In a normal country, like say Botswana or Mongolia, modernizing a constitution is just one of those things that politicians get around to doing once in a generation or so. It’s no big deal. But then again in these countries, not run by crazy people, updating your basic legal instrument isn’t seen as a threat to national unity. Imagine sitting down with an American or Frenchman and saying, with a straight face, that if they were to attempt to amend their constitutions it would provoke a national unity crisis. They’d think you were nuts or the country in question was some third rate third world banana republic.
Our constitution complex is one of those weird quirks of the national psyche. A nation of accountants who, on the weekends, like to play Russian roulette just to take the edge off. We are a boring country, boring as a matter of principle really, but we decided that when it comes to arcane legal questions we’re willing to blow the whole place up. Just because.
Richard Anderson, “Please God No. Anything But This”, The Gods of the Copybook Headings, 2015-03-23.
March 31, 2015
October 30, 2014
Mike Masnick linked to an article in The New Yorker by Louis Menand which tries to explain the concept of copyrights, the problems of ever-extending copyright terms, and who stands on each side of the ongoing debate:
The point of Peter Baldwin’s fascinating and learned (and also repetitive and disorganized) The Copyright Wars (Princeton) is that the dispute between analog-era and digital-era notions of copyright is simply the latest installment of an argument that goes all the way back to the Statute of Anne. The argument is not really about technology, although major technological changes tend to bring it back to life. It’s about the reason for creating a right to make copies in the first place.
In the United States, the reason is stated in the Constitution. Article I gives Congress power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Copyright Act of 1790 set the length of copyright at fourteen years, renewable for another fourteen, after which the work falls into the public domain.
A right is just the flip side of a prohibition. The thinking behind Article I is that prohibiting people from copying and selling someone else’s original work is a way of encouraging the writing of useful or entertaining books, just as awarding a patent is a way of encouraging the invention of useful or enjoyable things. The prohibition operates as an incentive for the protected party. For a limited period — fourteen or twenty-eight years — authors get to enjoy the profits from sales of their books, and this prospect of reward induces people to write.
But Article I makes it clear that the ultimate beneficiary of books and inventions is the public. Copyrights are granted and patents are issued in order “to promote the Progress of Science and useful Arts.” This is why the Constitution dictates a limit on the right to make copies. After the term of protection expires, a work cannot be copyrighted again. It becomes a public good. It is thrown into the open market, which allows it to be cheaply reproduced, and this speeds the distribution of knowledge. “Intellectual property is a frail gondola that ferries innovation from the private to the public sphere, from the genius to the commons,” as Paul K. Saint-Amour, one of the leading literary scholars of copyright, elegantly describes it.
September 30, 2014
P.J. O’Rourke talks to Senator Rand Paul:
The Senator smiled and shrugged. “I never really felt like it was a problem explaining libertarian principles in practical politics. Republicans are champions of economic liberty. Democrats are champions of personal liberty. Bring the two back together.”
The Senator said, “The problem is mostly how people characterize libertarianism. But that’s changing. Libertarian has gone from being something scary to something people like as a label for themselves.”
He said, “There are different ways to get where we want to go.” And gave an example of going nowhere. “Nothing good has come out of the war on drugs.”
“What’s a different way?” I asked.
“I like the unenumerated powers.”
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. The Tenth Right in the Bill of Rights keeps us from having just nine rights.
“In The Federalist Papers,” I said, “Hamilton argued against the Bill of Rights on the grounds that government even mentioning rights like free speech implied government had some power over those rights.”
“But it’s a good thing we did write them down,” the Senator said, “otherwise we’d have nothing left.”
Senator Paul asked, not quite rhetorically, “Is this the ‘Libertarian Moment’? If so, it probably won’t come from a third party. Probably it will come from within a party.”
“From within the Democratic Party?” He didn’t seem to think it was inconceivable. “In New Hampshire,” he said, “even Democrats are against state income and sales taxes.”
But he didn’t seem to think it was likely either. “Republicans are an ideological coalition,” he said. “Democrats are a coalition of ideologies. The only thing Democrats agree on is income redistribution.”
Sen. Paul said, “Republicans have tradition on their side. It’s the American revolution versus the French Revolution.”
This was a switch – a flip-flop if you will – from Thomas Paine’s radical liberty de facto to Edmund Burke’s traditional liberty de jure. But I don’t fault the Senator. No friend of liberty can avoid the tumble back and forth between Burke and Paine.
“Tradition is a good thing,” the Senator said. “Ninety percent of Americans don’t break the law, not because there’s a law against it, but because they have a tradition of conscience. Republicans are traditional. But tradition can be boring. Libertarianism spices things up. Republicans have to either adapt, evolve, or die. They either have to water [down] their message — or extend liberty.”
August 19, 2014
I’ve posted items like this before, showing that President Obama is the least merciful president of modern times (and the only presidents less clement were Washington, Harrison, and Garfield). Now the New York Times editorial board joins the chorus:
On Jan. 20, 2009, in his last moments as president, George W. Bush gave Barack Obama a hard-earned bit of wisdom: whatever you do, he said, pick a pardon policy and stick with it.
It was sage advice, yet, more than five years later, President Obama has not heeded it. As a result, as one former pardon attorney has said, the clemency power is “the least respected and most misunderstood” power a president has. Yet it is granted explicitly by the Constitution as a crucial backstop to undo an unjust conviction or to temper unreasonably harsh punishments approved by lawmakers. It also can restore basic rights, like the right to vote, that many people lose upon being convicted.
In the past, presidents made good use of it, but as tough-on-crime policies became more popular, the number of grants fell dramatically. Judging by the numbers, Mr. Obama, who has, so far, granted just 62 clemency petitions, is the least merciful president in modern history.
Mr. Obama’s failure to wield the pardon power more forcefully is all the more frustrating when considered against the backdrop of endless accusations that he is exercising too much executive authority, sometimes — his critics say — arbitrarily if not illegally. In this case, he should take advantage of a crucial power that the Constitution unreservedly grants him.
As Jacob Sullum said, “Obama deserves credit for this amazing accomplishment: He has made Richard Nixon look like a softie.”
July 5, 2014
Shikha Dalmia says that the relatively mild pro-liberty decisions from the US Supreme Court in this session have driven progressives wild. It’s hard to justify going to DEFCON-5 over Hobby Lobby or Harris … isn’t it?
This week, the United States Supreme Court handed down two rulings that are a victory for the liberties of religion, speech, and association enshrined in the First Amendment. That ought to be cause for a double celebration on July 4. But instead, the rulings, issued on the narrowest possible grounds, constitute a victory so modest — and have elicited a response from the left so hysterical — that anyone serious about liberty can’t help but be a little depressed right now.
The case that has attracted disproportionate attention is informally known as Hobby Lobby, and it challenged ObamaCare’s contraceptive mandate. This mandate requires all for-profit companies to provide all 20 forms of birth control approved by the FDA, including pills and “abortifacients,” even though they violate the Christian (Assembly of God, to be precise) convictions of the owners of Hobby Lobby, an arts and crafts chain in Texas, who were willing to cover “only” 16.
None of this, however, prevented the left from throwing a collective hissy-fit. Social media erupted into tiresome taunts of fascism. Ann Friedman called the ruling a “blow to reproductive rights” that made her want to issue “an outraged scream, sort of a combination groan-wail…while beating my fists against the desk on either side of my laptop.” (Hey Ann, be careful: A new laptop will cost you several years’ of contraceptive pills. Generic versions sell at Costco for $25 a month.)
Such moral huffing and puffing was also on display in response to the Supreme Court’s ruling in Harris vs. Quinn. That case involved the right of family members of disabled loved ones to offer care without having their state aid garnished by public unions. Harris, a mom who was providing home care to her 25-year-old disabled son, had sued the state of Illinois for forcing her to pay dues to a government union.
But what in the name of Jimmy Hoffa does looking after her son have to do with the union?
Apparently, because she receives state subsidies for caring for her son, Illinois, along with a dozen other states, considers her a “home health care worker.” This means she must submit to the exclusive representation of a government union in collective bargaining negotiations — even though she supports neither the union nor its goals.
June 29, 2014
Mark Steyn explains why it’s not a trivial thing to allow the Internal Revenue Service to operate as the financial wing of a political party:
… we’ve had a steady stream of emails from readers explaining that this is all well and good but it’s taxable income and what I really need to do is set up a 501(c)3 or 501(c)4 or 501(c)87 or some such as a vehicle for this campaign.
To which the answer is: well, we certainly considered the possibility, and a few years ago I might have entertained the notion. But not anymore. The National Organization for Marriage, which was founded to protect the pre-revisionist definition of marriage, is, in its various arms, both a 501(c)3 and a 501(c)4. As such, its tax returns are publicly available, but not its donor lists. Nevertheless, it is obliged to report its donors on Schedule B to the Internal Revenue Service. Someone at the IRS leaked the donor lists to a man called Matthew Meisel, a gay activist in Boston. Meisel in turn passed it on to the gay group Human Rights Campaign (whose president was a national co-chair of the Obama re-election campaign), and HRC in turn published the list of donors, which was subsequently re-published by The Huffington Post.
There’s no secret about why they’d do such a thing. As we know, if you disagree with progressive orthodoxy, you have no right to host a cable-TV home-decor show or give a commencement address at an American university or be a beauty-queen contestant. But that’s not enough for these groups. If you’re not a public figure, if you’re just a Californian who puts up a yard sign or a bumper sticker on Proposition Eight, your car will be keyed and your house defaced. And likewise, if you slip a check in the mail for a modest sum, it is necessary that you also be made an example of. Brandon Eich, Richard Raddon and Scott Eckern all lost prominent positions as chief executives because of their donations. But Marjorie Christoffersen, a 67-year-old Mormon who works in the El Coyote restaurant in Los Angeles, was forced to quit because she wrote a $100 check in support of Proposition Eight.
So, when it comes to the leaking of donor lists, we’re not dealing with anything “theoretically” or “potentially” “troubling”. These guys act on this information, and act hard, and they are willing to destroy your life for a hundred bucks.
This is nothing to do with whether you support or oppose same-sex marriage. This is about whether you support free speech, public advocacy, private advocacy and ultimately — one day soon — the sanctity of the ballot box, and whether you oppose a culture of partisan thuggery.
So how did leaking the National Organization for Marriage donor lists work out for the IRS? Well, after a two-year legal battle, the Government of the United States admitted wrongdoing and agreed to settle. For $50,000.
After two years in the toilet of American “justice”, I can tell you that 50 grand barely covers your tips to the courthouse washroom attendant. It’s nothing. The IRS budget is over $11 billion, so you figure out how many organizations’ donor lists they can leak for 50K a pop while still keeping it under “Miscellaneous” in the annual breakdown. $50,000 isn’t even a slap on the wrist — and this notwithstanding that the IRS, as it has in the Lois Lerner case, obstructed and lied, almost laughably: For example, they claimed that the leak was an inadvertent error by a low-level clerk called Wendy Peters in March 2011. But in February 2011 Mr Meisel, the gay activist, was already letting it be known that he had a source who could get him the info.
As in the Lerner case, the inconsistencies and obfuscations were irrelevant. Like Ms Lerner, Mr Meisel took the Fifth. The NOM asked the Department of Justice to grant Meisel immunity so that he could be persuaded to disclose what really happened. But Eric Holder’s corrupt Justice Department had already decided it wasn’t going to investigate the matter so it had no reason to grant Meisel immunity. The Fifth Amendment, a constitutional safeguard to protect the citizen against the state in potentially criminal matters, is being creatively transformed to protect the state against the citizens in matters for which a corrupt and selective Justice Department will never bring criminal prosecution.
So, when it comes to leaking confidential taxpayer information for partisan advantage, the IRS got away with it.
June 24, 2014
The urge to provide a national (or even a global) solution to a given problem is almost always mistaken. Kevin Williamson explains why:
“How should we do x?” The main problem is not the answer, but the question itself, and the assumptions behind that question, the belief that an answer exists.
Some policies must, by their nature, be implemented at the national level. If you’re going to have a sovereign nation-state, you need a national defense apparatus (which is not to say you need our national-defense apparatus; there are alternatives), and you probably need a national immigration policy, etc. The basic architecture of the current American constitutional order, which is a remarkably wise and intelligent piece of work, contemplates national policies in those areas in which the several states interact with foreign powers and in those cases in which the states cannot coordinate efforts or resolve disputes among themselves on their own. That, along with some 18th-century anachronisms (post roads, etc.) and some awful economic superstitions (political management of trade, a political monopoly on the issuance of currency), constitutes most of what the federal government is in theory there to do. That and fighting pirates and others committing “felonies on the high seas,” of course, which is awesome, and we can all feel patriotic about fighting pirates.
But … if we look at federal programs by budget share, almost nothing that Washington does requires a national policy. There’s national defense, of course, at around 20 percent of spending; you may believe, as I do, that that number is probably too high, but national defense is a legitimate national endeavor. But most federal spending is on various entitlement programs — Social Security, Medicare, Medicaid, and various other welfare benefits. There is not much reason for any of these programs to exist at all — government is a criminally inept pension planner and a thoroughly incompetent insurance company — and there is very little reason for any of them to exist as uniform, one-size-fits-all national programs. Start digging into that non-defense discretionary spending and you end up with very little more than a catalog of crony payoffs and political favoritism.
There is no more reason to believe that a single government-run pension scheme is in each individual’s best interest than to believe that a single city or single model of car is right for everybody. And the people who design and plan these programs know that. The point of Social Security — like the point of insisting that health insurance is “a right” rather than a consumer good — is to redefine the relationship between citizen and state. That is the real rationale for a national pension scheme or a national insurance policy. For several generations now, we’ve been changing the very idea of what it means to be an American citizen. It used to mean being entitled to enjoy liberty and republican self-governance under the Constitution. Eventually, it came to mean being eligible for Social Security, functionally if not formally. Now it means being eligible for Obamacare. The name of the project may change every generation, and its totems may evolve from Bismarck to Marx to “the experts” — that legion of pointy-headed Caesars who are to be the final authority in all matters in dispute — but the dream remains the same: society as one big factory under the management of enlightened men with extraordinary powers of compulsion.
June 11, 2014
The Los Angeles Times on yesterday’s decision:
Teachers union officials denounced a ruling Tuesday by a Los Angeles County Superior Court judge deeming job protections for teachers in California as unconstitutional as a misguided attack on teachers and students.
The ruling represents a major loss for the unions and a groundbreaking win by attorneys who argued that state laws governing teacher layoffs, tenure and dismissals harm students by making them more likely to suffer from grossly ineffective instruction.
If the preliminary ruling becomes final and is upheld, the effect will be sweeping across California and possibly the nation.
Judge Rolf M. Treu ruled, in effect, that it was too easy for teachers to gain strong job protections and too difficult to dismiss those who performed poorly in the classroom. If the ruling stands, California will have to craft new rules for hiring and firing teachers.
The Silicon Valley-based group Students Matter brought the lawsuit on behalf of nine students, contending that five laws hindered the removal of ineffective teachers.
The result, attorneys for the plaintiffs said, is a workforce with thousands of “grossly ineffective” teachers, disproportionately hurting low-income and minority students. As a result, the suit argued, the laws violated California’s constitution, which provides for equal educational opportunity.
The laws were defended by the state of California and the two largest teacher unions — the California Teachers Assn. and the California Federation of Teachers. Their attorneys countered that it is not the laws but poor management that is to blame for districts’ failing to root out incompetent instructors.
April 27, 2014
Former US Supreme Court Justice John Paul Stevens has published a book in which he calls for certain amendments to the constitution, one of which is quite appealing:
1. Requiring that congressional and state legislative districts be “compact and composed of contiguous territory” to stop both parties from carving out safe seats.
US electoral districts can be particularly odd creatures. In a post from 2010, Zombie looks at the “top ten” gerrymandered districts … and they’re hard to believe. Here’s North Carolina-12, number 10 on the list:
Coming in at number 5, it’s Illinois-17:
And finally, the circa 2010 winner of the most gerrymandered district in the United States award, Illinois-4:
The kicker? Those ten are at least legal in that they’re contiguous. Zombie goes on to show some even more outrageous examples where that requirement is blatantly ignored.
In a column about Mark Steyn’s legal battles with Michael Mann, Conrad Black takes time out to revisit the overall state of the US court system:
… American justice is in a shocking condition. Too many judges in the U.S. are elected; too many are ex-prosecutors; the battle over capital punishment has taken all the air out of the room in which the infamous severity of American sentences and the unspeakable lopsidedness of prosecutorial success should be debated. This is a country that inspired the world with a vision of freedom and democracy (though Great Britain, Switzerland, much of the Netherlands, and Scandinavia were just as democratic at the time of the American Revolution). Yet the entire legal apparatus has sat like a gigantic suet pudding and the Supreme Court, in between its four-month vacations, has drunk the Kool-Aid of its own bathwater. The Fifth, Sixth, and Eighth Amendment guaranties of due process, just compensation for seizure of property, grand jury deliberations as assurance against capricious prosecution, prompt justice, access to counsel (of choice), impartial jury, and reasonable bail have been put to the shredder. The United States has six to twelve times the number of incarcerated people per capita as Australia, Canada, France, Germany, Japan, and the United Kingdom, the nearest comparable countries. Even after removing from the totals all those with unstigmatizing records irrelevant to their hireability today (DUI or disorderly conduct decades ago, for example), about 15 percent of adult males are felons.
Prosecutors win 99.5 percent of their cases, 97 percent of them without trial, because of the plea bargain system, which has often been reduced to a sleazy extortion or subornation of confected and rehearsed inculpatory testimony in exchange for immunities, including from the perjury sponsored and approved by the prosecutors. This is far from what was intended by the authors of the Bill of Rights and the original propagators of the tenuous theory that American independence was a new order of the ages and the dawn of government of, by, and for the people, vested with inalienable rights, according to self-evident truths.
Beyond all that, the American legal profession is a suffocating cartel that saps 10 percent of American GDP and through its members in legislatures and regulatory authorities adds 4,000 statutes and regulations a year to the law books, steadily tightening its strangulation of American life, all and always in the name of a society of laws and the ever more equitable refinement of civilization. It would have been impossible and unreasonable to anticipate that so perceptive and spontaneous and fearless an observer as Steyn would not steadily broaden his range of fire, as he has. At one point Steyn began filing motions on his own behalf—the best written court documents you may ever read—that drip with disdain for the judicial process. He quotes Lady MacBeth and describes various pieces of the case using phrases such as “multi-car pileup,” “zombie-like,” “Potemkin hearing” and “meretricious folderol.” It would have been equally unreasonable not to foresee that the authorities upon whom his withering fire descended would not resent this deserved if unaccustomed hostility, and whatever one may think of Mann, he cannot be faulted tactically for trying to tuck himself under the wing of an affronted legal establishment. That does not justify Mann’s infliction of the hockey stick upon the world (like the great Montreal Canadiens point-man Bernard “Boom Boom” Geoffrion lowering — with considerable but probably not sufficient provocation — the real article onto the cranium of a New York Ranger forward sixty years ago) any more than it whitewashes Mann’s own insults. He has dismissed the immensely respected Danish scientist and intellectual Bjorn Lomborg as “a career fossil fuel industry apologist”; Judith Curry, co-editor of the Encyclopedia of Atmospheric Sciences and an honored member of the National Research Council’s climate research committee, as a “serial climate disinformer”; Australian journalist Andrew Bolt as a “villainous” threat to the planet who is paid by Rupert Murdoch “to lie to the public” (Mann apologized for this one after Bolt—in solidarity with Steyn—threatened a lawsuit); and the rest of us as mere “climate change deniers.”
April 24, 2014
Published on 22 Apr 2014
“I think the Founders weren’t wary enough of democracy,” says David Harsanyi, senior editor at The Federalist and a nationally syndicated columnist. “I think there are bigger problems with it.”
Harsanyi sat down with Reason TV‘s Nick Gillespie to discuss his new book, The People Have Spoken and They Are Wrong: The Case Against Democracy, why we put too much weight on voting, and why praising democracy is just celebrating mob rule.
“Democracy’s just a process that reflects the morals and ethics of the people who vote,” he said. “It doesn’t guarantee you freedom — just check out the Gaza Strip or Egypt or anywhere else.”
April 23, 2014
In The Atlantic, Conor Friedersdorf says that a new court ruling may actually force President Obama to disclose the secret law under which he ordered the killing of at least one American citizen:
The Obama Administration has fought for years to hide its legal rationale for killing an American citizen, Anwar al-Awlaki, after putting him on a secret kill list. Citizens have an interest in knowing whether the White House follows the law, especially when the stakes are as high as ending a life without due process. President Obama has fought to ensure his legal reasoning would never be revealed, a precedent that would help future presidents to kill without accountability.
His shortsightedness is breathtaking.
Last year, U.S. District Court Judge Colleen McMahon expressed frustration that, according to her legal analysis, the Freedom of Information Act couldn’t force a disclosure. “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws,” she wrote, “while keeping the reasons for their conclusions a secret.”
Americans ought to have been alarmed that, according to a federal judge, we’re living in an “Alice in Wonderland” reality where leaders use the law to put themselves beyond the law. But no one paid much attention as The New York Times and the ACLU appealed the decision. On Monday, they won an important victory:
A federal appeals panel in Manhattan ordered the release… of key portions of a classified Justice Department memorandum that provided the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki, who intelligence officials contend had joined Al Qaeda and died in a 2011 drone strike in Yemen.
The unanimous three-judge panel, reversing a lower court decision, said the government had waived its right to keep the analysis secret in light of numerous public statements by administration officials and the Justice Department’s release of a “white paper” offering a detailed analysis of why targeted killings were legal.
April 17, 2014
I haven’t been following the situation in Nevada between the armed forces of the Bureau of Land Management and the armed citizenry in support of rancher Cliven Bundy, but while my sympathies normally go toward the individual rather than the state, this case doesn’t appear to be clear-cut (and Bundy is clearly in violation of the law to some degree). Kevin Williamson seems to be in the same general state of mind:
Deserts always feel like my natural habitat, and I am very fond of them. That being said, I have, for my sins, spent a fair amount of time in Clark County, Nev., and it is not the loveliest stretch of desert in these United States, or even in the top twelve. Protecting the pristine beauty of the sun-baked and dust-caked outskirts of Las Vegas and its charismatic fauna from grazing cattle — which the Bureau of Land Management seems to regard as an Old Testament plague — seems to me to be something less than a critical national priority. At the same time, the federal government’s fundamental responsibility, which is defending the physical security of the country, is handled with remarkable nonchalance: Millions upon millions upon millions of people have crossed our borders illegally and continue to reside within them. Cliven Bundy’s cattle are treated as trespassers, and federal agents have been dispatched to rectify that trespass; at the same time, millions of illegal aliens present within our borders are treated as an inevitability that must be accommodated. In practice, our national borders are a joke, but the borders of that arid haven upon which ambles the merry Mojave desert tortoise are sacrosanct.
The relevant facts are these: 1) Very powerful political interests in Washington insist upon the scrupulous enforcement of environmental laws, and if that diminishes the interests of private property owners, so much the better, in their view. 2) Very powerful political interests in Washington do not wish to see the scrupulous enforcement of immigration laws, and if that undercuts the bottom end of the labor market or boosts Democrats’ long-term chances in Texas, so much the better, in their view.
This isn’t the rule of law. This is the rule of narrow, parochial, self-interested political factions masquerading as the rule of law.
If we are to have the rule of law, then, by all means, let’s have the rule of law: Shut down those federal subsidies and IRS penalties in states that did not create their own exchanges under the Affordable Care Act — the law plainly does not empower the federal government to treat federal exchanges identically to state exchanges. And let’s enforce the ACA’s deadlines with the same scrupulosity with which the IRS enforces its deadlines. Let’s see Lois Lerner and a few hundred IRS employees thrown in the hole for their misappropriation of federal resources, lying to Congress, etc. — and let’s at least look into prosecuting some elected Democrats for suborning those actions. And if you want to get to the real problem with illegal immigration, let’s frog-march a few CEOs, restaurateurs, and small-time contractors off to prison for violating our immigration laws — and they can carry a GM product-safety manager and a National Highway Traffic Safety Administration executive under each arm. Let’s talk about enumerated powers.
H/T to Jon, my former virtual landlord, for the link.
March 12, 2014
In Mother Jones, David Corn shows the state of play between the Central Intelligence Agency and the senate committee that is responsible for oversight of the CIA:
Sen. Dianne Feinstein (D-Calif.), the chair of the Senate intelligence committee, took to the Senate floor and accused the CIA of spying on committee investigators tasked with probing the agency’s past use of harsh interrogation techniques (a.k.a. torture) and detention. Feinstein was responding to recent media stories reporting that the CIA had accessed computers used by intelligence committee staffers working on the committee’s investigation. The computers were set up by the CIA in a locked room in a secure facility separate from its headquarters, and CIA documents relevant to the inquiry were placed on these computers for the Senate investigators. But, it turns out, the Senate sleuths had also uncovered an internal CIA memo reviewing the interrogation program that had not been turned over by the agency. This document was far more critical of the interrogation program than the CIA’s official rebuttal to a still-classified, 6,300-page Senate intelligence committee report that slams it, and the CIA wanted to find out how the Senate investigators had gotten their mitts on this damaging memo.
The CIA’s infiltration of the Senate’s torture probe was a possible constitutional violation and perhaps a criminal one, too. The agency’s inspector general and the Justice Department have begun inquiries. And as the story recently broke, CIA sources — no names, please — told reporters that the real issue was whether the Senate investigators had hacked the CIA to obtain the internal review. Readers of the few newspaper stories on all this did not have to peer too far between the lines to discern a classic Washington battle was under way between Langley and Capitol Hill.
So here we have the person assigned the duty of guaranteeing that the intelligence establishment functions effectively and appropriately, and she cannot get information about how the CIA meddled in one of her own investigations. This is a serious breakdown. And by the way, Feinstein has still not succeeded in forcing the CIA to declassify her committee’s massive report on the interrogation and detention program.
Here is how she summed up the current state of play:
If the Senate can declassify this report, we will be able to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted. But, Mr. President, the recent actions that I have just laid out make this a defining moment for the oversight of our intelligence committee. How Congress and how this will be resolved will show whether the intelligence committee can be effective in monitoring and investigating our nation’s intelligence activities or whether our work can be thwarted by those we oversee.
What Feinstein didn’t say — but it’s surely implied — is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.
It’s apparently come to the attention of even soi disant federalists in Quebec that the rest of Canada is still taking advantage of Quebec and that concessions will be needed to begin to make amends for all our exploitation of that downtrodden province:
The leader of federalist forces in the Quebec election says Canadians from coast to coast should be prepared to make concessions to the province if there is any hope dealing once and for all with the recurring threats to national unity.
With an ascendant Parti Québécois seeking re-election and speaking bullishly about a new push for independence, angst outside of the province’s borders is noticeably higher in this election than in previous campaigns since the failed 1995 referendum on sovereignty.
The surprise candidacy for the PQ of multi-millionaire media titan Pierre Karl Péladeau, majority shareholder of Quebecor and the Sun newspaper chain, has only ratcheted up that tension, a rare across-the-board endorsement in an open letter signed by leading sovereigntists, including former PQ leaders Jacques Parizeau and Bernard Landry as well as ex-Bloc Québécois leader Gilles Duceppe.
Couillard raised the spectre of a new push for a constitutional amendment that would recognized Quebec as a “distinct” society in Canada. This after two failed attempts at Meech Lake in 1987 and Charlottetown in 1992 and the refusal of former PQ premier René Levesque to sign the repatriated Canadian Constitution in 1982.
The federal government of Prime Minister Stephen Harper has refused the idea of re-opening the Constitution to introduce an elected Senate or to set term limits for Senators. The federal Conservative leader has said repeatedly there is no willingness in the country for another heart-wrenching round of talks that, if they fail, could breathe new life into the grievances of those who want an independent Quebec.
Harper contented himself with passing a 2006 motion in the House of Commons that recognized “the Quebecois as a nation within a united Canada,” but it carries no specific obligations or responsibilities of Ottawa and affords no new powers to the province.
So, the usual debate: federalists who use the threat of separation to rewrite federalism, vs separatists who claim it would *be* federalism.
— Andrew Coyne (@acoyne) March 12, 2014
50 years of this nonsense…
— Andrew Coyne (@acoyne) March 12, 2014
I am waiting for Marois to insist that a sovereign Quebec would keep its seats in the House of Commons.
— Andrew Coyne (@acoyne) March 12, 2014
Is there a better illustration of 2 solitudes than QC Federalists thinking the ROC cares to make any more concessions? Stay, or go. Choose.
— David Mader (@DavidMader) March 12, 2014
— Damian Penny (@damianpenny) March 12, 2014
— Katewerk (@katewerk) March 12, 2014