jump to navigation

The Vindication of Edward Snowden May 12, 2015

Posted by rogerhollander in Constitution, Criminal Justice, Democracy, Surveillance, Surveillance State, Whistle-blowing.
Tags: , , , , , , , , , , , , ,
add a comment

Roger’s note: I suppose, at least in theory, there may be a justification for a “state secrets” doctrine.  I could picture an extreme circumstance where the democratic right of the people and their representatives to know could be trumped because making information public could aid and abet an enemy in an imminently dangerous way.  Nevertheless, that doctrine has been used and abused over and over again to evade accountability; and I am not aware of a single case where it was used to avoid an actual danger.

But with respect to “legality,” I have often referred to a speech given many years ago by the notable civil liberties lawyer William Kunstler, which showed how some of the most noteworthy crimes in history — from the executions of Socrates and Jesus to the Nazi Holocaust — have been perpetrated under the color of “the Law.”  My point is that men (sic) make the laws and the victors write the history.  Take the issue under consideration in the following article, Snowden’s uncovering of NSA bulk surveillance.  A federal appeals court says it is illegal.  This will be appealed to the Supreme Court, which could well reverse with the result that was illegal one day becomes legal the next.

The Law and the judicial system are sacred and not to be taken lightly.  But in the final analysis, it comes down who holds political and economic and military power.  And in our world today those who own and operate monopoly capitalism are in the driver’s seat.  Justice will not come about until they are dislodged.

 

lead_960

A federal appeals court has ruled that one of the NSA programs he exposed was illegal.
Mark Blinch / Reuters

 

Conor Friedersdorf  May 11, 2015  http://www.theatlantic.com

Edward Snowden’s most famous leak has just been vindicated. Since June 2013, when he revealed that the telephone calls of Americans are being logged en masse, his critics have charged that he took it upon himself to expose a lawful secret. They insisted that Congress authorized the phone dragnet when it passed the U.S.A. Patriot Act, citing Section 215, a part of the law that pertains to business records.

That claim was always suspect. The text of the law does not seem to authorize mass surveillance. A primary author and longtime champion of the law avows that Congress never intended to authorize the phone dragnet. And nothing like it was ever discussed during an extensive, controversy-filled debate about its provisions.

Now the wrongheadedness of the national-security state’s position has been confirmed.

A panel of judges on the Second Circuit Court of Appeals ruled last week that the program Snowden exposed was never legal. The Patriot Act does not authorize it, contrary to the claims of George W. Bush, Barack Obama, Michael Hayden, Keith Alexander, and James Clapper. “Statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here,” Judge Gerard E. Lynch declared. “The sheer volume of information sought is staggering.”

Other conclusions reached by the three-judge panel include the following:

“The interpretation that the government asks us to adopt defies any limiting principle.”
“We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.There is no evidence of such a debate …”
“Congress cannot reasonably be said to have ratified a program of which many members of Congress—and all members of the public—were not aware … only a limited subset of members of Congress had a comprehensive understanding of the program…”
“Finding the government’s interpretation of the statute to have been ‘legislatively ratified’ under these circumstances would ignore reality.”

Consider what this means.

Telling the public about the phone dragnet didn’t expose a legitimate state secret. It exposed a violation of the constitutional order. For many years, the executive branch carried out a hugely consequential policy change that the legislature never approved. Tens of millions of innocent U.S. citizens were thus subject to invasions of privacy that no law authorized. And the NSA’s unlawful behavior would’ve continued, unknown to the public and unreviewed by Article III courts, but for Snowden’s leak, which caused the ACLU to challenge the illegal NSA program.

Snowden undeniably violated his promise to keep the NSA’s secrets.

But doing so was the only way to fulfill his higher obligation to protect and defend the Constitution, which was being violated by an executive branch exceeding its rightful authority and usurping the lawmaking function that belongs to the legislature. This analysis pertains only to the leaked documents that exposed the phone dragnet, not the whole trove of Snowden leaks, but with respect to that one set of documents there ought to be unanimous support for pardoning his disclosure.

Any punishment for revealing the phone dragnet would be unjust.

Now that a federal appeals court has found that Section 215 of the Patriot Act did not in fact authorize the policy, punishing a man for exposing the program would set this precedent: Whistleblowers will be punished for revealing illegal surveillance. That’s the position anyone who still wants Snowden prosecuted for that leak must take, if the ruling stands. (Other federal courts have issued rulings pointing in contrary directions, and this latest ruling will likely be appealed.)
Related Story

Does the PATRIOT Act Allow Bulk Surveillance?

Consider how this federal court ruling informs the debate over state secrets generally. Civil libertarians have long warned that secret national-security policies undermine both representative democracy and our system of checks and balances.

And that is exactly what happened with respect to the phone dragnet!

The Anti-Science Streak in Federal Marijuana Policy May 17, 2012

Posted by rogerhollander in Barack Obama, Criminal Justice, Drugs.
Tags: , , , , , , , ,
add a comment

 

 

 ROGER’S NOTE: MORE OBAMA HYPOCRISY.

By Conor Friedersdorf, www.opednews.com

 
 
May 15 2012, 12:45 PM ET187

 

The classification of cannabis as a schedule one narcotic is among the least defensible aspects of prohibition.

Dr. Jody Corey-Bloom, director of the Multiple Sclerosis Center at UC San Diego, recently helped run a study that provided multiple sclerosis patients with either a marijuana joint or a placebo that looked, smelled, and tasted like marijuana. After smoking whichever substance they were given, patients were tested to see if it reduced their muscle spasticity — an affliction, common to MS patients, that causes painful, uncontrollable spasms of the extremities. Spasticity was unaffected among the placebo patients but dropped 30 percent on average among the patients given real marijuana. The side effects? “Smoking caused fatigue and dizziness in some users,” says Reuters, “and slowed down people’s mental skills soon after they used marijuana.”

The UC San Diego study is just the latest to suggest that marijuana has some medical benefits. Sixteen states, thousands of doctors, and tens of thousands of sick people concur in that judgment. It is dramatized by the personal testimony of sick people who are offered much more powerful drugs, but nevertheless insist that consuming marijuana was most effective at helping them.

Marijuana is nevertheless classified under the Controlled Substances Act as a Schedule One drug. Under the law, drugs placed in that category must meet all of the following criteria (emphasis added):

  • The drug or other substance has a high potential for abuse.
  • The drug or other substance has no currently accepted medical use in treatment in the United States.
  • There is a lack of accepted safety for use of the drug or other substance under medical supervision.

Critics of the Obama Administration’s drug policy, myself included, have focused on the president’s broken promise about federal raids on medical marijuana dispensaries in jurisdictions where they’re legal. But an even less defensible aspect of Obama’s drug policy is how marijuana is scheduled.

As John Walker points out, the Controlled Substances Act gives the executive branch the power to unilaterally change a drug’s classification:

Obama can instruct the relevant agencies under him to take an honest look at the research and reschedule marijuana so it qualifies as having legitimate medical uses. The Obama administration could easily and justifiably move marijuana to, say, schedule III, which happens to be the same schedule that synthetic THC is in, making medical marijuana legal under federal law.

There would be nothing unusual, extraordinary or legally suspect about Obama doing this. The executive branch has often moved certain drugs to lower or higher schedules based on new data without Congressional involvement. In fact, multiple sitting governors have petitioned the Obama administration asking him to move marijuana to a lower schedule, so he should be aware of the flexible authority he has. Obama is not some hapless victim whose actions on this issue are constrained by congressional law. The truth is pretty much the exact opposite. Under current law Obama effectively has the power to unilaterally make medical marijuana legal.

His failure to do so is frustrating and to his discredit because it’s what the language of a law duly passed by a bygone Congress and signed by a past president demands. There just are accepted medical uses of marijuana today. Pretending otherwise is every bit as much an affront to science and empiricism as the most ill-informed denial of evolution or climate change.

Yet here is how the Obama White House touts its drug policy:

drugs obama tp.jpg

Congress also bears substantial responsibility for the anti-scientific, anti-empirical aspects of American drug policy. If Mitt Romney and Barack Obama are able to define the terms of the upcoming presidential election, this issue won’t come up. But voters have consistently shown interest in the subject when permitted to directly question politicians, and Gary Johnson, the Libertarian Party nominee, is eager to challenge Obama and Romney on this issue given the chance. When opportunities for these challenges arise, the classification of marijuana is one of the most vulnerable parts of the status quo to attack.12 states have pending medical marijuana legislation.

Gay Marriage: The 21 Century’s Most Successful Pro-Family Policy January 7, 2012

Posted by rogerhollander in Civil Liberties, Human Rights, LGBT.
Tags: , , , , , , , , , ,
add a comment
 Roger’s note: I tend to avoid commenting on the Alice in Wonderland world of the Republican nomination race; my mind simply refuses to go down the hole.  I am posting this article not because of its discussion of the candidate Santorum (who happens to be a sad example of a human being by any standard), but becuase of its reminding us that, beyond the civil rights issues for same sex couples, the phenomenon of gay and lesbian marriage has a very positive and humanistic impact on the notion of family and its broader importance within society.

By Conor Friedersdorf

Jan 5 2012, 4:14 PM ET 147

Rick Santorum would forbid it and nullify existing unions. So how can he claim to be the most pro-family candidate?
santorumsurge.banner.jpg
There are an estimated 131,729 same-sex married couples in the United States, a Census Bureau figure that would be significantly higher if not for the fact that the vast majority of jurisdictions still prohibit gays and lesbians from marrying. Still, more than a quarter of a million gay people are married to one another. And it’s worth explicitly pondering what that means.
For wedded gays and lesbians, it means more financial stability, more emotional stability, better access to health care, hospital visitation rights, and fewer legal burdens in the event of their partner’s death. It means a more formal investment in their relationship, and in many cases, vows uttered before family and friends to strengthen their union. It means emotional fulfillment, and the end of the feeling of being discriminated against by one’s own government, a valuable thing in itself.
And for the one-third of lesbians and one-fifth of gay men who are parents? For them, It means more stability for their children, plus an opportunity for their socialization into what a loving marriage looks like. For society as a whole, it means gay people share in the same method of family formation as their parents, their straight colleagues, and their heterosexual friends. It means that gay culture is more invested than it would otherwise be in the success of marriage as an institution and in the norm of long-term coupling.
Compared to the old status quo, wherein gay couples were everywhere prohibited from marrying, and often made less financially secure, healthy, and happy as a result — wherein the children of gays and lesbians enjoyed less stability — the advance of gay marriage has been the most important and successful pro-family reform of the 21st century, and it’s only going to expand as more jurisdictions permit same-sex unions as younger people vote their conscience.
There are, of course, Americans who are opposed to gay marriage. Barack Obama, for example, turned against equal rights for gays so that he could advance politically. But Obama’s shameful political calculation isn’t going to do anything to prevent states from making gay marriage legal, nor does he threaten the unions that have already been entered into.
Rick Santorum does. The socially conservative presidential candidate, who came in a close second in the Iowa caucuses, sells himself as a family-friendly pol. There is some truth to that. As Ross Douthat put it, he has:

distinguished himself by talking about issues that most Republicans don’t want to touch — the problem of middle-class wage stagnation and the declining social mobility of the poor. Santorum has also framed these issues, correctly, in the context of the crisis in family life that social conservatives have been worrying about for years, making the essential point that absent fathers and broken homes play a greater role in middle America’s struggles than the supposed perfidies of the richest 1 percent. Somewhat disappointingly, Santorum’s specific proposals have focused on reviving manufacturing (and with it, in theory, the solid blue-collar paycheck) rather than targeting family policy directly. But one can doubt his cure and still appreciate his diagnosis.

Douthat later added that “thanks to Rich Lowry’s column on Santorum today, I’m reminded that the former senator has called for tripling the deduction for each dependent child. This falls short of my family-friendly tax policy ideal, but (as Lowry writes) it makes Santorum’s agenda ‘the most pro-family of any on offer from the GOP candidates,’ and my praise should have been more unqualified.”
In fact, the qualification should’ve been different.
Santorum isn’t “pro-family” so much as he is “pro-family for people whose family doesn’t include anyone gay.” He regards marriage as a force for good in the lives of couples who enter into it and their children. He is willing to deny those benefits to gay families, because he believes — without any evidence — that keeping gay marriage illegal will benefit straight unions.
What would he do about the quarter of a million people who’ve already established stable families by entering into same sex marriages? He would destabilize the family lives of those people. He explained that in a recent interview with Chuck Todd, where he touted his preference for a constitutional amendment codifying marriage at the federal level as a relationship between a man and a woman:

SANTORUM: I think marriage has to be one thing for everybody. We can’t have 50 different marriage laws in this country, you have to have one marriage law…
TODD: What would you do with same-sex couples who got married? Would you make them get divorced?
SANTORUM: Well, their marriage would be invalid. I think if the Constitution says “marriage is this,” then people whose marriage is not consistent with the Constitution… I’d love to think there’s another way of doing it.

I presume everyone reading this post is either married or is close to someone who is married, whether it’s parents or close friends or a boss or teacher or colleague. Think of that married couple. That family. Imagine if they got a letter in the mail informing them that by order of the federal government, their marriage is no longer valid. I submit that a man who would send out letters like that to gay and lesbian married couples does not deserve to be labeled as the candidate with the most pro-family agenda. His desire to invalidate the unions of people who are already married, some of whom have kids — to invalidate existing families by federal mandate — makes him arguably the least pro-family candidate, despite his other pro-family positions.
The more than a quarter of a million families with a gay married couple at their core are not disconnected from American society. They have extended families: brothers and sisters, nieces and nephews, friends who come over every Thanksgiving — and for all these extended families, for everyone who has a gay person in their extended family, Rick Santorum isn’t a pro-family candidate, because he is hostile to their family as it actually exists, and would invalidate it by decree if he could. Are we to regard targeted tax cuts as the more important stance?
Image credit: Reuters