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Archive for September 24th, 2011

How the US Executive avoids judicial review

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We were taught in civics classes that the US Federal government consists of three co-equal branches: Legislative (Congress, with the House and Senate, passes the laws), Executive (carries out the laws), and Judiciary (makes sure the laws are followed): checks and balances. But in recent years the Executive branch seems determined to avoid any oversight by the Judiciary and has gone to great lengths to ensure that its actions are free of any judicial review. Right now Congress seems incapable of doing much of anything, the Judiciary is locked out, and the Executive rules supreme, doing pretty much what it wants and granting carte blanche to its members, assuring them that they will never be punished so long as they follow orders. (The same defense the US disallowed at Nuremberg.) No checks, bad imbalance.

Here’s how it’s done:

The last decade has spawned a massive expansion of the domestic Surveillance State.  Worse, the U.S. Government has vested itself with the virtually unchallenged ability to operate this surveillance regime in full secrecy and even beyond the reach of judicial review, which is another way of saying: above and beyond the rule of law.

Each time U.S. citizens in the post-9/11 era have accused government officials in federal court of violating the Constitution or otherwise acting illegally with how they spy on Americans, the Justice Department employs one of two secrecy weapons to convince courts they must not even rule on the legality of the domestic spying(1) they insist the spying program is too secret to allow courts even to examine it (the Bush/Obama rendition of the “state secrets” privilege); and/or (2) because the spying is conducted in complete secrecy, nobody can say for certain that they have been subjected to it, and the DOJ thus argues that the particular individuals suing the Government — and, for that matter, everyone else in the country — lacks “standing” to challenge the legality of the spying (because nobody knows on whom we’re spying, nobody has the right to sue us for breaking the law).

A government that can spy on its own citizens without judicial review is a government which, by definition, operates outside of the rule of law; as Alexander Hamilton put it in Federalist 15:

It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.

These are the two secrecy doctrines which the Bush and Obama DOJ have repeatedly invoked to shield even the Bush NSA warrentless eavesdropping program from all forms of legal accountability, notwithstanding the fact that three separate federal judges ruled (ultimately without consequence due to reversals on secrecy grounds) that the program violated the Constitution and/or criminal laws such as FISA.  Most amazingly, theObama DOJ has aggressively used these same secrecy doctrines to ensure that no courts ever review or adjudicate any government surveillance programs, including Bush’s NSA warrantless program, even though then-Sen. Obama — when opposing the 2005 nomination of NSA Chief Michael Hayden to become CIA Director — accused Bush of breaking the law in spying on Americans without warrants and then said this on the Senate floor:

We don’t expect the President to give the American people every detail about a classified surveillance program. But we do expect him to place such a program within the rule of law, and to allow members of the other two coequal branches of government – Congress and the Judiciary – to have the ability to monitor and oversee such a program. Our Constitution and our right to privacy as Americans require as much.

In 2008, the Democratic Congress enacted the FISA Amendments Act, which not only retroactively immunized telecoms from all liability for their role in Bush’s illegal eavesdropping programs (thus terminating all pending lawsuits and ensuring no judicial adjudication of that program), but also, going forward, legalized much of Bush’s previously illegal warrantless spying activities.  The FAA was the most drastic expansion of government eavesdropping powers in decades.  Numerous scholars documented how blatantly the new surveillance powers it vested violated the Fourth Amendment (the FAA was the bill which candidate Obama, when seeking the Democratic nomination, had unambiguously promised to filibuster, only to turn around, once he secured his Party’s nomination, and vote against a filibuster and then in favor of the underlying bill).

* * * * *

When Congress enacts a law vesting new domestic spying powers in the NSA that very likely violate the Fourth Amendment, the only solution — at least in theory, as the American system is designed — is for citizens to sue the Government in federal court and argue that the new law is unconstitutional.  The Supreme Court unanimously explained back in 1803in Marbury v. Madison (emphasis added):

It is emphatically the duty of the Judicial Department to say what the law is. . . .If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. . . .

[W]here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear thatthe individual who considers himself injured has a right to resort to the laws of his country for a remedy.

That’s as basic as it gets to the ostensible American design.  If citizens are not able to do that — if they have no mechanism to deny the Government the power to transgress the limits imposed by the Constitution — what is the point of even having a Constitution?

Immediately after Bush signed the FAA into law, numerous journalists, human rights activists, and groups such as Amnesty International — represented by the ACLU — adhered to this design by suing the U.S. government, claiming that the FAA was unconstitutional under the Fourth Amendment.  They argued that although the secrecy behind which the program was conducted prevented them from proving that they were subjected to it, their well-founded fear that they would be (and the steps they were forced to take in response) was enough harm to confer “standing” on them and allow them to challenge the law’s constitutionality.

In response, the Bush DOJ raised its standard secrecy claims and convinced a lower court judge to dismiss the suit based on “standing.”  When the ACLU appealed this ruling to the Second Circuit Court of Appeals in New York, the Obama DOJ raised the same arguments to demand dismissal.  But in March, a unanimous three-judge appellate panel rejected the Bush/Obama argument and reinstated the ACLU’s lawsuit, holding that the plaintiffs’ credible fear of being subjected to the FAA’s eavesdropping power entitled them to proceed with their claims that the new law was unconstitutional.  The Obama DOJ then sought a review of that decision by the entire Circuit, insisting that plaintiffs should be barred from contesting the constitutionality of the FAA.

Yesterday, the full Second Circuit panel issued its ruling on the Obama DOJ’s request.  Six of the judges voted against a full review of the decision by the three-judge panel, while six voted in favor of reviewing it.  Because a majority is needed for a full-circuit review, the 6-6 tie means that there will no further review, and the March decision of the three-judge panel — allowing the lawsuit challenging the FAA’s constitutionality to proceed — will stand.  This significant victory for the rule of law may well be temporary, as the unusual 6-6 vote (and the numerous contentious opinions accompanying the vote) makes it likely (though by no means guaranteed) that the Supreme Court will accept this standing dispute for resolution.  But at least for now, this is a good and important development.

* * * * *

The bulk of the opinions issued by the Second Circuit judges were devoted to fairly standard arguments over the requirements of “standing.”  Here, for instance, was the crux of the argument for recognizing plaintiffs’ standing, as expressed by Judge Gerard Lynch after he reviewed the Goverment’s substantive arguments for why the FAA was constitutional: . . .

Continue reading.

Written by LeisureGuy

24 September 2011 at 10:42 am

When mistaken identity leads to torture

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The US may torture, but it does not apologize—or allow any compensation to innocent victims. Why? Because we can, and we don’t care a fig about world opinion. Here’s some of the story of Khaled El-Masri, kidnapped, imprisoned, and tortured for weeks because the CIA thought he was Khaled Al-Masri.

If you have seen the fine albeit disturing movie Brazil, you’ll recall the travails visited upon the protagonist due to an errant fly causing a typo on an official document. Somewhat the same scenario played for El-Masri—in fact, the more I think about it, the more the incident resembles the movie plot.

Here’s an article in Salon that quotes El-Masri:

On New Year’s Eve 2003, Khaled el-Masri, now 48, was seized at the border of Serbia and Macedonia by Macedonian police who mistakenly believed that he was traveling on a false German passport. (Reportedly, he was mistaken for a suspected terrorist with the name al-Masri.)

He was detained for over three weeks before being handed over to the CIA and rendered to Afghanistan. Shortly after Khaled’s release from Afghanistan, staff within both the CIA and the U.S. State Department reported the mistaken identity of their detainee to senior personnel, and German prosecutors issued arrest warrants for 13 CIA agents allegedly involved in Khaled’s abduction. However, cables disclosed by WikiLeaks reveal that United States officials heavily pressured Germany to abandon the case. A February 2007 cable quoted the deputy U.S. chief of mission in Berlin as advising a German diplomat to “weigh carefully at every step of the way the implications for relations with the United States” if the agents were prosecuted. The German government withdrew the warrants five months later. The CIA analyst who advocated Khaled’s abduction and argued against his release was reportedly later promoted to chief of the Global Jihad unit hunting al-Qaida members.

Currently incarcerated in Germany (on unrelated charges), Khaled has stopped speaking about his experiences. His narrative is drawn from sworn and published statements made in the past. The excerpt below describes Khaled’s arrest by Macedonian police and his subsequent detention in Skopje, Macedonia. Khaled was held in a hotel room in Skopje for 23 days before being transported by the CIA to Afghanistan.

I asked them if I was under arrest and they said that I wasn’t, asking me if I saw any handcuffs on my wrists. They carried out another search of all my belongings. After this, three of them began interrogating me again. These interrogations were conducted in English, despite the fact that I have only a very basic grasp of the language. The three men asked many questions all at once, speaking at me and firing questions from all sides of the room. The interrogation lasted until at least 3 a.m. the next morning.

The men conducted similar such interrogations for the next three days. They observed my every move at all times. Even when I went to the toilet they asked me to leave the door open, although it was located in the same room where I was staying. When I was exhausted and tired of answering their questions, and after having been locked in this hotel room all this time, I demanded a translator. Then I asked to call the German embassy, a lawyer and my family. All my requests were refused.

At one point I became so angry that I demanded to be released and attempted to leave the room by force. During this particular incident, we all raised our voices, each of us speaking in our own language. Communication was clearly impossible. One of the men pulled out his firearm and held it level with my head. The other two placed their hands on their holsters in a threatening manner.

*   *   *

The watch was divided between nine men; they changed shifts every six hours. On the fifth day, a man with a bag appeared. He had sheets of paper and fingerprint ink. He also had a camera and took a few photographs of me: right profile, left profile and then frontal.

After about seven days, . . .

Continue reading. The Obama Administration has worked hard—and succeeded—at blocking El-Masri at every turn from getting any sort of compensation at all for what was done to him by our government. He has not even been given an apology, nor will the Obama Administration even admit that an error was made. Apparently, the administration believes that it would be a sign of weakness to admit an error, so they are brazening it out on the position that what was done to him was done on purpose and for a good reason. They just won’t tell us what the reason was. But watch your back: you could be next. (There has been no punishment for anyone (other than El-Masri) for what was done, and Obama has personally pledged that he will see that no one is ever punished for torturing innocents or even murdering prisoners, so long as it was done under official guidance and orders. There seems to no longer be any such thing as an illegal order. This opens a door I would rather have been kept shut.)

Written by LeisureGuy

24 September 2011 at 10:23 am

When God tells you to kill someone

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Abraham famously had orders from God to kill someone—in that case, Isaac, his son. And Abraham was all set to do it, when God changed the orders and spared Isaac.

On one level this pretty much demonstrates that Abraham was schizophrenic: people who hear voices from God telling them to kill people are prima facie schizophrenic. It’s an identifying characteristic.

OTOH, assuming that God exists (and the story’s true), there’s no earthly reason (literally) that God should not select a schizophrenic to carry out His wishes. Indeed, God often selects marginalized people—Jeremiah, Isaiah, and numerous characters selected by God fit that description. And, in Christian tradition, God Himself appears as a marginalized character (Jesus): an impoverished carpenter from a backwater town with no official position or standing—and in addition preaching things that went against the grain of officialdom (for which, as you may recall, He suffered greatly). Indeed, in the Christian religion God Himself (in the person of Jesus) famously warns that the wealthy will have a Hell of a time (as it were) getting into heaven. (I note that most modern Christians—particularly on the Right, which is fond of wealth—avoid discussing this teaching.)

Let me just insert this:

The meaning I’ve taken from this story is not that God wanted to see whether Abraham has sufficient faith to kill his only son on God’s orders—any God worth His salt will already know that—but rather a way for God to demonstrate to Abraham the depth of Abraham’s own faith.

Be that as it may, the message people get to kill someone, which they attribute to God (Who may or may not have in fact issued the message—how can you tell?), is a fairly common trope. A recent book explores one instance of a reputedly God-directed killing:

Under the Banner of Heaven: A Story of Violent Faith
by Jon Krakauer

A review by Doug Brown

On July 24, 1984, two fundamentalist Mormon brothers brutally murdered their sister-in-law and her baby girl, believing they were fulfilling a revelation that one of the brothers had received from God. Today they reside in federal prisons. The older brother, Ron (who had the revelation), is on death row and following every avenue for appeal. The younger brother, Dan, is serving a life sentence and seems okay with it (Krakauer says he refers to prison as a “monastery”). Krakauer spoke to Dan for the book, but not Ron. Under the Banner of Heaven tells in parallel the story of the Lafferty brothers and their descent into fundamentalism alongside the history of the Mormon Church.

The modern Mormon Church is quick to distance itself from fundamentalists; most are excommunicated from the Latter-Day Saint (LDS) community. The church downplays the history of plural marriage (polygamy) in Mormonism, to the point of maintaining that Brigham Young was monogamous (history says otherwise). Polygamy is a central point of contention with fundamentalists — they feel the church went astray when it cooperated with U.S. law and renounced the practice in the late 1800s. A practice that is still a part of the church, though, is revelation. Mormons are encouraged to listen for messages from God, and much of the basis of Mormon dogma is a sequence of revelations that Joseph Smith and later church leaders have had. One doctrine of Mormonism that has terrible consequences is “blood atonement”; if acts are committed against Mormons, Brigham Young said this could sometimes only be rectified if the “sinners have their blood spilt upon the ground.” Fundamentalists are naturally drawn to blood atonement, and this element of Mormonism became a focus for the Lafferty brothers.

A fundamental point of Ron’s trial was whether he was insane. The defense argued he was; the prosecution argued no. As Krakauer details, if Ron Lafferty is insane, it could be argued that so are most religious people. He believed he was receiving revelations from God, but revelation is a tenet of Mormonism. Despite carrying out horrible crimes, he felt he was doing the right thing, and was thus divorced from reality. But so is everyone who goes to war with a cross or a star or a crescent around their neck. Ron did what he did because of his faith. Sure, the motive seems self-serving — Brenda Lafferty (the victim) had convinced Ron’s abused wife to leave him, so naturally Ron said that God wanted her “removed.” But there was much discussion between the brothers and their circle about whether the “removal revelation” was legitimately from God; the final decision, for Ron and Dan anyway, was yes. This discussion is a particularly sore point for Brenda’s family — several people knew about the revelation months before it was carried out, and no one warned her. Krakauer maintains one of these people was Allen Lafferty, Brenda’s husband. Ron had shown him the revelation and asked what he thought of it. Allen spoke against it, but never felt inclined to say, “Hey, honey, I had the creepiest talk with my brothers…”

Even before Under the Banner of Heaven was on the shelves, the LDS church preemptively attacked it. In a five-page screed that is reprinted in an appendix for the paperback, Krakauer is taken to task for focusing on the negative aspects of the church. It emphasizes that the Lafferty brothers weren’t members of the LDS church, having been excommunicated. Krakauer responds to each of the charges. In a few cases, he acknowledges having gotten facts wrong in the initial release (which were subsequently corrected for the paperback edition). But, for the most part, he defends the points made in the book.

Events have happened in the history of Mormonism that the church would rather sweep under the rug, like the 1857 Mountain Meadows Massacre (detailed in the book). And while the Laffertys had been excommunicated from the LDS church, their beliefs were rooted in the church. They believed they were being better Mormons than the LDS church leaders. To me, that was an important take-away lesson of the book — religious fundamentalists don’t necessarily believe something completely different from the mainstream; they just interpret the same texts more inflexibly and believe in their interpretation more deeply. In the hands of fundamentalists, religious belief is by definition intolerant, and often used for brutal ends. Under the Banner of Heaven is a scary book about the dark fringe of extremist religion and believers who are willing to lethally impose their dogma.

Written by LeisureGuy

24 September 2011 at 10:06 am

Posted in Books, Law, Religion

The man with two brains

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The Man With Two Brains stars Steve Martin (as Dr. Michael Hfurhuhurr) and Kathleen Turner (as his second wife—he’s a widower—who switches from passionate to sociopathic once vows are exchanged). Not a bad movie—I especially like the scene in which he pleads, fruitlessly, for a sign from his dead wife as to whether he should marry Dolores (Turner’s character).

Of course, though we must make do with one brain, we do have two minds, more or less: the conscious and the unconscious. Sometimes they’re in step, sometimes they’re at cross-purposes, and sometimes they seem just a little disconnected.

I was emailing my sister that I seemed to be able to lose weight at a rate (tops) of 2 lbs/week with good compliance to sensible eating, though my actual rate in practice (with some unsensible eating) is more like 1.5 lbs/week. Still, I’m now being extra careful with my meals because I’m just 175.8 lbs and I want to get to 170.

She emailed back to say that was good, that I could reach my goal in 3 weeks.

“Three weeks?!!” I thought. “What the hell? I was sort of thinking by Thursday.” But then I realized: ~6 lbs to lose at 2 lbs/week = 3 weeks.

Clearly my conscious mind—analytic and good at math—“knew” that it would be three weeks, but this had not be communicated somehow to my unconscious mind, so my “gut feeling” (those hunches and feelings that are communiques from the unconscious, as when you “just know” something) was that it would take 5 or 6 days.

That explained why I would get so discouraged: the typical pattern is a plateau for x days, and then amazingly rapid loss for a day or two, then back to slow—averaging out, for me, to around 1.5-2 lbs/week. But my unconscious seemed to be paying attention mostly to the dramatic-change days—naturally enough, those are the days I especially note and enjoy—so it was still with the notion that I could drop pounds rapidly.

Now that I realize the discrepancy and have been back and forth over it, I find that my “gut feeling” is no longer that I’ll achieve goal by Thursday. Indeed, my weight the past three days: 175.8, 175.8, 175.7. And rather than frustrated, I am now feeling, “That’s fine. Progress. It’s going to take three weeks anyway, and a few more days of hovering between 175 and 176 and I’ll suddenly drop to 174 or 173 and hover there for a while. But by mid-October, I’ll hit my 170.”

Live and learn.

So long as we’re talking about minds and brains, I had a little insight last night. Yesterday’s Pilates session was particularly good: I still required almost constant correction, but now I can correct, and am able to quickly adjust. I still can’t quite feel when I’m out of proper form, but on being told what to do, I can make appropriate adjustments. Moreover, my breathing was quite good for the whole session: I was aware of it and could control it, but mostly it just happened, and without effort. And time passed differently: it neither dragged (look at the clock after I feel 20 minutes have passed and see that it’s only been 10) nor went by fast (the reverse). I felt that time was passing at exactly the right rate, so that I felt neither hurried nor that things were dragging along. I’m not sure what being in the moment entails, but I really did enjoy that session.

And the rest of the afternoon and evening, I seemed to move around much better: more controlled, more assured, more economically. Hard to characterize, as you see. And I noticed, as I thought about various things, that I seemed internally to perceive things a little differently, as if from a slightly greater distance or perspective—as if being at a slight elevation, giving me a broader field of view. Again, difficult to describe, but somehow new and different.

It occurs to me that the mind is intimately intertwined with the brain—the mind, near as I can tell, is emergent from the brain’s regular activities (controlling our muscles and bodies and monitoring internal and external stimuli). And it’s perfectly obvious that changes in the brain produce changes in the mind, most notably in brain injuries. One painful example is the personality changes suffered by those whose brains suffered trauma due to explosions, as from IEDs.

Similarly, one expects that new structures, synapses, and networks in the brain would result in some sort of changes to the mind, even if subtle. And changes in the brain’s wiring—new synapses, connections, and networks—regularly occur as we learn new physical skills: those changes are exactly how, for example, we can play fluently a piano piece that was once totally impossible. It takes time to learn the piece because it takes time for the brain to develop the new structures and connections required.

In the case of Pilates, the new connections concern the entire body and a great variety of movements and postures. In addition, Pilates works on specific muscle groups and through the various apparatus helps one locate, train, and control muscles that have been long neglected and over which we had lost conscious control.

With the changes in the brain that result, one would expect some sort of evidence of those changes in the mind. And they do seem to happen—slowly, over time, if one persists.

Written by LeisureGuy

24 September 2011 at 8:56 am

Posted in Daily life, Fitness, Pilates

Fine shave to end the week

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This shave goes out to Anthony Qaiyum of Smallflower, whom I promised I would use an Elite Razor this morning.

The lather today is from Al’s Shaving Products, another artisanal vendor I only recently discovered. I ordered some samples, and today tried the Palermo shaving cream:

Palermo is a decisively masculine scent that opens on a delightfully refreshing and unconventional assortment of grassy green and light sweet notes. As it develops, it gains depth and support from some bolder herbaceous greens, very light spices, and soft woods. The resulting structure is so delicate, buoyant, and charming that it’s almost impossible to resist.

I’d say that the description is accurate: I sniffed several of the sample shaving creams I got, and this was most appealing—unusual but highly pleasant. You should note that he also provides shaving creams with custom fragrances—a very nice idea.

I used a Vie-Long badger+horsehair chimera brush—a really fine brush, IMO, and perhaps a good way for a badger fan to segue into horsehair. The shaving cream was too stiff to adhere to the brush when I twirled it—the tiny container may be part of the reason—so I just smeared some on my cheek and started brushing.

Excellent lather, and I really do like the fragrance. It creates a very thick lather, even after I added more water to the brush. Not that I wanted to thin it, but I do want water on my beard, and this lather absorbed additional water without noticeably thinning.

Very smooth shave with a previously use Astra Superior Platinum blade. The Elite razor—white quartz with gold lacings on a Merkur frame—did a fine job. The Merkur Classic head that he uses is good, and the weight of the razor with the stone handle was quite nice and made for smooth cutting.

A splash of Royall Vetiver, and I’m ready for Saturday.

Written by LeisureGuy

24 September 2011 at 7:59 am

Posted in Shaving

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