Coyote Blog

John Sugg at Reason has a review of corporate relocation subsidies down South, and the picture is not pretty:

Jurisdictions across the nation offer such inducements, which
include tax abatement, land acquisition, construction subsidies,
training subsidies, and outright cash grants. Nationally, relocation
incentives total about $50 billion a year, according to the WHR Group,
SIRVA, and other relo­cation consultants. (Such consultants often
collect as much as 30 percent of the grants they negotiate for the
businesses.)...

It's hard to get a precise total of the dollars
involved, but almost every major business relocation in the South is
accompanied by a cornucopia of publicly funded grants, despite ample
evidence that the subsidies have little impact on corporate site
selection. Other regions of the nation, especially ones experiencing
protracted economic downturns, are increasingly emulating the South.
The politicians involved rarely consider broader tax and regulatory
changes that would make their states more attractive to all businesses,
outside and homegrown....

Trendy businesses"”particularly technology firms"”have the greatest
leverage in demanding government subsidies. In February, for example,
biofuel manufacturer Range Fuels, based on lit­tle more than its word
that it could deliver a economically competitive product, was offered
$6 million in state cash, a 97-acre tract in central Georgia, and a set
of tax abatements. At best, the company will employ 70 people.

He's got tons of examples, so you should read it all, but this one sounded just like something out of Wisconsin in Atlas Shrugged:

One business that benefited from such subsidies was the Real Silk
Hosiery factory, which opened in Durant, Mississippi, in the late
1930s. Real Silk rented its factory from a state agency for $5 a year,
enjoyed tax incentives, and had public agencies train its employees and
even build their homes. The Durant plant was shuttered in the mid-'50s.
Like many other Southern industrial facilities abandoned by owners
seeking better deals elsewhere, it closed before the industrial revenue
bonds were paid off. Writing in Time in 1998, reporters Donald Bartlett
and James Steele noted that Mississippi "was the poorest state in the
nation when its corporate-welfare program began in 1936."¦62 years and
hundreds upon hundreds of millions of dollars in economic incentives
later, it remains dead last in per capita income."

In the past, I have observed that the "game" of competitive relocation subsidies between local authorities is very similar to a prisoner's dilemma game.  In the prisoner's dilemma, two prisoners are given a choice: To confess and rat out their partner or to stay silent.  If both stay silent, they get 10 years each in jail.  If one rats out the other, but the other stays silent, the talker gets 5 years and the silent one gets 30 years.  If they both talk, then they both get 20 years.  In this game, each person has the incentive to talk, since for any set of actions of their partner, they are better off talking than not talking.  The irony is that when they both inevitably talk, they end up worse off than if they had stayed silent.

I see the relocation subsidy game as very similar, replacing "state official" for prisoner and "subsidize" for "talk."  Quoting from myself:

In a libertarian world where politicians all just say no to
subsidizing businesses, then businesses would end up reasonably evenly
distributed across the country (due to labor markets, distribution
requirements, etc.) and taxpayers would not be paying any subsidies.
However, because politicians fear that their community will lose if
they don't play the subsidy game like everyone else (the equivalent of
staying silent while your partner is ratting you out in prison) what we
end up with is still having businesses reasonably evenly distributed
across the country, but with massive subsidies in place.

To see this clearer, lets take the example of Major League Baseball
(MLB).  We all know that cities and states have been massively
subsidizing new baseball stadiums for billionaire team owners.  Lets
for a minute say this never happened - that somehow, the mayors of the
50 largest cities got together in 1960 and made a no-stadium-subsidy
pledge.  First, would MLB still exist?  Sure!  Teams like the Giants
have proven that baseball can work financially in a private park, and
baseball thrived for years with private parks.  OK, would baseball be
in the same cities?  Well, without subsidies, baseball would be in the
largest cities, like New York and LA and Chicago, which is exactly
where they are now.  The odd city here or there might be different,
e.g. Tampa Bay might never have gotten a team, but that would in
retrospect have been a good thing.

The net effect in baseball is the same as it is in every other
industry:  Relocation subsidies, when everyone is playing the game, do
nothing to substantially affect the location of jobs and businesses,
but rather just transfer taxpayer money to business owners and workers.

I conclude with this from Sugg's piece:

Holladay, who has headed state economic development agencies in
Georgia, Mississippi, and South Carolina, remembers a conversation with
Zell Miller, then governor of Georgia, at a National Governors
Conference in the '90s. "The topic of subsidies came up," he recalls.
"Zell asked me, "˜Is there any way to end this foolishness?' I answered,
"˜The only way I know is to not elect any more governors.'"‰"

From the beginning, national security letters had to end badly.  One only has to understand incentives to know that things were going to go off the rails.  Specifically, national security letters are an easy way to for investigators to short-circuit a lot of procedural steps, including review and approval of warrants by judges, steps that have been put in place for a real Constitutional purpose.  Anyone who is at all familiar with the operation of any government bureaucracy had to know that their use would steadily grow well outside the narrow bounds of urgent national security issues.  Anytime government employees can grow their power without supervision or accountability, they will tend to do so.  What absolutely guaranteed that this would happen, and sooner rather than later, was the legal non-disclosure requirements around these letters that prevents anyone from discussing, investigation, or discovering their abuse and misuse.

The Washington Post carries a great anonymous editorial from one person served with such a letter:

Three years ago, I received a national security letter (NSL) in my
capacity as the president of a small Internet access and consulting
business. The letter ordered me to provide sensitive information about
one of my clients. There was no indication that a judge had reviewed or
approved the letter, and it turned out that none had. The letter came
with a gag provision that prohibited me from telling anyone, including
my client, that the FBI was seeking this information. Based on the
context of the demand -- a context that the FBI still won't let me
discuss publicly -- I suspected that the FBI was abusing its power and
that the letter sought information to which the FBI was not entitled....

Without the gag orders issued on recipients of the letters, it is
doubtful that the FBI would have been able to abuse the NSL power the
way that it did. Some recipients would have spoken out about perceived
abuses, and the FBI's actions would have been subject to some degree of
public scrutiny. To be sure, not all recipients would have spoken out;
the inspector general's report suggests that large telecom companies
have been all too willing to share sensitive data with the agency -- in
at least one case, a telecom company gave the FBI even more information
than it asked for. But some recipients would have called attention to
abuses, and some abuse would have been deterred.

I found it
particularly difficult to be silent about my concerns while Congress
was debating the reauthorization of the Patriot Act in 2005 and early
2006. If I hadn't been under a gag order, I would have contacted
members of Congress to discuss my experiences and to advocate changes
in the law.

Tim Lynch makes a point about the national security letters I found intriguing and that has not been discussed very often, that the letters represent effect conscription of ordinary citizens into an intelligence or even big brother role.  The author of the WaPo editorial makes the same point:

I resent being conscripted as a secret informer for the government and
being made to mislead those who are close to me, especially because I
have doubts about the legitimacy of the underlying investigation.

Via Hit and Run:

A blistering Justice Department report accuses the FBI of
underreporting its use of the Patriot Act to force businesses to turn
over customer information in terrorism cases....The report, to be
released Friday, also says the FBI failed to send follow-up subpoenas
to telecommunications firms that were told to expect them.....

Overall,
the FBI underreported the number of national security letters it issued
by about 20 percent between 2003 and 2005..... In 2005 alone, the FBI
delivered a total of 9,254 letters relating to 3,501 U.S. citizens and
legal residents.

The Patriot Act....allows the FBI to issue national
security letters without a judge's approval in terrorism and espionage
cases.

Here is my bet:  Even more interesting will be a review of these letters, if that is ever allowed, to see how many really had any burning relation to national security.  My guess is that many of these are being used in drug cases and financial cases that only the most creative FBI agent could twist into a national security situation.

For the last couple of years, much of the debate about detention at Gitmo has focused  on silly arguments about torture.  Flushing a Koran -- Torture!  Showing a picture of a naked girl -- Torture!  The comfy chair  -- Torture!  As I wrote in this post,

Here is my fervent hope:  If I ever find myself imprisoned by hostile
forces, I pray that they will torture me by sitting me in a chair and
having me watch them flush books down the toilet.

If I bought into the theory of Rovian infallibility, I might argue that this was all a clever trick to distract the country with the left hand while the right was really doing the damage.  Whether planned or not, the media certainly fixated on the left hand, while the right was doing this:

In a series of probing and sometimes testy exchanges with a government
lawyer, two of three judges on a federal appeals court panel here
indicated Thursday that they might not be prepared to accept the Bush
administration's claim that it has the unilateral power to detain
people it calls enemy combatants....

"What would prevent you from plucking up anyone and saying, "˜You are
an enemy combatant?' " Judge Roger L. Gregory of the United States
Court of Appeals for the Fourth Circuit asked the administration's
lawyer, David B. Salmons.

Mr. Salmons said the executive branch
was entitled to make that judgment in wartime without interference from
the courts. "A citizen, no less than an alien, can be an enemy
combatant," he added.

The real threat to freedom and the American way here was always the Bush administration's incredible theory that it had a right to name anyone a combatant and then detain them forever, without any sort of independent review or appeal.  Particularly in a "war" with no defined enemy.  It's incredible to me that the Congress and courts have let this slide as long as they have, and good to see some scrutiny may finally be applied.  Hat tip: Reason.  More here, here, here.  Looking back through my archives, I seem to have made this same point months ago:

One of the problems I have making common cause with many of the
civil rights critics of the Bush administration is that they tend to
hurt legitimate civil rights by exaggerating their claims into the
ridiculous. 

A good example is detentions at Gitmo.  I believe strongly that the
Bush administration's invented concept of unlimited-length detentions
without trial or judicial review is obscene and needed to be halted.
But critics of Bush quickly shifted the focus to "torture" at Gitmo, a
charge that in light of the facts appears ridiculous
to most rational people, including me.  As a result, the
administration's desire to hold people indefinitely without due process
has been aided by Bush's critics, who have shifted the focus to a
subject that is much more easily defended on the facts.

I am way behind on posting some of these reviews, but Market Power has a review of BMOC here.

There is also at least one new (5-star!) review up at Amazon.  It makes a great, uh... President's Day gift!

I am a little behind on my email, so I am late in posting some of the reviews coming in on my book BMOC.  My habit is to post every review I can find, positive or negative.  Let me know by email if you have a review and I will link it as well.  Some of the reviewers below seem to like the book a lot, while some are more lukewarm, but I thank everyone for reading it and taking the time to post a thoughtful review.

After years of practice with non-fiction, I am still refining my fiction voice and style.  It is hard to over-emphasize how important it is to get critical feedback from people who are not a) paid by me, i.e. editors or b) friends and family, who make up most everyone's first readers.  I am already learning a lot from reviews about what works and doesn't work, what is interesting, and what comes off as a cliche.   And of course I continue to be proud that I have some of the smartest readers in the blogosphere.  Thanks.  [Of course I am going to quote the good stuff, but click through to see everything]

Human Advancement (what a beautiful web design he has)

I picked it up Christmas morning, with the intention of reading a
chapter or two in that little lull that always comes after the presents
are opened. You've heard the cliche "I couldn't put it down"? Well,
next thing I knew dinner was ready, and after eating I picked it right
back up and finished it.

I had kind of assumed it would be another one of those libertarian
fantasy novels. You know the kind, Montana secedes from the US; or a
small band of people decide they won't take it any more and go off
somewhere to found their own government; or a lone rebel plots to take
down the system by finding and eliminating the few key people who keep
it going, etc. I've taken to calling it "LibFic". So I thought this
would be more of the same: a book from a fellow libertarian blogger
whom I've had on my blogroll almost since I started this, and a book
that was in a niche - a very narrow niche - that I like.

Turns out that it was a pretty mainstream corporate espionage novel,
complete with a murder to be solved, a young, attractive and competent
protagonist, and more than one opening for a sequel. It fits the genre
that is popular today, (with dramatic but generic names like "Malice of
Intent"), and as such is entertainment, not great literature. But it is
a good story, and while it is not overtly libertarian (seems that
Warren forgot to include the 70-page speech painfully "integrated" into
the plot that outlines his entire philosphical edifice), it does have a
refreshing libertarian sensibility that is usually absent from books in
that genre....

In the process, the book paints a picture of the media/legal/government
complex that is as damning as the portrayals of the
military/industrial complex, or the profit/oppression complex that is
usual the root of all evil. Warren pulls this off without lengthy
digressions to explain to us that this cabal exists, and why it is so
bad. Instead, he just shows it in action, and each example serves not
to "interrupt our plot for this important message", but to further the
plot and to draw the characters.

The Unrepentant Individual  (great blog name)

Pagan Vigil  (does everyone have a better blog name than mine?)

Dispatches from TJICistan (I wish he would stop making me feel guilty with his workout synopses)

There is also a nice 5-star review on Amazon.   You can also get a low-cost pdf version here.  And I have posted the first 8 chapters starting here.

Dave Barry has his end of year review up:

As the campaign lumbers to the finish line, the Republicans desperately
hope that the voters will not notice that they "” once the party of
small government "” have turned into the party of war-bungling,
corruption-tolerating, pork-spewing power-lusting toads, while the
Democrats desperately hope that the voters will not notice that they
are still, basically, the Democrats.

This is an offer to other bloggers out there.  I still have some marketing budget left, and would be happy to send out a few more free review copies of my book BMOC.  Just email me at Coyote -at- CoyoteBlog -dot- com with your name and address and the web address of the blog you write for and I will send you a copy.  I reserve the right to cut the list off if it gets too expensive long.  I would especially love to hear from bloggers who have supported this site from the early days.

All I ask is that you actually think you might read the thing if you ask for one.  I don't require that you write about the book as a pre-condition.  You will write about it or not just like you have linked this site -- if there is something worth talking about, I am sure you will do so.  If not, well I'm a live-and-let-live libertarian, so that's cool too.

By the way, I am going to serialize the first several chapters on the blog in the coming days and weeks, so everyone can get a taste.

I still get a lot of email and
commentary on my posts explaining why a trade deficit does not
necessarily result in a build up of debt.  Its a mistake that
protectionists like Lou Dobbs make, either accidentally or on
purpose, to confuse the trade deficit with a debt (Dobbs, in the linked article, claimed that we had $5 Trillion in accumulated trade debt).  In another
attempt to explain this, I want to present a thought experiment.

In our hypothetical, a regular old
American guy named Joe walks into a Wal-Mart to buy new Plasma TV.
Lets assume that Joe is presented with two choices, a Chinese-made TV
and an American-made TV.  The American TV is $2000 and carries a
brand Joe recognizes;  the Chinese TV is $1800 and is a brand Joe
does not recognize.  As far as he can tell, both are featured
similarly.

Joe may choose to take a chance with an
unknown brand to save $200, or he may not.  Let's see what happens
either way.  If Joe picks the Chinese TV over the American TV, the US
trade deficit will likely be worse, by whatever Wal-Mart has to pay
to restock the shelves.  But, while the trade deficit may be worse if
Joe buys Chinese, is there any additional debt created by buying
Chinese rather than American?

Well, Joe doesn't have more or less
personal debt either way.  Whether he is paying with cash or
financing the TV, this decision is unaffected by whether he buys
Chinese or American.  He may happen to buy Chinese and take on debt
to purchase the TV, but the decision to take on debt has nothing to
do with the fact that it is an import.  If he had bought the American
TV, he presumably would have taken on debt for that purchase as well.
In fact, if anything, since the Chinese TV is cheaper, Joe's
personal debt is reduced by buying Chinese over American.

In fact, the only way in which Joe's
personal debt could be said to be increased by Chinese imports is if
the $200 price differential was enough to change his mind from
not-buying a TV to buying one, and he then financed the purchase.
But this is only going to occur in a small percentage of
transactions, and besides, it would be unfair to call something so
empowering "“ ie giving Joe the power to get something he really
wants that he would otherwise been unable to "“ as a negative.
(Update: I do think this is sortof the logic trade opponents
use.  They argue that "rampant consumerism"is causing an increase
in consumer debt which is kindof sortof tied up in some way with this
whole cheap Chinese goods at Wal-Mart thing, so therefore trade
causes debt.  This may sound good rhetorically at an
anti-globalization rally but makes no sense scientifically).

Now let's take Wal-mart.  Assuming they
know how to price items, they will make a gross margin on either the
Chinese or the American TV.  How, then, can having to restock the TV
Joe bought by buying one from an American factory for say $1400
affect Wal-Mart any differently than paying the same (or less) money
to a Chinese company?  The answer is that it has no effect.  Buying
Chinese vs. American has no effect on Wal-Mart's debt.

So let's say Joe bought the Chinese TV,
and the Chinese end up with $1400 (the factory price) in US currency
courtesy of Wal-Mart.  If they don't need anything in the US, they
will trade this currency for yuan to someone in China who does want
to buy something in the US.  Let's assume that these dollars are all
incremental, so none go to buying exports from the US or goods to be
consumed in the US.  Let's assume that it all gets invested as
profits, and further, let's assume that it gets invested 100% in US
debt securities.

Aha!  People want to say to me.  There
is the debt!  Chinese are buying up US bonds.  And so they are.  But
trade did not cause or create the debt.  Just because Chinese trade
dollars are reinvested in debt securities does not mean trade cause
the debt.  In fact, the US government debt would exist with or
without Chinese trade, courtesy of the tax and spend whores of both
parties in the US Congress.  If the Chinese had not bought the debt,
someone else would have, and the debt still would have existed.  In
fact, the US debt would likely have just been a bit larger and a bit
costlier without Chinese buyers to bring down interest rates.

So, to review, an average American
makes an incremental decision to buy Chinese rather than American,
the trade deficit gets worse, but no debt is created.  So I renew my
challenge to Lou Dobbs, who claims America has $5 trillion in trade
debt by asking a simple question:  Where?

One of the reasons I blog is that the act of writing helps me clarify my thinking on certain issues.  I have written a number of times about my concerns over the "war powers" this administration is taking upon itself.  Arnold Kling's article in TCS Daily helped me clarify a better framework for thinking about my issues.  I can now put my concerns in two categories:

• The administration is going too far in using the war as an excuse to circumvent a number of Constitutional protections, from habeas corpus to search and seizure.  This does not mean that I am necessarily against all new activities, but they need to be initiated within our Constitutional framework.  Take surveillance activities.  Its not unreasonable to think that terrorism demands new surveillance tools.  But the principle we have always followed for surveillance is that Congress authorizes the power and the judiciary gets some type of review of the targets and methods.  Bush seems to have become impatient with separation of powers to the point that he does not even try to engage the other arms of the government, instead using the war to claim a fiat power.  (It should be noted that even when the separation of powers is respected, as with the Patriot Act, mistakes are made and we can go too far.  However, at least we can debate it and there are Congressmen we can hold accountable).
• The second category of problem I have is with the open-ended nature of the war.  Calling this the "War on Terror" is only marginally more precise and limiting than saying we are fighting the "War against Bad Stuff."  If one asks, "Who are we fighting", the administration answers "Whoever the President says we are fighting against".  If one asks "When is it over" the administration either answers "Whenever the President says it is" or else, probably more honestly, they say "not for a long, long time."

In terms of civil liberties, the second point may be the most problematic.  Most citizens will grant the President some special war powers (as in fact the Constitution does), though we can argue whether the current administration has gone too far in defining these powers for themselves.   But if you combine this with letting the administration define exactly who the enemy is and how long the war lasts, it makes for a combination deadly to civil liberties.

Take the example of detention of enemy combatants.  Administration supporters argue that we have always been authorized to hold enemy combatants until the end of the war, as we did in WWII.  And so we did.  We were at war with Germany, so we detained German soldiers we captured until the end of the war.  Note that these are definitions that everyone at the time could agree on -- ie everyone knew what a German soldier was and everyone knew that "end of the war" meant when we marched into Berlin.  Few German detainees were held for much more than a year.  By the way, it is interesting to note that even in WWII, we abused this notion.  The administration defined "enemy combatant" as "anyone in the US of Japanese descent", so that we ended up interning innocent American citizens for years, much to our shame today.

However, in the current "war", an enemy combatant is anyone the administration says is an enemy combatant (at least in their theory) and "for the duration" means as long as the administration cares to hold them, up to and including "forever." 

Conservatives wish to argue that the "War on Terror" is a new kind of war and demands new tools to fight it, which they use to justify all kinds of secret searches and detainments.  Fine, but then it also needs new types of civil liberties checks.  Coming back to our detention example, in WWII it was not really necessary to have some kind of judicial review on the question of whether a captured German soldier was an enemy combatant;  the uniform was a pretty good giveaway.  However, such a review is necessary today, since the enemy combatants languishing at Gitmo (many of who I am willing to believe are bad guys) don't have any identifying uniforms or paperwork.

If I read him right, Kling is saying something similar:  Some security activities that were traditionally not allowed may be necessary, but for every civil liberties give-back there needs to be a countervailing new control or check on government activity:

On the whole, Posner makes a persuasive case for tilting the judicial
balance in favor of reasonable efforts to promote security rather than
strict-constructionist civil libertarianism. However, I believe that
what we need to do is re-build our civil libertarian fortresses, not
simply retreat from them. That is why I favor much stronger accountability for agencies engaged in surveillance. It is why I am proposing here a formal process for naming our enemies.

From Michael Siegel, with a hat tip to Reason's Hit and Run (use of colored text in the original):

An article in the current issue of JAMA (Journal of the American Medical Association),
reporting on the recent Surgeon General's review of the health effects
of secondhand smoke, brings to the forefront the controversy over
whether the Surgeon General misrepresented
the science in his public communications surrounding the report's
release ...

The
controversy stems from the press release and other ancillary materials
released by the Surgeon General to accompany the report itself.

Here is what those ancillary materials stated:

According to the Surgeon General's press release:

"Even
brief exposure to secondhand smoke has immediate adverse effects on the
cardiovascular system and increases risk for heart disease and lung
cancer, the report says."

According to the Surgeon General's remarks to the media:

"Breathing
secondhand smoke for even a short time can damage cells and set the
cancer process in motion. Brief exposure can have immediate harmful
effects on blood and blood vessels, potentially increasing the risk of
a heart attack."

According to the Surgeon General's accompanying fact sheet:

"Breathing
secondhand smoke for even a short time can have immediate adverse
effects on the cardiovascular system, interfering with the normal
functioning of the heart, blood, and vascular systems in ways that
increase the risk of heart attack."

And according to the Surgeon General's accompanying brochure:

"Even
a short time in a smoky room causes your blood platelets to stick
together. Secondhand smoke also damages the lining of your blood
vessels. In your heart, these bad changes can cause a deadly heart
attack."

These claims are markedly different from those
made in the Surgeon General's report itself, which concludes that
chronic exposure to secondhand smoke increases the risk for heart
disease, but does not conclude (or even present evidence that) a brief
exposure to secondhand smoke can cause lung cancer, heart attacks, or
heart disease.

This is a classic technique used today in scientific reports on global warming, where the report itself is often full of cautionary language about potential problems in the models and the uncertainties in predicting climate, but the summary and press releases make doom and gloom statements with absolute certainty that aren't actually supported by the research they purport to summarize. 

In both cases, the principles justify the exaggeration of the public message as all in a "good cause", which of course is the justification every lying politician uses.  Even Ted Stevens.

I loved the original Pirates of the Caribbean, and so I was excited to go see the sequel.  I won't write a long review, except to say that this movie is to the original what Star Wars Episode 3 was to the original Star Wars.  It seems to have forgotten what made the original a success, and focused instead on elaborate special effects and a confused plot.  The effects are amazing, and may be alone worth the price of one viewing, but the movie itself was only so-so. 

The plot wandered around aimlessly at times, and key elements, such as exactly how Jack got crosswise with Davy Jones in the first place, get a very very short exposition, which seem odd in a 2-1/2 hour movie.  This is the same mistake many action movie sequels make - the Indiana Jones movies come to mind in particular.  The sequels go for action action action continuously on the screen, forgetting that the original had long stretches of quiet periods that actually moved the plot and characters along.

Of all the plot elements, the sudden introduction of the ex-commodore Norrington seems the most forced.  There feels like there are one two many characters in the movie, with Sparrow, Will, the governor, the east India guys, Norrington, Davy Jones, etc. all having independent agendas.  This is fine for a taught character drama, but for a light action movie it is overly complex, and feels like Mission Impossible 2 where the writers tried to outdo the original in twists and turns and betrayals.  The introduction of Norrington does set up an interesting 3-way fight (kind of reminiscent of the awesome final scene in God, Bad, and the Ugly).  Like much of the film, the fight is kindof fun but falls short somehow.  And looking back on the movie, I can't figure out why the whole first part of the movie with the cannibals was even in there.  Basically, it did nothing to advance the plot.

The worst offense of the movie in my mind is that it underutilized Johny Depp.  Depp, whose performance really made the first movie, is OK but is not really allowed to be great.  The writers have him reprising his best bits from the first movie, rather than doing anything new.  It all feels a bit stale.

Oh, and by the way, does every single Hollywood movie have to find a way to make a large corporation the villain?  I mean, is it a writers guild requirement or something?  Even this movie set in the 18th century has to seek out the one and only large corporation in the world and use it as a villain.

One of the problems I have making common cause with many of the civil rights critics of the Bush administration is that they tend to hurt legitimate civil rights by exaggerating their claims into the ridiculous. 

A good example is detentions at Gitmo.  I believe strongly that the Bush administration's invented concept of unlimited-length detentions without trial or judicial review is obscene and needed to be halted.  But critics of Bush quickly shifted the focus to "torture" at Gitmo, a charge that in light of the facts appears ridiculous to most rational people, including me.  As a result, the administration's desire to hold people indefinitely without due process has been aided by Bush's critics, who have shifted the focus to a subject that is much more easily defended on the facts.

Interestingly, as I watch the Beeb this morning, Britain is having a similar debate.  Its hard to figure the whole thing out from the TV coverage and sound bites, but apparently Britain has the ability to detain suspected terrorists for 90 days, and wants the power to extend this.

Many people have told me that I am an insanely naive Pollyanna for not accepting the need for indefinite detention without trial of suspected terrorists.   I have explained in the past that we don't have the right to do this with our own citizens, but we also don't have the right to do this with any other human being (the short explanation:  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 and not from the fact of our citizenship.   In some ways, the government probably has less right to abuse non-citizens, not more).

Here is a test:  If the government had always had this power, ie to detain indefinitely people it thought somehow "dangerous" to "someone"  (with the government getting to define both these terms), how abused would it have been in the past.  My answer is "very much".  Who would J. Edgar Hoover have detained?  Would Martin Luther King have spent his life in jail, much like Nelson Mandela?

By the way, I have no idea what Hamdan vs. Rumsfeld means for all this, since I haven't read it and pundits seem to disagree on what it means  (unfortunately, this may be something we live with a while, a feature of the new muddled "Justice Kennedy compromise" we seem to have to live with on a number of decisions).  If anyone thinks they have seen a definitive analysis, please link it in the comments.

A new study on medical malpractice decisions by Alexander Tabarrok and Amanda Agan of George Mason University was released last week.  A lot of the study is dedicated to countering some economically-ignorant canards (e.g. the charge that the recent rise in malpractice insurance is all due to price gouging and not due to malpractice awards).

The most interesting piece is where they compare malpractice awards to results of the independent medical review board rulings.

Our test finds that the tort system and review system do not correlate. Figure Five shows that
adverse actions per doctor in the medical review board system do not correlate with the number of medical malpractice cases per doctor in the tort system, nor do they correlate with the
average award per doctor....                               

In no case is the correlation large; in some
cases, it is actually slightly negative. What these results indicate is that the two systems
we have for determining malpractice, the tort
system and the medical review system, result 
in very different determinations of malpractice.
Surely, one of them is wrong!

The conclusion is one I think many neutral parties have suspected for quite a while:  The tort system is doubly broken:  Bad outcomes that truly are the result of malpractice often do not result in an award, while numerous tort awards go to people who are not the victim of any real malpractice.  Or to put it simply, people who are owed restitution aren't getting it and people who get money often shouldn't be owed anything.

The obvious result is a gross miscarriage of justice.  However, there is a second, less talked about result:  If the tort system is random, having no correlation to real doctor error or doctor quality, then it is impossible to charge doctors with risk-adjusted premiums.  In an efficient market, the worst doctors would pay the highest premiums and would get driven out of the market, just like bad drivers must change their behavior or face lifelong high auto premiums.  However, if tort awards are not correlated with bad behavior, as the study implies, then the system creates a huge moral hazard, with bad doctors underpaying for insurance and good doctors overpaying.  The result is that at best, good doctors will be driven out of the system at least as frequently as bad doctors.  At worst, good doctors, frustrated by the lack of justice in the system, will actually be more likely to leave the system than bad doctors.

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 am seriously late on this one, but I still want to show my support for Lance Dutson, author of the Main Web Report, who is being sued by an advertising firm and harassed by the state government for uncovering some really dumb activities at the state tourism board.  A summary of what he found is here, and the story of the lawsuits is here.

This story rings absolutely true with me.  Given our significant experience with government agencies, I have seen time and time again that when government bureaucrats embark on an activity out of their traditional comfort zones (in this case, Internet pay-per-click advertising, a new activity for most of us) they tend to combine lack of training with total arrogance that they know exactly what they are doing.  Within my company we have dubbed this "condescending incompetence", and we see it all the time.

In this case, Mr. Dutson points out that by bidding up the price in Google adwords of travel-related terms, they are actually hurting Maine travel businesses, both by driving up their advertising costs and by diverting clicks from an actual tourist business to a government site.  And how could any sensible cost-benefit analysis lead to paying over $15 to get one (1) viewer to the government tourist web site?  The answer is, it can't.  The only thing that can drive this behavior is ignorance combined with a skewed incentive system (e.g. some bureaucrat wanted a line in a performance review or PowerPoint chart that said their web site was top-ranked on every key Google search).  And he rightly points out some disturbing conflicts of interest at the advertising agency, as well as the total bonehead maneuver of putting an adult phone-sex number in the ad copy.

By the way, I despise state tourism agencies.  Most of the money they spend is a waste and the rest goes to directly benefit a few cronies.  Most of our local dollars go to high-profile expenditures that gets the governor some extra media buzz but does zero to get anyone new to the state.   And note that I run a business that depends 100% on tourism.  These state expenditures do nothing for me.  In some cases, my customers pay as high as 12% lodging taxes (e.g. tax and bureaucracy hell Mono County, California) to fund tourist boards who don't even advertise the types of operations I run (campgrounds and marinas).

The Supreme Court refused to review the Padilla case:

The Supreme Court on Monday refused to hear the appeal of Jose
Padilla, a U.S. citizen held in a military jail for more than three
years as an "enemy combatant." The Court, however, declined to dismiss
the case as moot, as the Bush Administration had urged. Only three
Justices voted to hear the case, according to the order and
accompanying opinions. The case was Padilla v. Hanft (05-533).

The decision was a victory for the Bush Administration in one
significant sense: by not finding the case to be moot, the Court leaves
intact a sweeping Fourth Circuit Court decision upholding the
president's wartime power to seize an American inside the U.S. and
detain him or her as a terrorist enemy, without charges and -- for an
extended period -- without a lawyer. The Court, of course, took no
position on whether that was the right result, since it denied review.
The Second Circuit Court, at an earlier stage of Padilla's own case,
had ruled just the opposite of the Fourth Circuit, denying the
president's power to seize him in the U.S. and hold him. That ruling,
though, no longer stands as a precedent, since the Supreme Court
earlier shifted Padilla's case from the Second to the Fourth Circuit.

I don't even pretend to understand all the procedural stuff, but I find it amazing that the effective suspension of habeas corpus, particularly when the "war" and "enemy" that is used as its justification is so amorphous and open-ended, isn't something the Supreme Court would like to sink its teeth into.

Apparently, the Justices were reluctant to address the case since it has now been made "hypothetical" by the transfer of status of Padilla from enemy combatant held incommunicado indefinitely to a more mainstream justice track.  However, this transfer occurred, as the appeals court pointed out angrily, in a transparent effort by the Bush administration to avoid judicial review of indefinite detentions.  Which raises the possibility that the administration could hold hundreds of people in such detention, systematically changing the status of any individual whose case comes for review, thereby avoiding review of the program in total.  As Ruth Bader Ginsburg wrote, "Nothing prevents the Executive from returning to the road it earlier constructed and defended."

One wonders by this logic if the segregationist south could have indefinitely postponed Supreme Court review via Brown vs. Board of Education just by letting individuals like Linda Brown individually into white schools whenever their cases got to the Supreme Court.

And still I ask, as I did here, where the hell is Congress?  I am sorry the Supreme Court failed to review this but the Constitution created this group called the legislative branch that is supposed to have the power to change the law.  If law is unclear here, they could make it clear.

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'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.

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.

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.

A while back, I wrote the Porkbusters post on Arizona farm subsidies, which are mainly cotton subsidies.  Cotton gets subsidized both with direct farm subsidies as well as price-subsidized water (this is a desert, after all, and unlike Egypt we don't have the Nile running through it).

Porkopolis is on the case with a further potential subsidy, as the US Government is apparently transferring a valuable piece of Phoenix commercial real estate to Arizona cotton growers:

A review of the final bill passed by both the House and the Senate shows that Senators DeWine and Voinovich, along with 97 other Senators,
voted for a provision that transfers a federal facility and surrounding
land to the Arizona Cotton Growers Association and Supima:

SEC.
783. As soon as practicable after the Agricultural Research Service
Operations at the Western Cotton Research Laboratory located at 4135
East Broadway Road in Phoenix, Arizona, have ceased, the Secretary of
Agriculture shall convey, without consideration, to the Arizona Cotton Growers Association and Supima all right, title, and interest of the United States in and to the real property at that location, including improvements.

They've got a very deep investigative report. 

Originally, the environmental movement counted many in its leadership with scientific backgrounds who were thoughtful advocates of improving the environment.  Unlike many "conservatives", as a libertarian that thinks more about being for property rights rather than just "pro-business", I understand that emissions guidelines are critical to the proper functioning of free markets:

In fact, environmental laws are as critical to a nation with strong
property rights as is contract law. Why? Imagine a world without any
environmental legislation but with strong property rights. What happens
when the first molecule of smoke from my iron furnace or from my farm
tractor crosses over on to your land. I have violated your property
rights, have I not, by sending unwanted substances onto your land, into
your water, or into your airspace. To stop me, you might sue me. And so
might the next guy downwind, etc. We would end up in an economic
gridlock with everyone slapping injunctions on each other. Since
economic activity is almost impossible without impacting surrounding
property owners, at least in small ways, we need a framework for
setting out maximums for this impact - e.g., environmental legislation.

Unfortunately, while many thoughtful people still call themselves an environmentalist, reasonable and scientific people no longer run the environmental movement.  Increasingly, the environmental movement has been taken over by
anti-growth and anti-technology Luddites as well as anti-free-market
socialists.

As evidence, I offer what has become an effective thirty-year moratorium on refinery construction. Forget for this post the obvious effect this has on gasoline supply stability, particularly with the EPA-mandated proliferation of special local gasoline blends.  Think instead about the true environmental implication:

The opposition to building new refineries ignores the dramatic
technological improvements that have been made since an oil refinery
was last constructed here in 1976. New, clean refineries emit far less
pollution than older refineries, with new scrubbers and design changes
that dramatically reduce sulfur and other emissions. And at the same
time our ability to model and map emission characteristics and
distribution lets us choose the best locations for new facilities "“
where they will have the least possible impact on people and the
environment.

Refineries are dirty places.  There are thousands of seals and flanges and safety valves that are going to leak some hydrocarbons.  But think on this:  Every single refinery in this country was built with at least 30 year old technology.  Sure there have been upgrades, but much of the core is still there.  I was an engineer at a refinery near Houston for 3 years and we had equipment still operating that was 50 years old, and that was twenty years ago and much of it is still there.

So what does this mean?  Imagine if every car in this country was over 30 years old.  Think of the improvements we have made in fuel efficiency and pollution control over the last 30 years- no cars would possess any of this technology.  The roads are full of cars with modern technology that are fuel efficient and relatively clean because we don't moronically prevent them from being replaced with new ones.

But this is exactly the case with refineries.  The single best, most intelligent thing we could do today for the environment, as far as refineries are concerned, is to let about 10 brand new ones be built with all modern technology, and let these newer refineries compete the older ones into closure.  And who is blocking this single most impactfull environmental step?  Environmentalists, of course.

This is not an unusual issue. I wrote about this same issue with new source review rules and Bush's Clear Skies initiative:

New source review is long and complicated, but basically
says that existing power plants don't have to upgrade to new
technologies, but new ones have to go through a very extensive
environmental review and permitting process and have a suite of
government mandated pollution control technologies installed.  OK, that
has all been clear for 3+ decades.  The rub comes when a company
considers upgrading or replacing a portion of a power plant.
For most of the life of the Clean Air Act, the government allowed
utilities to upgrade and modernize plants without having to install the
expensive suite of new controls.  The Clinton administration clamped
down on this, making it harder to upgrade existing plants.  All the
recent hullabaloo has occurred as GWB proposed to go back to the
pre-Clinton rules.

This issue is a great test for environmentalists, because
it separates them into those who really understand the issues and the
science and legitimately want improvement, and those who care more
about symbolism and politics.  Those who like symbolism have cast this
move as a roll-back, and are fighting it tooth and nail.  Those who
care about results know the following:

Experience under the Clinton rules has shown that most old
plants will never be upgraded if they have to go through the planning
process and install the new scrubbing and other technologies.  So, they
will just keep running inefficiently, as-is, until they are finally
shut down.  However, if allowed to be upgraded without review and new
scrubbers, etc., they will become much more efficient.  No, they won't
have the most modern scrubbing technology, but because they are more
efficient, they burn less fuel (coal) to make the same amount of
electricity and therefore will pollute less.  In some cases these rules
even prevent switching to cleaner fuels like natural gas. 

In other words, most scientists, including
scientific-oriented environmentalists, agree that GWB's proposal will
result in less pollution, but environmentalists still oppose it because
they don't like the symbolism of any pollution regulation appearing to
be rolled back.  You can read a lot more about New Source Review and how it actually increases pollution in practice here.

Technorati Tags:  Environment, Economics

Yesterday I read in Reason that apparently the new Pope has in the past shown support for the anti-Harry Potter crowd, which is gearing itself up in anticipation of the new Harry Potter book release tomorrow.  He apparently wrote:

It is good, that you enlighten people about Harry Potter, because those are
subtle seductions, which act unnoticed and by this deeply distort Christianity
in the soul, before it can grow properly.

Here is my whole take on the anti-Harry crowd:  Get a life.  From a values point of view, what is it about Harry that you wouldn't want your child to emulate?  And as for the magic stuff - OK, get ready for this - its...made up.  Yes, it is a fantasy, it is not real.  There is no danger of your child suddenly running off and casting spells.

And here is my take on the Potter books as a whole:  Awesome.  Forget that I personally have enjoyed reading every one of them.  Consider that my 11-year-old boy has been waiting for weeks, not for a computer game or movie to come out, but for a book.  Likely a loooonnnggg book.  And this weekend, no matter what the weather or what is on TV, he will be glued to a couch from dawn to dusk reading.  Do you remember being so excited about reading anything at 11, other than the new issue of Spiderman?

By the way, its your last chance to place a bet on which major character buys it in this book, though Dumbledore is the runaway favorite (the logic being that in the story archetype that Rowling seems to be following, the young hero must face the final battle without his mentor - so Dumbledore needs to go before the 7th and last book).

Update:  At noon, Boston time my son crossed over page 310.  I am not sure I read that fast.

Update #2:  OK, its about 4:00 Eastern on Saturday and he is done.  You can tell that we struggle to keep this kid in books (this week he has read Harry Potter, the DaVinci Code, and a Clive Cussler book).  I will try to get him to write a review for the blog.  I threatened that I would tie him up naked in the middle of his school's cafeteria if he gave me any spoilers, but I will say that he was very, very depressed at the end.

OK, this may be a bit bizarre, but believe me, when you live in a climate that routinely remains between 100-114 degrees for five months, comfortable underwear is a must.  I have tried nearly every type and brand, from briefs to boxers, and have recently discovered some new ones that are great.  They are made by Under Armour, which is an entirely familiar clothing line to everyone here in Phoenix because they handle heat and sweat so well.  My kids live in the Heatgear, though I opt for the Loosegear since I no longer have the body for form fitting clothing. 

The underwear is made of that silky under-armour fabric, but is very comfortable and seems to wick sweat away from your body.  The downside is that they are nearly $20 a pair, but they don't shrink and so far have held up well. 

PS- I know my friend Scott in San Francisco tried a pair as well - he may be able to give us a review in the comments of whether he liked them or not.

Final Note: To those of you who suggest "none", you haven't lived in a really hot climate.  "Freefalling" may be OK on a breezy day on the California coast, but in a Phoenix summer or in my birthplace of Houston, you are going to regret it.

Really Random Tangent: Someone sitting with me in my office this morning commented that "the only reason we think it is hot when it is 98 out is because of our clothes.  If we were naked, 98.6 would be the perfect temperature because that is our body heat."  This is actually a misconception and ignores several principals of thermodynamics.

The key fact is that the body generally is a net producer of heat.  To be comfortable and maintain body heat, the body must shed this heat, which humans do in two ways.  First, we transfer heat to the surrounding air from our skin - to do this well, the surrounding temperature needs to be less than our body heat.  The more differential, the more heat transfer.  Air motion (via wind) provides convective heat transfer, which accelerates this process.  Second, we sweat.  When sweat evaporates, it pulls heat from the surrounding air and adjacent body.  Sweating cools us therefore based on evaporation rates, which is one reason why drier climates are more comfortable -- sweat evaporates faster. 

In addition to shedding the body heat we produce, we also have to shed any heat we pick up by radiative transfer.  Radiative heating is the heat we feel on our skin when we are in direct sunlight, and is why one can be cooler in light than dark clothing (dark colors absorb more radiative heat). 

All this means that if we are naked, in the shade, in a dry climate like Phoenix on a breezy day, we are likely to be comfortable at a temperature closer to 98.6.  In the direct sun in a calm, humid climate, even naked, we are going to want a temperature much much less than 98 to be comfortable.