Coyote Blog

From Reason:

A judge of the Foreign Intelligence Surveillance Court has ruled that in light of the USA Freedom Act's passage, the National Security Agency (NSA) may resume bulk collection of American's telephone records. In May, the 2nd U.S. Circuit Court of Appeals had halted the process after finding that the Patriot Act never authorized such activity.

So "in light of" a law that basically ended authorization for the practice, and despite a court ruling that the original law never authorized the practice, the NSA is going to continue the practice.

Apparently John Roberts does all the FISA court judge appointments.  It may be that we can never prevent this court from being captured by the NSA, but it is at least time to try a different approach to choosing these up-to-now rubber stamp judges.  My memory may be off, but I don't think the FISA court has ever turned down a data hoovering request.

Via Zero Hedge:

Just when we thought the absurdity that marks every single day of Obama's reign could not possibly be surpassed, we learned that 4 hours (3 hours and 47 minutes to be precise) after the US president vowed to sign a new law banning bulk data collection by the NSA (named, for purely grotesque reasons, the "USA Freedom Act"), the Obama administration asked the secret Fisa surveillance court to ignore a federal court that found bulk surveillance illegal and to once again grant the National Security Agency the power to collect the phone records of millions of Americans for six months.

Or, as the Guardian's Spencer Ackerman, who spotted this glaring page out of Josef Stalin's playbook, summarized it:

June 2, 6:03pm: Obama says he'll sign law banning bulk collection. June 2 9:50pm: DOJ asks secret court for 180 more days of bulk collection

— Spencer Ackerman (@attackerman) June 8, 2015

According to Ackerman, this latest travesty by the administration "suggests that the administration may not necessarily comply with any potential court order demanding that the collection stop."

This one is priceless, and I have been remiss in not posting it.  Reminded most recently by the link at Maggie's Farm.  Excerpt, but the whole thing is great:

"Here's the problem. Most hedge funds are indistinguishable from mutual funds, other than the fact that they feel entitled to charge 30 times the fees."

"Two percent of assets for showing up in the morning, and 20% of any profits."

"There are probably 100 hedge funds that will consistently beat the market after fees. They won't take your money. They provide just enough hope for investors to keep the rest of us in business. We earn half the performance of index funds, charge 30 times the fees of mutual funds, pay half the income tax rates of school teachers, have triple the ego of rock stars, and fewer disclosure requirements than the NSA."

"We're basically a conduit between public pension funds and Greenwich real estate agents."

Michael Munger has one of the most useful articles I have read in a very long time.  As illustrated by the Venn diagram I posted a while back showing the heavy overlap between the Tea Party and Occupy Wall Street, we have much more concurrence in the diagnosis of problems than in the prescriptions for solutions.   Munger gets at the heart of why many people go wrong in these prescriptions

When I am discussing the state with my colleagues at Duke, it's not long before I realize that, for them, almost without exception, the State is a unicorn. I come from the Public Choice tradition, which tends to emphasize consequentialist arguments more than natural rights, and so the distinction is particularly important for me. My friends generally dislike politicians, find democracy messy and distasteful, and object to the brutality and coercive excesses of foreign wars, the war on drugs, and the spying of the NSA. 

But their solution is, without exception, to expand the power of "the State." That seems literally insane to me—a non sequitur of such monstrous proportions that I had trouble taking it seriously.

Then I realized that they want a kind of unicorn, a State that has the properties, motivations, knowledge, and abilities that they can imagine for it. When I finally realized that we were talking past each other, I felt kind of dumb. Because essentially this very realization—that people who favor expansion of government imagine a State different from the one possible in the physical world—has been a core part of the argument made by classical liberals for at least three hundred years....

He follows with this useful test

But they may not immediately see why "the State" that they can imagine is a unicorn. So, to help them, I propose what I (immodestly) call "the Munger test."  

1. Go ahead, make your argument for what you want the State to do, and what you want the State to be in charge of.
2. Then, go back and look at your statement. Everywhere you said "the State" delete that phrase and replace it with "politicians I actually know, running in electoral systems with voters and interest groups that actually exist."
3. If you still believe your statement, then we have something to talk about.

This leads to loads of fun, believe me. When someone says, "The State should be in charge of hundreds of thousands of heavily armed troops, with the authority to use that coercive power," ask them to take out the unicorn ("The State") and replace it with George W. Bush. How do you like it now?

If someone says, "The State should be able to choose subsidies and taxes to change the incentives people face in deciding what energy sources to use," ask them to remove "The State" and replace it with "senators from states that rely on coal, oil, or corn ethanol for income." Still sound like a good idea?

How about, "The State should make rules for regulating sales of high performance electric cars." Now, the switch: "Representatives from Michigan and other states that produce parts for internal combustion engines should be in charge of regulating Tesla Motors."  Gosh, maybe not …

Hat tip:  Don Boudreaux

I spent most of the Bush years asking Conservatives a similar question -- you may be fine when "your guy" has this power, but would you be happy if Al Gore or Nancy Pelosi had it.  And of course I have spent most of the Obama years asking Liberals whether they would be comfortable if George Bush or Rick Perry had similar powers to what Obama has claimed for himself.  Because they will.

I said something similar here, though less elegantly.  I concluded in part:

Technocratic idealists ALWAYS lose control of the game.  It may feel good at first when the trains start running on time, but the technocrats are soon swept away by the thugs, and the patina of idealism is swept away, and only fascism is left.  Interestingly, the technocrats always cry "our only mistake was letting those other guys take control".  No, the mistake was accepting the right to use force on another man.  Everything after that was inevitable.

Less than 12 hours after CBS aired is horrid, uncritical infomercial for the NSA, a federal judge has ruled that the NSA likely violated the Fourth Amendment with its domestic wiretapping and data gathering.

It is an amazing spectacle to see Senators Feinstein and McCain, both A-OK with NSA spying on ordinary American citizens, draw the line at NSA spying on foreign politicians.  A reasonable person would say that tapping the German leader's phone is a hell of a lot closer to the NSA's true brief than tapping mine, but our political leaders believe the opposite.

That is because they have come to believe that politicians and government officials are a special class with special rights and privileges.  They don't have to follow labor law (Congress is exempt), they don't have to deal with the Obamacare exchanges (Congress is exempt), they don't even have to follow the same laws, like DWI (DC police typically help drunk Congresspersons home rather than arrest them).

We can't seem to get Congress or the President to ban domestic spying on our emails and phone records, so let's let Kathleen Sibelius run the NSA.  Let's make sure she takes personal control of the development of new computer systems.  We will be safe for decades.

Barack Obama is the worst possible thing that could have happened for civil liberties in this country.  Not necessarily because he promotes the worst possible policies -- As bad as he has been (drone strikes, domestic spying, aggressive prosecuting of whistle blowers, indefinite detentions, executive orders, arbitrarily ignoring legislation, cutting myriad special favors, and overturning the rule of law in the auto bankruptcies), I could imagine others being worse  (Lindsey Graham -- eek!).

But Obama is the worst because he is beloved almost unconditionally by the very factions who are the natural defenders on the Left of civil liberties and opponents of creeping (non-economic) state control.  With all this insane cr*p coming from Obama, the opposition one would expect to these policies has been slow and muted.  The anti-war movement, for example, effectively dissolved once George Bush was in office -- the ACLU and a few others continue to public reports on civilian drone deaths but the stories don't make the front page now that Obama is President.  Only recently, with the press itself under attack, has anyone woken up, but even with recent revelations about the NSA and harassing leakers, the last press conference was still dominated by softballs everyone in the room would have been embarrassed to have asked George Bush.

The Left seems to believe that this is all OK as long as their guy wields the power, but that cannot last forever.  And you can be damn sure that neither President Hillary or the next Republican in the White House is going to eschew or reverse the precedents established by Obama.  We have to end them right now, or we are stuck with them forever.  It may be too late already.

** The title refers to the idea that only Nixon, an anti-communist Republican, could have opened up relations with Communist China in the early 1970's and defused opposition to the move by the Right, the natural opponents of such a move at the time.  A President McGovern would have been skewered.  In the same way, Republican President Bush was rightly attacked whole-heartedly by the Left for intrusions on civil liberties and military activities.  On the other hand, having these same type of actions taken -- really much worse actions -- taken by a Liberal President has mostly diffused the opposition.

The NSA is claiming that the data that they grabbed in essentially warrant-less Hoovering up of telephone and Internet metadata has helped in certain investigations.

I have no doubt that is probably true.

But that is not the right way to frame the problem.  The real issue is:  Did being able to data mine metadata for all Americans help solve the case better and faster than had they been required to seek specific probable cause warrants for data from specific people?

To make clear the distinction, let's suppose I were trying to justify stealing a copy of every book in Barnes & Noble.  I might be able to accurately say that those books helped me writing a good Napoleon paper for school.   But could I have achieved the same goal - writing a paper on Napoleon - by purchasing individual books as needed via legal shopping processes?  The answer is probably "yes."  Having all the books pre-stolen only contributed in that it saved me the hassle of going down to the store and finding a specific book I needed.

In the same way, I suspect that having this data base merely saved FBI and others the hassle of filling out some paperwork in each case.  I am not sure incremental success rates in a few cases is enough justification to rip up the Constitution, but I am sure that laziness is not.

I have been on the road with business, and working on a fairly big announcement for next week, so I have been slow in keeping up with the emerging NSA scandal.  I want to give a few brief thoughts on Obama's defense of extensive NSA data gathering.  

That’s not to suggest that, you know, you just say, trust me, we’re doing the right thing, we know who the bad guys are. And the reason that’s not how it works is because we’ve got congressional oversight and judicial oversight. And if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.

1. I don't trust any of the three branches of government.  You know what, neither did many of the folks who wrote the Constitution
2. The involvement of the three branches of government in this issue boil down to less than two dozen people:  the President, a subset of the 15 members of the Senate Intelligence Committee, and a subset of the 11 judges (3?) on the FISA court, which has demonstrated pretty conclusively that they will approve any warrant no matter how absurdly broad
3. Non-specific warrants that basically cover open-ended data gathering on every single person in the country, with no particular suspect or target named, are clearly un-Constitutional.  "and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  I would love to know what probable cause the NSA cited to seized Warren Meyer's Verizon call records.  20 Washington insiders cannot change the Constitution -- that requires a vote of 3/4 of the states.
4. Obama has stopped even pretending to care about the Constitution, an amazing fact given that he is nominally a Constitutional professor
5. Partisan hypocrisy has never been clearer, as traditional defenders of civil liberties and opponents of the Patriot Act like Al Franken rush to defend the NSA spying (thank God for Linsey Graham, who can be counted on to be a consistent authoritarian).  Democrats and Republicans have basically switched sides on the issue.

When assessing any new government power, imagine your worst political enemy wielding the power and make your judgement of the powers' appropriateness based on that worst-case scenario.  Clearly, though, no one can see past the occupant of the White House. with Coke party members backing powers for Coke Presidents but opposing them for Pepsi Presidents and vice-versa.

From the Washington Post

President Obama will issue an executive order Monday that will allow U.S. officials for the first time to impose sanctions against foreign nationals found to have used new technologies, from cellphone tracking to Internet monitoring, to help carry out grave human rights abuses.

LOL, Foreign nationals identified by NSA communications monitoring as violating this order will be pinpointed by satellites and surveillance drones and hit with a cruise missile.

Hard to picture any American President in the last 20 years signing this with a straight face.   Is there a Federal law enforcement agency or major police force in this country who is NOT violating this order, had it applied to American citizens?

My feed reader today had a series of oddly-related articles stacked right in a row.

First, I watched bits from the 1903 Princeton-Yale football game, the oldest surviving college football film  (apparently it is just barely old enough not to have Keith Jackson doing the play-by-play).  It is amazing how much more this looked like rugby than modern football.  The formations look just like rugby scrums except that the players are not locked together.  Note there are no huddles, just power scrum after power scrum.  Sort of like a missing link between the two games, and oddly less interesting than either.

I then was met with this post from Zero Hedge, discussing the current Greek bailouts in terms of a Nash Equilibrium, the game-theory concept developed by Princeton grad / professor John Nash (who was famously profiled in A Beautiful Mind).

It's not often I run into John Nash even once in a month, but two articles later I found this really interesting early letter, recently de-classified, from John Nash to the NSA, wherein he apparently anticipated many of the foundation of modern cryptography 10-20 years ahead of his time.

And its only a short walk from John Nash and cryptography to Alan Turing, and from Princeton to tiger stripes, so the next article I ran into was this one discussing a group of scientists who apparently have proved a Turing hypothesis for how tiger stripes (and other recurring patterns in animals) are formed.

Kevin Drum thinks John Shaddeg (who is actually my representative) is crazy because he equates the current health care proposals, which Drum says are just to make sure that everyone has decent health care, to "Soviet gulag health care."  Further, Drum concludes that Democrats in Congress are sane and would never ever engage in such over-the-top loony rhetoric as Mr. Shaddeg

But it's a good example of what I mean when I suggest that today's right-wing lunacy is different from left-wing lunacy of the Bush years.  Sure, there were lefty bloggers who went over the top about Amerika and how the NSA was bringing 1984 to life and so forth, but for the most part you didn't have members of Congress taking to the House floor and joining in.  They largely managed to keep a slightly more even keel.

Wow, that will be blood in the water for Conservative bloggers - I can think of a number of Democratic loonies in Congress but I don't want to do the Republican's job for them.  Instead I wrote:

I have no doubt that you have the best of intentions, and that you only want healthy people and two unicorns in every garage. But you are, no matter how well intentioned, achieving your ends through compulsion. You compel person A to pay for person B's health care. You compel doctors and medical suppliers to provide services at costs or at quality levels they would not have provided otherwise. You compel everyone to get insurance -- and not just insurance, but exactly the insurance with the coverage you want, not what they want.

To folks who cherish individual liberties (and who don't look to the Republican party for much leadership on this or any topic) it is all soviet-style compulsion, no matter how pure your motives.

PS- as a libertarian without a horse in the wars between the Coke and Pepsi party, I find this kind of post hilarious. Team Elephant thinks you guys are insane and they are normal, and you think the opposite. You think that calling their president Hitler is fine while they are wrong to do it to yours, and vice-versa. I will give you a big hint. You guys all sound exactly the same. You all use the same tactics. You both have thoughtful members and loonies, both on the sidelines and in positions of power. You both have honest people and corrupt ones. It's like watching Apple vs. PC ads, except those two actually have some differences.

Update:  This from a later Drum piece is exactly what I was referring to.  I am positive the Republicans think the exact same way about Democrats, in fact I hear them all the time saying "We need to get down and dirty like the Democrats and stop being the ones always following the rules."  Apparently Democrats think the same way:

Is it really true that the Democratic leadership acts like a high school social club while the Republican leadership acts more like the mafia?  Step out of line in GOP-land and they'll make you pay dearly: money, committee assignments, and more will be savagely withdrawn if you vote the wrong way.

Self-awareness seems to be in short supply in Washington.

Apparently the  NSA is under some heat for proposing to monitor the communications of a member of Congress thought to be meeting with terrorist suspects:

While the N.S.A.'s operations in recent months have come under examination, new details are also emerging about earlier domestic-surveillance activities, including the agency's attempt to wiretap a member of Congress, without court approval, on an overseas trip, current and former intelligence officials said. . . .

The agency believed that the congressman, whose identity could not be determined, was in contact "” as part of a Congressional delegation to the Middle East in 2005 or 2006 "” with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman's conversations, the official said.

The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress.

I have a counter idea.  Why don't we monitor all the communications of all of Congress all the time and post it on a web site.  If they want to exercise ultimate power over us, we can then exercise ultimate scrutiny over them.  Unfortunately, in the world of the future, Congress is likely to be the only group exempted from monitoring.

Just before my body decided to purge itself for a few days, USA Today ran a story that the NSA was doing more than just listening in on overseas calls to suspected terrorists.  It claimed that the NSA was also compiling a database of domestic call records.

The National Security Agency has been secretly collecting the phone
call records of tens of millions of Americans, using data provided by
AT&T, Verizon and BellSouth, people with direct knowledge of the
arrangement told USA TODAY.

This bothers me, as much for separation of powers issues that I will describe below as for any  worry about the data being collected.  Conservatives, however, immediately criticized the article, as summarized well here, making a number of points:

1.  Its old news
Shame on conservatives.  This is the same tired line that Clinton used to drive them crazy with.  The theory here is that once a story has run a full news-cycle, it is then too late to report on it or show any further outrage about it.  Once the political boil is lanced, its time to "move on".  Sorry, I don't buy it.

2.  USA Today is exaggerating
The USA Today and those who picked up on the story  are indeed sloppy, perhaps purposefully to make a better story, in blurring the line between collecting phone numbers and eavesdropping.  To date, the evidence is only that phone numbers were collected, which is in fact less intrusive than eavesdropping.  It still pisses me off, for reasons below.

 3.  The IRS already has more data
Yes, and that bothers me too.  Does anyone really doubt that IRS data has been peeked at and used for political purposes?  And I am flabbergasted at how far conservatives have wandered over the last several decades that they hold up the IRS as a model to be emulated.  But here is the key difference that I will get into in a minute:  The IRS is allowed to collect this data by legislative statute passed by Congress.  This statute includes rules for data management and access, with steps for judicial review and criminal penalties for its violation.  The NSA data base has ... none of this.  No legislative authorization.  No process and privacy protections.  No penalties for misuse of data.  No judicial review steps.

4.  Its no big deal, and its good for you
Maybe.  Or maybe not.  The trouble is that we are only getting tiny leaked glimpses into whatever the administration is doing.  The President has created the theory that he can declare war against a vague and in fact impossible to define target, and then take on absolute dictatorial non-reviewable powers to prosecute this war in any way he likes, and that any steps taken in this war can be considered legitimate steps (rather than overstepping his bounds) based on his say-so alone. 

The problem is not the database per se, but the fact that the NSA and this administration feels it can do anything it wants outside the bounds of traditional separation of powers.  If the NSA needs a phone call database, then the President can go to Congress and solicit such an authorization.  A well-crafted piece of legislation would put strict limits on how the data is used, would provide some sort of outside review of its use, and would provide for stiff penalties for its misuse.  This is what I wrote previously:

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.   

What really irks me about this is the crass politics going on.  Does anyone doubt that if a Clinton White House had been revealed doing this that Conservatives would have been screaming in outrage?  And liberals are, if anything, even funnier.  These are the folks that trust the government but distrust corporate America.  So why is it that they are upset about a transfer of phone records from evil old AT&T to benevolent old Uncle Sam?  Except, of course, because it is being done by a Republican.

More on eroding separation of powers here and here.

Update: This database may be being used to see who reporters are talking to in order to root out leaks.  Anyone uncomfortable now?  And this is priceless:

Under Bush Administration guidelines, it is not considered illegal for
the government to keep track of numbers dialed by phone customers.

Duh.  Under Bush Administration guidelines, nothing the administration wants to do is considered illegal.

More: Several sources have used the Supreme Court decision to make the case that collection of the phone records is legal without a warrant.  Here is a key passage:

Petitioner in all probability entertained no actual expectation of
privacy in the phone numbers he dialed, and even if he did, his
expectation was not "legitimate." First, it is doubtful that telephone
users in general have any expectation of privacy regarding the numbers
they dial, since they typically know that they must convey phone
numbers to the telephone company and that the company has facilities
for recording this information and does in fact record it for various
legitimate business purposes. And petitioner did not demonstrate an
expectation of privacy merely by using his home phone rather than some
other phone, since his conduct, although perhaps calculated to keep the
contents of his conversation private, was not calculated to preserve
the privacy of the number he dialed. Second, even if petitioner did
harbor some subjective expectation of privacy, this expectation was not
one that society is prepared to recognize as "reasonable." When
petitioner voluntarily conveyed numerical information to the phone
company and "exposed" that information to its equipment in the normal
course of business, he assumed the risk that the company would reveal
the information  to the police,

First, it would be interesting to see if the SCOTUS would agree that this ruling extends to sharing such information with non-law-enforcement branches of the government (NSA is not a law enforcement arm).  Second, it would be interesting to see if the Court came to the same conclusion if the target for the the data sweep was "every citizen in the US" and not just targets of law enforcement investigations.

Third and most importantly, this decision seems to suck.  This exact same logic seemingly applies to any piece of data submitted to any private third party unless the data is specifically protected (e.g. medical records).  Sorry, but this is wrong.  I should be able to have commercial transactions with third parties without the expectation that the government can take the records for its own use without any kind of a warrant. 

Also, the premise that this ruling is based on is provably false, though only by technology instituted after the decision.  There is an entire industry of phone company services and 3rd party technologies aimed right at this area of phone call (and email; and Internet surfing) anonymity and privacy.  With the Internet for example, there is a very, very clear expectation that sharing information with a company for one purpose (e.g. to complete a transaction) does NOT authorize the company to use or share the data for any other purpose.  This use of transaction data and its limits is a CRITICAL and front-of-mind issue for modern communicators.  It is absurd to say, as the justices did, that:

When
petitioner voluntarily conveyed numerical information to the phone
company and "exposed" that information to its equipment in the normal
course of business, he assumed the risk that the company would reveal
the information  to the police

The implication is that by giving a company data for use in a transaction, we are giving them an unwritten license to do whatever they want with the data.  Do you believe you are granting this?  Is it true that you "entertain no expectation of privacy" in such transactions?  If you agree with this ability, then I assume you also agree that the government should be able to see all your:

• Credit card bills
• Records of who you have emailed
• Records of which Internet sites you have visited
• Records of what searches you made in search engines

These are all 100% amenable to the logic the Justices used in this decision.

I don't mean that law enforcement shouldn't be able to subpoena these records ever.  But they need to at least go to a judge and say "we want to see Warren's phone records from X to Y date because we suspect him of Z for the following reasons."

I think it was George Carlin (?) who used to ask "Do you know what the worst thing is that can happen when you smoke marijuana?" His answer was "Get sent to prison".  The implication, which I have always agreed with for most drug use, was that it is insane as a society to try to save someone from doing something bad to himself by ... doing something worse to him.

I think of this whenever I get in a discussion about security responses to 9/11.  The worst thing that can happen to this country as a whole  (as differentiated of course from the individual victims of 9/11) is to turn the country into a police state to combat potential future terrorist actions.  I personally would greatly prefer to live with a 1 in 100,000 chance of being the victim of terrorism than find myself living in an America that has abandoned its constitution.  I wrote more on this topic here.

To this end, though I tend to be slow to believe these type of stories, this one (via Reason) about domestic NSA wiretapping is pretty frightening:

AT&T provided National Security Agency eavesdroppers with full
access to its customers' phone calls, and shunted its customers'
internet traffic to data-mining equipment installed in a secret room in
its San Francisco switching center, according to a former AT&T
worker cooperating in the Electronic Frontier Foundation's lawsuit
against the company....

The source is just one low-level guy, so this story is still pretty soft.  I hope the investigation is allowed to play out.

Self-described "progressives" on the left have gone nuts over the past several years over creeping legislative and regulatory inroads made by religious conservatives.  Fascism! They are quick to reply.  The government can't tell us what to do with our own bodies, or in the privacy of our own homes!  Abortion, homosexuality?  Hey, that's our choice, its our bodies.  NSA eavesdropping, warrant-less searches?  Hey, those are our private phonecalls made from our private phones.  Searches of private cars without probable cause to enforce seat belt use?  Hey, what a great idea!

Boston Globe columnist Scot LeHigh editorializes against Massachusetts Democrats attempt to micro-regulate personal behavior:

THIS WEEK, the Massachusetts House of Representatives will face a telling test:
Can it resist a progressive Legislature's ever-present impulse toward pesky
paternalism?

The issue is seat belts, and whether the police will be allowed to stop
motorists upon suspicion that someone in their vehicle is not wearing a seat
belt or only ticket them for that grievous offense if they have first been
pulled over for something else.

This is exactly why I am suspicious of progressives and resist making common cause with them, even on issues where we tend to agree.  For while they talk the libertarian talk pretty well when they want to (abortion with its "I should control decisions over my own body" defense being the most obvious example), progressives also have a very strong streak of "we are smarter than you are and sometimes will tell you what to do because it is for your own good".   As a result, for example, progressives support abortion because a woman should make decisions for her body without government intrusion, but oppose the legality of breast implants and vioxx because a woman should, uh, not be able to make decisions for her body without government intrusion (more on this here).

And what decision could be more about my own body than what level of protection I want to afford myself in a vehicle?  If I choose, for whatever reason, not to wear a motorcycle helmet or a seatbelt, who cares?  It may be a really, really stupid choice on my part, but its my decision for my own body, right?  (By the way, I know that some people will make the 'taxpayers pay for your medical care argument', which I dealt with earlier in my post about government health care funding as a Trojan horse for fascism).

But even beyond the issue of individual decision-making, what about the 4th amendment issues?  It is amazing but true that progressives and the Massachusetts legislature, who would never in a million years give the police, the FBI, or anyone under George Bush's chain of command the right to stop a motorist without probable cause to check for evidence of terrorist intent, are actually endorsing that the police have this power to stop motorists without probable cause for freaking seat belt use.  Is this really the alternative we are being offered today - you can choose fascism to stanch the threat of terrorism or you can choose fascism to increase seat belt use? 

I predict that the left may come to regret setting this precedent, as they have come to regret other expansions of government power that their political enemies have used as stepping stones for their own agenda.  A good example is Title IX, which is beloved by the left for using the fact of federal funding to browbeat even private universities into changing their admissions policies, but has been used as a precedent by the right to browbeat private universities into accepting military recruiters.  Government micro-managing of individual decision-making is only fun as long as you and your gang are the ones doing the micro-managing.

I would love to see someone in Washington making a consistent case for freedom of decision-making for individuals when the decision affects only themselves or others with whom they are interacting in a consensual manner.  But I am not holding my breath.

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.