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!

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.

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.

And:

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.

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.

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.

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.

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.

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.