Tuesday, December 18, 2007

Constitutional Blasphemy

This really is blasphemy. Senator Sessions, of Alabama, made some interesting comments during the Senate debates regarding changes to the Foreign Intelligence Surveillance Act (FISA).

For the record, defending our Constitution and civil liberties will protect Americans. Oddly, it appears that such a defense protects Americans from its over zealous and tyrannical government.

Yes Senator Sessions, I want protection as an American from elected officials like YOU! That is why I defend the Constitution and rebuke any politician elected under its bylaws who questions its authority or denigrates its purpose.

Shame on you and those you share your ideology for destroying what makes this Country great!

Thursday, December 06, 2007

Could You be a Terrorist?

That is what the government wants to investigate. The following is a cross post from MondoGlobo about the Violent Radicalization and Homegrown Terrorism Prevention Act, which seems to propose just that.

I recently stumbled across information regarding the Violent Radicalization and Home-Grown Terrorism Prevention Act. If the name wasn't enough to scare small children in the night, the text of the act is enough to make civil libertarians shiver in their boots.

Essentially, Senate Bill 1959 establishes a commission that investigates the causes of violent, radical, home-grown terrorism. This commission consists of individuals appointed by a variety of political leaders, from the President to the House Minority leader. The benefit to this particular structure is that you are reasonably assured a bi-partisan group. However, the panel's make up is what is not really to be reviewed with scrutiny.

At its core, this bill operates to create an administrative agency charged with investigating what forms of communication are used to disseminate terrorist propaganda, and issue findings on prophylactic measures to stem home-grown terrorism. While the findings of the bill do suggest that any measure must preserve the civil liberties of American Citizens, this appears to be the only reference to the Constitution in the entire bill.

Those who have raised the issue and various news reports on the issue express similar concerns about civil liberty interests. At least one member of the House shares the opinion of reasonable Americans. Representative Kucinich was one of the very few who voted against this bill because of what he considered unconstitutional aims. This is a valid concern given the operation of these kinds of commissions. Congress usually employs a panel of individuals to investigate and hold hearings regarding some issue of legislative significance. These findings ultimately make it into a law of some kind.

To be clear, this bill doesn't criminalize the kind of anti-American thought Representative Kucinich references, but it does provide the Congress with a way to investigate and establish a basis for such a law. What worries me more is the amorphous language used in describing things like home-grown terrorism or violent radicalization. For instance, the bill defines the term "homegrown terrorism" as "the use, planned use, or threatened use, of force or violence by a group or individual born, raised, or based and operating primarily within the United States or any possession of the United States to intimidate or coerce the United States government, the civilian population of the United States, or any segment thereof, in furtherance of political or social objectives."

The definitions only get better: the term "violent radicalization" is defined as "the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change," and the term "ideologically based violence" is defined as "the use, planned use, or threatened use of force or violence by a group or individual to promote the group or individual's political, religious, or social beliefs."

Each of these definitions fails to mention who or what may constitute a homegrown terrorist or violent radicalization. The terms are ubiquitously applicable to your corner protester with a sandwich board or the users of this forum. The broad terms of this bill would permit the commission to look into internet forums like this, upstart political parties like the Open Source Political party, or the Question Authority Initiative because they spread anti-American sentiment with the propensity to spark ideologically based violence.

I am in full support of adequate police prevention of societal violence, especially when the aim of such violence concerns terrorism. However, we need not investigate how Americans communicate their political ideas and consider those ideas, on their own, a threat to national security. It is very possible that these thoughts pose dangers to the ability of people in Government to retain their positions. We should be far more concerned with this bill if it is also concerned with preventing the former to protect the latter.

Wednesday, December 05, 2007

Catching up...

I have missed a lot of blogging lately due in large part to the starting of my business. This is an attempt to catch up with a list of the veritable absurdities making headlines lately.

The President wants to be dictator, and this is the law that would make it happen. Well, the executive order at least. This is how Hitler came to power. Thankfully, Bush is no Hitler. Cheney, though, is one to worry about. It is unfortunate that tactics haven't changed. We have notable reasons to fear our government, especially since this is what it would take to activate NSPD 51. Here is the guide on how something like that might go down.

Oh, by the way, they are already watching. You know, just to keep you safe. See more on a similar issue in a forthcoming post.

For a list of how the President has really run afoul of the Constitution, check out this post over at MondoGlobo.

By the way, state secrets are BS. They are only being used to prevent the public from knowing how much our leaders detest our country, our rights, and us as citizens by keeping us in the dark. It is especially heinous that everyone in Washington is seemingly helping. An eyebrow should be raised when such an excuse used to protect a crony. While questions are at least being asked, it may be too late.

Your freedom, including access to information, means little in the face of our Government's interests (see also). Don't worry, its likely that other people will try to steal what you create anyway.

Fear your police officers, their sense of entitlement means they will violate your rights, and ask questions later. The disturbing part about this one is the support that comes from other officers of the law. Maybe as an officer of the court I see things differently, but there is no excuse for this kind of abuse of power. It needs to end, even if that means a nasty lawsuit.

Some people are habitual liars, and Karl Rove must be one of them. This is proof positive that history is entirely subjective. Thankfully, someone is asking questions.

For those who didn't know, the Iraq war really is all about the oil. I guess we aren't advancing with this eco-friendly trend like all us hippies hoped.

Adding another line item to why we should prevent corporations from having a meaningful role in the development of public policy that implicates the health and well being of Americans, you can't have your cancer drug because someone else needs to make the money first. Thanks for that great protection FDA.

They shouldn't call them debates. This is especially true when the front runners can't own up to what the rest of the civilized world (including many of their constituents) already know.

Um, NO, that's called rendition, possibly even extraordinary.

Thanks to those fighting the good fight, we may be getting somewhere.

I think that basically catches me up, except for the big one, but that is next.

Sunday, November 25, 2007

Quick Fodder for the Conspiracy Theorists...

Just for the record, we were close to Osama bin Laden before September 11, 2001.

Comcast stupidity...

Some time ago, I forewent several posts on Comcast Corp's decision to limit bandwidth, and basically censor the internet. I can't help sharing this gem of a Comcast experience.

I have been having some difficulties with my cable service recently. I have been on the telephone several times, technicians come out to review the infrastructure, we change connections, and nothing seems to solve the problem. One time, while on the phone with a service associate, I made reference to how the cable company wasn't upholding its end of our contract for services. The associates response, which left me dumbfounded, stated very specifically that no contract existed. This was confirmed by her supervisor, who told me he wouldn't get into a semantical argument with me about whether a contract exists. I was, and continue to be, amused by the situation. I think their legal department needs to be reeducated on some basic legal principles.

Just for the purpose of clarity, a common law contract has several basic elements. There must be an agreement between the parties (basically an offer and acceptance of that offer), the parties must have an understanding about the agreement (basically a meeting of the minds, aka mutual assent), and the parties need to exchange this thing lawyers like to call consideration (basically money or goods). With this situation, Comcast provides a service which they offer for a certain price. I agree to pay that price, and do so regularly. As a result, Comcast is obligated to provide this service for as long as I hold up my end of the bargain and continue to pay. What's even more interesting is they regularly issue paperwork that contains the "terms" of use, which explain in poorly drafted language what a user may or not do with the service.

To be clear, saying that no contract exists is idiotic. Clearly, an agreement for services exists. Unless Comcast bought a congressional representative to push a statute voiding the existence of these contracts, the law will likely support the existence of service contract on behalf of Comcast and their subscriber. The situation was too funny for words.

French Oppressors?

Apparently, in France, if you get caught using a P2P network, you lose your internet access. Lets hope our dictators, or the RIAA/MPAA don't catch on. I wonder if they have any kind of redress against their service providers.

Wait, Fox News got something right?

Apparently so. The following video "proves" it. I find some of what this guy has to say very ironic given the "news" network broadcasting his words. I wonder if there were some producers having a conniption when he started railing on about the mindless sheep that Fox News so proficiently panders to on a regular basis. Someone needs to mark this date in history as the one time Fox got it right. Call Guinness.

Wednesday, November 21, 2007

This Is a Good Question...

Some know Tucker Carlson for his really terrible and short lived stint on TV's Dancing With the Stars. The rest of us know him as the MSNBC pundit. Recently, he raised a very serious question about Dennis Kucinich. It really is a good point, Kucinich seems to be on the right side of some big issues, and willing to say some unpopular things.

If anything, this points out a very disturbing trend with the current state of the impending 2008 elections. I just seems like things are skewed in a bad direction. The point of elections is to let the people choose freely. Doesn't this create the responsibility on the part of news outlets to provide impartial coverage? I think this could largely be attributed to the move away from hard news and towards "entertainment". If the current situation is full of symptoms, maybe that is the root of the problem.

Saturday, November 17, 2007

Congress Is Still Awake...

With all the insanity in American politics these days, it is nice to see that the Congress is still awake, and willing to prevent the President from abusing his office, on occasion. Here are two examples.

The Senate has blocked the ability for the President to make Thanksgiving Recess Appointments.


The House passed a bill that did not provide retroactive immunity to big telecoms for their part in questionable domestic surveillance projects. We can only hope the Senate is equally as awake on this one, but I wouldn't bet the farm.

ACLU v. NSA, round Two

Those who have followed the Grey Area know that the goings on with FISA have been an oft covered topic on these pages, especially since my paper on the War Powers was published by the Valparaiso Law Review in June of 2007. The District Court Decision may be found here (.pdf).

Recently, the 6th Circuit Court of Appeals rendered their decision on appeal from the decision of the Eastern District of Michigan. The decision may be found Here (.pdf).

For those looking for the quick answer, the 65 page decision came down to the ACLU's lack of standing. Specifically:

Because there is no evidence that any plaintiff’s communications have ever been
intercepted, and the state secrets privilege prevents discovery of such evidence, see Reynolds, 345
U.S. at 10, there is no proof that interception would be detrimental to the plaintiffs’ contacts, and
the anticipated harm is neither imminent nor concrete — it is hypothetical, conjectural, or
speculative. Therefore, this harm cannot satisfy the “injury in fact” requirement of standing.

Court's Opinion, Pg. 8.

Fundamentally, the Court's majority decision centers around the fact that the Plaintiffs failed to show that they were harmed by the NSA program. In fact, the decision goes a long way to determine that the Plaintiffs went out of their way to avoid the particular harm, and that even if the harm occurred, the Plaintiffs are barred from demonstrating that harm because the NSA invoked the State's Secrets Privilege. In a rather matter-of-fact manner, the majority states that this is merely "a subjective apprehension and a personal (self-imposed) unwillingness to communicate." Here the Court determines that the injury is not sufficiently acute to activate standing because there hasn't been a demonstration of specific harm. Instead, the alleged injury is nothing more than a subjective apprehension, which lead the plaintiffs not to act out of their own fear. This analysis lead the Majority to determine that the harm was not sufficient to permit standing in the case under the Supreme Court's decision in Laird v. Tatum, 408 U.S. 1 (1972).

The most abominable conclusion reached by the Court, however, is the notion that the actions of the NSA do not amount to Electronic Surveillance under the Foreign Intelligence Surveillance Act (FISA). The Court couches its conclusion in the definition of Electronic Surveillance in FISA. For the record, Electronic Surveillance is defined as:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

50 U.S.C. 1801(f)(1)-(4) (obtained from here). I don't think it takes much technical expertise to figure out that placing a wire tap on a telephone line uses an electronic device to obtain information transmitted over the "wires" considering all electronic information must move through a form of infrastructure, much of which is composed of either copper wire or fiber optic cable.
To say that intercepting emails using a computer does not constitute electronic surveillance goes beyond ordinary ignorance, and strays into legal absurdity. What's worse is the majority opinion fails to explain how, exactly, the TSP does not constitute electronic surveillance demonstrate that the point is untenable.

The Majority makes on basic point; that, clearly, as alleged, the Plaintiffs failed to adequately plead sufficient injury to bring a constitutional challenge to the TSP. This, however, throws another issue into sharp relief. The reason why the plaintiffs failed to proffer evidence demonstrating actual harm due to their inability to obtain information because of the state's secret privilege. This issue was not raised on appeal, and may be a point of contention for later opinions. A direct analysis isn't appropriate here.

The dissent raises the most tenable arguments on the issues presented. As such, it is worth a read. At the very least, this case likely has merit to progress to a review en banc by the 6th Circuit. In the even that this fails, there is still the possibility that the Supreme Court would take the case. However, this new majority leaves only a dubious possibility that the Court will affirm the decision of the Eastern District of Michigan.

At the very least, this decision sets the stage for a confrontation over the application of the state's secrets privilege in matters that directly and detrimentally impact civil liberties interests, something that few courts have directly confronted, and is beginning to ripen into an important issue.

Thursday, November 08, 2007

Throwing in my Hat...

While this blog has continually critiqued candidates for political office, it rarely states with specificity where I stand, who I will vote for, or makes an outright endorsement for a candidate. This is going to be one of the few posts where this model changes.

As an American voter, I feel as though the 2008 Presidential race will require that I have a contingency plan depending on the outcome of the primaries early next year. For example, I don't support Hillary Clinton, but she leads the poles among Democrats, so I need to know which, if any, of the possible Republican candidates I will support in the even that they represent a lesser evil than the second half of the Clinton dynasty. This is the breakdown:

My Ultimate choice for President: Barrack Obama.
If Barrack is not a candidate: Ron Paul
If Ron Paul is not a candidate: Hillary Clinton

What does this mean? I support Barrack Obama. Not just because he is from Illinois, but because he is the only candidate with a positive vision of the American future. In addition, after meeting him in person before he was ever thought to be a candidate for President, he struck me as honest and sincere, something none of the other candidates, save maybe Ron Paul, demonstrate. Most importantly, he is a civil rights lawyer, so he knows the cost of his policies to the fundamental core structure of this country, the Constitution and its guaranteed freedoms. I trust Barrack, though inexperienced, to consider all of his options before making a decision, which is something that can't be said for President Bush especially when he advocates World War III. That being said, I am voting for Barrack Obama for President if I get the chance, regardless of who the other candidates.

Ron Paul has a good head on his shoulders. He is a real conservative. The kind we have forgotten about since the dawn of the New Deal era. He advocates small federal government and reducing our abusive and down-right imperial approach to world diplomacy. He understands the risks that prior Presidential policy presents to the American public. Above all, he advocates for the freedoms guaranteed by the Constitution, and is likely the only Republican candidate who understands what it means to follow the supreme law of the land.

Hillary Clinton is my last resort. I consider her to be the least of all the evils running for President aside from the two aforementioned candidates. However, this is literally a last resort since refusing to vote only results in tacit acquiescence to whims of the American majority. If I have to vote for Hillary, I will be doing so begrudgingly. I think the Southern Avenger may be on to something with this opinion demonstrating that electing Hillary will result in another 4 years of current neo-conservative policy. There is plenty to question with Hillary. First, she has a history of interesting supporters and this recently includes Pakistani lobbiests who recently reached the maximum level of support they can provide for a political candidate. This almost sounds like support for the newly self-appointed dictator, Pervez Musharraf. The only reason I am inclined to support a second Clinton administration is the hope that it will put us back on a sustainable economic track, though even this possibility is debatable.

As it stands, Hillary is a last resort, with Obama out front and Paul close behind. Hat, meet ring.

Saturday, October 27, 2007

Obedient or Overzealous?

About a week ago, I woke up to a dispute raging right outside my back porch. My landlord and a gentleman who later came to represent himself as an employee of the federal government from the Census Bureau, were locked on a hot debate over whether the agent of the federal government had a right to access a person in our building, with the full acquiescence of my landlord. The census agent snuck in the side door and came up the back stairs to try to access this young woman's apartment. As a result, this little dispute took place well within earshot, earlier than I typically like to stir on Sunday mornings. I decided to mediate, in an attempt to put an end to such a rude awakening, but also to get some peace and quiet so I could squeeze another hour of sleep out of my morning. The discussion that followed raised some interesting points.

As a preface to the following, I will note that it is, in fact, illegal to refuse to answer census questions. Section 13 of the United States Code controls, at the basic constitutional level, the operation of the Census Bureau. Interestingly, the Census agent was demanding access to the resident in the apartment he was pursuing. While I understand that there are penalties for failing to participate in a census inquiry, this person was not only sneaking into an area of my building only residents have access to, when he was discovered he demanded access to the common area inside the building and to some degree demanded access to the apartment where the resident lived. All of these demands were made under the auspice of federal law. Interestingly, the previously cited code section fails to provide this right in any explicit or implicit manner. My sense is that some obscure corner of the code of federal regulations contains this language creating this "right of access."

In a basic sense, this right of access likely does not exist, at least to the extent that this gentleman claimed. The Constitution still presents an inherent barrier to this kind of inquisition. He appeared to not only demand access to the common areas of my apartment building but also to the resident's apartment. That, on its own, is repugnant. To think a federal agent can have a right to access a person that any other state actor fundamentally lacks is downright comical. While I will submit it is likely possible that this person has an "right" created by an administrative rule to obtain access to the common areas in my building, there is no law capable of amending the Constitution by legislative or administrative fiat the way he represented. When I pointed out this error, he became angry, making claims that he would get lawyers to write letters. My response was to send federal agents with a warrant issued by a federal judge to justify the access he was requesting. This comment basically ended the exchange, because at this point he started to figure out that he was dealing with a lawyer.

Ultimately, the argument ended with an agreement that he would have a government lawyer send a letter to my property owner explaining this right of access. At this point, my property owner would give my landlord permission to let the guy into the common area of the building so that he can knock on this resident's door. In the event that she isn't home, he is out of luck entirely.

This entire situation raises some interesting questions about what kind of power the government thinks it has. I can tell anyone I have a legal right to do something, but that doesn't mean my statement is supported by law. It is more likely than not that this rhetoric works on the unassuming American. Does this mean we don't ask enough questions of those representing governmental authority? If anything, it shows we shouldn't be so quick to give in when someone with an official name badge starts talking about the law. The need to question everything a government official says these days is omnipresent, especially if we have Presidential Candidates would ask their lawyers for legal permission to start a war before asking Congress.

Happy 300!

I guess you can call it a milestone. This is the 300th post in The Grey Area. Since its birth, I have tried to make this site a place for discourse on compelling issues facing people, regardless of who they are or where they come from. While I focus on what goes on in the United States, I am pleased to know that traffic to this site, be it legitimate or not, comes from all over the globe. 300 doesn't seem like much of a post count in the vibrantly active blog-sphere, but this is something of a personal milestone since I certainly didn't expect to get here.

From here on, though, I hope to double this number in the near future. Thanks for reading, feel free to participate and make this a dialogue. Cheers!

Saturday, October 20, 2007

Bit of a Hiatus...

For those regular readers, I want to apologize for my extended hiatus. While I wish I could relay a story about how I have spent the last month and a half in a rendition prison, being held captive by the CIA for the regular words of rebuke towards the goverment that flow from these pages, the reality is far more uninteresting. I am in the process of making a transition in employment so that I can open my own law practice. You can find us on the web at RajSmithLaw.com. The website is in its infancy, and will be up and running with more content in the near future. As for the Grey Area, I hope to return to something of a regular blogging schedule after my employment transition in the next couple of weeks.

Monday, September 10, 2007

Hello Mr. Orwell...

Everyone jokes about it, but the reality is far worse than we might expect. Daily Kos had an interesting article today that demonstrates WE are the next target of the American government. While I am inclined to question the veracity of this program, I wouldn't put it past the American government under the so-called leadership of this President.

It reminds me of a couple of quotes:

...a government is a living organism. Like every living thing its prime characteristic is the instinct to survive.


Power is not static; it cannot be frozen and preserved like food; it must grow or die.

The existence of this "program" shows exactly how far we have strayed from those core American ideals that supported the birth of this nation. I have called for revolution in the past, but these kinds of governmental actions proves that we no longer live in the free society envisioned by our forefahters. Revolution, regardless of the form, may be our only salvation to prevent the continued perversion of the Constitution.

Thursday, August 30, 2007

Business? Why Business?

Disclaimer: I am only an armchair economist, this is purely my own opinion.

As the title suggests, this post won't necessarily touch recent issues, like the departure of Bush administration zealots like Alberto Gonzalez and Karl Rove. Instead, the purpose of this post is something far more important: The American Economy. The economy is so important because it literally determines the future of every American, and to some degree, every person in the world.

Recently, we watched the fall out over the sub-prime mortgage market plague the U.S. economy and the larger economies in Europe and Asia. Essentially, sub-prime exponentially expanded the availability of credit to those who couldn't otherwise afford the loans provided to them. This was largely driven by the inflation in real estate prices, and the low interest rates of 2004 and 2005. Arguably, real estate is one of the few American commodities that tracks real value juxtaposed currency value. The other commodity is Gold. If you look at both of these commodities next to one another, I imagine you will see a similar appreciation over the last five years. Arguably, this increase in value is due largely to inflation. As our debt load has increased, the value of the dollar as decreased. This isn't due entirely to the value of sub-prime, but also to the federal deficit. When we create debt, we create more money, even if that liquidity is a fiction created by increased debt.

Sub-prime started to show its weakness when the two year limit on many of these inexpensive loans came due. The net result was a substantial increase in foreclosures. To understand the next step, it is important to understand how investments in commercial paper, essentially the trade of debt. Banks buy and sell loans based on the interest rates, and the amount they can collect over the principal. When the debt is bought and sold, but goes into default, those investments are essentially worthless, absent the value of the collateral. The result is a mad rush to collect on worthless debt, and the acceleration of payments up the chain of debt, from one bank to another, until you reach the bank holding the note on the collateral. Unfortunately, the substantial increase in foreclosure has devalued collateral because of an increased supply.

The catalyst for this chain reaction came from an increase in interest rates. Those sub-prime loans became more expensive, and the borrowers were no longer able to pay. The purpose of that increase in interest rates is attributable to one thing...Inflation.

The purpose of this diatribe...an explanation of why the Federal Reserve should not lower the short term interest rate at its meeting in about a week and a half. Generally, a decrease in the rate will push the economy back to the previous cycle and not fix the core problem of inflation. If anything, rates should remain the same, and this market correction should be allowed to proceed. While there will be a substantial decline in large purchases, like automobiles and property purchases with more risk, this correction will hopefully balance the credit market and heal some of the damage caused by unchecked inflation in the last couple of years. While this won't necessarily result in a more valuable dollar, it should provide some stability for the volatile market.

Solving inflation, though, is an entirely different issue that is dependent on the ability of the government to balance their budget and create a sustainable financial system. For more on interesting economic issues outside of recent financial news, check out this scary video.

More on Rove and Gonzalez in the future, I promise.

Sunday, August 05, 2007

The Real Reason FISA Supposedly Needs Updates...

In the history of the Terrorist Surveillance Program, which really isn't designed to track terrorists, the FISA Courts took an active role in determining whether cause existed to issue orders to permit American intelligence agencies to tap wire communications. Then, for reasons we can only presume to be based on what the law actually says, the FISA Courts rejected a significant number of wire tap requests from the various intelligence agencies. As a result, the President authorized the warrantless wiretaps program, later to become known as the Terrorist Surveillance Program, or TSP. Recently, I have covered the development of proposed changes to FISA that would expand the President's power to watch anyone he wants, including American citizens, without having to muck about in the legal process put in place to protect us from abusive intelligence practices. What is more shocking is the reason for the change.

This story does a good job of explaining the current situation. Like in 2001, a FISA Judge has determined that the TSP violates the law, and did what it was supposed to by issuing a stop order to the intelligence agencies involved in the practice. The effect of this ruling included the President asking Congress to change the law. Regardless of the situation, the President can't avoid his oath to enforce the Constitution, which includes the Fourth Amendment's warrant requirement for spying on Americans. This policy to violate the Constitution notwithstanding his oath of office should be sufficient grounds for Congress to institute impeachment proceedings. Now I have only one question...

Why is Congress letting this happen?

For the branch of government with the most power and oversight ability, this spineless caving to the President's malice towards the American people and the Constitution demonstrates a weakness that runs contrary to the interests of the American electorate. If constituents really knew what was going on, there would likely be an entire turn over in Congressional representatives. Maybe new representation is what we really need, lest Congress continue to vitiate court orders aimed at restricting the President's abuses of power not rightfully his under the Constitution.

Saturday, August 04, 2007

So Long, Fourth Amendment...

As a follow up to my previous post, it appears as though the Congress, like the President, is more interested in disregarding the Constitution. This story explains what is going on. By the way, all of this domestic surveillance has nothing to do with fighting terrorism, it is to watch the American people. It sounds like it is time for a Hobbesian revolt, and replace everyone currently misrepresenting the interests of the American people in our government.

My Letter to Illinois Congressional Representatives on Modernizing FISA

The following is a copy of the letter I have submitted to both Illinois Senators, and Representative Jan Schakowsky of the Ninth District in Illinois in the House of Representatives. I am writing my Congressional representatives regarding the proposed updates to FISA. The letter follows.

As a young litigation attorney and constitutional scholar, I must implore you to prevent the passage of laws that would expand the President's power to spy on American citizens. Doing so would fundamentally debase the principles of privacy imbued in the Bill of Rights under the Fourth, Fifth, Eighth, and Ninth Amendments.

While the President appears noble in his cause, protecting Americans from Terrorism should not be a justification for eroding the protections that continue to separate American liberties from the rest of the world. The Fourth Amendment requires probable cause in order for the government to collect information on its citizens. This protection prevents government abuses by requiring process before a judge before permitting the government to violate the sanctity of one's home. The Fourth Amendment secures the notion of American individualism and autonomy. To denigrate the protections of the Constitution would serve only to make us less American by lending to more government oversight. Moreover, these evils were the express cause of creating a limited American governmental structure, which tied the hands of our leaders from invading the lives of those subject to the social contract.

Furthermore, the argument that this is necessary to prevent future terrorist attacks serves to abuse the baseless rhetoric of fear perpetuated by a President who has continuously disregarded his oath of office and acted out of irreverence for the people he was elected to serve. To date, the President can not point to empirical proof that more spying is necessary to make the United States more secure from foreign attack. The reason the President is asking for a review of FISA is because the law is operating to restrict the constitutional abuses the President wishes to propagate.

FISA originally came from Congress's reaction to Nixon era scandals. Similarly, the War Powers Act served to provide more balance between the President and Congress when both wish to exercise their constitutionally created war powers. Amending FISA to allow more latitude for Executive "intelligence" programs will fundamentally debase the balance between the three branches of government outlined in the Constitution and supported by FISA and the War Powers Act.

Congresswoman/man, I ask you, as an American, not to support a change in the law that will destroy the ideology that gave birth to this great nation. I ask you to oppose the expansion of executive power that will operate only to restrict our liberty and erode the freedoms the American Union stands for. I ask you not to fall into the traps of rhetoric used by the President, and to work towards policy that not only protects us from terrorists, but preserves the protections from the government the Constitution provides for the people.

Saturday, July 21, 2007

Bush, and the New Executive Order...

This made most of the politically focused news reports on Friday. To be clear, this particular order permits the CIA to interrogate terrorist suspects in secret. Effectively, the order brings back the practice of extraordinary rendition from its hiatus. The President has the ability to do this because of a law Congress passed the Military Commissions Act, which permits the President to interpret international law. I can't really express my disappointment in this development, so I will leave you with Marty Lederman's analysis of this issue.

Saturday, July 14, 2007

Welcome back, cold war

This story came up in the New York Times today, and should really start to raise concerns over President Bush's foreign policy. While the "missile shield" isn't necessarily a bad idea, bringing back the cold war is certainly not a great idea. While this is likely little more than political posturing, it could also open up the possibility of Russia selling nuclear technology to nations like Iran, Syria, and North Korea. While not something that should cause an immediate and reactive response, at the very least this is something to keep an eye on.

Revisiting Morse v. Frederick

First, a note to my few regular readers. I apologize for not keeping up with my posting lately. Life and work have gotten in the way of my pontificating. This is not how I wanted things to be, but having a brutal commute and being a new associate don't leave me much time for personal pursuits. Regardless, I will try to keep up with things as much as possible around here. Thanks for continuing to read, and please feel free to jump in if you have a perspective. Now, on with the fun stuff.

I noted in my last post that the Supreme Court recently handed down their decision in the so-called "Bong hits for Jesus" case. The decision is available here (.pdf). I can't say that I am enthusiastic about this result. However, with the recent change in the Court, such a result was predicable. Generally speaking, the Court determined that a high school principal may punish a student for speech that "promotes drug use" within the confines of Tinker, Fraser, and Hazelwood.

Chief Justice Roberts, writing for the majority, relied heavily on facts indicating that this particular event fell within the ambit of Fraser and constituted speech at a school sponsored event. Effectively, Fraser created a time, place, and manner restriction on student speech that is inherently content based. With this application of the Fraser standard, the Court expanded the confines of the definition of "school sponsored" as well as eroding the basic protections for student speech.

The facts of this particular case indicate that the students were released from school to watch the Olympic torch relay as it passed by the school. It is important to note that classes were released for the day. However, the majority is keen to point out that the students were still supervised by the school faculty, including the Principal. This minute factual distinction created enough of a school sponsored atmosphere for the Chief Justice to determine that the school sponsored the event in a manner permitting the Principal to restrict inappropriate student speech. The Court determined that the message, "Bong Hits for Jesus", aimed at promoting illegal drug use and lacked any inherent political value. The dissent suggested that the speech could have had a political message, specifically making a statement about American anti-drug policy. Regardless, the jurisprudential concern raised by this decision is far more pervasive when considered broadly in the context of student speech rights.

Prior to the Court's decision in this case, there were three distinct areas of student speech cases, specifically those mentioned above. Typically, court decisions would fit the facts of cases into one of the three categories: student speech in school generally, student speech at school sponsored events, and school sponsored speech. Morse v. Frederick, though, appears to convolute these three categories, blending the latter two and seemingly ignoring the former. By defining the event at issue in this case as school sponsored, the speech falls squarely into the Fraser or Hazelwood categories. However, Fraser dealt predominantly with lewd or obscene speech, and considered the imprimatur of the audience when assessing the protections provided to students under the First Amendment. Hazelwood dealt with speech that is part of a school sponsored exercise with a pedagogical purpose. Arguably, this decision combines the concepts of Hazelwood and Fraser to expand the ability of school administrators to inhibit speech provided there is a valid legal justification, i.e. protecting children from messages encouraging illicit drug use. The perspective of the Majority relies on the facts of this case to explain why the school may limit student speech while using concepts from both Fraser and Hazelwood, mixing its reasoning while coming to its final decision. This implies that the two decisions are synonymous. Though Hazelwood relies heavily on the rationale for the Fraser decision, the Hazelwood Court pointed out the very limited scope of its decision. Chief Justice Roberts went back and forth between these two decisions, relying on concepts from both. However, I don't think that this will necessarily be the interpretation adopted by future decisions.

In essence, Frederick does more to expand the abilities of school administrators to restrict speech within the confines of the Fraser framework. The Majority decision still relies heavily on an interpretation of facts that places this situation in the confines of speech at a school sponsored event. At most, this decision expands what speech school administrators can restrict during these events. Frederick, then, is an expansion of Fraser, leaving the current tripartite structure intact. Frederick, then, is little more than a logical expansion of Fraser. I think this is a better way to read the Court's decision in order to preserve the existing framework, and essentially avoid the complications created by Chief Justice Roberts in-artful explanation of his reasoning that would impliedly overrule Tinker.

Tuesday, June 26, 2007

Bong Hits Not Allowed, even for Jesus...

Today, the Supreme Court of the United States handed down their decision in Morse v. Frederick. The decision (in .pdf) validates the principle's actions in limiting student speech. Based on the facts of the case, this isn't unexpected. I will have a more detailed analysis on this case by the end of the week, detailing my thoughts on how this will affect student speech rights as well as a perspective on what it could say about the current members of the Court.

Wednesday, June 20, 2007

The Real Government War Against Higher Education...

While listening to Chicago Public Radio on the way home this afternoon, I caught an interesting story on Marketplace that many of us in the ranks of higher education should be interested in. Apparently, the Federal Government plans on saving money by cutting funding for education loan subsidies. For those keeping score, these are your federally backed student loans, and while the Feds stand to save Billions, the loan companies will no doubt pass the cost on to the consumers.

While not a big deal superficially, the reality could mean the increased cost of obtaining money for education. Anyone subject to a variable interest rate loan knows how the government tinkering with economy can mean the monthly cost of repayment jumping in exponential fashion. As it if wasn't hard enough to obtain and pay for graduate education with the continued increase in the most expensive graduate education in the world. The ultimate result of this brilliant fiscal tactic is fewer well educated Americans. Realistically, this is another attack on education. First, Congress pervert the state run education system by imposing an unconstitutional system of funding that only ends up closing schools through passing the President's "No Child Left Behind" legislation. Now, we keep people from being able to obtain baccalaureate and graduate degrees by arbitrarily interfering with the education loan system, inflating the cost of higher education on the back end. So, thank Congress for passing laws that take away education from the younger students and make it more difficult for adults to receive advanced degrees. We could call it legislation to guarantee an under-educated American public.

The most absurd thing about this remains that the new immigration bill everyone keeps talking about will make it easier for immigrants with higher educations come into the country.

Wait, hold on, lets think about that one for a second. Congress passes a law that will effectively prevent Americans from obtaining advanced degrees. At the same time, Congress debates legislation (the value of which I will assess in a forthcoming post) that will permit more immigrants with advanced degrees into the country.

This sounds more like the government waging a war on the American citizen by preventing us from pursuing the ultimate goals enshrined in the Declaration of Independence; Life, Liberty, and the Pursuit of Happiness. Consider, for a moment, the real impetus for some of this new legislation, then call and chastise your congressional representatives for their malfeasance.

Tuesday, June 05, 2007

Explative, Deleted...

While I wish I could say the title of this post is entirely original, I may only be able to take credit for the juxtaposition of the punctuation, especially after the recent editorial in the New York Times. Regardless, the point of this post is to analyze the recent decision from the Second Circuit Court of Appeals that invalidated the application of Federal Communications Commission Rules about fleeting expletives. You can find the decision here (in .pdf).

The fundamental tenants of free speech wrapped in the veil of indecency as applied to public broadcasting stems from the United States Supreme Court decision in FCC v. Pacifica Foundation. In that case, the Court's plurality ultimately determined that the Federal Communications Commission has the ability to regulate content disseminated over the airways during times when youth may be disposed to exposure to objectionable content. At issue in that case was a recording of George Carlin's "Dirty Words" monologue, the first comedy act played on cable T.V. In the spirit of Carlin's act, he talked about those 7 dirty words you can't say on regular television. In a triumphant act of irony, the hosts of a radio show broadcast the monologue during an afternoon commute. The Court, of course, found this to be objectionable, and imposed the responsibility of protecting children from indecency, citing the substantial government interest in the use of the public airways when children could be listening.

Pacifica pushed the bounds of what speech restrictions fell within the ambit of governmental regulation, citing the all important governmental interest of protecting children. The recent decision by the Second Circuit, though, goes a step in the direction of reigning in the abuses of restrictive FCC policy as applied after the Super Bowl of 2004. This decision does exactly what it is supposed to do, reign in the abuses of the FCC with the support of "moralist" neoconservatives.

Basically, there needs to be a difference between fleeting expletives, unscripted curses that truly express the feelings of the declarant. This kind of restriction would impose fines against a news agency that caught a soldier in Iraq swearing in response to a car bomb going off by his hum-vee. Realistically, this kind of restriction sugar coats the reality of the human condition and amounts to little more than censorship.

Sunday, May 27, 2007

Another Feather in the Hat of Impeachment

I don't know if anyone really needs to second guess this one. How crazy does a world leader need to be to criticize the Geneva Convention? Does the Vice President understand the role of this treaty in international relations, or how this kind of statement would only serve to deprecate our international reputation? As if the reaction to rendition prisons and torturing terrorists wasn't enough. To wage an effective war on this kind of enemy, we need to demonstrate that we are above their ethical level. This doesn't help. That is unless you agree that what happened on September 11, 2001, was unprovoked.

Re-institute Mutual Distruction

With the advent of the post cold war era, nuclear proliferation will likely become more of a problem with smaller more militant nations looking to make an impact on the global stage. From an American perspective, this presents a significant problem because of the danger to national security. Not so much from the knee jerk reactionists, but from the bargaining chip this places in the hands of otherwise inconsequential states and the risk that a small weapon could fall into the hands of a group that would not hesitate to use a new found nuclear capability with indiscriminate abandon. This will no doubt require a fundamental shift in foreign policy because current tactics employed by world governments is not having the desired prophylactic effect.

A plausible answer to this problem is to re-institute the fear of mutually assured destruction. For the last 50 years, the fear of mutual destruction and massive collateral losses has prevented the use of nuclear weapons. This was evident during the cold war, and formed the basis for the arms race. Each side tensely rattles its sword in the hopes that the threat of nuclear holocaust would advance their political agenda. Now, though, the world stage is very different. A small nation like North Korea wouldn't be as swayed by this concept because their arsenal would not be sufficient to render a target nation unresponsive to an unprovoked nuclear attack. This is even more the case in a situation where would-be terrorists get their hands on nuclear armaments. How, then, could we prevent this dangerous kind of proliferation, and how do we use the assured threat of mutual destruction?

The shift in foreign policy needs to focus on retaliation. The promised retaliation would have to promise total annihilation. Ideally, this would keep smaller nations from making a preemptive attack. Launching one bomb would certainly insure a retaliatory response that would decimate a small nation. Few nations could make this kind of promise as well. The United States is probably one of the few countries in the world with sufficient resources, but at the same time, we may be the only nation who could make such a promise and be taken seriously.

However, this policy may not be sufficient to subdue smaller groups from using a nuclear attack. As a result, the policy would have to be expanded to include threats to host nations. By holding the nation harboring or supporting these groups responsible by threatening annihilation, it is possible that those host nations would crack down on the extremist groups to protect themselves. The concept of mutually assured destruction survives on just that premise. While fringe political extremists don't consider the impact of collateral damage in their actions, by holding governments responsible with this kind of total military response, those nations may begin to constrain extremists and institute security policies to limit nuclear proliferation. This kind of self-policing could very well operate as a more effective deterrent than economic sanctions.

Monday, April 23, 2007

On Hiatus...

Posting has been sporadic, and life has been kind of crazy. As a result, The Grey Area will be taking a bit of a break. When there is really big news, there may be the occasional post, but for now I need to work on getting things in order in life outside the blog-sphere.

Saturday, April 14, 2007

Ron Paul Might be on to Something

Republican Presidential candidate Ron Paul might be on to something. In his opinion, not only are we on the verge of totalitarianism but the United States government is on the verge of bankruptcy.

I know what you are thinking, "a Republican who actually gets it?" I am in shock and awe as well. Sounds like the GOP might have a candidate that make sense in his policy. This means one thing, he probably won't get elected seeing as the Republican party tends to favor the neo-conservative nut jobs.

Sunday, April 08, 2007

On Appeal: NSA v. ACLU

I have made a significant amount of noise regarding this case for quite some time now, largely because it became the test case for my paper on the judiciary's role in the War Powers doctrine. At the end of January the Sixth Circuit hear oral arguments in the case's appeal from the Eastern District of Michigan. You can find the recording of the oral argument from the Court's website here (right click, save-as to download).

The argument scopes over two primary issues raised on appeal. The first deals with a variety of procedural distinctions that would prevent the Court from rendering a substantive decision. Among other things, the government argues that the complainants lack standing to challenge the program and that the lower court erred in determining that it did not have to violate the state's secret privilege to review the facts of the case. The second issue deals with the legally substantive challenges to the Terrorist Surveillance Program's constitutional validity under the First and Fourth Amendments.

The Court moved through the first argument fairly quickly, almost presuming the complaining parties had standing to sue. This could be a significant issue for several reasons. Initially, the mootness argument asserted by the government argued that the Attorney General's decision to submit the TSP to the FISA Courts renders the issue moot. The primary argument against the state's contention is that this issue could constitute a continuing harm that evades review. The government rightfully points out that this exception to the doctrine of mootness only applies to these plaintiffs in this given situation. However, courts have applied the concept broadly to other parties not affiliated with law suits in Free Speech cases. The standing arguments could also pose a problem to the plaintiff's case because there isn't a way to demonstrate concrete harm without violating the state secrets privilege. Since this is a civil liberties case and not part of a criminal appeal, the state secrets privilege would provide a fairly substantial road block to the substantive disposition of this case.

The Court did attempt to spend more time dealing with the substantive issues in the case under the Fourth and First Amendments. Here, the complainants argue that the program chills their speech because they are less inclined to contact people out of the country for fear of prosecution for being a terrorist. The Fourth Amendment claims target the unconstitutionality of the wire-taps in general because they subvert the warrant requirement imposed upon the government.

Overall, it appears that the Court may address the substantive issues involved in the case, but it is unclear which way they will decide. Clearly, the TSP runs afoul of the Fourth Amendment, but whether there is enough concrete injury to support the First Amendment claim remains dubious. Regardless, this is a case we should all keep an eye on.

Saturday, April 07, 2007

It Has Been A While...

It has been a while between posts. I am sorry for this discrepancy. I will work to correct this in the near future. Though I have reneged on some of the posts I promised, I will make this up soon, after I move into my new apartment and things settle down. Also, if anyone knows of any legal positions available in Washington, D.C., please let me know because I may be looking to make a move.

The Cost of War

Just a quick note on the costs of war. Not just any and all war, but this particular war.

On Libertarians and Conservatives

Just a note on the difference between conservatives and libertarians. At LewRockwell.com, Anthony Gregory's essay parses out the differences between "conservatives" and libertarians. It is important to point out that many conservatives are not libertarians, and that libertarianism hearkens back to notions that undergird the American Democracy from its inception. Conservatism, these days, is much more social than political. Conservatives rarely fall into the politically conservative ideology of libertarians. At the very least, this is an interesting read, even if only for the comparison between ideologies and not the social commentary of our current political state.

The Coming Implosion...

There has been some question as to legality of the Bush Administration operations in recent years, especially in the run up to recent events surrounding the Iraq War and the start of the next round of Presidential elections. It should be no surprise that some are predicting the ultimate collapse of the current Executive office. Not of the institution, but rather the administration acting as the current tenant of the office. Absent their most ardent supporters, many already consider this as one of the most flawed, if not the worst, Presidencies in history. Other revelations demonstrate that this is not entirely unfounded. We can only count the days until the winds of change sweep in and take us in a new direction.

Saturday, March 24, 2007

Something We Can All Get Behind

Finally, a bill that may actually make it through the House and Senate but not off the President's desk. I think a law that repeals the Military Commissions Act is something we can all support.

Goons and Gifties...

We all know that Judge Posner, currently sitting on the 7th Circuit, isn't a fan of several of the libertarian concepts protected by the Bill of Rights. While the Fourth Amendment is typically the object of his scorn, over the last several years it appears his focus has changed to diminishing the speech rights of students while they are in school.

The first indication that the Seventh Circuit was interested in obliterating free speech rights in schools came from the Court's decision to apply Hazelwood School Dist. v. Kuhlmeir to undergraduate students attending Governor's State University in Hosty v. Carter. This case is particularly deleterious to First Amendment freedoms because Hazelwood has never been applied to college students. This creates a new lens in the jurisprudence of student speech and devolves basic notions of free speech established by the Supreme Court in Tinker v. Des Moines School District.

More recently, the Seventh Circuit has dealt another blow to the institution of free speech in public schools. In Brandt v. Board of Education of Chicago, the Court considers whether t-shirts worn in protest can constitute speech protected by the First Amendment. More specifically, a group of gifted students, the gifties, protested the handling of an election to choose an 8th grade class t-shirt for the academic year. The students wore the shirt designed by Brandt in protest of what the group alleged constituted a rigged election. The primary question dealt with on appeal is whether the student's rights were violated, but more subtly whether they had the right to protest in the first place. On page 9 of the opinion, the Court directly questions this issue, stating:

We have our doubts whether the constitutional privilege to engage in protest demonstrations in the name of free speech extends to eighth graders.
In reality, the Court doesn't just question the rights of students to protest, but specifically proscribes such conduct when it relates to a school's administrative policy. Posner likens the protest to a protest over the choice of ketchup in the cafeteria, and ultimately concludes that the students do not have the right to protest in this manner. The implication remains that the substance of the protest would not garner First Amendment protection even though the Court does explicitly indicate that the students were really protesting the school's refusal to provide election results and/or an explanation regarding the method of counting the votes.

Absent this debasement of existing First Amendment jurisprudence, there are at least three other problems that come to mind when reading this case. First, it creates a new standard for what may be protested by students in schools and how it may be protested. Second, it supplants the Tinker decision with the vastly abused Hazelwood decision. Finally, it abstracts concepts of discretion that would result in egregious deprivations of civil liberties if applied in other contexts.

First, in discussing why no First Amendment violation occurred in this case, Posner articulates that there were other methods the students could have employed to express their discontent with the Principal's actions. While petitioning the school board was an option, going that direction would not necessarily have resulted in the students' desired result. Moreover, in the event that the alternative options of protest failed, the decision forbids this kind of student initiative to speak out against questionable administrative decisions or practices by determining that this method of protest does not constitute speech protected by the First Amendment. The worst aspect of the decision is how the Court disregards the factual parallels to Tinker. There, the students wore arm bands to protest the Vietnam War and the Supreme Court upheld the act of protest as political speech. Protesting an election held within the school may not be as grand as protesting a war, but the concept remains, and to intone that one act of protest is less than another when both deal with "political" issues takes away from the liberty interests buttressed by the First Amendment and vitiates the freedoms it stands for.

Second, the decision makes little, if any, substantive mention of the Tinker decision and relies on the concept from Hazelwood that school administrators need not tolerate expression from students that does not comport with their educational mission. This change of focus is clearly erroneous in the face of the established law surrounding free speech issues in school. Tinker stands for the general concept that "students do not leave their First Amendment rights at the school house gate." Later cases, namely Frasier and Hazelwood are modifications to this rule permitting schools to regulate speech that is obscene (Frasier) or school sponsored (Hazelwood). In this case, clearly the shirts were not offensive, nor were they school sponsored. This case falls squarely within the ambit of Tinker's control. As such, the Court's decision attempts to rely on the possibility of a disturbance to the school, the only valid reason to limit student speech per Tinker, when no disruption occurred. Moreover, the actions of the school board's emergency response team indicated that there wasn't even a threat of disruption from the "protest." Instead, the Court hangs its hat on the concept that the Principal was acting without the benefit of knowing what would happen, and should be given the discretion to make decisions regarding student speech to protect the order of the school.

This third point, which the Court relies on to crow-bar a disturbance into facts presenting only the antithesis, raises a far more damaging concept. Giving an administrator, in this case a school leader, the discretion to act in order to keep peace would fundamentally alter the concept of libertarianism enshrined in the Constitution. The idea that any leader could act preemptively to subvert a danger is not only representative of our own political climate, but demonstrates why the liberty to act is a paramount maxim of American democracy. Imagine if the President were given this kind of discretion? Every act violative of the Constitution could be easily shrugged off because the President feared danger to the Union, and no harm results from the President making a mistake that infringes rights of the people when he does it to preserve order or peace. The absurdity of the idea is enough to make one's stomach churn. In this kind of situation, where we are dealing with the Principal of a school charged with keeping order and maintaining a pedagogical environment, this kind of discretion can be equally as damaging. This is not to say that the a Principal should act to prevent serious disruptions like those of April 20, 1999, but at the same time, it should not go so far as to pervert or retard the rights retained by students when they pass onto the school house lawn or through the school house gate. If education is a pillar of Democracy, then leaders of schools and school environments should subscribe to the same standards required of leaders in a democratic society. Otherwise, we teach students that society expects docile, apathetic, and conformist behavior. The reality is students should be taught to disrupt, to think independently, and to push for change. Otherwise we will be left with the stagnant state were change is a virtual impossibility and the Constitution is little more than a husk of idealism propped up as a model of society after it has long been rendered a vestigial concept of American government.

Simply put, the Seventh Circuit has missed the mark and in so doing restricted one of the aspects of educational socialization that creates free thinking Americans. No matter how petulant the facts, this decision only aids in socializing out the concepts of liberty and fair play that undergird the Bill of Rights.

Sunday, March 18, 2007

Consequences of REAL ID

Let's take a lesson from the Brits on this one and realize that losing your passport could be the ultimate consequence of not conforming to the Real ID Act. Wake up Congress, this is a bad idea!

Absurdity, Squared...

Here is an interestingly shocking concept, a high school suspending three students for using the word vagina. I guess it would be more egregious if they weren't putting on a performance of the Vagina Monologues, at least in that case they can argue the vulgarity is for the sake of art. What really makes this transcend several levels of absurdity is that the school could easily have prevented them from putting on the show in the first place. Then they wouldn't risk permanently harming the students' records and preventing them from getting into college or graduate school. Call it just another symptom of our dumbed down society.

Friday, March 16, 2007

Quick Update...

I apologize for posts being few and far between but March has proven busy than expected. I am finally getting some time to myself lately, and will try to spend some time blogging here and there. Some personal updates before the usual politico-centric points of substance: I am finally working somewhat diligently on a novel with promise (I will post short sections here as they are finished), I have a working idea for a new academic article more as the research and ideas develop, I am still looking for a better job if anyone has an leads let me know. On to the substance.

It is nice to know that lying is a prerequisite for being the Attorney General.

Finally, a check, now maybe we can get some balance around here!

For all the Obama lovers out there, 10 things you didn't know about the Democratic Presidential hopeful.

I am still working on posts for a recent D.C. Circuit Court decision on the impact of the Military Commissions Act and habeas corpus. There is also an analysis of the NSA v. ACLU arguments at the 6th Circuit on the way as well. I know, promises promises.

Saturday, March 10, 2007

The FBI and the Law...

If you haven't heard by now, the FBI has been using the Patriot act to bend, break, and ignore the law. Essentially, the FBI is using National Security Letters to obtain sensitive personal and private information on individuals subject to their investigations. When this impacts an American citizen, the FBI side-steps the warrant requirement.

Shocking though it may be, the real story is that this all occurs with the President's rubber stamp. What is most disturbing in this equation is the President's refusal to disclose information collected by the FBI because of administrative policy construing the existence of unitary power on the part of the executive. Mr. President, you are sorely mistaken. The Constitution provides the President with very limited power to wage war, subject to the restrictions set in place by Congress. Those of us who believe in the operation of the American Constitutional tradition request you cease disregarding your oath to uphold the Constitution and participate in this representative government instead of trying to take authoritarian control of what belongs to the people.

Friday, March 09, 2007

Couple of Good/Bad Ideas?

Some Democrats in the House have proposed a law that would overturn the Habeas Corpus suspensions in the Military Commissions Act. This after the D.C. Circuit decision, it seems like the Democrats are moving quickly to prevent a disastrous vote of confidence by the Supreme Court.

The D.C. Circuit's other recent move to invalidate the D.C. weapons ban is a win for libertarians, Dick Cheney, and violent criminals alike, though not that any of them are related in any way shape or form.

Someone finally figured out what terrible abuses have been perpetrated on the American People.

So this is what happens when speech is labeled as a danger to national security.

Wednesday, February 28, 2007


If you want to keep tabs on everything going on in the legislature, check out OpenCongress.org. This site has more than you probably ever wanted to know about the goings on of our democratic republic.

Feeling Manipulated?

I know I am, especially after reading this insider info showing the elaborate rouse that is the so-called "war on terror." Wait, I thought this was our children's children's war?

Saturday, February 24, 2007

FAQ for your Constitutional Rights

This is too important not to post and something that everyone should read.

FAQ for your Constitutional Rights.

Fringe Points...

Bush is worse than Nixon.

Legislators really don't understand the way things work in the real world.

Two More Reasons NOT to go to War with Iran...

Number 1: U.S. intelligence on Iran is incorrect.

Number 2: It would piss off the Russians.

Big Brother, Privacy and Security

Network World has an blog post by Paul McNamara discussing a new political swing towards privacy rights. The story from the Times can be found here. Realistically, these notions of privacy are nothing more than a misnomer. Consider this, politicians criticize the exposure of social security numbers, but they tacitly endorse absurd invasions of our rights in the name of national security. What purpose does it serve to protect use from one another if we, or the Constitution, can't protect us from the government? Instead, lets disregard the current regime in the Hobbesian sense, reclaim the rights given to us by the fathers of our nation, and preserve the value of the Bill of Rights.

New Look, New Name...

To the regular visitors of "In the Grey," I am in the process of making some changes that will hopefully make this blog a little more aesthetically pleasing and easier to use. Ultimately, I want to move to WordPress, then to a dedicated server. I am working on a WordPress version of In the Grey as we speak. I would appreciate any comments you might have regarding content or layout.

Top Worst Idea of 2007

It is official, we have found the top worst idea to fight terrorism for the year 2007, and possibly in the history of this misguided "war". Sky Harbor Airport became the first location where the Transportation Security Administration (TSA) implemented the use of x-ray security checkpoints. Like the nifty special effect in Total Recall, the back-scatter technology allows a viewer to see through the clothing of a person in the machine, effectively seeing them naked. If there isn't a reasonable expectation of privacy when one puts on his or her clothing, we might as all walk around naked. The absurdity of allowing this kind search, even for the sake of security boggles the mind. If people don't start feeling as though the actions taken by the government, then maybe, just maybe, this will shock the conscience enough to wake even the staunchest "security-minded" individual.

Friday, February 23, 2007

Spot the Constitutional Problem

While we all knew it would happen eventually, states are now beginning to curb speech on the Internets. Can you spot the constitutional problem?

Ponder This...


The whole endeavor in Iraq is no more and no less than a grand national joke we are playing on ourselves. We're having a clownish debate over Iraq as the center of a war on terror while the actual people -- in many cases, it would seem, literally the same people -- who plotted the 9/11 attack are on the rebound. How can anyone credibly deny that if most of our ground forces and budget weren't tied down in Iraq we would be far better able to react to this genuine threat?

Congress and the War Power

This is just an update on the continuing debate over the war powers retained by Congress. Balkinization has some interesting comments on the matter.

Iraqi Oil FYI

The English version of the Iraqi Oil law can be found here. I came across this thanks to this post at Discourse.net. While I don't entirely agree with the result of this bill, insofar as it privatizes the sale in a way that will diminish the amount of profits realized by the Iraqi populace, I agree that federal control and profit sharing among the three social groups in Iraq is, at least, a good place to start.

Tuesday, February 20, 2007

Another Perspective on Big Paychecks for New Lawyers

Scott Moss of Concurring Opinions weighs in on the pay increase at big firms. Interesting.

Monday, February 19, 2007

Updating ACLU v. NSA

I have been watching this case since the Eastern District of Michigan rendered its decision several months ago. So notable, in fact, was the ruling that my paper that is currently pending publication had to be refocused to consider its impact. Unfortunately, the law looks like it is all about to change. This is a terrific overview of what has happened to date. Audio of the argument can be found here (direct download absent a browser plugin). Now you are up to speed where I am, having been out of the loop for a couple of weeks and not knowing. I am going to pick through this stuff and get back to you with a formal, though terribly late perspective, hopefully before the 6th Circuit renders their decision.

Sunday, February 18, 2007

Congress and the Iraq War, the Real Problem...

For the last couple of weeks, Congress has raged with debates over the President's proposed troop increase in Iraq. The resolution proposed serves only to evince the opinion of the Congressional majority who no longer agrees with the President's policy on waging the war in Iraq. Ultimately, this is a non-binding resolution, so while it states an opinion, it fails to really do anything substantial in a legal sense. Recently, the Senate Republicans blocked more debate on the issue after the bill made it through the House of Representatives.

Some scholars have questioned the value of having the President as the Command and Chief as opposed to an independent force working at the behest of the Executive. However, the recent floundering of the legislature calls into question the role of Congress in the operation of war. Constitutionally speaking, Congress retains considerable authority to regulate the military and the prosecution of war (see Art. I, sec. 9, cl. 12 to 16). After the passage of laws like the War Powers Resolution, Congress effectively expanded their ability to control how the President runs a war by defining the powers retained by both political branches. This leaves the question to why Congress would waste it's time with non-binding resolutions aimed at expressing an opinion, instead of enacting a law that would require a reduction of troops in Iraq, or force the President to set a definitive time table to end military operations in the middle east. Arguably this is well within the power of Congress as evinced by history and the text of the War Powers Resolution. However, the political machine seems to force the legislature to resort to non-binding resolutions of opinion instead of operative law. This seems to be the unfortunate state of American Politics. Were we not a year from Presidential primaries and just over two years from a Presidential election, the result would likely be very different. After all, with almost every major candidate comes from the Senate, absent Rudy Giuliani, and none of them want to lose the strong military vote.

In this case, we can thank the Republicans for putting an end to a pointless debate. Hopefully this will provide the Senate and the House to take a chance, and attempt to assert a bill that will make real change.

Wednesday, February 14, 2007

Elite v. Non-Elite

A small flame war has broken out on Balkinization over the economics of law schools and law firms. Starting with comments on how a new increase in base pay at the nations largest firms will yield an increase in the cost of legal education, Brian Tamanaha opened a proverbial can of worms. While his observation is sound, it did require some explanation.

School rankings add little to the legal profession. After all, we all learn the same law, at ABA accredited schools at least. I think the education I received at my non-elite law school was just as good as any of the first tier schools, and in some respects better. What is in a name? About the same as what is in a ranking. It's what you walk away with that makes a difference. Then again, this is coming from one of those people who graduated from a non-elite school, so take it with a grain of salt.

Let the Love-Fest Continue...

For Obama, that is...

This is Barack Obama's interview on 60 minutes.

Deja Vu?

Five to six years ago, the Executive branch went on a public relations blitz aimed at building support among its "core" supporters to permit the President plenary military power over prosecuting the "war on terror." Could history be repeating itself? If the inside sources close to Cheney are any indication, these fears may be realized. Even if Bush holds himself out as the decision maker, he will get a harsh reminder that the Congress plays a significant constitutional role in the march up to war. For the sake of fairness, Iranian leaders seem to think this is just shifting the blame for Iraq.

As citizens, should we let our President lead us into another fruitless war that will rage on without end tapping the limited resources of the United States both monetarily and militarily? Fundamentally, war is not the answer, especially considering that Iran is its own problems. Maybe what we really need is some good will on the part of Iranian citizens. After all, the last few days have shown us how diplomacy can yieldpositive results. In the alternative, we can continue to let the blind lead the blind.

Sunday, February 11, 2007

Lies and Mistakes...

So it turns out that the Bush Administration relied on alternative intelligence to justify invading Iraq. Not only that, the CIA disregarded all existing information when formulating a plan for the invasion. No doubt any reasonable person could see through the hype and rhetoric regurgitated by the Executive branch in the run up to the Iraq war, but now, it seems as though any hope of a successful out come has become lost. One would think that this would be enough for Congress to do America a favor and put this administration out of our misery, but they will likely spin their wheels instead. Kind of makes you wonder if the system still works. What do you think? Should a President get away with lying about the information that was available to justify preemptive military action?

It's Just a Guitar...

Prince's performance during the half time show of Super Bowl XLI can only be described as memorable, especially considering the controversy raised by accidents and malfunctions in the recent past. However, no matter how memorable and germane this year's performance may have been, some are still crying foul. What kind of hypersensitive pervert does it take to see a penis in the place of a guitar? This kind of excessive sensitivity inhibits expression, so lets propose another solution. Lighten up people, not everything is meant to be sexual, more likely than not, a guitar is a guitar.

Saturday, February 10, 2007

Redefining Rape...

The American legal system, at every level, has taken great pains to define rape in order to protect the rights and interests of a woman during the carnal act. The definition has been parsed out in advance, and everyone knows, or at least should know, that no means no from the beginning. What about mid-coitus? A California Court thinks a mid-act rescission of willingness will transform a consensual act into rape. This is an interesting conceptualization of when an act may or may not be consensual. However, at one point do we, as a society and legal system, go too far in defining what kinds of acts are criminal. That is not to say that this distinction is unnecessary, but rather that it inches over the edge of a slippery slope. Moreover, how do you adequately prosecute such a case? To what degree does prosecution become malicious? Ideally, any abuses will be counter-balanced by the heavy burden borne by the state in prosecuting criminal maters. Any ideas on this one, how do we strike a balance or will this be abused?

Its Not Often, but...

I actually agree with a republican. Who would have ever thought a true political conservative still existed in the Republican party.

Saturday, February 03, 2007

Economics, Health Care, and the Hard Choice

In most circumstances, a free market corrects itself to reach a state of equilibrium. One example is the cyclical nature of the stock and commodity markets. However, applied to a situation with more dependent circumstances, the playing field includes more risk. Some human needs cannot cope with the ebb and flow of market tides. The continuing need for health care is one example. In a capitalist system, every commodity, no matter how important to survival and wellbeing, trades at the rate of the market. Fundamentally, this means that the operation of forces beyond mere supply and demand impact the availability of a commodity even when in robust supply.

Recently, a number of Democratic law makers have argued that health care should be universally available. The President even suggested in his State of the Union Address that health care needs to be affordable and available to the public. However, the operation of the free market currently renders such a position economically inviable. The perpetual fear of lawsuits from professional negligence inexorably drive the cost of health care to increase, while decreasing the number of people to whom health care is available. This cost prohibitive operation of economics makes universal health care, under the current system, a virtual impossibility. Unfortunately, fixing the system the way current politicians propose, would not only break the system but significantly devalue the kin of care an individual would receive. Diminished care is the norm in countries with socialized health care system like Canada.

The options seem extreme. Continue on our current path and have a system that only few can afford, or devalue available care in order to make it readily available for all. The only hope is for a market correction. This could not include a forced change, though, seeing as that would result in one of the two extremes. Neither results in a state of affairs that is most beneficial to the populace. Moreover, the operation of the system would break down due to the shear weight of the bureaucracy need to support the administration of a socialized program to a large population. Therein lies the disconnect. Such a program could not survive the weight of several hundreds of millions. Socialized programs only operate efficiently in small populations capable of supporting themselves and the program.

The goal should be, then, to make health care more affordable by correcting the inequity which drives the drastic upswing in cost. This should not come through the inhibition of individual rights. Doing so would debase preexisting constitutional guarantees, sacrificing one benefit for another. The goal should be to find a solution that does not sacrifice one social benefit for another.