How Democracy Works, Or Doesn’t

A Black Day For The Rule of Law

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The Senate has voted to give retroactive immunity to the phone companies for spying on Americans without a warrant.

As I have written elsewhere, this does violence to the Rule of Law. As usual, the defendants of this measure make the best case against it. As Senator Orin Hatch explained:

“And frankly, if we do not give retroactive immunity, there is not a general counsel of any of these companies that would [again] expose their company to the … litigation that has come since.”

Which is precisely the point. It should not be possible, let alone easy, for the Executive Branch to provide an end run to the Constitution and the law. That a majority of the Senate will retroactively concur in this law breaking — even applaud it and encourage it! — makes mock of the very notion that we are a free people in the land of the free governed by laws, not men, safe from the tyranny of Kings because their power is restrained.

As a Republic, we will recover. We have suffered such stains and indignities on the law in the past. Korematsu and the internment of Japanese Americans, the warrantless surveillance of civil rights leaders, The Espionage Act in World War I, which made it illegal to criticize the government’s military recruitment efforts. The list goes on. Then the pendulum swings back. We stand ashamed, offering compensation and apologies, shaking our heads at what people do and wondering how a previous generation could have erred so dramatically.

What is appalling here is that this is not done in the first rush of panic, pain and fear following the attacks. It is not prompted by “false intelligence.” There are no excuses for those Democrats who have ONCE AGAIN given President Bush everything he asks for, after promising us in 2006 that “the blank check is over” and that the Democratic landslide signaled a return to a government of checks and balances, accountability and oversight? And these Democratic Senators will come to us again in 2008, and expect the party faithful to once again fall in line?

I still have hopes for the House Democrats. Recently, Representatives Dingell, Markey and Stupak reminded their Senate colleagues of their duty to exercise oversight of the Executive to protect the rights of all Americans. Perhaps these champions of freedom will convince their House colleagues to stand firm in the face of White House pressure, telco PAC contributions, and the craven example of their colleagues in the Senate.

But it is a black day for the Rule of Law, and a black day for the Democratic party. Let every Democrat that has dared adopt a haughty attitude to Republicans for supporting domestic spying, torture, and the assault on our consititution hang his head in shame. Let our tongues be stilled. For our leaders have proven no better than theirs. And will not we, like the sheep we have accused them of being, quietly return them again to office?

Stay tuned . . . .

Have The Senate Democrats Finally Learned?

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With the Protect America Act (aka FISA on ‘roids) set to expire at 12:01 a.m. Friday, and the Senate deadlocked on the question of immunity for telcos, the Administration once again tried to employ its favorite strategy. Rather than support any kind of extension the Bush Administration is demanding that the Senate pass telco immunity or risk a veto. The conservative chorus brays how the Democrats are outing national security at risk. And why not play chicken with a vital issue of national security? This strategy has worked for Bush time and again, with no real consequences.

Still, the script did not go quite to schedule this time. When it became clear that the President could not force through the Senate Bill he wanted and get the needed changes in the House (the House Bill does not contain immunity for telcos), the President backed down and grudgingly agreed to a 15-day extension of the existing “Protect America Act.”

The question here is whether or not the Senate Democrats have learned that the temper of the country has changed. We all care about national security. But increasingly, the American people have grown disgusted with the way this Administration plays politics with national security and whittles away at civil liberties. But many Democratic leaders remain traumatized by the 2002 elections, when voters caught up in the post-9/11 scare and the hype in preparation for the invasion of Iraq decided to overlook things like the Enron and Worldcom scandals and voted out war heroes like Max Clealand who expressed even the slightest doubt about supporting our Commander in Chief in “this time of war.” And so, despite the election of anti-war Democrats in 2006, despite the President’s abysmal approval ratings, despite the fact that the majority of Americans now consider the Iraq War an enormous mistake and want to see it ended, Senate Minority Leader Mitch McConnell and the President’s media cheer leading squad continue to use the same rhetoric as if it were still 2002, and too many Democrats still tremble.

Let us be perfectly clear. The one issue delaying this bill is the question of retroactive immunity for Bush’s telco pals. While I understand why Bush would go to the wire for his buddies, why any Democrat would voluntarily so undermine the rule of law baffles me. The one conclusion I can reach is that too many of them remain mired in the belief that if the Democrats are seen as “playing politics with national security” then they will lose in ’08.

But as Chris Dodd and some other Senate Democrats understand, and as the House Democrats understood when they passed a bill without the telco immunity provision, the universe has changed since 2002. Even if political exigencies justified such an abandonment of principle as granting telcos retroactive immunity, too many Senate Democrats have the political calculation wrong. With the Democrats chosing among candidates determined to end the war and both of whom have promised to fight telco immunity, and with Republicans poised to nominate the man who has consistently defied the Administration on torture and other issues where the Administration has played the “national security” card, the message from the people should be clear: The free ride for the Administration to savage our civil liberties is over! The panic is past, and our natural distrust of a government granted unlimited power to “protect us” has returned.

I hope that the members of the Senate, particularly the Democratic members who have supported telco immunity, will take these two weeks to learn this valuable lesson. Because if you act as if it were still 2002, and give the President everything he asks for, you may indeed succeed in setting back the clock. In 2006, the American people proved we had enough of wireless wire tapping, and that enough of us were finally willing to vote out a party that supported an assault on our civil liberties. Must we prove that lesson again in 2008, by once again voting out a party that, to praphrase Benjamin Franklin, seeks to trade liberty for security only to discover it has neither?

All the rights they promise — all the wrongs they bring
Stewards of the Judgment, suffer not this king!

Stay tuned . . . .

There's Patriotism, But Then There's Cash

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Like many, I have been both appalled at the federal domestic spying program and the subsequent the effort to undermine the Rule of Law by granting the telcos retroactive immunity. Which is why I don’t know whether to laugh or cry at this USA today story reporting that the telcos shut down wiretaps legally authorized under FISA because the FBI failed to make the requisite billing payments.

But, but, but…..I thought the telcos were noble friends and patriots, who only violated our civil liberties because the government asked them to “do the right thing” and “step up to the plate” to help our national security. You don’t mean to tell me that these noble, brave, patriotic telcos — that, in the words of Rep. Lamar Smith (R-TX) “deserve our thanks, not a flurry of lawsuits” — these true Amerian heroes who so bravely, gladly, and swiftly, and without a moment’s hesitation, broke the law to spy on their customers like you and me, would let a matter of mere money stop them from doing their patriotic duty? You don’t mean to say that when a wiretap is actually legally authorized under the existing law, that the telcos would stop their monitoring of genuinely proven security threats over a trivial matter of a late bill, would they?

Not that I or anyone else should be surprised. “To thine own self be true,” says the Bard of Stratford on Avon, and corporations are profit maximizing firms. Small wonder they will break the law and sell us out in a heartbeat to suck up to the government in the hope of future favors (like, say, subsequent approval of mergers without conditions) while suddenly not giving a rat’s patootie about “national security” or “stopping the next 9/11” when the FBI misses a payment. After all, it’s OK to break the law and abet violations of the constitution to screw your customers, but you wouldn’t want to violate your fiduciary duty to your shareholders.

Even patriotism and national security have their limits, apparently. At least where corporations are concerned.

Explain to me again, Rep. Smith, why these companies “deserve our thanks, not a flurry of lawsuits?” Ah yes, because unlike the FBI, AT&T is NEVER late with the PAC donation check.

Stay tuned . . . .

Of Legitimacy, Paper Trails, and the Power of The Blogosphere: The Clinton/Diebold Episode

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I like this because it makes so many useful points about so many important things in this election season. In particularly, I think there are valuable take aways about the importance of asking questions without pre-judging, the value of a paper trail in voting to everyone, and the power of the blogosphere to raise and answer serious concerns.

Yesterday, the progressive bologosphere began to buzz with rumors that Hilary Clinton had “stolen” the NH primary from Barack Obama because of errors by the Diebold optical scanning machines used by some NH polling places. The allegation rests on an observed swing in results between precincts using the Diebold optical scanners and hand count districts. Notably, the Brad Blog posted this piece which stated that “informal statistics” indicated that precincts counted by hand generally favored Obama by 2%, whereas precincts using the Diebold optical scanners generally favored Clinton by 4.5%, creating a 7% swing.

Few circumstantial evidence items appeared to lend credence to the rumor. Ron Paul supporters claimed Diebold shorted him 31 votes in one NH town. Diebold is not generally trusted by progressives, Clinton is not generally trusted by a number of progressives, and the pattern of wild variance between polling data and actual vote turn outs is similar to that seen in 2004, including the apparent consistency of the error. A general failure of the technology should produce a spread of errors, why would the same machine favor one candidate consistently?

This had the capacity to turn quite ugly (and I suppose still could). But the internet breeds the ability to check facts and analysis and discover more plausible explanations. This analysis from “DHinMI” on Daily Kos Diary, for example, shows why these accusations don’t hold up. Most importantly, NH requires a paper trail, so that it is easy to double check results. The variations are not consistent at 4.5% and only for Diebold optical scanners, but follow a geographic variation that more accurately accounts for the differences. The Ron Paul missing votes likewise appears to be a human error on the part of the town clerk certifying the results rather than the count itself.

To this I will add that we need to remember that we are dealing with relatively modest sample sizes. Quite good by the standards of modern statistical analysis but still relatively small so that a few thousand people changing their minds for different reasons out of over a hundred thousand votes cast can produce a statistically significant change.

But I must disagree with DHinMI that “ultimately, there’s tremendous arrogance and/or ignorance at play when people assume that Hillary Clinton’s victory in Tuesday’s New Hampshire primary is or might be explained by election fraud.” It is a responsibility of citizens to hold their elected leaders accountable, to question results that raise legitimate questions, but — ultimately — to accept answers supported by the evidence. Certainly anyone leaping to the conclusion that Clinton conspired with Diebold on the basis of an initial question went way too far, and should accept the lesson in caution. But the investigation and retention of paper ballots will hopefully do what such investigations do when the subject is innocent: provide a definitive answer that lays the matter to rest and proves once again the integrity of the process, providing needed legitimacy.

I expect many people will shake their heads at those irresponsible internet nuts and their vile rumors, and will take the wrong message that the internet is full of whacko progressives who degenerate to conspiracy theories rather than face unpleasant realities. But I prefer to see this as an excellent example of the system working, just as a mild cold is a symptom of my functioning immune system driving out a virus. It emphasizes the need for paper ballots and mechanisms for confirming results, the importance of getting questions about legitimacy answered rather than having them fester, and the importance of the internet in letting people debate the facts and squash “whisper campaigns” one way or the other.

In Kenya, we have seen what happens when an election loses legitimacy because of widespread mistrust and efforts to suppress inquiry. I rejoice to live in a country where citizens feel free to exercise their responsibility to investigate and question election circumstances that raise questions, and equally rejoice that NH and the internet provide the means to answer those questions. It is neither arrogance nor lunacy to want to double check elections — especially in light of the suspicions raised in the past. Nor is it conspiracy or arrogance to provide answers that sustain the result. Indeed, if there is one lesson we can all take from this, it is the value of treating all those who take their duties as citizens seriously enough to participate with the respect due to a fellow and comrade rather than the hostility of an enemy combatant.

Stay tuned . . . .

Iowa, oh Iowa, Iowa, Ooooohhh Iowa

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I can’t be the only Dar Williams fan out there, especially on the day after the caucuses. Especially after Iowans appear to have gone through the screen door of discretion while some candidates wake up to a nightmare/that I could not bear to see/They were out caucusing/A freezing night in Iowa/But they were not voting for me.

I’m actually on sabbatical for the next two months trying (among other things) to actually get the stupid blog book done (talk about New Year’s resolutions), so I’ve been trying to cut back on other work and focus. But what political junkie can resist the urge to comment on last night’s Iowa result? I will, however, try to keep it to TotSF appropriate topics and bipartisan snarkiness.

My take, as aways, below . . . .

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Action Alert: Senate Judiciary Mark Up On FISA — Call To Oppose Telco Immunity

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The Senate Judiciary Committee is scheduled to mark up the FISA reform legislation today, Thursday November 15.

The bottom line is that now is the time to call the Senate Judiciary Committee and ask them to oppose retroactive immunity for telecom companies that helped the Bush administration spy on Americans without warrant.

MYDD has this post with a call to action and announces that they will cover the cost of your phone call to the Senate Judiciary members. Follow the link to Chris Dodd’s campaign website to take action now!

[UPDATE 7:14 PM Thursday, by John]: I just got an email from Senator Dodd’s office announcing victory in the Judiciary Committee today. I’ll enter the letter in a comment below the fold.

Stay tuned . . . .

My Brothers In Pakistan

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“Go to every corner of Pakistan and give the message that this is the time to sacrifice. Don’t be afraid. God will help us, and the day will come when you will see the constitution supreme and no dictatorship for a long time.”

–Iftikhar Mohamed Chaudry, Chief Justice, Supreme Court of Pakistan

A man in a tailored suit, surrounded by a cloud of tear gas, hurling something at police. Mobs of hundreds of lawyers surrounding a jury-rigged loud speaker so that they can hear the revolutionary message of a deposed Chief Justice under house arrest: “rise up and spread the revolution of the rule of law!” Given our view of lawyers in popular culture today, these images seem surreal, almost comical. Lawyers? Rising as the bulwark of democracy and the rule of law? Aren’t lawyers about preserving the status quo and circumventing the law? Who can forget the cheering crowds when a giant Tyrannosaurus ate the smarmy lawyer in Jurasic Park as he fled to hide in the port-a-john? Or the lawyers as “ambulance chasers.” I have a friend and fellow progressive who would never consider voting for John Edwards because he was a plaintiff’s lawyer, even if he was about suing mammoth corporations to hold them accountable for shafting otherwise defenseless citizens. So when we see lawyers standing before armed soldiers with guns, shouldn’t we be cheering for the soldiers? After all, how many times have I heard that what you call 100 dead lawyers is “a good start?”

But ’twas not always so. Consider a different time, when lawyers like John Adams, or serious legal philosophers such as Benjamin Franklin, believed that the rule of law was a matter to die for. As one of their number so aptly put it:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

And indeed, listed as the first grievance against King George:

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

Law, law, law — the Rule of Law. And of the 56 men who signed the Declaration of Independence, 24 were lawyers while several others, such as Samuel Adams and Benjamin Franklin, had extensive knowledge and experience of the law and it practice.

It has been a long time since lawyers in this country rose in revolution to defend the Rule of Law against the encroachment of a tyrant bent on establishing the direct rule of one man. In the interim lawyers have not been idle in the defense of freedom. But even the lawyers who have forsaken profitable careers in private practice to pursue the goals of social justice or defend indigent defendants because the rule of law depends on providing a vigorous and zealous defense to everyone accused still live lives of relative comfrt and security. We forget, in a country where the rule of law has remained settled for so long we take it for granted. (If anything, we take it perhaps too much for granted, and have come to pay for our complacency.) When I speak to other activists around the world, I am reminded that people like me are “disappeared” or arrested on a regular basis. And that what protects me is that the respect for the rule of law is so deeply embedded in all of us that the idea that the industrial interests I opposed would have me killed seem like bad fiction. But for many lawyers and other social activists around the world, it happens all the time.

So I am reminded by my brothers and colleagues of the bar in Pakistan once again of the value of the Rule of Law as a bulwark against violence and tyranny. I salute those who could live comfortably off the status quo and drift with the wind of the regime, who instead rise to pledge their lives, their fortunes, and their sacred honors. And while I hope I never come upon such a “time of sacrifice,” I also hope that I — and perhaps others as well — can appreciate why the rule of law remains a cause to inspire and thing to defend.

Stay tuned . . . .

So Much For All That “We Are A Nation of Laws” Stuff . . . .

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This past month saw, practically unmarked, the anniversary of the Saturday Night Massacre, in which Richard Nixon’s refusal to turn over the secret tapes sought by Special Prosecutor Archibald Cox for information relevant to the Watergate break-in. Nixon offered instead to turn the tapes over to a trusted Senator, who would provide the Special Prosecutor and interested members of Congress with summaries. The “massacre” involved firing the Attorney General and the Deputy Attorney General before Nixon found someone (Robert Bork) willing to fire Cox, because Cox refused to drop his subpoena for the tapes and accept Nixon’s compromise after D.C. district court Judge John Sirica denied Nixon’s claims of executive privilege.

Congress then had a choice. Whether to back down and accept the Nixon compromise on a theory that it would avoid a Constitutional crisis while maintaining a fig-leaf of Congressional oversight, or to appoint a new special prosecutor who would continue to demand the President honor the Congressional demand for the tapes. Congress chose the later, and the case went all the way to the Supreme Court, which ordered the President to respect the subpoena and turn over the tapes. A week later, Nixon resigned. At the time, many commentators and scholars saw it as a signature moment in the triumph of the rule of law and a vindication of the principle that the United States is a country of “laws, not men.”

Sadly, we now face another such signature moment. President demands not merely approval of his domestic surveillance program, but wants retroactive immunity for the phone companies that provided the Administration with customer information, lest a court determine that the telcos thereby violated Section 222 of the Communications Act and other provisions of law. Again, scholars and civil rights activists raise grave concerns about how allowing the President to defy the law creates serious concerns about maintaining the Rule of Law and respect for the Rule of Law. Again, we the people look to our elected representatives in Congress to stand firm and protect the rule of law against the encroachment of a Chief Executive convinced that he should have the freedom to act for the greater good. Unfortunately, this time, it looks like the Democratic leadership may prove a weak reed upon which civil liberties cannot trust to lean. Unless, of course, the people rise up clearly in one voice to say, in the words of Rudyard Kipling:

All the right they promise -— all the wrong they bring.
Stewards of the Judgment, suffer not this King!

More below . . . .

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The Value of Diversity, Or, Lessons of a Canadian Folksinger to the US Supreme Court.

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The Surpreme Court has now ruled by 5-4 that school districts cannot use race as a means of determining placement to maintain integrated class rooms. Unsurprisingly, the four of the Court’s “Conservative” wing (Scalia, Thomas, Roberts, and Alito) believe that any race conscious consideration by government is intrinsically harmful and would overturn the 2003 decision in Grutter v. Bollinger that upheld the use of race as one of several factors to promote diversity in higher education. (Technically, Roberts only goes so far as narrowing Grutter‘s holding to higher education, but it amounts to the same thing.) Kennedy, the eternal swing vote, still affirms that diversity (including racial and gender diversity) is an important value that the government can support, without really indicating how the school systems can do so.

Reflections on the fallacy of “color blindness,” and how a completely unrelated folksong by the Canadian folksinger Heather Dale makes the point about the need for diversity and role models more eloquently than I ever could, below…

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I rarely post “me too” postings . . .

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But I feel it is important to circulate this well written piece from Alpie.net. Of course, regular readers will recognize it as one of my favorite tropes, although I usually phrase it differently. Being a citizen rather than a “consumer” means making the jump from bitching about reality to trying to change it. Yes, God knows we’re all busy, trying to make ends meet, raise families, etc. etc. But, like getting enough exercise, making sure the kids do their homework, eating a balanced diet, etc., it’s something that you either make time for because you think it’s important or suffer the consequences.

Stay tuned . . .