Coyote Blog

You know those towns along the highway where people joke "don't blink, or you'll miss it?"  Well, apparently I blinked and missed this story.  If the ice in a climatologist's bourbon & water melts faster than she expected, it gets a three-day spread in the New York Times, but this environmental good-new story (surely an oxymoron to most editors) seems to have been pushed to the back page last September:

The long-term health and environmental impacts of the 1986
accident at the Chernobyl nuclear power plant in Ukraine, while severe,
were far less catastrophic than feared, according to a major new report
by eight U.N. agencies.

The governments of Ukraine,
Belarus and Russia, the three countries most affected by radioactive
fallout from Chernobyl, should strive to end the "paralyzing fatalism"
of tens of thousands of their citizens who wrongly believe they are
still at risk of an early death, according to the study released Monday.

The 600-page report found that as of the middle of this year, the
accident had caused fewer than 50 deaths directly attributable to
radiation, most of them among emergency workers who died in the first
months after the accident.

In fact, even the "while severe" added into the first paragraph seems to be the last gasp of an editor unwilling to accept any environmental good news, since nowhere in the article is there any evidence published of any negative long-term effect at all except that caused to the mental well-being of local citizenry by the continual onslaught of media and governmental horror-predictions.

In fact, the article goes on to say:

Over the next four years, a massive cleanup operation
involving 240,000 workers ensued, and there were fears that many of
these workers, called "liquidators," would suffer in subsequent years.
But most emergency workers and people living in contaminated areas
"received relatively low whole radiation doses, comparable to natural
background levels," a report summary noted. "No evidence or likelihood
of decreased fertility among the affected population has been found,
nor has there been any evidence of congenital malformations."

In
fact, the report said, apart from radiation-induced deaths, the
"largest public health problem created by the accident" was its effect
on the mental health of residents who were traumatized by their rapid
relocation and the fear, still lingering, that they would almost
certainly contract terminal cancer. The report said that lifestyle
diseases, such as alcoholism, among affected residents posed a much
greater threat than radiation exposure.

The other major "fallout" seems to be massively wasted government spending:

Officials said that the continued intense medical monitoring of tens of
thousands of people in Ukraine, Russia and Belarus is no longer a smart
use of limited resources and is, in fact, contributing to mental health
problems among many residents nearly 20 years later. In Belarus and
Ukraine, 5 percent to 7 percent of government spending is consumed by
benefits and programs for Chernobyl victims. And in the three
countries, as many as 7 million people are receiving Chernobyl-related
social benefits.

Sounds like post-Katrina proposals.  We have already seen more level-headed analysis debunk similar horror stories (remember "toxic soup") in New Orleans.  I wonder what a sober analysis of the real long-term health effects around the PG&E site that Erin Brockovitch made her name on would reveal?  When I lived in St. Louis, we had a local meteorologist we used to joke had "accurately predicted twelve of the last three blizzards".  Environmentalists who perplexedly scratch their heads as to why everyone does not yet fully buy into global warming should move past their "everyone is in the pay of the oil companies" explanation and maybe consider for a minute that their panicked prediction of twelve of the last three environmental disasters may be part of the explanation as well.

By the way, what really killed nuclear power was the costliness of the ridiculous regulatory regime.  In a prior post, I suggested an alternative regulatory regime, copied from airlines (see, we libertarians can sometimes hold our nose and actually make a regulatory reform proposal short of "throw it all out").  Reason's Hit and Run points to an example of those on the left reconsidering nuclear power.

...And boy were they a letdown!  Hell, I have had members of my own immediate family portrayed far worse than this in political cartoons.  I have just about lost all patience with those who try to "understand" and "explain" and "sympothize" with the violence that has erupted, ostensibly due to the publication of these cartoons.  There is no excuse for the recent violence, and I am tired of tiptoeing around the sensibilities of Muslims who are quick in their own turn to denounce anything Western in the most inflammatory and grotesque of terms. 

I am particularly flabbergasted that those who lead the charge to soften the criticism of Muslim violence are the same people who are most flipped out about the influence of fundamentalist Christians in this country.  I'm not particularly thrilled with the legislation that some of the Christian right tends to propose, but my God even the often egregious Pat Robertson is a bastion of secular reasonableness when compared to many Middle Eastern Muslim leaders.

Anyway, the controversy may at least serve some purpose, in forcing Western media to confront its own double standards in criticizing or not criticizing religions  (as a note, let me make clear that I am for having an open season on anyone believing anything, as long as one has his facts straight).

Jeff Goldstein is always a good read, particularly on this topic:

even now
you have Kos commenters contorting themselves
into positions of self-righteous progressive onanism that are a wonder
to behold"”suddenly, free speech is not a universal right worthy of the
crafting of puppet heads and the defacing of Starbucks' windows, but
instead is a culture-specific gift that needs to be filtered through
the religious precepts of the culture of the Other.  Unless, of course,
that "Other" happens to be, say, Evangelical Christians.  In which
case, such extremists MUST BE SHOUTED DOWN with free speech.

Pretzel logic, clearly"”and the dilemma that is at the root of an
incoherent philosophical system that favors the sociology of group
identity over the universality of individual rights.  Ironically,
George Bush, each time he argues that freedom is universal, is acting
in a manner far more progressive than self-styled progressive
activists.

Again:  note the crux of the debate, as framed by the voices for
Muslim protest, and take care to listen for the broad-stroked
rhetoric"”usually this kinds of gambit is more carefully crafted by
those who have, through years of experience, perfected its vocabulary,
cadence, emotional appeals, and key words"”of the "tolerance" movement,
the justifying force that cynically underpins all identity politics:

"The
12 cartoons ... have caused an uproar in the Muslim world and drawn a
new cultural battle over freedom of speech and respect of religions."

Translation:
"Free speech is good so long as it tolerates our right, as an identity
group, to dictate which free speech is authentic and allowable.
Otherwise, y'know, we get to torch shit."

But of course, freedom of speech"”reduced (for purposes of this
debate) to its core, animating mandate and protection"”is PRECISELY the
ability to look religion in its pious face and flip it the bird.
Freedom of speech includes the freedom to criticize religion, just as
freedom of religion is supposed to protect the rights of the religious
not to have their religion established for them by a government"”a
counterbalancing right that is lacking in theocratic states and in
religions where pluralism is denied legitimacy.

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

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

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

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

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

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

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

I can't speak to the "future technology" that Bush alluded to in his SOTU address, but the history of ethanol gives me no confidence that there is anything here.  Ethanol is all about rent-seeking, not energy Independence.  Quality studies have consistently shown that the whole life-cycle energy use of ethanol is far higher than what it provides.  In other words, at least with current technologies, every gallon of ethanol used actually INCREASES total petroleum use.  Its hard to find any scientist outside of the ADM boardroom or the state of Iowa that takes ethanol seriously.  If we took the small step of moving the Iowa caucuses out of the first primary position in the presidential race, ethanol might go away.

Right now, I am running out the Phoenix Mardi Gras, where a golf tournament often breaks out mid-party, so I don't have a lot of time.  However, trust me that this USA Today article has bent over backwards to cherry pick scientific studies in favor of ethanol.  The figures mentioned for ethanol providing 26% more energy than it consumes are the absolute most optimistic study, not the consensus average, of scientific studies.  Also, the Berkley study is on "potential" technologies, and even it admits that using current technologies actually deployed ethanol consumes more energy than it provides. But even at 26%, note that this means that more than 4 gallons of ethanol substitute net out only 1 gallon of gasoline, which is pretty pathetic.  Anyway, more later.  I am sure others in the blogosphere will be hacking away at this mess today, and I will try to link some of them tonight.

Update: I am in sports heaven today, at the golf tournament all day and watching the Superbowl tonight, so I still have not gotten back to this topic in depth, but our commenters have taken over for me on this one anyway, so I may just kick back with another beer let y'all do the work for a while.  No one would be happier than me to find that we could grow things cheaply to net increase our supply of clean fuels.  Unfortunately, I am not optimistic about the interaction of the government with any market for things that grow.

For some time, I have secretly harbored the theory, without any scientific knowledge to back it up, that somehow bioengineering might long term lead to the most efficient solar conversion technology.  And in a sense, this is what we are talking about here -- finding a
biological solution to converting sunlight into energy in a usable form.  I suspect we are on the cusp of an exponential growth curve in biology like we experienced with thermodynamics, electromagnetics, and semiconductors over the last two centuries.  But if we are at such an inflection point, it just highlights how hopeless it is for government in general and George Bush in particular to pick winners at this point.  What combustion technology might the government have locked us into in 1800?  What computing technology might we have been locked into in 1950?

More at the Knowlege Problem.

Well, I had a number of emails asking for the specifics of my computer build, so all you non-geeks can move on.  Hopefully I will get a post up on the USA Today putting for-gods-sakes ethanol on the front page of today's paper.  Anyway, here is my computer build components:

• ASUS A8N-SLI Premium motherboard.  This basic motherboard platform is rock-solid.  The premium version mainly brings a quieter heat-pipe design to cool the mobo chipset and a software rather than hardware switch for single to dual SLI.  It is one of the better overclocking platforms, with good BIOS options.  It has a couple of quirks, probably the most important of which is that it tends not to like RAM in 4 sticks -- better to use two.  I chose not to use the newer A8N32-SLI, which is supposed to increase the bandwidth when 2 SLI cards are used.  However, I think the Nvidia chipset for this was rushed (to please Dell) and tests show its not necessarily faster, even with 2 SLI cards, than the one I bought.  Also, I wanted to shy away from bleeding edge for my first build
• AMD 64 Athlon X2 (dual core) 4400+ microprocessor.  This is the 2.2Ghz Toledo core with the larger cache.  As I mentioned yesterday, its a notch or two less fast than the top of the line, which tends to be a better value.  And the consensus opinion is that AMD is dusting Intel right now.  I got the large cache because you can always overclock but you can't overcache.  The dual core is clearly the wave of the future, and more games and programs will support it in the future.  I was a bit worried that I would have some compatibility problems at first, but I have had none, even on Star Wars Battlefront 2, which was reported to have a compatibility issue with dual core
• 2 gigs of memory from Corsair, in 2 1GB sticks.  Corsair is a top company in memory.  I can't tell you how many people struggle to overclock their PC a few percent but have too little memory.  Tests show even going from 1 to 2 gigs shows real results.  I got the Twinx-2048-4000.  I debated between lower speed (ddr 400), lower latency memory and higher speed (ddr 500) higher latency memory.  I went with the latter, hoping that it was better for overclocking, but this is one issue not well addressed online.  The answer is probably here, but I decided it would not matter that much for me.  If you go with 512K sticks rather than 1 Gb sticks there are more options for memory that is both low latency and higher ddr.
• I wanted to try my hand at overclocking, so I wanted a good CPU fan.  Zalman has a lot of great products, so I went with the CNPS9500, which looks cool too.  Its quiet and keeps the cpu ice cold.  It looks huge but it fit fine.
• I may have made a mistake on the case.  I went with an Aspire X-Navigator, which is cool looking and keeps everything cool inside but is loud.  I might next time research for a quieter case.
• I splurged and went with dual SLI, because I love games, and bought two evga 7800GT sli cards.  I never really understood the variations in their 7800GT cards - some variations of memory speed, I think.  The nvidia sli chipset right now blows anything else away - it is the ONLY choice for gaming.  A pair of GTX's would have cost me $400 more.  Again, I find the best price-value point a step or two below top-of-the-line.  I didn't realize until later that DirectX 10 will be a pretty substantial upgrade, which will require new chips to support it.  That means that if you are a gamer, you will probably want a new card in 12-18 months.  Knowing this, I certainly wouldn't pay for GTX right now and might have only gone with one rather than 2 cards.
• I bought a couple of 250Gig Seagate SATA 3gb/s hard drives and put them in a raid 0 configuration.  This makes a 500 gig hard drive that is fast as hell.  This is cheaper than buying a single 500 gig and it is faster, but it will be less reliable since data is "striped" across the two drives, so that if either fails, you lose ALL the data.  Because of this issue, I bought a smaller 160 gig drive that runs separately as a backup for my data.  By the way, this was the one issue I had with my install.  Basically I had to leave this 160 gig drive unplugged until I get windows installed on the raid 0 drives and make them bootable, or else the system would get confused.  Once windows was installed on the raid drives and was bootable, then I plugged in the third drive and partitioned it and all was well.
• Power supplies seem to be a nightmare in terms of failure rates.  I use a 650 watt Silverstone Zeus and it has been fine and it had all the cables I needed.  Note you need at least 500 watt and probably 600 if you are going dual sli.
• Other components include a fast NEC DVD read-write drive (whichever one was highest rated on newegg), a floppy drive (you HAVE to have one to load the drivers for this self build if you are using a raid drive array) and a nifty little drive that accepts all kinds of memory cards on the front panel.  And windows of course.

This article on the Corsair web site provides an outstanding walk-through of how to build and set up your PC, demonstrably sufficient for even the noob since it got me through it.  I actually found this after I bought my components so I was happy to see that the component selection in the article for a high-performance gaming box was very similar to mine.  I also have the logitech cordless keyboard and mouse shown and love those too.

Have fun.

Update:  In response to the question in the comments, this build cost about $2000, which is expensive for a desktop, except that I expect to get much longer life out of this thing with performance that stays top notch for a while and many upgrade paths.  It might have been more but several parts were on weekend sale at newegg and others had cross-promotions (i.e. if you buy the AMD procesor and the evga card you get an extra $30 off).  Also note that this is a very competitive system to gaming rigs (e.g. Alienware) costing over $4000. You could take a few steps to bring this under $1500:  One 6800 GT rather than two 7800GT graphic cards would save almost $400.  One graphics card would let you save about $50 or more in the power supply, and you could easily get a good case for $50-$75 less.  Making these subs would get you a very very good rig for under $1500.  Dropping down a notch on the CPU could save another $200.  Smaller hard drive capacity could save $100-150, though hard drives are so cheap, I think it is short-sighted not to overdo it a bit.  I still remember my first hard drive card for my original IBM PC.  It was 10 meg, and my thought was "I'll never be able to fill that much memory".  LOL.

The build time was probably 8 hours, including windows installation and disk formatting.  This includes three false starts:  one, when I thought the power supply was bad but I had just forgotten to hook up the on/off signal wire; two, when the floppy drive actually was bad and I had to run to compUSA to get a new one; and three, when I struggled, as mentioned above, to get windows installed with the hard drive configuration I had chosen.  If everything had gone smoothly, I could easily have done it in 4-5 hours.

Did I mention I love this rig?  Its like the geek version of showing up to your high school reunion in a Ford GT.

I just bought, or rather built, a new home computer.  My last computer, a Dell, was about 18 months old.  I really enjoyed building my own this time, and Newegg.com makes it pretty easy, and there are lots of articles out there to help.  As with my old Dell, I bought a processor that was one notch or two below the fastest currently available, which tends to be a sweet spot in price-value.  This time, though, I switched from Intel to the AMD dual core ("toledo") at 2.2 Ghz.  Basically both my computers are/were fast machines for their times, though since I built this new one myself, I did a few extras, like going with parallel SLI graphics cards and I overclocked the whole rig about 10-15%. 

The result?  My 18-month-old machine gets a 3dwinmark score of 250.  My new machine gets a score of over 13,000, or over 70 times better!  Granted, this is on a synthetic benchmark mainly aimed at measuring 3d graphics performance, but this is still a huge leap in performance in 1.5 years.  I have also played around with my hard drive selection and configuration to get a jump in performance there as well.

I spent a lot of time researching and picking out my components -- that is the real joy of a self-build, that you know the quality and trade-offs of every single subsystem in the box.  If anyone out there is interested, email me and I will tell you the exact components I chose and why, or maybe I will do a post on it sometime.

UPDATE:  Components posted here.

Kentucky, the state that made me get an egg license, is in the news again because it is complaining that it is not getting its fair share of the tobacco settlement funds, and so needs to increase cigarette taxes even more. 

Don't feel guilty if you can't actually remember what the settlement was about other than just more tax money.  The settlement was the result of a series of lawsuits from state AG's against cigarette companies arguing that use of their product is costing the states money in the form of higher medical costs (the health care as Trojan horse for total government control argument I have discussed before).  The substantially increased taxes on cigarettes was supposed to both deter use and to raise money for state health care.

Well, check out this statement form the Kentucky governor as to why he wants to raise the cigarette taxes, and notice what justifications for the taxes are NOT there:

The additional revenue from the tobacco settlement,
according to [governor] Fletcher, would increase the state's debt capacity and
allow for more spending on more projects, such as an information
technology research center and expanding the Big Bone Lick State Park.
He also says the added revenue would allow the state "to ease the tax
burden on small businesses."

I do have to admit that "Big Bone Lick" state park seems the perfect monument to government taxation.

This is a great example of the perverse incentives "sin" taxes put on government.  First put in place to reduce some behavior, once government officials become addicted to the spending the tax allows, the government tends to shift posture to supporting, rather than reducing, the "sin" since its continued existence is required to maintain tax revenues.  This is happening all over with the tobacco settlement, as government has suddenly become the tobacco companies' partner in maintaining revenues and market share.  And here I wrote about a similar occurrence.

Postscript:  By the way, not accounted for by the governor in his "fair share" of settlement funds are the large subsidies that flow to Kentucky tobacco growers.  In surely one of the best examples of how most government programs are all about rent-seeking rather than whatever their stated purpose is, the US is vigorously taxing tobacco, ostensibly to reduce its use, while at the same time aggressively subsidizing the production of tobacco.

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.

In a recent post, I started to develop the theory that people who are positive to neutral about the regulatory state may be so in part because they don't encounter it - e.g. an employee tends to be sheltered from the mind-numbing body of labor law that regulates his relationship with his employer because more efficient HR departments and payroll companies shelter people from this mess.

By the way, let me digress just one second on the nature of my blogging.  When I said above that it was a theory I started to develop in a post, this does not mean that I sat around for days, came up with the idea, and started to flesh out my well-oiled thinking on the topic in that post.  It means it occurred to me literally while I was typing my post, somewhere between paragraphs 3 and 4.  I use the act of blogging as a way to test-drive my thinking on certain topics, which puts you the reader in the position of something between a intellectual sounding board and a psychotherapist.  I actually spend my time trying to keep my business running -- my college roommate is the only one I know who gets paid to sit around and think deep thoughts.

Anyway, with that out of the way, I can return to the actual point of this post which is to point out that the same attitude of "not to know it is to love it" may well apply to torts and litigation.  All romantic and heroic as portrayed in the media (e.g. Erin Bronkovitch), torts as practiced in real-life seldom so heroic, either in their details or their outcomes.  Here is Bookslut wondering about her opposition to tort reform now that she has witnessed some silly lawsuits in her area of familiarity.  Overlawyered has background on the case in question/

Andrew Ferguson tells the story of federal regulation of toilets (via overlawyered).  The amazing thing about this story is it is just one examples of thousands -- in other words, its not a humorous outlier, it is the rule of how government works today.  It is a common story of technocrats distrusting market signals and individual preferences, hoping to impose a better order from above, but merely resulting in reduced consumer choice and crappy low-flow toilets even in areas of the country flush with water (sorry, couldn't resist).

The grassroots revolt winked out too. Today's toilets are better than the
first 1995 models, though not as good or as cheap as the toilets of our youth.
U.S. consumers in 2006 can thus buy a worse product at a higher price than they
could in 1992, thanks to the government's insistence on fixing a problem that
wasn't there.

With a chill I remember, from the late 1990s, the look a plumber shot me when
I pleaded with him, quietly, to find me a toilet that worked.

``No way,'' he said. ``I'm not going to jail over a toilet.''

It also is yet another example of regulation primarily being supported by incumbents in an industry trying to limit the number of ways potential new competitors can come at them.  The general effect is always to raise prices and reduce consumer choice.  Ironically, consumer groups are often the worst about this.   In fact, it would be interesting to find even one regulation consumer groups have supported that is not primarily aimed at actually reducing consumer choice - i.e. not of the form "consumers shouldn't buy this because we smarter than they are and we think they should not have it."

Below in my first post on the old 1968 edition of The Population Bomb, I said one of the key mistakes of these doomsayers was static analysis, which I described as:

blind projection of trendlines without any allowance for individuals
actually doing something to alter those trends, particularly in
response to pricing signals.  This leads not only to predictions of
disaster, but to the consistent conclusion that only governments
coercing individuals on a massive scale can avert dire consequences for
humanity

A great example of the static analysis fallacy in action today in in the debate on school choice.  School choice opponents often bring out some or all of these arguments:

• Private schools are often more expensive than public schools, so even with vouchers set at the state per pupil spending, many won't be able to afford private schools
• Private schools have admissions requirements and testing, such that many students will not be able to meet the cut
• Private schools are disproportionately religious, leaving few options for secular parents
• There are no where near enough private schools for the potential demand

Do you see the consistent fallacy?  All the arguments assume that private schools, in terms of pricing, mission, supply, etc., will remain static and unchanged after a voucher program is instituted.  I hate to waste electrons stating the obvious, but the private schools that exist today did not evolve in a vacuum.  They evolved in a world of monopoly public schools, and their nature is based on that reality.  Change that backdrop, and the schools will change.

For example, take the cost issue.  Sure, many private schools are expensive.  The main reason is that private schools have been created in an environment where their customers must have the ability to pay for their kid's education twice.  My kids go to private school, and every month I pay their bill to go to a public school they don't attend (via my property taxes) and then I pay a second bill to the private school they do attend.  As a result, many private schools have high prices, because their customer base can pay.  If the government instituted a special tax so that everyone received a government-funded Yugo, don't you think that the number of inexpensive cars sold by private companies might dry up some?

But private schooling does not have to be expensive.  My kids go to a fantastic school here in Phoenix.  We have moved around a lot, and we have been lucky enough to be able to send our kids to some very good and sometimes very expensive private schools, and I can say with confidence that their school here is both the best and the cheapest!  In fact, the tuition I pay for an education far, far superior to the local public schools is less than what the state of Arizona spends as an average per pupil in the public schools.

The same type of rebuttal can be made to all the other arguments.  Private schools often have tough admissions requirements because the public schools have already staked out the niche for the lowest-common-denominator education, so private schools differentiate themselves by serving an intellectual elite.  But does anyone doubt that if millions of average kids suddenly had $6000 vouchers in their hands, someone would step up to serve the heart, rather than the tail, of the normal distribution?  And I addressed here the huge potential for private school to evolve to serve a diverse range of viewpoints.

Arizona Watch has a nice post on this same topic, including similar thoughts in response to criticisms of school choice:

The statist arguments against HB 2004 are more clearly spelled out in Mike
McClellan's blog
on AZCentral in which he calls HB 2004 "tuition tax fraud." Mike is (surprise
surprise) a public school teacher. Indicative of the quality of public school
education in Arizona, Mike's arguments against HB 2004 are weak, but I'll
briefly refute them here.

1. Private schools can choose who they take "“ many have entrance exams that
will block some students from entering the school.

Mike's correct: private schools can choose the students they accept. Some
students may not qualify for their first choice school. The real point he's
making here is that some students may not have access to private schools even
with the corporate funding "“ that the bill would create a class divide in
education. That's absolutely incorrect. If private schools become affordable to
a significant portion of the population, then more private schools will emerge.
These schools will assuredly serve different market segments. There will be prep
schools, technical schools, art schools, religious schools, atheist schools, and
schools that just provide a decent basic education. There will even be schools
that specifically serve challenged students "“ those students who Mike claims
won't have access to private schooling. The opposite is true. Schools will be
better able to serve a variety of students in a manner far more effecting than
the current one-size-fits-all public school system.

2. Even if they can attend the school, the tuition might not cover all the
costs the student will incur "“ books, uniforms, other fees. If the schools won't
waive those costs "“ and many can't afford to do that "“ the student's family
might not be able to make up the difference.

Certainly some private schools will be more expensive than the tuition grants
can cover. However, many more will design their tuition structure specifically
to stay within the limits covered by the tuition grants. It is absurd to think
that schools would deliberately price themselves out of the market. If the
demand exists, private schools are going to find a way to meet that demand and
earn those tuition dollars.

3. And here's the big one: Republicans apparently believe there are quality
private schools everywhere. They oughta take a more careful look. While Phoenix
and Tucson have plenty of private schools "“ some far too expensive for the
Republican plan, by the way "“ that is not the case in the rest of the
state.

Do you see a trend here? The answer to this last argument is the same as the
answers to the previous two. Tuition grants will create demand for private
schools. New private schools will emerge to meet that demand and collect that
grant money. This is basic economics.

The one concern I have is that statists and choice opponents have many ways to block private schools.  Even with vouchers, zoning and land use laws in many areas have provided a powerful tool to block private school expansion.

By the way, here is one way to test whether people who make these arguments against choice really mean them or are using them to hide the true reasons that they object to school choice:  If they are right, then what are they worrying about?  No new schools will open, no publicly educated kids will be able to afford or meet the admissions standards of those schools that do exist, so nothing will change.  But they seem really worried about school choice, which makes me think that they don't even believe their own arguments.

I was excited this week to find a copy of the original 1968 version of Paul Ehrlich's "The Population Bomb."  I have been itching to find such a copy so I can demonstrate just how wrong and wrong-headed his zero-sum limits-to-growth thinking is. 

Now, one may ask, why even bother?  You could argue that thoughtful folks have dismissed Paul Ehrlich and his ilk for years, particularly after Julian Simon owned him in their famous bet.  However, I find two compelling reasons to take the time to fisk a forty-year-old book:

• Paul Ehrlich and his brethren actually have not been disowned by much of the intelligentsia.  The media still breathlessly reprints Ehrlich's and his cohorts' predictions of disaster, despite the fact that all their past predictions have utterly failed to come true.
• The fundamental mistakes he makes in his analysis are constantly repeated today.  These mistakes include:
• Static analysis - blind projection of trendlines without any allowance for individuals actually doing something to alter those trends, particularly in response to pricing signals.  This leads not only to predictions of disaster, but to the consistent conclusion that only governments coercing individuals on a massive scale can avert dire consequences for humanity
• Zero confidence in humanity - every analysis implicitly contains the assumption that we will never know how to do more than we know how to do today.  Kind of an anti-Kurzweil mentality
• Zero-sum economics - the common misconception that wealth can only come at the expense of poverty elsewhere.

I have not had a chance to dig into it, but I will leave you with this tasty teaser from the back cover:

MANKIND'S INALIENABLE RIGHTS

1. The right to eat well
2. The right to drink pure water
3. The right to breathe clean air
4. The right to decent, uncrowded shelter
5. The right to enjoy natural beauty
6. The right to avoid regimentation
7. The right to avoid pesticide poisoning
8. The right to freedom from thermonuclear war
9. The right to limit families
10. The right to educate our children
11. The right to have grandchildren

Well, that seems to cover it.  Anyone want to bet I don't find anything about property rights in this book?  Gotta go read the book now, since I have so many questions now:  Is it OK if someone kills me with a conventional bomb rather than a nuclear one?  Can I sue McDonald's on the basis that yesterday's lunch was a violation of my right to eat well?  And just how do I force my kids to have sex and procreate?  I can't wait to find out.

Senator Coburn, now with John McCain in partnership, are going to challenge every single earmark in the Senate:

In short, Senators McCain and Coburn announced their
commitment to challenge each and every earmark on the floor of the
Senate. In addition to challenging each and every pork project,
Senators Coburn and McCain will also oppose the inclusion in conference
reports of any earmarks that did not pass either the House or Senate.

As
stated in the letter, the practice of inserting earmarks into
conference reports at the last minute "stifles debate and empowers
well-heeled lobbyists at the expense of those who cannot afford access
to power. Decisions about how taxpayer dollars are spent should not be
made in the dark, behind closed doors."

Good.  And with McCain's backing, it may work.  I say this because, for a variety of reasons, McCain has somehow become the "instant moral authority" of the Senate, bringing instant legitimacy and media attention to any issue he jumps on.  I am not sure, for example, that the egregious Campaign Finance Reform Act would have passed without his imprimatur.

Apparently, the defense de jour by pork-loving Senators is to make the claim that "well, earmarks are trivial compared to non-discretionary spending so let's focus on those larger buckets of cost." 

A couple of thoughts.  First, if the Senate can't control spending on bridges serving 50 people, they are never going to do it on Social Security.  Second, this is very disingenuous, since Congress has had years to address these other issues, and all they have done is increase (via the disastrous drug benefit) the costs of these programmed expenses rather than reduce them.  They gave up mid-stream, for example, on doing anything with Social Security.  Third, now is the time to strike while public attention is focused on these practices.  In particular, the current lobbying scandals put special focus on earmarking, since discretionary spending is order of magnitudes more susceptible to political corruption than are the programmed expenses.

I was doing some research for a longer post, and ran across a Constitutional amendment that I did not know even existed.  I had thought the 26th Amendment lowering the voting age to 18 was the most recent, but there is one more.  It was ratified in 1992.  Anyone know what it is? 

Answer below the fold

Continue reading ‘Twenty-Seventh Amendment’ »

You hear a lot of debate about what wins NFL Championships - is it offense, defense, the running game, the quarterback?

Well, if we look beyond what is probably the most important determination of success -- don't have any injuries -- I think the last few games have really proven the importance of having a great offensive and defensive line.  The Indianapolis Colts, the team that supposedly had everything, lost because the Steelers penetrated their O-line at will.  Both the winning teams yesterday won in large part because their lines pushed the other team's around the field. 

Good teams know this.  Bad teams, like our Arizona Cardinals, don't.  At the beginning of the year, the Cardinals were getting a lot of publicity because they had exciting new players at many of their skill positions.  I went to see their 3rd preseason game, and I knew then that they would suck this year, yet again, because their lines got pushed around by Denver's second team.  Denver, by the way, is a great case for building from the lines - for years they have turned no-name guys into thousand yard rushers because of their O-line.  Same this year in Pittsburgh.  The great Cowboys teams of the 90's had Aikman and E. Smith and M. Irvin, but it also had what may have been one of the great offensive lines the league has seen.

Unfortunately, the Cardinals, like many bad teams, feel the need to draft big-name position players that temporarily excite a lethargic fan base rather than really building unsexy offensive and defensive lines.  I mean, for god's sakes, we have drafted like 3 or 5 wide recievers in the first round of the last few drafts.  This team needs EVERYTHING and we are drafting recievers?

Today, the town of Sedona, Arizona joined the ranks of government organizations trying to make business incrementally more difficult.  I operate campgrounds in the Sedona area, and as such I have already registered my business there with:

• The federal government for social security and medicare taxes
• The federal government for employee payroll withholding
• The federal government for income taxes
• The federal government for federal unemployment insurance
• The State of Arizona secretary of state and corporation commission
• The State of Arizona department for unemployment insurance
• The State of Arizona department of revenue for sales taxes
• The State of Arizona department of revenue (second time) for corporate income taxes
• The State of Arizona department of liquor, for liquor license
• Coconino County tax collector, for property taxes
• Coconino County health department, for health inspection and certificate

I am sure this list is incomplete, but you get the idea.  I know for a fact that the town already has access to my business information, because they have access to the state department of revenue sales tax database that has all the data they want.  However, I guess so they can feel important -- they want to make sure I have THEIR approval to exist and conduct private transactions with the public as well.  Here is the only rational offered in their letter:

To those businesses operating in the City limits of Sedona:

Help Create Our Economic Future

To Create a viable economic future for Sedona, it is important to know what types of businesses currently exist within the community.  As of January 31, 2006, in order to create a database, all businesses operating in Sedona, or headquartered elsewhere and doing business in Sedona, will need to apply for a business registration.

First, we businesses are already creating Sedona's economic future, and this notion that a couple of people in a small town city clerks office can do anything to add to productivity and economic growth is the worst form of governmental hubris.  Second, though filling out a couple of pages may seem  too small to complain about, we operate in over 200 locations.  Thank God that most of them are in unincorporated area, or we would be filling out hundreds or thousands of pages a year just to help some city clerks with their "database". 

Third, it is interesting to note that Sedona is starting is campaign for their economic future by making doing business there harder.  Sedona reminds me a lot of Boulder, Colorado, where I used to live.  In Boulder, this kind of data request would be the harbinger of some massive new regulation program.  My best guess is that this will be the case in Sedona as well -- this database will be used to justify new regulations and taxes, not less.

I ran corporate planning staff groups at several large corporations.  Every time my staff guys had a new analysis they wanted to do, they often wanted to send out a new requirement to all of our operations managers to report some new data they needed for their project.  As their manager, I tried to be ruthless in defending our operating people, pushing back on my staff guys to find any other way to get the data they need, or to justify strongly the need to ask our folks to report yet another bit of data.  In most cases, the analysis did not justify the work or the data could be acquired some other way, a way that required more work of my staff guys but a lot less from the operating guys who really mattered.  This requests smacks of the exact same thing, except without the adult supervision to push back on their endless data requests.  (Other example here).

This all made me think of this, maybe because my mind works in strange ways. 

The Senate has introduced the "Digital Content Protection Act of 2006,"
a bill that will create "Broadcast Flags" for all digital radio and
television, leading to FCC oversight of all new digital media
technologies from iPods and PSPs to TVs and DVD recorders.

Under the DCPA proposal, digital media technologies would be
restricted to using technologies that had been certified by the FCC as
being not unduly disruptive to entertainment industry business-models.

Beyond my irritation at this whole broadcast-flag-FCC-power-grab raising its head again, it made me think about people's reaction to regulation.  In general, when people actually run into government regulation face to face, they hate it.  That's why with this broadcast flag issue you tend to see a lot of people who generally profess to be comfortable with big government suddenly freaking out, perhaps because this is the first time, beyond the drivers license office or trying to mail a package at Christmas, they every run into the true face of government.  Most corporations today are pretty good at sheltering customers and employees from the mind-numbing regulation they face. 

To all you guys who are fed up with the FCC, let me assure you as a small business owner:  The Department of Labor, Federal Trade Commission, Social Security Administration, Department of Commerce, and every state, county, and city agency you can think of is at least as overreaching and destructive.

The government:  Not to know it is to love it.

Update:  In the past, I have had a field day laughing at left-of-center groups who scream privacy rights at every occasion but support all the intrusion above.  Most recently, I have taken on NOW and the ACLU over this issue.

Our local paper today had a pretty good editorial about John Shadegg's run for the speaker's position.  Some of this is just the local paper cheerleading the local boy, but I generally agree with this:

the same party that once hailed the tenets of the "Contract with
America" today judges Shadegg, one of the last remaining advocates of
that contract, an outsider. He is a conservative-minded "underdog" in
the race to lead his party members in the House of Representatives. Can
there be starker evidence than this to explain why Republicans are in
the ethical fix they find themselves in today?

Actually, yes.

Republican abandonment of smaller-government principles only partially
explains the current mess. Their political road to perdition - the
nasty taint of ties to manipulating lobbyists; the corruption-enhancing
business of "earmarking" billion-dollar goodies to each other - is far
uglier in the pubic eye than the ephemeral consequence of those
scandals: the loss of their cost-cutting spirit.

I would only add that I rank the loss of the cost-cutting spirit as a bigger loss than does the Republic.  I do agree that John Shadegg is the best candidate running for the Speaker job.

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

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

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

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

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

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

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

...Because I have no freaking idea how Gonzales vs. Oregon is not exactly the opposite conclusion as reached in Raich  (The Gonzales decision backs state law vs. federal intrusion, while Raich did the opposite).  And on top of that, everyone on the court seems to have switched sides.  Clarence Thomas appears to be confused too.

Once and a while, I like to put in a plug for Overlawyered.com, which is a great place to keep up with the wacky and increasingly scary world of jackpot litigation and over-regulation. Just keep scrolling.

Catching my eye is this piece from Canada, concerning my "extended family":

"A Vancouver woman is suing the city and the B.C. government for
allegedly failing to keep the streets safe after her pet cat was killed
by two coyotes....In a statement of claim filed in B.C. Supreme Court,
[Judith] Webster says she's suffered and continues to suffer from
post-traumatic stress and/or adjustment disorder, loss of enjoyment of
life, and loss of past and future earnings."

Arizona has gotten a lot of press for its shoot to kill order on wild animals in inhabited areas, engendered by a similar suit against the state.  Environmentalists have made common cause successfully for years with the tort bar, but one wonders if these kinds of suits may drive a wedge between them.

By the way, did anyone see that guy in Pittsburg who had a heart attack in a bar when Jerome Bettis fumbled the ball late in the 4th quarter against Indy?  I wonder if he will be suing the Steelers for "post-traumatic stress and/or adjustment disorder, loss of enjoyment of
life, and loss of past and future earnings"?

The other piece that caught my attention was this, from New York:

"Last summer, [New
York City's] health department launched a campaign against trans-fats.
Often used by restaurants and in packaged foods, trans-fats are thought
to cause cholesterol problems and increase the risk of heart disease.
After restaurant inspectors found that 30 percent of the city's 30,000
eateries were using oils that contain trans-fats, the department began
urging a citywide ''oil change.'' Officials sent letters to food
service operators and started teaching workers about trans-fats along
with their required food safety training. The city plans another survey
this spring to measure the results of the project. Officials next want
to tackle portion sizes. Towering pastrami sandwiches, bagels with
gooey schmears of cream cheese and pizza slices that spill over paper
plates may be the city's culinary landmarks, but the health department
says the Big Apple is out of control."

Which makes the NYC health department officials the only New Yorkers I have ever heard complain about getting too much for their money.

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

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

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

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

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

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

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

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

Foreigners are People Too

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

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

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

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

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

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

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

The Magic Words: National Security

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

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

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

The Right Way to do Searches

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

Declaration of War Needs to Mean Something Again

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

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

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

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

This came to me via email a few minutes ago from Tom Coburn's office:

U.S. Senator Tom Coburn, M.D. (R-OK) today called on Senate and House leaders from
both parties to make the elimination of earmarking, or pork politics, the
centerpiece of any reforms considered in the wake of the Jack Abramoff
scandal.  Abramoff has described the appropriations committees, and, by
extension, the appropriations process, as an "earmark favor
factory" in which influence and votes are bought and sold.   

"Congress does not need to reform the lobbying industry as much
as it needs to reform itself.  The willingness of politicians to abuse the
appropriations process through earmarking has caused the explosive growth in
the lobbying industry and encouraged the excesses illustrated by the Jack
Abramoff scandal.   It is not enough for our leaders to propose
reforms that might promote the appearance, but not necessarily the practice, of
ethical behavior," Dr. Coburn said. 

"For the American people, the Abramoff scandal is only beginning to
connect the dots between politicians, individual earmarks, lobbyists and
campaign contributions.  Behind each of the 14,000 earmarks Congress
approved last year is a story that many politicians will not want their
constituents to hear.  If Congress fails to enact meaningful reforms that
attack this climate of corruption at its source the public will, and should,
take reform into its own hands in November.

Keep up the good work.  I hope he doesn't find a horse's head in his bed.

Remember Enron?  One of the aspects of the Enron case that the media latched on to was the document destruction at Arthur Anderson, destruction AA claims was routine but prosecutors and many in the media tried to classify as obstruction of justice.  So I thought this bit from Reason was interesting:

For decades, newsrooms have
shredded or thrown away notes some time after using them both to save space and
to prevent prosecutors like Fitzgerald from demanding them as part of an
investigation. This "routine expungement is a longstanding practice in many
news organizations," says Sandra Davidson, a professor of communications law at
the University of Missouri School of Journalism.

Hmmm, sounds familiar, huh?  The article goes on to point out the obvious - that the Sarbanes-Oxley provisions rushed into law and cheer-led by most journalists may come back to bite the media:

And for the press, the "obstruction of justice" provision [of Sarbanes-Oxley]
may cover more than just withholding notes from the government once an
investigation has begun. It may also endanger the common practice of routinely
destroying notes to protect anonymous sources.... Sarbanes-Oxley, because it
covers document destruction even "in contemplation" of a federal investigation,
could apply to the press's "routine expungement" practices, scholars say. "If
you're destroying documents to prevent them from being subpoenaed," says
Rotunda, "you have a risk that a vigorous prosecutor will think of that as
obstruction of justice."

Today I ran my first half marathon, at the PF Chang's Rock and Roll Marathon here in Phoenix.  It was fun through about mile 9, and mostly sucked after that.  I am pretty excited that I got through it, though right now I am ready for Kurzweil's singularity because this body definitely needs to be replaced.  My sister runs full marathon's and I laughed when she told me she bandages her nipples and Vaselines her thighs for the race.  Now I wish I had done it too - beyond the joints and muscles those are the two spots that are chafed pretty raw right now.

My time?  Well it was 2:27:20 for 13.1 miles, which is pretty lame since it translates into a blazing 11 minutes per mile, but it does qualify as my personal best!  Update:  They have the stats up on the Internet, so I now know that I finished 10,345th place out of 18,536 finishers, so I seem to have finished just outside of the medals (lol).  By the way, my two sisters both ran the full marathon in Houston on the same day, so combined with my marathon-lite the coyote sibs ran 65.5 miles on Sunday.