fbi v. apple decrypts candidates

As in 2016’s first eight contentious weeks, rallies, polls and posturing are similarly shaping week nine. Clinton v. Sanders and Trump v. Pope are but a couple of the headlines.

This week’s newcomer is Apple v. FBI.

If you care about this issue beyond just the headlines, I would encourage you to go and get the facts for yourself. The encrusted traditional press is pitiful when communicating the substance of the conflict, but Macworld produced a short yet excellent FAQ that will get you up to speed quickly.apple_fbi

Several issues are at play, but the important one to me is determining whether the government can compel its citizens to spend their time and treasure on assisting a criminal investigation. While most of us would be eager to help our law enforcement, it is quite another thing when they compel civic altruism from our neighbors. This is an egregious overreach by the FBI.

I do not recall the cultural prototype of Federal Law enforcement, Matt Dillon, ever deputizing a posse against their will.

As shocking as it is that the courts went along, it is more disturbing to behold the uniform public support for the FBI in this matter. Outside of the tech community, Apple has little support. The Pew Research Center poll’s only significant demographic not on the FBI’s side is left-leaning independent voters. One would naturally expect that Bernie would join his fellow left-leaning independents and come out on Apple’s side, but feeling the spotlight of the presidential campaign, he instead waffled:

“There has got to be a balance. But count me in as someone who is a very strong civil libertarian who believes we can fight terrorism without undermining our constitutional rights and our privacy rights.”

Now, in Mr. Authentic’s defense, Hillary waffled too—but we expect that from the candidate who sold her soul to the political underworld long ago.

The GOP candidates, never the sort to miss an opportunity to seize power from anyone without “Inc” in their name, uniformly weighed in on the side of truth, puppy dogs and the Hooverites. But leave it to the Bloviating Billionaire© to strike a perfect Reality TV pose going even further in calling for a boycott of Apple until they comply with the court order. In this 2016 edition of politics as sport, Trump is proving that he is indeed no mere apprentice.

I know that the Curmudgeon often sounds like a phonograph with the needle stuck in a groove, but there are certain big issues that permeate our entire national political morass. A quantitative graph of our collective tolerance for the vacuous discourses of these frauds playing us for fools would be a century old exponential curve.

The American affinity for the sound bite waxes strong.

In some ways I am more hopeful today than in recent memory that the twitterification of America can be reversed: there are numerous new-media sources succeeding with long form presentations and discussions on important social, legal and political topics. In spite of this positive trend, this Curmudgeon senses that we are still a long way from the content of a candidate’s ideas influencing more votes than their 140 character rejoinders.

It seems I am doomed to disenfranchisement for a while yet.

As an ardent civil libertarian, I am happy that Sanders at least stakes out some ground around which to defend our freedoms—as far as it goes. It is certainly nothing new to hear political elites give liberty some lip service. Virtually no American running for national office will campaign on a platform to alienate that which was formerly inalienable.

But voters seem unwilling to confront the reality that our upper caste rarely fails to say one thing while doing another. Sound-bite politics is a messy thing and Americans are peculiarly averse to holding their gladiators accountable for their words and deeds.

I applaud Tim Cook for his (smallish) stand against the accelerating over-reaching of our government. We need this reminder with awareness of the threats waning as Edward Snowden recedes further from the headlines. These politicians campaigning for leadership of the free world have made it clear that they have little care for your and my liberty. They only superficially acknowledge the competing issues that the FAQ I recommended above made clear.

As I said, this is nothing new. The hard question for you, Dear Reader, is whether our fellow Americans will ditch the newspaper, drill down deep, and remember. Whether you will remember the election rhetoric and promises.

This American will never forget their misdeeds.

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jacksonian democracy

Lost amidst the Michael Jackson trial headlines was news that the Senate Select Committee on Intelligence in closed session last week approved legislation to reauthorize and expand the Patriot Act. The level of citizen concern over reauthorization compared to interest in the Thriller acquittal is almost as disconcerting as the proposed legislation.

News stories on reauthorization are sadly scant. If you are one of those whose legal curiosity extends beyond local criminal matters and into the erosion of our civil rights legacy, perhaps you will find this resource helpful in locating a few of the limited stories on the subject.

It is very tempting to rehash the old arguments against the wisdom of the original Patriot Act. Tempting because the arguments are incredibly strong and nearly irrefutable to those that practice the arcane and nearly lost art of deductive reasoning. But the irresistible morsel of the moment for me is the opportunity for an I-told-you-so.

The last time around the patriotic block there was some discussion of what lawyers refer to as a “slippery slope”. Slippery Slopes abound in legal tomes and it is perhaps unfortunate that such an important idea is encapsulated in such ordinary and seemingly familiar language.

Perhaps if there were a grand term such as “res ipsa loquitur” to describe the process by which certain detrimental changes in the law gather momentum and sometimes crush the spirit of the well-meaning originators, then we would not garner as much flippant ridicule. While the term may be inappropriately ordinary, the phenomenon in this case is as real and present as it was predictable.

What is telling now is the total absence of discussion of whether the original Patriot Act was constitutionally permissible. It appears that to the extent that the reauthorization debate gets visibility, the reauthorization discussion is going to center around making the act permanent and the expansion of the powers granted.

We have slid down this slope in an entirely foreseeable fashion.

It is hard to know with certainty whether the present intention of the politicians is simply another naked power grab or clever political posturing to attempt to move the center of the debate farther toward the totalitarian end of the scale. Perhaps it is some of both. Either way, the essential Constitutional questions have been taken off the table.

The despair is almost enough to send me to the tabloid rack to get the latest on Michael Jackson too.

The powers that are sought in Patriot Redux truly are as seedy as the most lurid tabloid. The FBI’s desire for these powers is conveniently packaged as necessary for fighting terrorism. But in truth, the FBI has long desired the power to issue administrative warrants to circumvent the need for judicial review for what we would have referred to as 4th Amendment searches in days of antiquity.

By playing the terrorism fear card, Hoover’s boys will undoubtedly get their wish.

The argument usually goes something like “the government needs this power because it is too burdensome to go to a court to obtain a warrant”. Warrants, so they claim, consume too much time and energy for effective law enforcement. The problem with this argument is that it can be used to justify almost any form of civil rights infringement you can imagine. All of our Constitutional protections are burdensome on the government. There are more than a few prosecutors that would love to dispense with a trial because of the undue burden.

But, there is little doubt that there are some situations where it is difficult to obtain a warrant in a useful time frame. Truly, I do wish to help out law enforcement by addressing the genuine requirements of a tough job.

The answer, however, is not to eviscerate our civil liberties, but to make the warrants easier to obtain. It is little known by the general public, but the law has long allowed emergency warrants to be issued by a judge over the phone. That the fact of this real and potential flexibility is never a part of the discussion should give all of us insight into the insidious disinformation campaign that is being waged against our Liberty.

Of course, you will never hear the simple idea of hiring more judges and making minor tweaks in the law. The politicians have an agenda and it has nothing to do with protecting you and me. Does anyone seriously doubt which choice the American people would make if actually given the opportunity? Would anyone assert that the better choice is surrendering to the government the right to molest our privacy without cause rather than incurring the expense of hiring a few hundred more judges to guarantee ready access to an independent deliberative body?

An adequately informed public would render the very question rhetorical.

Our faint hope is that it appears to be more fashionable these days to oppose the President than during the previous legislative rubber-stamping extravaganza. Perhaps the Democrats will smell electoral blood in the water and actually mount an opposition to reauthorization.

But given the tepid response of the American people to reauthorization, I will be surprised if legislative opposition goes beyond trying to prevent the expansion of the Patriot Act Powers. Other issues appear more electorally profitable. The politicians totally get it: Americans do not care about civil liberties as long as the government manages to present the illusion of relative Safety. A moment of national reflection on the wisdom of surrendering six centuries of accumulated personal sovereignty does not seem likely.

Have no doubt: this is one time when we will definitely get what we asked for.

Michael, whatever you do, please don’t move Neverland to Africa: at times like these I really need the distraction.

homeland offense

Americans realized long before its repeal in December, 1933 that Prohibition had created new and far more dangerous problems than it could have ever been calculated to solve. As the few remaining Americans of the era of speakeasies would tell you, the impact on America was overwhelmingly negative. The affects of Prohibition were bad not simply because of the gangland violence but because of the artificial dichotomy that was created wherein otherwise “good citizens” were routinely flouting the law.

It was a hard lesson in governance, but America learned and moved on.

Or at least, America had moved on until enough time had past that the lessons could be largely forgotten. It is truly amazing to read the Prohibition era stories and see how thoroughly relevant they still seem. The story of the young man determined to end the rum running on the road in front of his house, thwarted by a wise father who took his gun and admonished him to stay out of other people’s business, sounds eerily similar to the stories I hear from the inner city. Not similar in detail obviously: that was a simpler and much different era. Rather, I speak of the similarity of how prohibition set in motion powerful forces with which ordinary people dare not trifle. The similarity of parents who wish to keep their children away both from danger and the dangerous. If you just stay out of the way it seems, the dangerous will most likely leave you alone.

But the dangerous do affect each of us whether we try to stay out of the way or not. The War on Drugs has extracted a price that while hard to precisely total in dollars, is much easier to discern in intangible ways. It can be measured in resources diverted from homeland defense, lives wasted in jail cells, insecurity while simply going to your car at the grocery store, and liberties squandered due to the tactical and strategic exigencies of a phony war.

One may not be able to hang a price tag on these things, but the price is dear none the less.

According to information from the White House, about half of all prisoners in US jails are incarcerated because of the War on Drugs. You have to dig to sort all of that out, but it is worth your time if you doubt the number. Using the White House data, by my rough calculations approximately $18 billion is spent each year to keep these prisoners behind bars. Compare this to the President’s 2005 budget figure for the Department of Homeland Defense of $34 billion (which interestingly includes $6 billion for the Coast Guard, one of the prime players in drug interdiction). I’ll leave it for a person with time to spare to come up with a more thorough accounting, but it is clear that once you add in other expenses, which include a vast array of law enforcement activity from Federal down to local entities and large expenditures in other branches of the military who have been partially co-opted, that we are spending at least as much on the War on Drugs as we are on Homeland Defense.

Eventually we may all be seeking illicit drugs to help us cope with our muddled national priorities.

In my mind, however, the ridiculous expense in financial and human capital of the War on Drugs is not itself a sound argument for the legalization of controlled substances. There are some things that must be illegal if society is to function and what the content of the law is should not be determined simply by what yields a net profit. The exorbitant cost instead should give urgency to the need to commit to drug legalization not because it is a pragmatic good, but because it is the right thing to do.

While legalization is, I am convinced, the morally and legally correct choice, if I am to be totally honest, I must tell you that I truly hate illicit drugs. My personal opposition is, in part, because of moral obligations imposed by my faith, and in part out of my ordinary human fallacy of fearing being out of control. Alcohol, in my view, however, is like liberalism and conservativism: it is OK if consumed in moderation. For me personally, the difference between the two is that moderate alcohol consumption does not lead to inebriation.

But I understand well that others disagree with me on the acceptability of alcohol consumption: the “intellectual” heirs of Billy Sunday are the stock from which I was raised. I know that there are those who would gleefully rob me of my right to enjoy my pint of stout and this is why the principals of Natural Rights are so crucial to building a free society.

When one is certain that they have a clear understanding that particular behaviors are destructive, it is only natural to want to intercede on behalf of the unwitting. But, unlike the majority of Americans, I really do believe in Liberty. As I have said before, I stand for human rights without regard to one’s personal viability, color of skin, religious creed, level of intelligence or unrepentant sinfulness. Free people must have the liberty to make choices that you or I might deem unwise or immoral.

The temperance tyrants sometimes argue back that it is not about controlling the behavior of others, it is about the cost to society of addiction and dangerous behavior under the influence. But I follow the facts where they lead me and not where I wish them to lead, and the obvious fact is that forty years of the War on Drugs has done absolutely nothing to curtail their use or reduce the impact of addictive behavior on society. The reality is that we currently have locked up over 3% of adults and by my conservative estimate annually spend the equivalent of the Gross Domestic Product of Paraguay and yet the cost of drugs continues to decline and the use of drugs is unabated.

The greatest expense borne by Americans in the prosecution of the drug war is the cost in human life and livelihood. Lives which are squandered by poor kids muling or dealing to try to make it in the world no matter what the cost of living in the shadows. Lives of non-combatants who are caught in the real and virtual cross-fire. Livelihood which is squandered by the rising tide of property crimes committed by addicted people seeking money for their next high. Then there is what is perhaps the largest line item on the expense ledger: the lost opportunity to deal with real and pressing issues.

All of this insanity is juxtaposed on the established fact that treatment has been proven far more effective than incarceration. Even the Drug War champions in the White House admit this. It is time to act on reason and end the insanity which is the War on Drugs. Time to give Freedom a chance here in the Home of the Brave.

It is way past time to put a priority on mending broken lives rather than building more jails.

call of the wild

It is hard to imagine anything much more alien to this Curmudgeon than the thought of visiting a brothel. In fact, it probably shocks many who know me when they discover that I am a long time advocate of legalized prostitution. Some of you probably thought I did not even know how to spell “brothel”. Those of you who have hung out here for a while, however, may remember my posting on the hypocrisy of California regulating the porn industry a while back.

Upsetting though it may be to the hard core Christian Political Right, I think the day of widespread legalized prostitution is upon us. An interesting story in the Economist set me to thinking on this subject today. Apparently, some entrepreneurs are dreaming big and the fight for branding is already on.

I’m not a betting man, but I’d lay good money down on a wager that some form of BootyWorld Theme Park will open in the United States before a viable Space Station.

Whatever personal distaste I may have for the oldest profession, there is little doubt that in a free society such behavior should be permitted between consenting adults. Like cigarette smoking, over indulgence in French Fries and riding a motorcycle without a helmet, people should be free to engage in behavior that may not be in their best interests without regard to the peril to their mind, body or soul.

But even if you disagree with me that this is a desirable direction for our legal system, note its inevitability. Just like casino gambling and distilled beverages, it will be a part of our lives and sooner rather than later. If you doubt me, read the Economist article and pay close attention to the expected impact the sex industry can have on a rural county. Think about the promotional programs used to sell lottery legislation and you can see easily how the same ads work for advocating the legalization of any of a number of previously forbidden fruit.

One thing life has taught me is that if you want to predict what happens next in America, follow the money.

a pause to remember

I sense that the infamy of this commemorative date isn’t quite what it used to be. Nothing heals old psychic wounds quite like plasma screens and hemorrhaging terrorist inflicted wounds delivered live on national television.

Still, many of us will pause and consider the 2,390 men who lost their lives on the day that Yamamoto awoke the sleeping giant. Time will determine whether 9-11, which claimed an even greater number of unsuspecting American lives, will be commemorated as a seminal event on the order of the attack on Pearl Harbor. Lately, I have begun to believe that perhaps it will.

Pearl Harbor is rightfully considered the essential event that lead to the World dominance of the United States in the second half of the Twentieth Century. In our cultural consciousness, the attack stands as a closing bracket on the Great Depression and an opening bracket for a period of new greatness. And make no mistake, our internal self-image was one of not simply greatness in size and power, but also one of greatness in purpose and spirit.

It has been suggested to me that perhaps Americans do themselves a disservice by over-glorifying “The Greatest Generation”. And while there certainly is a point to taking a cold hard look at our past lest we repeat the lessons learned, such as those of Manzanar, I reject that we overdo this veneration of our ancestors because it is important to remember that there are causes greater than our individual selves. There is no doubt that the people of that time were just ordinary people, more or less like you or me, doing their best in extraordinary circumstances. The label of greatness was not conferred, but rather earned when these ordinary people answered the call to a higher purpose.

Like many, I suppose, I found my fellow American’s response to 9-11 initially encouraging. Just maybe, I let myself wax optimistically, this tragedy, like Pearl Harbor, will lead to a rebirth of American spirit and a rededication of individuals to those great ideals for which it is worth suffering and dying. The heart warming response of Americans in the initial aftermath was indeed a beautiful thing. Sadly, and far too quickly, my naiveté was eventually squashed by the venom I saw hurled toward Arab people.

Perhaps Manzanar was not after all a lesson learned, but rather a harbinger for our time.

Part of the pride in being American has always been, or at least for the last century, a sense of a national desire to behave well as a world citizen. While we often execute poorly, the intentions have been noble and generally defensible. And we knew what we stood for with clarity: freedom rooted in a proper appreciation of human rights. And when it comes to certain uncivilized things, well, America just doesn’t do things like that.

But with the revelations of Abu Ghraib, many of us have been forced to reconsider our internal image of America. Molly Ivins wrote recently about American torture and expressed the angst this Curmudgeon feels extremely well. The revelations regarding the treatment at Guantanamo Bay brought Molly to a new level of rage wherein she pleaded forcefully:


What are you going to do about this?

It’s your country, your money, your government. You own it; you run it; you are the board of directors. They are doing this in your name. The people we elect to public office do what you want them to do. Perhaps you should get in touch with them.

I would certainly encourage you to write your Congress Critters regarding this matter, though I am doubtful of the result. Doubtful because the elected elite do not seem to listen very much to any voice that doesn’t threaten their next re-election bid. And of course, we have recently been “in touch with them”—its called an election.

You see, the last election was well after the torture revelations. Well after we had all read that this administration considers human rights “quaint”. Months had passed since we found out that Rumsfeld was aware of what was going on and that regardless, our President was standing by his Secretary of Defense.

Yes, we are the board of directors and the board spoke pretty clearly to the Executive officers when we returned the President and almost the entire Congress to office. The ballots were not yet all counted when they reported back to the board of directors, “mandate accepted”.

Yup. I do think that terrorists have set us on a path as radically different from the one previously trod as was the new road onto which Yamamoto nudged us Sixty-three years ago.

It is a good thing for us to pause and remember the attack on Pearl Harbor. To remember a time when Causes were bigger than Ourselves. A time when they were the ones that flouted the Geneva Convention and held human rights in contempt. A time when we were the ones that coveted freedom not just for ourselves and our posterity, but also for all people no matter their nationality, race or creed.

Now hold that thought.

Keep holding: the next election is two years away.

the tell-tale heart

I am entering dangerous territory.

The time has come for this Curmudgeon to test the waters of the third rail of American friendship: Abortion. There is little that divides Americans with a passion the equal of that held for this topic. I proceed with more than a little trepidation, because I can foresee the possibility of posts going back and forth with some rather ugly epithets. This fear has kept me from this topic thus far, but it is my hope to bring a little sobriety and decorum to the discussion. May God grant us all the wisdom and forbearance to make it so.

Now, if you bother to ask me, you will find out that I am very concerned about a woman’s right to choose what to do with her own body. Heck, I even care about men’s bodies too. I am a civil libertarian to my very core but you might not know this if you listen solely to what those that support abortion ‘rights’ say about those of us who are opposed. We are not a monolithic whole.

What genuinely keeps this civil libertarian awake at night is the tragic reality that outside of Christian circles, there seems to be little concern on this issue for anything other than a woman’s right to choose. No apparent concern about what must be the possibility, even in the minds of even the most ardent abortion rights proponent, that lives are being ended by abortion procedures. And there is a reciprocal lack of sympathy from within the Christian community for the honest quest for what seems to many to be a simple and straightforward Liberty to decide one’s own fate.

This lamentable gap in mutual understanding on the issue is evident in the very words by which the belligerents choose to label themselves. The rhetorical chasm that separate the “Pro-Life” and “Pro-Choice” factions really needs no further elaboration beyond stating those labels. If IT is Life, then IT has the basic human right to life; if IT is not life, then IT is but tissue that would be clearly within a women’s right to make decisions regarding.

Aye, there’s the rub: defining life.

In ancient English common law, life legally began at the first breath. It could be properly argued that this was a sensible view for the law of the day. The law endeavors to be nothing if not pragmatic and the complications of a then common place still-born birth could, in that age of hereditary rights, be of staggering proportion.

But “modern” medicine is on the march and the ancient bright line defining Life does not seem so bright and narrow in a day when a fetus is potentially viable as early as the twentieth week of pregnancy. Many, including myself, question whether the viability test offers a reasonable and logically defensible check on uninhibited abortion practice. The obvious point is that we have seen the viability threshold retreat from birth at the time of the Norman Conquest, to twenty-eight weeks at the time of Roe v. Wade, to twenty weeks today. The viability threshold is destined to retreat further and further until viability occurs at the time of conception.

Clearly, we should hope for a definition of Life that does not vary with the available technology.

It is easy to see that viability as a test was never very viable to begin with even were it not for its relativistic nature. It has been pointed out by countless others that a newborn baby isn’t viable without the constant care of a parent and many elderly and handicapped are no better able to care for themselves than a twenty-eight week old fetus. Viability only makes sense as a legal test, not a moral test.

But of course, we can’t legislate morals, can we?

The intriguing thing to me has been for some time that there is a logical definition of life that does not rely on esoteric argument, uncertain science or the Word of God. A molecular biologist I know would tell you that in biological terms, life logically begins at conception-the completed genome, in their view, defines our human being in scientific terms. Science thus provides an obvious and reasonable bright line that gets discounted, I am convinced, because it also happens to map perfectly to the line set out in the Bible.

That standing for conception as the beginning of Life is consistently reduced in popular discourse to being solely a “religious belief” is nearly enough to make my head explode.

As heart wrenching as the arbitrary viability test is to me, more wrenching still is the plain truth that we can not even as a society agree that some abortion practices clearly are on the wrong side of any reasonable Life definition. That we as a society tolerate late term abortions-abortions well after the hypothetical point of viability-is enough to make this Curmudgeon cry often and profusely.

This whole matter hits closer to home for me in the last year: try telling my friends, whose beautiful little girl I was able to hold in my arms, all one pound of her, six weeks before she was “supposed” to be born, that a 38 week gestation does not produce a human being. I suspect that Miss Parker will not agree with the radical pro-abortion camp either when she gets a bit older.

But when the tears dry and I reflect on our situation, I ask myself what are we to do? A society which evidently supports a return to the ancient definition of Life is not likely soon to adopt the definition which in my view science and reason compels. And there is a corollary question that haunts me: why is it primarily the Christian community that is sensitive to this particular issue?

The reason this corollary is haunting to me is a product of very recent history. It is not so odd that the issue of abortion is closely tied to the Christian Church-Christians have long been at the forefront of human rights. The best and most obvious example is the Abolition movement of the nineteenth century which was most unsurprisingly a phenomenon of the Christian Church. I would expect that Christians, based on the historical record, would be the first of our society to point out a profound social ill such as this.

But we live in a often self-contradictory world and the juxtaposition of the Christian Right’s outlook on the human rights of the unborn with that of their outlook on the human rights of homosexuals and resident aliens can not be passed over without scrutiny.

I, for one, stand for human rights without regard to one’s personal viability, color of skin, religious creed, level of intelligence or unrepentant sinfulness. It is clear to this Curmudgeon that the disease that infects us is not intellectual per se, though as I’ve written, a lack of critical thinking skills in our citizenry exacerbates the problem. The primary disease affecting us is selfishness. We want people to have rights as long as they agree with us. We want babies to be human when it is convenient for the mother and society. We want quality education as long as it doesn’t cost too much, run afoul of other parts of our political ideology or interfere with having a first class football program.

“I want what I want, when I want it.”

My five year old said that, but it is virtually a slogan for our me-centric society. And when I look coldly and objectively at America, I do not see much reason to hope for better. America has slid very far, very fast and nobody is reaching for the brake. Worse yet, those of us who suggest the brake be thrown are labeled wackos by our friends and traitors by the Attorney General.

I am inevitably drawn back to my recent theme of the Christian’s proper role in politics by what can only be described as my rather bleak assessment of social trends: they say you can’t legislate morality, but “they” are wrong. We can certainly encapsulate morality into legislation: just ask the citizens of the states who passed the anti-gay marriage amendments.

Those of you who count themselves as one among a Moral Majority can legislate volume after volume and fulfill all of your statutory desires. A Majority can apparently do as it pleases in the Brave New America. But the conundrum faced by a Moral Majority is that a stack of laws that would fill the expanse of the US Code and Federal Register are of no avail if the larger society does not subscribe to values reflected therein.

In quiet moments, after you are spent from striving against widespread adversity to moral legislation, realize that until you change the hearts of men, you haven’t created a better society. Realize that rather than a moral society, you have created a society of the cowed and criminal.

And when you get to that truth, it becomes time to put down the red, white and blue campaign signs and pick up a Bible. And this time, rather than thumping the cover of the Good Book, open it and read it. There are hearts that need to be changed. There is Truth that Christians are commissioned to share.

And realize then that the hearts that perhaps need to be changed first, beat inside our own chests.

evil in our midst

It was said on September 12, 2001 that “everything changed” on 9-11. This Curmudgeon, for one, never ascribed to that notion. The only thing that really changed that day was the level of awareness of the American people as to the risks and challenges that lay ahead of us. The increased awareness is of course a good thing-unless the awareness turns into panic.

And panic we did over the knowledge that those who would attack The Home Of The Free are already here in our midst. The terrorism hysteria manifested itself in the atrocious piece of legislation known audaciously as “The Patriot Act”.

Never in our history since the Alien and Sedition Acts have we been quite so cavalier in our attitude toward the Constitution. Certainly we have had other Chief Executives that bent and fractured their oath to defend the Constitution, but what stood out during the Patriot Act rubber stamping extravaganza was the Silence of the opposition. That Congress put up no fight whatsoever against warrantless searches and indefinite detention of suspects without charges is unconscionable.

I have been a strident critic of the Executive and Legislative branches of our government which rushed to grab power and placate fears with no regard to our Constitution and legacy of Human Rights, but it is an interesting question of whether the harm done by the Patriot Act is permanent or something more transient. It will be decades before we know the answer to this question, but I for one will be surprised if the damage done by allowing Congress to expand its powers in such a grandiose fashion disappears into the legislative sunset. My hunch is that the legal briefs have already been written that rely on the historical and legal precedent that Congress may use emergency powers to re-write our fundamental Constitutional protections in whatever manner they see fit. And of course if the Congress can do it in an emergency, then really “We the People” have not retained that inalienable right after all.

But I wish to lay aside the matter of whether the undoable can be undone and for a naively optimistic moment assume that reason and sound jurisprudence will return to our public discussion. It has been suggested to me that our time would be well spent to debate as a nation exactly where we will head and what we will tolerate when the “next 9-11” inevitably hits. I too think that would be wise, so here is my short contribution to the debate.

Technology is steadily eliminating what little privacy we have and in my view, we must resist all attempts to relax the proscriptions against government intrusion into our lives. Of course that piece of rhetoric, left to stand on its own, neatly side-steps the question of how permissible and impermissible intrusion might be defined, but I wish to pause on this basic point just the same.

Pause to simply point out the simple truth that Government, unfettered by Constitutional strictures, tends to accumulate power and to oppress its citizens. History is rife with examples of this axiom and our founders sought to protect its posterity from this fundamental tendency toward the accumulation of power. Our socio-legal system consists of a fine balance between the needs of the individual and those of the larger society. What is unique in our Republic is that we recognize the legal supremacy of individual liberties as a counterweight to the excesses of a government nominally pursuing the “general welfare”. This bit of genius is a big part of what has made America different and we should not abandon these fundamental precepts lightly.

But, on to specifics. What should be permissible police investigation in a nation that also recognizes extraordinary threats that are internal? My answer is simple: anything with a warrant. Anything where an officer of the law can make the case for “Probable Cause” to an independent judicial body. I for one do not buy the argument advanced by the hysteria generating political class that warrants are too burdensome. This simply does not pass the smell test. No matter how many times the Attorney General might repeat this lie, it will not make it true.

It is well established in our jurisprudence that warrants may be obtained under exigent circumstance through a phone call to a judge. I am not being novel or unrealistic when I suggest that this method for obtaining warrants can and should be expanded to assist in the fight against terrorism. Far better to add enough judges to the bench to make them accessible than to throw out the Fourth Amendment in a fevered rage. Frankly, this is so obvious and reasonable that I am stunned that we seldom hear it advanced. So much for our “leaders” who claim to care about civil liberties and who are sworn to defend the Constitution.

We hear much of data mining as well and it is suggested by some that data mining is new and distinct from sifting other forms of information. My Grandma had a technical term for that type of assertion: hogwash. Data is nothing but facts reduced to digital representation. It is a logical fallacy to suggest somehow a fact on a piece of paper in someone’s possession is ontologically different because it has been digitally recorded and is easily obtained. The key is in “easily obtained”. The desire for unfettered data mining is driven by the reality that it is easier than real police work.

I am not suggesting that data mining will not work. On the contrary, I understand that it can be a very effective tool for fighting all sorts of crimes. The problem I have with it is the cost to our liberties. This is a classic “slippery slope” from which there is no climbing back up. Can anyone doubt that once this “data” is accumulated that it will not be preserved forever no matter how unwise we might deem it to be in retrospect?

But only by looking at this from a philosophical perspective does this become truly terrifying. If we allow unfettered data mining, gone are the protections afforded us by the legal requirement of “reasonable suspicion”. Instead, we have entered a new and fundamentally different world where no suspicion whatsoever is required to investigate your purchases, education, or reading habits.

And if you believe the Attorney General’s statements to the effect of, “well, we just won’t use these powers in that way”, then you need to see your doctor about adjusting your Prozac prescription.

It doesn’t sadden me so much that there are few people who view such governmental over-reaching with outrage. What really depresses me is that there are precious few who even recognize that there are issues here worthy of discussion. These are matters that would have put previous generations in a complete uproar, but contemporary America is just rolling over and accepting it without real discussion.

Such is the end result of the dumbing down process our country has undergone over the last few decades. We are dumbed down to the point that a surprising number of Americans actually think that Shrub is a bright and honest guy.

There is indeed evil in our midst and something must be done. Determining that something to do gets difficult though when one understands that the evil is not alien to our society after all.

Exceedingly difficult when the evil turns out to be us.