Coyote Blog

While I bloviated for many screen-inches on wiretaps, detentions, and separation of powers (and here, and here), George Will nails what I was trying to say in about a paragraph.

But, then, perhaps no future president will ask for such congressional
involvement in the gravest decision government makes -- going to war. Why would
future presidents ask, if the present administration successfully asserts its
current doctrine? It is that whenever the nation is at war, the other two
branches of government have a radically diminished pertinence to governance, and
the president determines what that pertinence shall be. This monarchical
doctrine emerges from the administration's stance that warrant-less surveillance
by the National Security Agency targeting American citizens on American soil is
a legal exercise of the president's inherent powers as commander in chief, even
though it violates the clear language of the 1978 Foreign Intelligence
Surveillance Act, which was written to regulate wartime surveillance.

Will seems to think the wiretapping a reasonable approach, and thinks Congress should authorize it, but its very reasonableness or even necessity does not justify executive circumvention of the Constitution:

Besides, terrorism is not the only new danger of this era. Another is the
administration's argument that because the president is commander in chief, he
is the "sole organ for the nation in foreign affairs." That non sequitur is
refuted by the Constitution's plain language, which empowers Congress to ratify
treaties, declare war, fund and regulate military forces, and make laws
"necessary and proper" for the execution of all presidential powers . Those
powers do not include deciding that a law -- FISA, for example -- is somehow
exempted from the presidential duty to "take care that the laws be faithfully
executed."

As I suspected in this post last week, it is increasingly clear that Wayne Gretzky's name was leaked by the NJ Police and/or prosecutors in order to raise the profile of their investigation, and therefore their work.  For those not following the case, initially they accused one or more B-list hockey players of running an illegal bookmaking business.  When that failed to get their investigation on the front page, they leaked the fact that they had tapes of Wayne Gretzky proving he knew about the alleged illegal activity. 

Well, that helped them achieve their goal.  They got their investigation on the front page everywhere, and set up a feeding frenzy as the media tried to climb all over each other to throw mud at one of the heretofore last unsullied great names in sports.  Now, as I suspected, we find out that they really had nothing on Wayne, and misrepresented what they had to get themselves headlines:

One of Canada's all-time great
heroes may get the change to keep that title, after a long week in an
ugly spotlight. The heat's being taken off Wayne Gretzky.

Gretzky was
beaten down by the media spotlight since early February, when his wife
and assistant coach were implicated in an alleged illegal gambling
ring. Gretzky was pulled into the fray a couple of days later, when
sources suggested he was in the loop on the whole thing. But there's
new information on a wiretap conversation between Wayne Gretzky and
Rich Tocchet, which seems to support Gretzky's contention that he had
no prior knowledge of an illegal gambling ring allegedly involving
Tocchet.

It turns out the conversation on how Gretzky's wife
could avoid being named as a participant was recorded last Monday, the
day after Janet Jones allegedly won money betting on the Super Bowl.
Also, Gretzky's wife Jane was alleged to have laid a half million
dollars in bets -- but that also appears to have been false
information. It's believed she only bet about a fifth of that.

OMG, I guess they told the truth -- they did have tapes that showed Wayne Gretzky knew about the abuses.  Of course, what they did not say last week was that the tapes were made AFTER the whole mess became public.  OK, I confess, I too knew about the bettin scandal after it became public.  There goes my reputation.

Unfortunately, our country is increasingly being operated as if we have a inalienable right to be titillated that trumps stuff like, oh, due process.  I made a similar observation in response to leaks of grand jury testimony on steroids.  I also recently posted on prosecutorial abuses in the Enron trials.

Update:  Apparently, NJ prosecutors are now saying that the bets Janet Gretsky allegedly made are not even illegal in the state of NJ.  So they leaked damaging information about both the Gretsky's "involvement", then 2 weeks later let the other shoe drop and made it clear they really didn't do anything illegal.  It couldn't be clearer that the police and prosecutors released the Gretsky's names to the press to grab the front-line headlines they were not getting with their B-list targets.

As the Enron trial lumbers towards the end of its second week, Tom Kirkendall continues to have good analysis (keep scrolling).  While the Enron bankruptcy has spawned a number of books, it is likely that the Enron prosecution may spawn a few of its own.  Already, the prosecution has botched trials thought to be lay-ups and has demonstrated a new level of presecutorial abuse.  I know that most people have little sympathy for the defendants, but one has to be concerned with the tactics being used in these cases.  From reading his posts, while its early in the game, the defense may be ahead on points, as the prosecution made another tactical error in leading with and spending far too long with a weak witness, indicating that they are ready to commit on the same mistakes they made in the failed broadband trial.

By the way, this snippet is very funny - the indictment against Skilling and Lay is apparently so unclear and confusing and poorly written that the prosecution, who wrote it, is asking that the judge not allow it to be mentioned or quoted in the trial.  LOL - they are asking that no one mention the charges against the defendants in front of the jury.  Which is actually pretty appropriate, since in effect the prosecution is going to try to get Skilling and Lay convicted of being rich and unlikable rather than convicted of any specific charges.

By the way, we in Phoenix have been watching the revelations about gambling surrounding our Coyotes coaching staff.  The leaks by the police of as-yet unproven charges against prominent people is yet another abuse that happens all-too-often.  Beyond my own questions as to why gambling of this sort is even illegal in this day and age, it is crystal clear to me that the NJ police are going out of their way to leak insinuations of Gretsky involvement, which I don't think they can prove, merely to get press and attention for themselves.

Over the past few days, I have posted a lot on first and fourth amendment issues, from wiretaps and detentions to free speech to prosecutorial abuses.  It turns out I could have saved my self a lot of time and just linked this great interview with former Judge Andrew Napolitano.

We are in a fit of
constitutional chaos when the government views constitutional guarantees as
discretionary. As Americans, we order our lives on the belief that we have
extraordinary freedoms. We believe those freedoms don't come from the
government. They come from our humanity. The government doesn't give freedom; the government
under the Constitution is restrained from interfering with it. I can
basically say whatever I want about the government. I can basically travel
wherever I want to go. I can basically worship however I see fit. If the
government comes to the view that those freedoms are discretionary, no matter
how noble the stated [reason to restrict them] may be, then we're in a state of
constitutional chaos. We will not be able to order our lives based on freedom.
We won't know who will be prosecuted or who'll just be swept away.

On the Patriot Act:

Let's put aside all of
the procedural problems with enacting it. Forget about the fact that there was
no debate. Forget about the fact that most members of Congress didn't even have
an opportunity to read it. It is a direct assault on at least three amendments
to the Constitution: the First Amendment, the Fourth Amendment, and the Fifth
Amendment. The PATRIOT Act legitimates the notion that if we
give up certain freedoms, the government will keep us safer. I reject that
notion from a moral and legal point of view. I also reject it from a practical
point of view. It doesn't work. The government doesn't need our freedoms to
keep us safer. No one"”no lawyer, judge, or historian"”can point to a single
incident in American history where national security was impaired because
someone insisted on their right to free speech or their right to privacy or
their right to due process.

The PATRIOT Act encourages what the
government calls "national security letters""”basically, self-written search
warrants. It violates the Fourth Amendment, which prohibits self-written search
warrants. The PATRIOT Act and two of its predecessors, the Foreign
Intelligence Security Act of 1977 [FISA] and the Electronic
Privacy Act of 1986, authorized the government to obtain search warrants by
bypassing [longstanding tradition in] the courts. Today an FBI agent investigating a
person need only satisfy her or himself that the person under investigation is
a threat to national security. The agent doesn't have to demonstrate evidence
to a judge

On the regulatory state:

[The FDR era] began, in my view,
the dark part of American history where the federal government believed that it
could solve any problem that was national in scope, irrespective of whether it
was a federal problem. A federal problem is one arising
under the 18 specific enumerated powers given to the federal government under
the Constitution. A national problem is something
that exists in New Jersey and California and Texas and Illinois. But just
because it's national doesn't mean it's federal and therefore can be addressed
by the federal government....

In terms of the
government control of our lives, in terms of the percentage of our income that
the government takes from us, in terms of the types and the areas of human
behavior we let the government regulate, we are infinitely less free. And as
Jefferson once said, it is in the natural order of things that the government
should be greater and human
liberty lesser.

Women have
much more freedom. African Americans have much more freedom. Gays have much
more freedom. The discrimination that was rampant, and often caused by the
government, 40 or 50 or 60 years ago"”there's been progress in those areas. But
the destruction of federalism, the centralization of power in Washington, the
belief that Washington can regulate all aspects of our lives will, if not
checked, lead us to a totalitarian form of government. Freedom is the power and
ability to obey your own free will and conscience rather than the free wills
and consciences of others.

The interview also has a very useful short summary of the history of FISA and the Patriot act, and demonstrates how the incremental assaults on the fourth amendment have added up.  I encourage you to read it all.  In addition to this interview, Reason also had a good debate on the Patriot Act here.

If this post had a subtitle, it would be "give 'em enough rope to hang themselves with."  This week has brought one of those perfect examples of why free speech is important, and why it is especially important to let even stupid and evil people voice their opinions.  In what, incredibly, represents a moderation of the response to the Danish cartoons by Muslims (at least vs. shooting priests):

Iran's best-selling newspaper has launched a competition to find the
best cartoon about the Holocaust in retaliation for the publication in
many European countries of caricatures of the Prophet Mohammad....

The
daily paper Hamshahri said the contest was designed to test the
boundaries of free speech -- the reason given by many European
newspapers for publishing the cartoons of the Prophet.

"A serious
question for Muslims ... is this: 'does Western free speech allow
working on issues like America and Israel's crimes or an incident like
the Holocaust or is this freedom of speech only good for insulting the
holy values of divine religions?'" the paper said on Tuesday.

Why would anyone want to stop them from doing this?  It will be thoroughly educational to see who steps up and declares their position on this.  Whenever people want to ban hate speech, I always try to point out that Hitler was telling everyone in the 1920's just what he wanted to accomplish, if only anyone really listened.  Hateful screwed-up people need to be put on the record with their most egregious work.  Censoring them only tends to moderate the public view of them and disguise the true dangers they may pose.  In fact,it is sometimes the case that when the media refuses to publish the most hateful or violent of speech, they are actually doing so because they have sympathy for the speaker, whose public image they are concerned about tarnishing, rather than just protecting the sensitivities of the speaker's targeted victims.

Back when there was all that controversy about flushing Korans at Gitmo, my general reaction was that the charges of outright torture were overblown.  In fact, today I think all this focus on torture-lite was counter-productive, diverting attention from the core question of "no matter how well they are treated, do we have a right to indefinitely detain them at all?" 

The main theme in my posts both on detentions as well as NSA wiretaps has been that our current problems with terrorism do not justify the relaxation or overriding of our core principles of separation of powers.   If we are are going to detain people, it should be following rules laid out by Congress and with clear points of review or appeal to the judiciary.  The exact rules for Habeas Corpus may be different for people captured in Afghanistan than in Omaha, but they can't be thrown out all-together by administration fiat.  The rights protected by our Constitution and its amendments are our rights as humans, not just as Americans.  Our rights not to be locked up indefinitely or not to be subject to invasive searches without a warrant predate government - they are protected by the government, not provided by the government.  As such, even foreigners, who presumably are human, possess these rights too.

It turns out that the Gitmo detentions, years after they began, are starting to get the third party scrutiny that you and I expect to get after 48 hours of detention.

If accurate, this National Journal cover story is scandalous.  Stuart Taylor's Journal column sums up the major points:

• A high percentage, perhaps the majority, of
  the 500-odd men now held at Guantanamo were not captured on any
  battlefield, let alone on "the battlefield in Afghanistan" (as Bush asserted) while "trying to kill American forces" (as [press secretary Scott] McClellan claimed).

• Fewer than 20 percent of the Guantanamo detainees, the best available evidence suggests, have ever been Qaeda members.
• Many scores, and perhaps hundreds, of the detainees
  were not even Taliban foot soldiers, let alone Qaeda terrorists. They
  were innocent, wrongly seized noncombatants with no intention of
  joining the Qaeda campaign to murder Americans.

• The majority were not captured by U.S. forces but
  rather handed over by reward-seeking Pakistanis and Afghan warlords and
  by villagers of highly doubtful reliability.

Maybe an actual government body that does not report to the President, such as the judiciary, can finally enter the fray and habeas some of their corpuses. 

And by the way, I am soooo fed up with the counter-argument, "coyote, you are more interested in the rights of terrorists than security".  I answered this here, but in the case of detentions it is perfectly clear to me that the goal of detaining demonstrably dangerous folks does not require avoidance of judicial review.  I am sure this administration like any other does not like the courts or Congress looking over its shoulder, but they have to get over it.  The Administration has decided that the other branches of government can't be trusted, and the theme of many of their recent actions has been to fight against any separation of powers restrictions on the administration.

Related thoughts:  I see decent support in polls for these detentions and wiretaps.  My sense is that people who trust Bush are OK with him taking on these powers, and people who don't trust him are horrified.  The history of the Patriot Act is illustrative of this.  Most of the Patriot Act was originally proposed by Bill Clinton in response to Oklahoma City and the first bombing of the WTC.  At that time, Republicans opposed it, eventually defeating it in the Senate with the opposition led by... John Ashcroft.  Yes, I know the argument the world changed on September 11, but I think an even more important explanation of this turnaround for Republicans is that they did not trust Clinton, so didn't give him the power, but do trust Bush.  Of course the short-sightedness of this approach is stunning, since we know no party stays in power forever.  To Republicans, if you are comfortable with Bush being able to detain people of his choice without review and to wiretap without warrant, then you need to also be comfortable with Hillary Clinton, Howard Dean, or maybe Patty Murray having the same power some day.  Are you?  Really?  Because I am not comfortable giving the power to either party.

Yes, the world may have shifted on its axis on September 11, but not enough for us to throw out separation of powers.

Update:  More here.

I have been following the Lay/Skilling Enron trial fairly closely, if only because in a past life I worked briefly with the principles, having worked with Jeff Skilling at McKinsey & Co. before he went to Enron.  By the way, if this causes you to assume this makes me particularly sympathetic to the gentlemen, think again.  Jeff Skilling is one of the brightest and most detail-oriented people I have ever worked with, giving me near certainty that his testimony before Congress where he imitated Sargent Shultz (I know nothing... NOTHING) was perjurous.   So I am not entirely neutral, but maybe not in the way you might imagine.

However, all that being said, Tom Kirkendall (whose blog is here and is doing a great job keeping up with the trial) has a very interesting post on the fairly scary tactics the Enron prosecution task force has brought to bear on a number of Enron and Enron-related defendants:

In an unprecedented move, the Task Force has named over 100 co-conspirators
in the case. So, the potential definitely exists for substantial
testimony about out-of-court statements going to the jury without the
defense ever having an opportunity to cross-examine the persons who
made the alleged statements. Moreover, fingering unindicted
co-conspirators is an equally effective technique for the Task Force to prevent testimony that is favorable to the defense
because persons named as unindicted co-conspirators are likely to the
assert their Fifth Amendment privilege against self-incrimination and
thus, not be defense witnesses during the trial. Thus, the Task Force's
liberal use of the co-conspirator tag has a double-whammy effect -- not
only does it allow the Task Force to use out-of-court statements
against defendants without having the declarant of the statements
subjected to cross-examination, it has also effectively prevented
previous Enron-related defendants from obtaining crucial exculpatory
testimony from alleged co-conspirators who have elected to take the
Fifth and declined to testify.

The co-conspirator tactic has had a huge impact on two of the previous Enron-related trials. During the Nigerian Barge trial,
the Task Force used out-of-court statements of co-conspirators
regarding the key factual issue in the case -- that is, what was said
during a conference call between several Merrill and Enron executives,
including former Enron CFO Andrew Fastow -- without ever having to put
a witness on the stand who actually participated in the call.
Similarly, none of the dozens of unindicted co-conspirators testified
on behalf of the defendants during that trial, so the Task Force's use
of the tactic effectively prevented the Merrill Lynch executives in
that case from providing the jury with exculpatory testimony. Not
surprisingly, the Task Force's liberal use of the co-conspirator tactic
has become a key appellate point for the Merrill executives in the appeal of their convictions.

Similarly, the importance of the co-conspirator issue on freezing
out exculpatory testimony was brought into full focus during the trial
of the Enron Broadband case last year. In a trial that, at the outset, appeared to be a sure-thing for the prosecution, the Task Force's case unraveled quickly as witnesses Lawrence Ciscon and Beth Stier
both testified to a riveted jury about how the Task Force's threats of
prosecution against them gave them second thoughts about providing the
exculpatory testimony that they gave during the trial. That trial ended
in a disastrous mix of acquittals and jury deadlock on the prosecution's charges.

The ability to face and cross-examine your accusers is a fundamental part of the American legal system.  Even well-intentioned relaxing of this principle has in the past led to innocent people going to jail.

Update:  Kirkendall writes that the same issue is being addressed on appeal in the Worldcom trial of Bernard Ebbers.

Frequent readers of this site know that I hold an extreme position on immigration:  I advocate free and open immigration of anyone who wants to come.  I made the case for open immigration here.

So it is not surprising that I am opposed to recent efforts by our Arizona Governor and state legislature to crack down on undocumented immigrants, an effort by the way that feels more like populist pandering than deeply held belief.

But what really befuddles me about our Governor's efforts is the message she seems to be sending.  Take these two positions together:

1. Last November, Governor Napolitano opposed the passage of Proposition 200, which was aimed at denying state services to illegal immigrants.  And, after its passage in November 2004, she did everything she could to drag her feet on its enforcement
2. Today, Governor Napolitano is supporting a state-wide crackdown on hiring of illegal immigrants, with a proposal for substantially increased fines and penalties for businesses that hire an undocumented worker.

Taking these two positions together, our governor's position appears to be that she supports immigrants being able to freeload off of taxpayer-funded services and transfer payments, but opposes immigrants being able to work and be productive.  Maybe we can post a big sign down on the border:

Give me your tired, your poor, your huddled masses yearning... for government handouts, but please tell your productive workers to stay home.

Update:  The Arizona Republic, though I may bash it from time to time, has been pretty fair to me in publishing my letters to the editor.  The post above was published in their print edition on January 21, and online here (though I thought my title was much better!)

The other day, I saw Coyote Blog grouped into a category of "conservative blogs".  I know a lot of folks tend to immediately shorthand free market economics to "conservative", but I bristle at the tag, particularly given the knife sticking out of the free economy's back right now with Republican finger prints all over it.  Therefore, I have decided that it is time to take one of those wildly unpopular libertarian stands that will help ensure that I don't get lumped in with Pat Robertson any more, while simultaneously guaranteeing I will never be able to hold elective office or survive a Senate confirmation.

For some reason, perhaps because of the recent Hollywood movie on the topic, there seems to be a lot of talk and concern in the press about white slavery and forced prostitution.  To which the general legislative response is "Let's crack down on prostitution".

The reason women get used and abused in the prostitution trade is because the trade is illegal, not because we aren't tough enough on it.  If a woman working at Wal-mart has part of her pay stolen by her boss, or is required to pay sexual favors to hold her job, she has legal recourse, both to the police and to civil court.  In fact, walking into an attorney's office and declaring "I work at Wal-mart and my boss forced me to have sex and stole my pay" would likely result in her becoming a millionaire some day.  On the other hand, a prostitute today who walked into a police station and declared "I work as a prostitute and my boss stole my pay" would likely result in her arrest.  Women get abused precisely because their trade is illegal, giving them no real recourse to the legal system.  Making prostitution legal would give thousands of abused women their first chance ever at freedom from their tormentors.

I think the time is right to revisit the subject of legalized prostitution.  America, for all the talk of a Republican-led theocratic state, has continued to relax itself on enforcing moral norms between consenting adults.  Forty years ago, the majority of Americans opposed legal homosexuality, legalized gambling, and even interracial marriage.  In many states, even tattooing was illegal.  Today, though we still suffer through some tortured ethical logic (e.g. gambling is moral as long as it is on a boat but not on land) these practices are legal in many parts of the country.  Its time to recognize that consensual sex between adults should be legal in all its forms, including those forms where money is exchanged.  By the way, speaking of bizarre ethical logic, today, in most states, exchanging money for sex is illegal EXCEPT if the act is filmed and the film is distributed widely.  Then the sex act for money is no longer prostitution but is pornography, which while frowned upon by many is generally legal.

Interestingly, feminists tend to be split on this issue, in part because feminists tend to split into at least two camps.  The first camp is the libertarian-feminist, who honestly want to empower women, and who try to be consistent to the "women should be able to make decisions for her own body" argument used in abortion and which leads them to support legalized prostitution as well. I can imagine these feminists saying "Hey women out there, if men could
make $500 an hour having sex, does anyone doubt that it would be legal?"

The second camp is the sort of uber-gender feminists, whose agenda is more about molding all women into their idealized female.  These feminists, who seem to control many women's organizations today, have created a whole new kind of morality that women must follow, a morality that seeks to ban breast implants since they are a trivial pandering to male aesthetic norms and to keep prostitution illegal because they see it as degrading to women.   These women use the language of choice in their abortion politics, but they are more about a new form of master-gender (rather than master-race) fascism.

By the way, when I say "free the hookers", I really mean free them.  Several countries in Europe have partially liberalized prostitution, but have reported there is still a lot of sex industry underground.  The reasons is that these countries have applied typical European economic policy to the fledgling industry, meaning they regulated the crap out of it.  Specifically, they tend to put extreme licensing requirements that artificially limit the number of people who can perform the trade legally, much like New York artificially limits the number of cab medallions.  And they get the same result as with cabs in New York - a large gray market is created, and the benefits of bringing the industry out in the open are thwarted.  More on the problems with licensing here and here and here.

I've gotten mail and comments on some of my surveillance- and detention-related posts, particularly this one here, that boil down to "but warrant-less national security eavesdropping is legal". John Hinderaker at Powerline makes this argument fairly compellingly.  To which I can answer, fine, but whether it is narrowly legal or illegal is a topic for partisan blogs who want to score points for or against Bush.  As one of those weird libertarian guys, my intention was to stand aside from the question of legality and instead pose the question of "yes, but is it right?"

Foreigners are People Too

It is interesting that I have to make this point more and more nowadays: Foreignors are human beings too.  For example, this idea that non-US citizens have (or should have) the same rights we do was one I highlighted in my defense of open immigration:

The individual rights we hold dear are our rights as human beings, NOT
as citizens.  They flow from our very existence, not from our
government. As human beings, we have the right to assemble with
whomever we want and to speak our minds.  We have the right to live
free of force or physical coercion from other men.  We have the right
to make mutually beneficial arrangements with other men, arrangements
that might involve exchanging goods, purchasing shelter, or paying
another man an agreed upon rate for his work.  We have these rights and
more in nature, and have therefore chosen to form governments not to be
the source of these rights (for they already existed in advance of
governments) but to provide protection of these rights against other
men who might try to violate these rights through force or fraud

Speech, commerce, property, association, and yes, privacy -- these are all rights we have as human beings, so that the fact of citizenship in the US should not have any bearing on whether our government should respect these rights (except in the case of war, which we get into in a while).

These issues are oh-so-much clearer when we flip our perspective.  For Americans reading this, ask yourself:

• Does the government of Great Britain (or Russia, or Iran) have the right to wiretap your phone calls at will without warrant or review just because you are not a citizen of their country?
• Does the government of Great Britain (or Russia, or Iran) have the right to detain you indefinitely without access to a lawyer or embassy if a powerful person in their government declares you an enemy combatant?

If you answered "yes", then recognize that the 1979 capture of the US embassy staff in Iran was probably legal by your rules, as was nearly every other detention of American citizens by another country.  If you answered "no", then you need to be worried about what the US is doing in the name of national security, for certainly both Bush and Clinton, among others, claim(ed) these rights.  And if you answered "no" for all other countries but "yes" for us, presumably because you trust our guys but not theirs, I will admit you have some historical precedent, since the US for all its faults has generally acted more honorably than 99% of the other nations of the world over the last 100 years.  But you do need to think about the meaning of the rule of law, and why its always a bad idea to give good men power that you don't want bad men to have.

By saying this, I realize that am I not only out of step with the US appellate courts (as Hinderaker points out) and with the Supreme Court (at least on the detention issue, since they haven't ruled on the warrant-less search powers) but also perhaps with the founding fathers.  While most of the folks who wrote the Constitution understood the notion of rights that are derived from nature rather than from the state, the Constitution is mute on the laws of the US vis a vis foreign citizens (excepts where it comes to war).  It is interesting to note that the Bill of Rights doesn't make any distinctions between citizens and non-citizens - there is nothing, for example, that modifies the prescriptions of the fourth amendment to apply only to searches of US citizens.  One could easily interpret the Bill of Rights as proscribing the actions of the US government against any person of any nationality.  Anyway, if I am in conflict with the founding fathers, so be it -- the Constitution is a fabulous document as totally ahead of its time as would be having 19th century India put a man on the moon, but it was not perfect.

The Magic Words: National Security

You may notice that defenders of these presidential powers tend to play a little verbal slight of hand (in addition to the one discussed here):  They translate the president's powers as CinC to mean "carte blanch for national security issues".  You hear this slight-of-hand so often, one starts to think its written that way in the Constitution, so it is probably good to remind ourselves what that document actually says:

The President shall be commander in chief of the Army and Navy of the
United States, and of the militia of the several states, when called
into the actual service of the United States

That's it.  The president can give orders to the military  -- whether that means he can do anything he wants in the name of national security is a whole other issue.  Folks also seem to want to argue that this CinC power cannot be modified or limited in any way, but that's silly.  The third amendment is aimed solely at the limiting the power of the military.   And certainly the folks who first adopted the constitution and the Bill of Rights believed that the 4th amendment applied to the military as well.  In fact, they would have said especially the military.

The Right Way to do Searches

Here is how we have generally interpreted the 4th amendment:  The legislative branch sets the ground rules, as followed by the Administration.  The administrations selection of targets is reviewed by the Judiciary (warrants) and is also subject to later review at trial (via the admissibility of evidence).  What we try to avoid is allowing the same person to set the rules, choose the target, and perform the surveillance, all in secret and without outside review.  The problems with the NSA wiretapping program is not that it is wrong per se, but that it may violate this process.  The administration is claiming the right to choose the target and perform the surveillance under the own rules and in secret with no possibility of review.   

Declaration of War Needs to Mean Something Again

If there is any part of the constitution that has really gone by the wayside in the last 50 years it is the provisions around declaration of war.  Over the past decades, president's have claimed the power to move forces into action, not just defensively but offensively, without a Congressional declaration of war.  And Hinderaker sees the declaration of war, or the Authorization to Use Military Force
(AUMF) as irrelevant to the legality of warrant-less national security
searches.  He is arguing that the President in his CinC power may search without warrant if it is substantially to fight an enemy.  And, absent an AUMF or a declaration of war, who decides if a group or nation or person is an enemy?  why, the President does.  And, who determines if a surveillance is necessary to fight this enemy? Why, yes, the President does as well.  And who reviews these decisions to make sure the President hasn't chosen to search or wiretap, under the pretext of national security, communists in Hollywood, Martin Luther King, or a self-generated "enemies list" -- no one, I mean, no Administration official in this country would ever do those things, would they?

I have increasingly come to the belief that the AUMF, or declaration of war, is supposed to mean something. (I am not a Constitutional scholar, and don't want to hear about how I don't understand such and such precedent* -- this is my own interpretation).  If one goes back to my first argument above, that all people, not just citizens, are constitutionally protected from our government searching or detaining them without warrant, then the declaration of war is that formal step that is necessary to free the CinC from these restrictions vis a vis a certain named and defined enemy.  The declaration of war, or AUMF, is effectively then the mass warrant, that gives the president the right in his role as CinC to attack those folks with our troops and detain them and spy on them, etc.  And even then, this is not without limit, since none of us are very happy with the Japanese detention precedent in WWII.  This view of the declaration of war is more consistent with the original notion of separation of powers than is the "administration can do anything to protect national security" view.  It allows the President pretty free reign to fight an enemy, including the types of tactics under dispute, but only after the body the founders considered the most sober had approved the war and the enemy (by sober I mean as envisioned by the founding fathers, and not as demonstrated in recent supreme court nomination hearings).

This obviously makes a declaration of war a BIG DEAL, which it should be, rather than just a set piece vote ratifying what the president seems hellbent to do anyway or a statement of moral support, along the lines of a "we support the troops" resolution.  It means that the Congress, god forbid, actually needs to treat the vote with some responsibility and understand the implications of what they are voting for, or else modify the AUMF or articles of war with specific limitations of scope.  And it means Congress needs to think twice and maybe three times before authorizing war against something as nebulous as "A Qaeda" or "terrorism".  And it means that GWB probably is doing nothing illegal, at least in the programs as discovered, but it doesn't mean that the courts or Congress can't change that in the future.

* Constitutional scholars live and die by the great god "precedent", and certainly the legal system would be thrown into disarray if court decisions did not provide precedents for later decisions.  All predictability in the system would vanish.  However, it is more than OK from time to time to go back to the original words of the Constitution to see if the march of serial precedent has somehow taken us off course.  I often liken this to a copier machine.  If you take a plain piece of paper, and copy it, and then copy the copy, and then copy that copy, etc. through twenty or thirty generations, you will end up with a paper that is supposed to be a copy of the original, but in fact is covered with spots and other artifacts that were not on the original.  A series of court precedents can also create such artifacts that can only really be identified not from looking at the last precedent it was built on, but going all the way back to the original Constitution.

Nearly every day brings new evidence of what a threat to free speech campaign finance "reform" laws have become.  I found this bit from Brian Anderson very depressing, but not surprising:

Consider what's going on in Washington State as an early warning.
Early in 2005, the Democrat-controlled legislature passed"”and
Democratic governor Christine Gregoire signed"”a bill boosting the
state's gasoline tax a whopping 9.5 cents per gallon over the next four
years, supposedly to fund transportation projects. Thinking that their
taxes were already plenty high... some citizens organized an initiative campaign,
as Washington law allows, to junk the new levy: No New Gas Tax.

Two popular conservative talk radio hosts, Kirby Wilbur and John
Carlson, explained why the gas tax was bad news and urged listeners to
sign the 225,000 petitions necessary to get the rollback initiative on
the November ballot, though they played no official role in the
campaign and regularly featured on their shows defenders as well as
opponents of the tax hike. With the hosts' help, the petition drive got
almost twice the needed signatures, but the ballot initiative, strongly
opposed by labor unions, the state's liberal media, environmental
groups, and other powerful interests, narrowly lost.

Meantime, however, a group of pro-tax politicians sued No New Gas
Tax, arguing that Wilbur's and Carlson's on-air commentaries were
"in-kind contributions" and that the anti-tax campaign had failed to
report them to the proper state authorities. The suit sought to stop
NNGT from accepting any more of these "contributions" until it
disclosed their worth"”though how the initiative's organizers could
control media discussions or calculate their monetary value remained
unclear. The complaint also socked NNGT with civil penalties,
attorneys' fees and costs, and other damages...

The real target of the suit was clearly Wilbur and Carlson, or, more
accurately, their corporate employer, Fisher Communications. If NNGT received the "contributions," that meant Fisher had sent
them by broadcasting Wilbur's and Carlson's support for the initiative.
Washington law limits contributions in the last three weeks of a
political campaign to $5,000. Depending on how one measured the dollar
worth of on-air "contributions," Fisher could thus face big fines and
criminal sanctions if it let Wilbur and Carlson keep talking about the
gas tax. "Thankfully, Fisher assured us that we could keep
talking about the subject on the air, and we did," Wilbur says. The
judge ruled in favor of the pro-tax pols, though he finessed the $5,000
limitation problem by ruling only on the "contributions" that occurred
prior to the campaign's last three weeks.

I find this offensive.  And expect similar "in-kind" donation logic to be coming to a blog near you.  And while Democrats may short-sightedly cheer as long as this logic is applied against conservative talk radio, this "in-kind" logic is a Pandora's Box that will be very hard to close.  For example, lets say my wife's reading club organizes 200 women to go out to a 3-hour rally to support Hillary Clinton.  In doing so, the club just mobilized 600 "man"-hours for Ms. Clinton, which at $10 an hour, which is a low value for a professional person's time, is worth $6000.  Have they violated the law?  Or, lets say a lawyer who normally bills $300 an hour spends all day Saturday and Sunday marching in a rally for George Bush.  Is he over the limit?

We are in the absolutely terrifying and historically unprecedented position of having had Congress pass a law that no citizen (except a few media people and a few government licensed political groups) can criticize a member of Congress by name within 60 days of an election.  And the Supreme Court signed off on this travesty!

I generally don't get worked up by the memes that fly back and forth between various political blogs.  However, one of late is starting to irritate me.  I have seen it all over the place on conservative blogs, but I will quote from James Taranto because I saw it on Best of the Web most recently:

Related to the terrorism-is-no-big-threat claim is the argument that American lives are less important than the civil liberties of terrorists.

Its not the lives vs. liberties part that works me up -- there probably is a real trade-off in there somewhere.  What irks me is portraying concerns about the Patriot Act, indefinite detentions without trial, and eavesdropping outside of the normal separation of powers checks and balances as "concern for the civil liberties of terrorists".

I am sure that there is a name for this kind of semantic trick, though I can't remember it, but I will say its bush league, right out of high school debate.  You could just as easily stump for repeal of the fourth amendment because it is only concerned with the "civil liberties of criminals".

No one except a few crazies cares much for the civil rights of convicted criminals and terrorists.  After all, what could be more of a violation of their civil rights than incarcerating them, but I have seldom seen a bond issue for more prisons that people won't vote for.

No, the problem is with the civil rights of the rest of us who are innocent.  We don't want our email read just in case we are terrorists.  We don't want our houses broken into at night just in case we are drug dealers.  And if we find ourselves in police custody, we want our habeas corpus rights respected and we want to get our due process or be released.

You see, that's the nagging little problem.  Because the people the administration and their law enforcement arms are detaining and eavesdropping on are only "suspected terrorists", or I will even grant you "strongly suspected terrorists".  And there is a whole great world of difference between even a strongly suspected terrorist and a convicted terrorist.  That is what due process and the presumption of innocence is all about.  We have a legal term for a person "suspected" by the police of crime or terrorism:  Innocent citizen.

Yes, I understand that for the police to do their business, they need to be able to investigate suspected criminals.  As I wrote here, we have a process for that - the legislature sets the rules for investigations and searches, the Supreme Court tests the rules against the Constitution, the administrative branches follow the rules, and the courts have various review roles, from approving wiretaps and search warrants to being a source of appeal for habeas corpus violations.  That is why I stated that though I opposed provisions of the Patriot Act, at least it followed this separation-of-powers script.  It is when the administration claims new powers for itself without legislative authority or judicial review that really gives me the willies.

And yes, I know that the counter-argument is that we are at war and the administration and the President as commander-in-chief have the abilities under their powers to do, uh, whatever it takes I guess to prosecute a war.  After all, you can't run to Congress for a vote every time you want to move the troops in a war, can you?

There is a major problem with this argument.  To the extent that the President has all this extra wartime power, the founding fathers put in a very sensible Constitutional provision that the Senate must make a declaration of war before the President has these wartime powers.  And you know what -- the Senate of this country has not declared war since about 1941 on anyone.  Even if I give GWB credit for all the best motives in the world, we cannot have a government where the President can assume all kinds of magic wartime powers AND unilaterally declare war himself (and no, the Senate authorization for military action in Afghanistan was not a declaration of war, at least in this sense).  Effectively the Administration is asking us to a) allow the Administration to define when and who we are at war against; b) allow the Administration to identify, without outside review, who the combatants are in this war; and c) allow the Administration to search or indefinitely detain these combatants that they identified, indefinitely and without review outside of Administration-controlled organizations.

No way.  And I don't think a President has these powers to arbitrarily name who is a threat and detain them without due process even in a declared war - I mean, does anyone remember the embarrassing Japanese internments in WWII?  Were the Japanese internments any different, except in scale, from the powers the administration is claiming today?

Supporters of the war in Iraq have defended that Iraq is better off despite the high ongoing civilian death toll from terrorist acts.  They argue that the people of Iraq are willing to pay the price of dealing with these terrorist attacks in order to gain the status of a free and open state.  I would ask, then, aren't we in the US just as willing to deal with some increased risk of terrorism in order to maintain a free and open state?

I don't consider myself a tinfoil hat guy.  I think many of the security concerns behind the administration's actions can be addressed with some respect to separation of powers, if the administration was just willing to try.  However, it is my observation that the administration gave up trying to work with Congress about 2 years into his first term.  GWB hasn't tried to push any kind of legislative agenda.  He hasn't tried to bring any adult supervision to the gross display of spending excess going on.  He hasn't even used his veto pen once.  It strikes me that the Bush administration decided in about 2002 that Congress wasn't serious (I can sympathize with that) and that they were going to go off on their own and run things by themselves.  Sorry, but no matter how good your intentions, it does not work that way.

Via Powerline and the Washington Times comes a report (or maybe a prediction) that Democrats may be preparing to use privacy as the unifying theme of their 2006 legislative agenda and reelection efforts.  This actually echos a suggestion made by Kevin Drum last year (which may be an indication that Democrats are getting smarter, if they are listening to Drum rather than Kos).

John Hinderaker thinks that this suggestion, which would link abortion and NSA surveillance, ranks as either ineffective or "downright weird".  I think it would be fabulous, but, as I wrote in response to Drum's post the first time around, it contains huge land mines for the left:

I am all for a general and strong privacy right.  I would love to see
it Constitutionally enshrined.  But liberals (like conservatives, but I
am answering Drum's question) don't want it.  They want to allow women to choose abortions, but not choose breast implants.
They want the government to allow marijuana use but squelch fatty
foods.  They don't want police checking for terrorists but do want them
checking for people not wearing their seat belts.  They want freedom of
speech, until it criticizes groups to whom they are sympathetic.  They want to allow topless dancers but regulate the hell out of how much they make.  Liberals, in sum, are at
least as bad about wanting to control private, non-coerced individual
decision-making as conservatives -- they just want to control other
aspects of our lives than do conservatives.

It just so happens a perfect example is sitting right at the top of Instapundit this morning:  Teresa Nielsen Hayden apparently takes the drug Cylert to treat her narcolepsy.  For a while, it has been known that Cylert can cause some liver trouble.  She apparently knows this, has a doctor monitor her liver health, but is willing to take this risk because she apparently is fine with accepting some risk of liver trouble in exchange for substantially improved quality of life. 

The problem is, the liberal/progressive Public Citizen group has fought hard and successfully to deny her this choice for her own body.  This type action is not an exception, but rather is fundamental to the left/Democrat agenda, i.e. We are smarter than you about making choices, and we would never risk liver disease to cure narcolepsy (though we have never lived through narcolepsy ourselves) so we are not going to allow you to make that decision for yourself.  Vioxx users, like acute-pain sufferers for whom Vioxx is really the first treatment to allow them to enjoy life again without incapacitating pain, have also been denied this choice.  So have folks who want to get breast implants, manage their own retirement (social Security) funds, ride motorcycles without helmets and drive cars without seat belts.  One case that is quite revealing is NOW's insistence that women, even
at the age of 13, have the ability and absolute right to make abortion
decisions without government intervention, but that these same women are completely incapable of making breast implant decisions so they demand that the government curtail this choice. 

But the list really goes much further.  For example, why isn't it a "private" decision when two people agree without coercion as to how much money one will provide labor or goods or services to the other.  An enormous part of the Democratic platform rests on regulating the shit out of every single facet of this type of private encounter.

Since the left considers sex absolutely beyond regulation, and commerce completely fair game for detailed government intervention, its funny when the two cross, as they did when the ACLU argued that taxation of topless dancers interfered with their freedom of expression.  Fine, but if topless dancing is expression, which it seems to be, why isn't writing a book, designing a house, making an iPod or even cooking great cheese-fries?  Commerce is all about expression, about communication, about private agreements and exchanges.  But I am pretty sure that the Democratic party does not want their privacy stance to go in these directions.

A while ago, I had a fascinating experience actually reading for myself the much-talked about Roe v. Wade decision.  Because I take the 9th amendment seriously, I wasn't struck, as conservatives are, that the judges had created a privacy right out of nowhere.  What I was struck by instead was just how narrow a line the Court tried to walk in saying that a woman's decision to have an abortion (at least in the first trimester) is beyond the reach of government, but nearly every other non-coerced decision we make is still fair game for government intrusion.  It was this distinction, between abortion and every other decision that I found compelling:

However, I hope you see the quandary in which all this leaves abortion
supporters on the left.  Much of their philosophy and political agenda
rests on this notion of "a compelling state interest" in nearly every
facet of human endeavor.  The left pushes constantly for expansion of
government regulation into every corner of our lives.  They are trying
to walk a line, a line so narrow I don't think it even exists, between
there being no state interest in 16 year old girls getting abortions
without their parents' knowledge or consent and there being a strong
state interest in breast implants, painkillers, seat belt use, bike
helmets, tobacco use, fatty foods, etc.  They somehow have to make the
case that that a woman is fully able to make decisions about an
abortion but is not able to make decisions, without significant
government regulation and intervention, about her retirement savings,
the wages she accepts for her work, her use of a tanning booth, and her
choice of painkillers. I personally think she can handle all these, and more.

So, to the Democrats, bring on the privacy issue!  I am sure no one in the MSM will test these contradictions and certainly the Republicans don't want to go here (they are just as invested today in statism in their own way as Democrats).  But we libertarian bloggers should have a good time.

My summary post on attacks against individual decision making from both left and right is here.

A number of years ago, I heard someone (George Carlin maybe?  Commenters help!) ask "What's the worst thing that can happen to you if you smoke pot" and the answer was "Get thrown in jail".  The not so subtle message was that the preventative measures applied to prevent marijuana use were worse than the drug use itself.

I would say this fairly summarizes my fears about government responses post 9/11.  Reason's Hit and Run quotes T.J. Rogers along the same lines:

What's the worst thing that Al-Qaida can do to America? We have
probably already seen it. Of course, the government can talk about
bigger things, like the use of weapons of mass destruction, to justify
its use of totalitarian tactics.

I would much rather live as a free man under the highly improbable
threat of another significant Al-Qaida attack than I would as a serf,
spied on by an oppressive government that can jail me secretly, without
charges. If the Patriot Act defines the term "patriot," then I am
certainly not one.

By far, our own government is a bigger threat to our freedom than any possible menace posed by Al-Qaida.

The worst thing the terrorists can do is not another 9/11, but to push America into abandoning its separation of powers and its traditional protections of individual rights.

Reasonable people can disagree whether the Patriot Act goes too far in violating civil rights.  I personally opposed most of the measures in that act when Bill Clinton proposed them the first time and opposed them again this time around.  However, whether I support the Act or not, at least the Act and its provisions are still following the separation of powers script written into our country's DNA:  Congress proposes new administrative powers vis a vis searches, the administration and justice organizations follow the procedures, with certain oversight and appeals rights granted to the courts.

What worries me more than the Patriot Act is the administration's claiming of broader and broader police state powers in the name of combatting terrorism, whether it be detaining people indefinitely without a warrant or eavesdropping on citizens without a warrant.  I understand that both of these programs have practical goals related to security, but I think that most of these goals can still be reached by continuing to respects separation of powers.  Congress must still set the rules for a program such as detention of suspected enemy combatants, and these rules should include a role for the judiciary to review individual cases.

I think that that FIRE, the Foundation for Individual Rights in Education, does a really nice job defending speech across the political spectrum on campuses.  I was struck in particular by this post on their blog, about Worcester Polytechnic Institute, a private university in Massachusetts.   Speech rights at private institutions (such as on the job) are often an area where "civil rights" groups trip over themselves.

I thought FIRE did a nice job with its WPI analysis:

as a private institution, WPI is not bound by the U.S. Constitution, and WPI
takes full advantage of that by stripping its students of their First Amendment
rights. WPI doesn't try to hide this fact, either. Unlike many private
universities, its website makes no promises that students will have the
constitutional rights that they enjoy in society at large. Moreover, it prominently
advertises that "[s]tudents enter WPI voluntarily"¦If they do not like some
of the rules, regulations, traditions, and policies of WPI, they do not have to
enter," and
that "membership in this particular academic community is freely sought and
freely granted by and to its members, and"¦within this membership group certain
specific behaviors that may be accepted by society in general cannot be accepted
within an academic community without hindering the explicit goals of that
academic community." 

 

As a private institution, Worcester is acting within its rights: it
advertises its repression and censorship right up front.  WPI doesn't promise
you free speech, and you won't get it. That's why FIRE doesn't rate WPI a "red
light""” when a private university states clearly and consistently that it holds
a certain set of values above a commitment to freedom of speech, FIRE does not
rate that university. But we still think you should know what to expect when you
get there.

Good for FIRE.  It achnowleges that WPI as a private institution has the right to set its own rules and terms and conditions, as long as those are clear up front.  FIRE doesn't like these rules (I don't particularly either) but it limits itself to speaking out against them, rather than filing legal actions as it might in the case of public universities which, by law and by court precedent, can't place artifical limits on first ammendment rights.

Per Reason's Hit and Run:

House Judiciary Committee Chairman F. James Sensenbrenner (R-Wis.), who never
saw a criminal penalty that couldn't be improved by making it harsher, has introduced a bill that would impose a three-year mandatory minimum sentence
on anyone who, with an expectation of financial gain, "assists, encourages,
directs, or induces" two or more foreigners to illegally reside in the U.S. The
penalty rises to five years if the encouragement leads to a crime punishable by
more than a year in prison. Families Against Mandatory Minimums notes that "the five-year mandatory minimum will nearly always
apply because the bill would also increase the maximum penalty for illegal entry
to a year and a day and provides mandatory minimum penalties of one to 10 years
for those who reenter the country following deportation." Sensenbrenner's
committee is scheduled to vote on the bill today, without any hearings.

So if I accept paid advertising on my blog, and then I publish this, am I a felon?

I am on the Big Island of Hawaii today doing some business (yes, I know, lets hear all those violins).  I encountered a program here called Hawaiian Home Lands.  Apparently the state makes long-term leases of land for homes available at $1 a year to native Hawaiians.  Recipients of this largess may either get a lot with an existing home, or just an undeveloped lot they can build on (using special subsidized loans and with a number of special exemptions from building and development codes).  People may pass on the lease and the improvements they have built to their kids as long as their kids qualify for the program as well.

On its face, this appears to be one of those well-meaning government programs designed to deal with a problem that many resort destinations face, that locals who work in the resort communities often get priced out of the market for homes in the area where they work (Vail is the classic example of this problem).  Unfortunately, as with many government programs, this program has some perverse results.

Qualifying for the program requires that the recipient pass a strict racial test, which the HHL web site says is "50% or greater native Hawaiian blood".  Setting eligibility for a government program based on racial tests is pretty outlandish in and of itself, but it gets worse.  People taking advantage of the program need to think carefully about the race of their mate before they decide how much to invest in their home.  A 75% Hawaiian who marries a full-blooded Hawaiian will be able to pass the improvements on to their children (since the children will be more than 50% Hawaiian), and thus can justify a large home investment.  The same person who marries a full-blooded Japanese or African or Anglo-Saxon will not be able to pass their home on to their kids, since their kids will fail the race test.  So, not only is there a race-test for a government program, but the government is providing strong financial incentives not to "dilute" a certain race.  Hawaii über alles.

By the way, those who don't think that passing assets to one's kids is an important part of long-term investment thinking should compare the houses built by program participants who know their kids cannot inherit to those built by those who will be able to pass the investment to their kids -- there is no comparison.  This would make a very fertile ground for an economics graduate student trying to quantify the value people assign to the of passing assets to one's kids in long-range investment planning.

I won't repeat all that I wrote in my defense of open immigration, but I will summarize by saying that the right to associate with whom you want, to own and live on the property you choose, to negotiate with whomever you please to sell your labor, are all rights that we have as humans, not via the state.  These rights in effect pre-date, rather than flow from, the state, and as such should not be subject to citizenship test.

Anyway, Prawflawblog has a nice defense of immigration up as well:

Apparently both parties, with Republicans in the
lead, have embarked on an anti-immigrant frenzy. The hysteria has been
fueled for some time now by daily broadcasts in all major networks and
gravely sounding members of Congress discussing the "crisis on our
borders", "our bankrupt immigration system", etc. The virulence of this
sentiment makes Le Pen in France seem like a cosmopolitan liberal.

Yet liberal principles require a drastic reduction
of immigration controls. Foreigners flock to our shores because there
is demand for their labor. The same principle that supports free trade
of goods and services -- the law of comparative advantages -- applies
with equal force to freedom of movement. Freer immigration would
alleviate world poverty and allow people in our country to redirect
resources toward more efficient activities. Every single argument for
strict immigration controls is flawed

By the way, I know that "Social Security Reform" has been dropped from the media radar screen, even if the demographic problem hasn't gone away.  If one is not willing to privatize it (as it should be) the next best alternative to the Social Security's demographic bomb is... allow free immigration.  Nothing would do more to help the long-term Social Security picture like a few million new young immigrants hungry to work and perhaps to share in the American entrepreneurial spirit, paying their taxes to support the rest of us in our old age.

Until recently, I have never really been a passionate participant in the immigration debate;  however, living here in Arizona, it is virtually impossible to avoid this discussion.  One observation I can make with some confidence is that, like most political debates, few of the participants seem to have opinions that are grounded in a consistent philosophy (rather than just a pragmatic collection of political points of view, as discussed here).  As a result, rather than quoting stats on illegal border crossings or the number of Al Qaeda operatives supposedly running around the Arizona desert, I thought I would try to lay out the philosophical argument for immigration.

Individual Rights Don't Come From the Government
Like the founders of this country, I believe that our individual rights exist by the very fact of our existance as thinking human beings, and that these rights are not the gift of kings or congressmen.  Rights do not flow to us from government, but in fact governments are formed by men as an artificial construct to help us protect those rights, and well-constructed governments, like ours, are carefully limited in their powers to avoid stifling the rights we have inherently as human beings.

Do you see where this is going?  The individual rights we hold dear are our rights as human beings, NOT as citizens.  They flow from our very existence, not from our government. As human beings, we have the right to assemble with whomever we want and to speak our minds.  We have the right to live free of force or physical coercion from other men.  We have the right to make mutually beneficial arrangements with other men, arrangements that might involve exchanging goods, purchasing shelter, or paying another man an agreed upon rate for his work.  We have these rights and more in nature, and have therefore chosen to form governments not to be the source of these rights (for they already existed in advance of governments) but to provide protection of these rights against other men who might try to violate these rights through force or fraud.

So Citizenship Shouldn't Determine What Rights You Have
These rights of speech and assembly and commerce and property shouldn't, therefore, be contingent on "citizenship".  I should be able, equally, to contract for service from David in New Jersey or Lars in Sweden.  David or Lars, who are equally human beings,  have the equal right to buy my property, if we can agree to terms.  If he wants to get away from cold winters in Sweden, Lars can contract with a private airline to fly here, contract with another person to rent an apartment or buy housing, contract with a third person to provide his services in exchange for wages.  But Lars can't do all these things today, and is excluded from these transactions just because he was born over some geographic line?  To say that Lars or any other "foreign" resident has less of a right to engage in these decisions, behaviors, and transactions than a person born in the US is to imply that the US government is somehow the source of the right to pursue these activities, WHICH IT IS NOT.

In fact, when the US government was first formed, there was no differentiation between a "citizen" and "someone who dwells within our borders" - they were basically one in the same.  It is only since then that we have made a distinction.  I can accept that there can be some minimum residence requirements to vote in elections and perform certain government duties, but again these are functions associated with this artificial construct called "government".  There should not be, nor is there any particular philosophical basis for, limiting the rights of association, speech, or commerce based on residency or citizenship, since these rights pre-date the government and the formation of border.

New "Non-Right Rights" Are Killing Immigration
In fact, until the 1930's, the US was generally (though not perfectly) open to immigration, because we accepted the premise that someone who was born beyond our borders had no less right to find their fortune in this country than someone born in Boston or New York.  I won't rehash the history of immigration nor its importance to the building of this country, because I don't want to slip from the philosophical to the pragmatic in my arguments for immigration.

In the 1930's, and continuing to this day, something changed radically in the theory of government in this country that would cause immigration to be severely limited and that would lead to much of the current immigration debate.  With the New Deal, and later with the Great Society and many other intervening pieces of legislation, we began creating what I call non-right rights.  These newly described "rights" were different from the ones I enumerated above.  Rather than existing prior to government, and requiring at most the protection of government, these new rights sprang forth from the government itself and could only exist in the context of having a government.  These non-right rights have multiplied throughout the years, and include things like the "right" to a minimum wage, to health care, to a pension, to education, to leisure time, to paid family leave, to affordable housing, to public transportation, to cheap gasoline, etc. etc. ad infinitum.

Here is a great test to see if something is really a right, vs. one of these fake rights.  Ask yourself, "can I have this right on a desert island".  Speech?  Have at it.  Assembly?  Sure, if there is anyone or things to assemble with?  Property?  Absolutely -- if you convert some palm trees with your mind and labor into a shelter, that's your home.  Health care?  Uh, how?  Who is going to provide it?  And if someone could provide it, who is going to force them to provide it if they don't want to.  Ditto education.  Ditto a pension.

These non-right rights all share one thing in common:  They require the coercive power of the government to work.  They require that the government take the product of one person's labor and give it to someone else.  They require that the government force individuals to make decisions in certain ways that they might not have of their own free will. 

And since these non-right rights spring form and depend on government, suddenly citizenship matters in the provision of these rights.  The government already bankrupts itself trying to provide all these non-right rights to its citizens  -- just as a practical matter, it can't afford to provide them to an unlimited number of new entrants.  It was as if for 150 years we had been running a very successful party, attracting more and more guests each year.  The party had a cash bar, so everyone had to pay their own way, and some people had to go home thirsty but most had a good time.  Then, suddenly, for whatever reasons, the long-time party guests decided they didn't like the cash bar and banned it, making all drinks free.  But they quickly learned that they had to lock the front doors, because they couldn't afford to give free drinks to everyone who showed up.  After a while, with the door locked and all the same people at the party, the whole thing suddenly got kind of dull.

Today, we find ourselves in political gridlock over immigration.  The left, which generally supports immigration, has a lot at stake in not admitting that the new non-right rights are somehow subordinate to fundamental individual rights, and so insist new immigrants receive the full range of government services, thus making immigration prohibitively expensive.  The right, whether through xenophobia or just poor civics, tends to assume that non-citizens have no rights whatsoever, whether it be the "right" to health care or the more fundamental right, say, to habeas corpus.

A Not-so-Modest Proposal
So what would I do?  Well, this is blogging, so I am not really obligated to come up with a plan, I can just complain.  After all, Howard Dean said "Right now it's not our job to give out specifics", so why should I have to?  But, I will take a shot at it anyway:

1. Anyone may enter or reside in the US. The government may prevent entry of a very short list of terrorists and criminals at the border, but everyone else is welcome to come and stay as long as they want for whatever reason.  Anyone may buy property in the US, regardless or citizenship or residency.  Anyone in the US may trade with anyone in the world on the same terms they trade with their next door neighbor.
2. The US government is obligated to protect the individual rights, particularly those in the Bill of Rights, of all people physically present in our borders, citizen or not.  The government may also define a certain number of core emergency services (e.g. fire, police, trauma care) to which all residents, citizens or not, have equal access.
3. Certain government functions, including voting and holding office, may require formal "citizenship".  Citizenship should be easier to achieve, based mainly on some minimum residency period, and can be denied after this residency only for a few limited reasons (e.g. convicted of a felony).  The government may set no quotas or numerical limits on new citizenships.
4. All people present in the US pay the same taxes in the same way.  A non-citizen or even a short term visitor pays sales taxes on purchases and income taxes on income earned while present in the US just like anyone else.  Note that this is not radical - I am a citizen and resident of Arizona but other states like California tax me on income earned in that state and purchases made in that state.
5. While I would like to eliminate much of the welfare state altogether, I won't address that today (Don't underestimate, though, how damaging the welfare state and the
   highly regulated economy can be to immigrants, and the problem that can
   cause, as demonstrated today in France)  For purposes of this plan I will merely state that the non-right right type government services should be divided into two pools:  Services only available to citizens and services available to those who are paying into the system. 
   • The first category might include pure handouts, like Welfare, farm subsidies, and public housing.  This category can even include public policy decision like "allowing squatters or vagrancy on public lands", since this is an effective subsidy as well in the form of public housing. 
   • The second include services like public transportation or unemployment insurance -- if the individual is paying the fair (for example, the employer is paying her unemployment premiums) then they should have access to the service.  Social Security is a tough beast to classify - I would put it in the "Citizen" category as currently structured, but would gladly put it in the "available to everyone" category if SS could be restructured to better match contributions with benefits, as in a private account system.

That's enough for now.  I wrote more on immigration here.

Postscript-  And please don't tell me that a government's job is to "defend its borders".  Its not.  A government's job is to defend its citizens and residents.  There are times that this job may literally require defending the borders (e.g. France in 1940) but that clever misrepresentation of the role of government is the linguistic trick immigration opponents use to justify all sorts of semi-fascist actions, like building this happy little wall in Nogales:

Which seems awfully reminiscent of this wall in Berlin:

Compare Berlin and Nogales.  What is the fundamental principle that makes preventing the movement of people one-way across a border one of the worst human rights violations in the last century, but preventing them from moving the other way across a border is a fine policy with bi-partisan support here in Arizona?

Technorati Tags:  Immigration, Economics,
Philosophy,
International

From Robert Bidnotto, echoing thoughts I had here and also here, but he writes much more eloquently:

Okay, I have had it.

Not a damned thing distinguishes the Republicans from the Democrats
anymore...not a damned thing. "No Child Left Behind" in essence, and
unconstitutionally, federalized education. The GOP-engineered federal
prescription drug subsidy program for seniors was another huge and
costly step toward total socialized medicine. The Administration's
response to recent natural disasters -- here and abroad -- establishes
the premise of federalizing all local emergencies globally, and  reducing the U.S. military into becoming the logistics wing of the International Red Cross.

And so on, and so on....

To the Left, government should whip individuals into collective
lockstep regarding its PC-egalitarian agenda on such issues as smoking,
diets, guns, cars, nature-worship, land use, political speech and
rhetoric, equality of income and "access" to things that don't belong
to you, drafting kids for "national service," using schools to push PC
propaganda, etc.

To the Right, government should whip individuals into collective
lockstep regarding its traditional moral agenda, including abortion,
sex, Darwin, cultural speech and rhetoric, marriage, national
demographic purity, drafting kids for military service, using schools
to push religious values, etc.

Neither side wants a government of limited powers, and
rejects the initiation of force against others. Neither side respects
individual rights, and rejects using the "fearful" power of government
to compel the independent individual to toe its party line. Neither
side recognizes property rights, and rejects the redistributionist
welfare state.

More fundamentally, neither side rejects the cannibalistic "morality" of sacrificing the individual to the group.

Left and Right both agree that the individual is their private
plaything, a sacrificial lamb for their respective pet causes. The only
thing that they really disagree about is which individuals they are
going to sacrifice, for whose benefit, and in the name of what cause.

I have addressed abortion and the court more seriously here and here, among other places.  Basically my premise has been that I accept a privacy right, and accept a woman's control of her body, but wonder why the Left (which coined these terms and defends them as moral high ground) doesn't believe that this privacy and decision-making control extend to other areas like breast implants, using Vioxx, seat belt use, helmets, use of tanning booths, smoking, fatty food consumption, make wage agreements, pricing products and services, etc. 

But, I must admit, I am having SCOTUS nomination process fatigue, and, as such, Jane Galt aka Megan Mcardle found this wonderful post from Glen Wishard that sums up my current thinking on abortion vis a vis the Supreme Court perfectly:

Make no mistake, then - the Supreme Court is no longer the Supreme
Court of past fame. It is now the National Abortion Tribunal, and its
members are no longer jurists, they are the Keepers of the Abortion
Toggle Switch.

-----0-->0-----

Fig. 1A. Abortion Toggle Switch, closed.
Suction motors will engage.

As we can see from the schematic diagram above, the Abortion Toggle
Switch is currently in the closed (ON) position. The entire purpose of
the so-called Supreme Court, as current wisdom understands that
purpose, is to stare at this switch all day wondering whether they
should play with it or not.

Now this is a sad state for this once-great court to have fallen to,
and makes me wonder if we don't need another court to assume the
neglected responsibilities of the current one. Then the Abortion Toggle
Switch could be moved to some remote corner of the public's attention,
and the various abortion partisans could play their endless game of
Keep Away without buggering up the entire constitutional process.

ROFL

Last week I wrote here and here about free speech and the defeat of the bill to protect such speech online.  Matt Welch has more, and wonders as I did why Democrats, who applaud themselves for their staunch support of free speech, have suddenly abandoned the cause:

I was reminded of that neat bit of self-delusion yesterday when reading news
that House Democrats had followed The New York Times' odious
advice to kill
the Online
Freedom of Speech Act, which would have exempted weblogs from Federal
Election Commission campaign finance rules. Once again, the party supported by
people who truly do believe they and they alone care deeply about free speech
has casually stomped on the freedom to speak.

The bill itself would have placed an extra layer of statutory protection over
what should already be (but isn't) protected by the First Amendment"”the right to
buy political advertisements online. As the mess of appalling FEC rules
currently stand, nobody can
legally purchase a broadcast, satellite, or cable advertisement that even
mentions a candidate for federal office within 60 days of a general election (30
days for a primary), unless he or she sets up or joins a political action
committee (PAC) and agrees to abide by the heavy regulations that govern PACs'
funding and disclosure....

I am a friend of free speech, they assure us at every turn, but we
need to draw lines, because when yucky people spend money to communicate a
political message through the news media, it's just like child pornography,
reckless endangerment, and intellectual property theft. Combine this attitude
with a general cluelessness about the unintended speech-impairing
consequences of FEC rule-making, and you get the obscene sight of the New
York Times editorial board, which bathed itself and Judith Miller in the holy
waters of the First Amendment in 15
different editorials, arguing with a straight face that "The bill uses
freedom of speech as a fig leaf."

While I took some shots at the NY Times myself, observing that they seem to be just like every other business facing a new source of competition:  They are running to the government to get the state to quash the upstarts.  However, I missed the wonderful irony that Welch found.  Consider the First Amendment:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.

It is indeed amazing that the NY Times believes that these words protect them from cooperating with a criminal investigation and allow them to ignore subpoenas, but believes that these same words do NOT protect political speech on the Internet. 

Extra credit work for those who support campaign finance limitations:  Find the clause in the First Amendment language above the differentiates between speech that was paid for and speech that was not paid for.

I suppose a large number of Americans must support the free speech restrictions embodied in McCain-Feingold and other campaign finance laws, or they wouldn't have passed.  The logic of such laws is apparently to reduce the influence of "big-monied interests" in elections, I suppose by being able to saturate media with their point of view.

So here is my question - have you ever met anyone (other than John Kerry with his Iraq vote) who thought that they had been duped or unduly influenced by election advertising?  Have you met anyone who says "yep, I voted for the guy with the most ads instead of what I believed in?"

The fact is that I have never met such a person, even among those who support campaign speech restrictions.  Their position is always that they are of course too smart to be gulled by the ads but "a lot of other people are not as smart".  But who are these other people?  They are like the friend of a friend who swears his grandmother put her cat in the microwave to dry it off.  They don't exist.  The fact is that no one thinks that they personally are unduly influenced by campaign ads, but they think everyone else is. 

Here is a rule of thumb:  When supporters of a law take the position that "This law is not necessary for me but for all those people who are not as smart as I am", it is a bad law.

I think maybe its time for me to stop reading the news.  What else can a good libertarian do when Republicans oppose free trade, support government intervention in the economy, and spend tax money like drunken sailors while Democrats vote for new restrictions on free speech?

The latter occurred yesterday, as the House failed to get the 2/3 majority necessary to pass the Online Freedom of Speech Act, mostly on the strength on opposition from Democrats (you know, those principled supporters of civil liberties).  Politicians have again shown themselves ready to trash the Constitution in order to limit the speech of those potentially critical to themselves.  Apparently, there is reason to hope, since bill sponsors are trying to bring the bill to the floor in a more routine process that would require only a majority vote for passage (which the bill appears to be able to garner).

My only problem with this initiative is that it falls far short of the mark of protecting all Americans.  Right now, only the major media outlets have full free-speech rights in an election.  This bill would extend free speech to the Internet.  Here's an idea:  Why don't we give everyone back their first amendment rights, as I wrote here:

These past few weeks, we have been debating whether this media
exemption from speech restrictions should be extended to bloggers.  At
first, I was in favor.  Then I was torn.
Now, I am pissed.  The more I think of it, it is insane that we are
creating a 2-tiered system of first amendment rights at all, and I
really don't care any more who is in which tier.  Given the wording of
the Constitution, how do I decide who gets speech and who doesn't - it
sounds like everyone is supposed to:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.

I
have come to the conclusion that arguing over who gets the media
exemption is like arguing about whether a Native American in 1960's
Alabama should use the white or the colored-only bathroom:  It is an
obscene discussion and is missing the whole point, that the facilities
shouldn't be segregated in the first place.

By the way, I don't want to ever hear from the NY Times again about some company that is being monopolistic.  The NY Times has opposed the Online Free Speech Initiative from the very beginning in a transparent attempt to quash a competitive media that is stealing readers from it at a very fast clip.  I'm sure they hate having this type stuff on the Internet.  And this is the same NY Times that was one of the very few supporters of the Kelo decision because they were in the midst of getting a new HQ via an eminent domain landgrab.  Reason number 635 I don't agree with giving the press more rights than the rest of us have.

I have hashed through my pain over the Supreme Court Kelo decision any number of times, including my post before the decision, after the decsion, following up on more New London antics, and following up on abuses in other locations (and here).

One of the first things I did after the decision was to write the CEO of Pfizer a letter, complaining about their role in getting the New London government to take peoples homes so their managers could have nice views of the water.  I was surprised at the time that more people, particularly those on the left who don't usually need a good excuse to bash corporations, didn't put more blame on Pfizer rather than just New London.  However, up until now, Pfizer has claimed that the redevelopment plan in New London had nothing to do with them, and they just came in later as a tenant.

Based on investigation by The Day ($), the New London paper (hat tip: Volokh), it is becoming more apparent that the Kelo takings were in fact driven mainly by specific requirements set by Pfizer, and that Pfizer was hip-deep in the redevelopment planning:

Pfizer's Fingerprints On Fort Trumbull Plan

Documents show the pharmaceutical giant was involved in the Fort Trumbull
project form its inception, even before announcing its research center would
expand into the New London neighborhood

In mid-July, as commentators and politicians around the country decried this
city's attempt to seize private homes for economic development on the Fort
Trumbull peninsula, a press release appeared on the Web site of Pfizer Inc.

The pharmaceutical company, whose $300 million research complex sits adjacent
to what remains of the neighborhood, announced that it wanted to set the record
straight on its involvement in the Fort Trumbull development project.

The project, the statement said, wasn't Pfizer's idea.

"We at Pfizer have been dismayed to see false and misleading claims appear in
the media that suggest Pfizer is somehow involved in this matter," the statement
said. The writers said the company "has no requirements nor interest in the
development of the land that is the subject of the case."

But a recent, months-long review of state records and correspondence from
1997 and 1998 "” when officials from the administration of then-Gov. John G.
Rowland were helping convince the pharmaceutical giant to build in New London "”
shows that statement is misleading, at best.

In fact, the company has been intimately involved in the project since its
inception, consulting with state and city officials about the plans for the
peninsula and helping to shape the vision of how the faded neighborhood might
eventually be transformed into a complex of high-end housing and office space,
anchored by a luxury hotel.

The records "” obtained by The Day through the state Freedom of Information
Act "” show that, at least as early as the fall of 1997, Pfizer executives and
state economic development officials were discussing the company's plans, not
just for a new research facility but for the surrounding neighborhood as
well.

And, after several requests, the state Department of Economic and Community
Development produced a document that both the state and Pfizer had at first said
did not exist: A 1997 sketch, prepared by CUH2A, Pfizer's design firm for its
new facility. Labeled as a "vision statement," it suggested various ways the
existing neighborhood and nearby vacant Navy facility could be replaced with a
"high end residential district," offices and retail businesses, expanded parking
and a marina.

Those interactions took place months before Pfizer announced that it would
build in the city, on the site of the former New London Mills linoleum factory,
and months before the New London Development Corp. announced its redevelopment
plans for the neighborhood and the former Naval Undersea Warfare Center next
door.

The paper concludes:

But in a series of recent interviews, several former high-ranking state
officials confirmed what opponents of the project have long insisted and what
the company continues to deny: The state's agreement to replace the existing
neighborhood was a condition of Pfizer's move here.

Current and former Pfizer executives, meanwhile, concede that the company
expected a major redevelopment of the area to occur and offered guidance, but
they strongly deny that they insisted on specific changes.