic corps is woefully anemic. Our foreign policy has been a mess for years. And our once mighty economy is coming down around our ears... and now here I stand, talking about sacrifice. Real, honest-to-God sacrifice... or the potential thereof.

I'm willing to die for this country. I'm willing to risk it all to save something worth the sacrifices of my forebears, worth the risks endured by the immigrant who threw it all away to sneak aboard that ship and come here illegally. Just as they were, so am I.

We make dangerous decisions without thinking forward to the time when those empowered will be asked to return those powers to us. I hear confident speech that the government works for us, they'll do what I ask or I'll vote them out. Good luck. I am not so optimistic. Every legal decision to uphold this implacable erosion of freedoms and protections from search and seizure, every time we hand more power to the government, it gets harder to take it back. The courts can't help us if we keep handcuffing them by removing them from their constitutional role of oversight. And the principles of stare decisis we heard about so much during the Supreme Court nominee hearings awhile back are very real, and those alone make these decisions perilous. Future attempts to roll back such expansions of surveillance powers are eroded with every law and decision affirming this. When the time comes... how will we get back what we have so blithely given away?

Our nation is risk-averse. We're coddled and spoonfed. And we'd rather take the surety of the current course than plot a new one so uncertain as what I've been talking about here. And my vision is a worst-case. I'm not advocating throwing it over and letting them come... we'll fight them on the streets of New Jersey and Deleware. I'm advocating a real view of what we're talking about and assessing what has already been sacrificed to get it for us, and whether we - as a nation - are really, truly willing to throw it away in the throes of the current conflict.

Our grandparents are called the "Greatest Generation" and indeed there were giants in their midst. Men and women of stature and integrity. There was also Joe McCarthy and the travesty of HUAC and the Red Scare and all the rest.

Or forebears have made manifold mistakes. Each generation compounding them as they think of the now and put off 'til tomorrow what we should pay for and do this day. This is manifest in our debt, in our crumbling infrastructure, in the deplorable waste and embarrassing contempt our elected officials show for us, the electorate that put them where they are. Our dismantling of the intelligence gathering apparatus and our inward navel-gazing that has allowed so much unrest to fester in the world when we could have done something about it... or at least kept a closer eye on it so we would see it coming.

Our country's history since 1945 is a litany of unbelievable potential largely gone unrealized. As great as we became, we could have been better and I find that sad. Fellow citizens and closely-held freedoms cast aside in the interests of the moment. And that is what is being asked of us once again. A new era of fear and surveillance. Of being allowed to hide from the unknown until someone in a government-issue suit sounds the 'all clear'. It took an act of greatness to set aside HUAC, heroism on the part of those who found themselves at the nexus of a historical moment doing the hardest thing a human can do... make the right decision. The decision that sets aside the certainty of personal safety in the interest of preserving our integrity.

We can fight this war with honor and inside the rule of law. No one has yet convinced me that the loose constraints of the FISA courts place an undue burden on law enforcement and intelligence gathering.

Denny's first real post on this site asked "Where Are the Heroes?" Where are those willing to die that others might live, that others might be free? I ask again. Where is the informed citizenry raising their fists to the sky, saying "We will not let them change us! We will fight with honor and we will win with honor?"

My forefathers did not sacrifice so much to preserve what we have only for me to buckle to the pressures of the present and set aside the promise of the future. I am here to keep the pact we have made with the future. A promise enshrined in the constitution - with all its flaws - a promise not to me, but to my nephews and children yet unborn (God willing). It is something I am willing to fight for. Something I am willing to die for.

I am not a child. I do not need to 'grow up'. I don't need to be coddled, I do not need to have my patriotism defined for me. I know full well what I ask of myself and my fellow man. And I bear the full and total responsibility of my actions and those undertaken on my behalf. I feel that the ideals and the aims of this country would be better served if the citizenry would wake the fuck up from our media-induced coma and believe in something... and fight for it.

There is risk. Some may die. But only so that others may truly live in freedom. In this country and others. I take this obligation freely without any mental reservation or purpose of evasion; so help me God.

Now you know where I stand. Now... only now can we see if there's a middle ground somewhere on which we can meet and agree. I don't know. You tell me.

Politics of everything but the point

Here on A Host of Contributing Factors and across the media cyberscape, debates rage with incredible ferocity and vociferousness about politics and policy without ever really reaching what anyone can honestly call a point.

Here on AHOCF, the debate du jure has been over the legitimacy and consequences of warrantless wiretapping and its many associated concerns. Yet, somehow lost in this debate are the concerns that brought it to light to begin with. The result is that those concerns continue to boil and burn even as we beat ourselves to intellectual death by mischaracterizing another’s views, ignoring the subtleties of another’s points, and refusing to consider that at least some of our own views might actually be flawed, misguided, or just plain wrong.

What results is a debate sans points and many, many questions sans answers. Even in this little corner of cyberspace is gathered a group of people of considerable knowledge, intellect, and logic who have turned those gifts to digging trenches rather than building bridges. No one benefits from more fortifications, but everyone benefits from more dialogue.

I am just as guilty of contributing to this phenomenon as anyone, but I would like to believe that I can be part of the change needed to put and end to it. That change is why I started writing on the internet to begin with. That change is why I gravitate toward asking questions and trying to discern out points of commonality, as flawed as those attempts may be.

So, here again I offer an opportunity, not to beat to death another set of points that apparently cannot be reasonably resolved, but to find those points of commonality and create solutions that are actionable.

Let’s start with the debate du jure: I agree that warrantless wiretapping is not the best method to gather intelligence on enemies residing within the United States because of the risks involved in compromising the liberty of the innocent, however I also agree that the better methods of gathering that intelligence are either not available to our intelligence agencies or are now impractical or impossible to implement. Therefore, we Americans have a very clear problem: Our enemies are operating on our own soil and the apparent solutions to finding and stopping them are not the ones we really want to use. Our choices are clear: Use the methods we have available or find some other way.

Therein lies my question: I am not asking anything other than how do we do what needs to be done if we do not use the methods we have? I do not claim to have an answer, hence the reason that I have come down on the side of using the methods that are available. I believe, however, in the collected group present on this weblog, an answer can be discerned if we try. There is no deception or attempt to trap buried in this question, simply an honest attempt to coax out ideas that may be buried within the collected intellect of the group.

Of course, the moment I end this post, its interpretation is left with the reader. I hope the interpretation is as I intended it. Otherwise, all that is left is to try again.

Disparity of Powers – Redux

Posters at this space have linked to what has now become a debate between two contributors to WIRED. David Brin has responded to Bruce Schneier’s article, “The Myth of the ‘Transparent Society” with his article entitled, “David Brin Rebuts Schneier In Defense of a Transparent Society.” Sadly, neither author hits the right mark.

The major failing in Brin’s response is the petulance he exhibits in response to an imagined attack on his book, The Transparent Society. Brin overstates Schneier’s assessment of societal transparency, characterizing it as a “major departure from our present social contract” even as he correctly quotes Schneier merely saying it would be “different than before.”

Brin’s pique continues when he accuses Schneier of suggesting “that transparency would end privacy, making everyone walk around naked.” Schneier does, indeed, say that under a system of mutual disclosure of information “[w]e both have less privacy,” but less privacy is not the same as no privacy. Further, Schneier never even implies we’d all be walking around naked, literally or metaphorically. Brin is clearly misusing Schneier’s doctor’s office example to create a “caricature” of Schneier’s position. The hypocrisy of this rhetorical maneuver is stunning because it comes in the very line of the article in which Brin accuses Schneier of caricaturing the argument in Brin’s book.

Perhaps these inaccuracies stem from a misunderstanding Brin brings to the table. He seems to think that Schneier has criticized The Transparent Society on the basis that it “doesn’t address ‘the inherent value of privacy.’” Brin quotes Schneier’s words accurately, but ignores the context. While Brin is busy being offended that Schneier missed the “several chapters” in his book that do address the value of privacy, he ignores the fact that Schneier wasn’t criticizing the book for this lack, but rather was criticizing the concept itself for not addressing the value of privacy. That may seem like a small distinction, but the fact that Brin misses it and doesn’t address the actual argument Schneier makes only makes it clear that Brin’s is a personal beef.

What Brin does very well is provide a wonderful analogy for his vision of a transparent society. Brin gives us the “restaurant analogy” that demonstrates the privacy to be found in a crowd and the resulting transparency of any efforts to eavesdrop on our conversations. It is only when we erect barriers between the tables, Brin says, that we allow others to listen in with impunity. In making this point, Brin seems to think he is shattering Schneier’s case when, in fact, he is supporting it. This unfortunate misunderstanding is the result of Schneier’s own inability to clearly articulate his point.

Schneier argues that transparency is ultimately an ineffective and perhaps unattainable goal because of “the crucial dissimilarity of power” that exists between “the governors and the governed.” He illustrates this point with an example of a police officer demanding to see your identification. A similar demand on your part for the officer’s identification, Schneier argues, “gives you no comparable power over him or her. The power balance is too great and mutual disclosure does not make it OK.”

Schneier is right to suggest that the power imbalance is a determining factor in the value of transparency to this situation. He misses, however, the flaw in his example. Not only is the power imbalance present, but there hasn’t actually been equal disclosure. While you may be in possession of the officer’s name and badge number, you also don’t have access to the wealth of information about the officer that he is privy to about you. It is not only power that is an issue in this example, but access to information.

Schneier opens himself to Brin’s attack because he fails to connect the dots. Schneier’s argument is quietly premised on the current power imbalance. His argument sounds as if he believes, as Brin accuses him, that “light should shine in one direction, from masses onto elites, not the other way around.” In fact, Schneier’s argument is that it should shine in both directions and as equally as possible. As he says, “All aspects of government work best when the relative power between the governors and the governed remains as small as possible – when liberty is high and control is low.”

Ultimately, though, Schneier’s argument is weakened because he does not state explicitly that because of the growing inequities of power, the light is becoming more unidirectional, shining from the government on the governed because bidirectional transparency is effectively being blocked by the use of the government’s power. As Brin might say, the government has erected “shoji screens,” the better to “press their ears against the screens and peer through the slits with impunity.”

This is clearly the case when the government seeks to gather information about its citizens through, as Schneier says, “Ubiquitous surveillance programs that affect everyone without probable cause or warrant” but refuses to submit its actions to any kind of review. Certainly, there are legitimate national security concerns in an open, transparent society, but when national security is used as a shield for blocking any attempts at transparency, the power imbalance is only exacerbated. This is ultimately Schneier’s argument, that “no one is safer in a political system of control.”

About that, he is correct, Brin’s accurate statements about our “openness experiment” and its imperfections notwithstanding. While he criticizes Schneier’s argument on all the wrong points, even Brin concludes, “All of the great enlightenment arenas – markets, science, and democracy – flourish in direct proportion to how much their players (consumers, scientists, and voters) know, in order to make good decisions. To whatever extent these arenas get clogged by secrecy, they fail.

That is the danger with which we are currently faced and the one about which Schneier is trying to warn us. Despite his misunderstanding of Schneier’s point, it is clear Brin essentially agrees with Schneier about the value of transparency. They just can’t seem to agree about whether or not we have a sufficient amount of light shining in both directions at the moment.

Disparity of Powers

A counterpoint argument worth reading...
The Myth of the Transparent Society