September 12, 2013

QotD: The “never let a crisis go to waste” mentality

Filed under: Law, Liberty, Quotations, USA — Tags: , , , — Nicholas Russon @ 14:11

The lesson I remember best from my religious instruction as a youth in the Catholic church came from a nun who was explaining the ten commandments. She asked me to explain the prohibition of taking the Lord’s name in vain; I said it meant I should not curse using God’s name. She corrected me — ultimately the commandment means we should not invoke God’s name for our own power or glory or purposes rather than His own, she said.

9/11 — like every great and terrible thing and event that has ever come before it — is invoked to demand and justify a wide array of ends and prove a confusing jumble of conclusions. Many of those ends and conclusions were sought by their advocates well before 9/11. It has ever been so. People will seek power, seek prominence, seek money, seek their religious and ideological goals by invoking events — by trying, as I suggested in #4 above, to blur the line between the thing and our reaction to the thing. This has been a constant theme on this blog: the government has sought more and more power over us, and more and more limitations on our rights, by invoking 9/11, only to use those new powers to fight old fights unrelated to terrorism and to suppress things they didn’t like before 9/11. The PATRIOT ACT was an incoherent jumble of law enforcement wet dreams and wish lists, components of which had been floating about for decades. But though the government’s efforts to use 9/11 has carried the most weight, the invocations have not come only from the government — they’ve come from everywhere, left and right, seeking to use the tragedy to prove preconceptions about America and its foreign policy.

Ken White, “Ten Things I Want My Children To Learn From 9/11″, Popehat, 2011-09-11

August 22, 2013

Chinese government philosophy in the headlines

Filed under: China, Government, Media — Tags: , , — Nicholas Russon @ 12:57

Jon, my former virtual landlord, sent me this link and said “Does this sort of thing really matter any more? Aren’t all governments doing this?”

Under Tocqueville’s Influence, China Chooses Despotism
Paul A. Rahe

In the last few days, the national press has been full of reports suggesting that China’s new President, Xi Jinping, is orchestrating a revival of Maoism and a crackdown on those in China who would like to introduce within that country the procedures, practices, and institutions that distinguish the West: the rule of law, constitutionalism, freedom of the press, judicial independence, civil associations, and “universal values” – which is to say, a respect for human rights. The Wall Street Journal, which broke the story on Saturday, claims that Xi is receiving strong support from former President Jiang Zemin; and on Monday The New York Times filled in some of the details:

    Communist Party cadres have filled meeting halls around China to hear a somber, secretive warning issued by senior leaders. Power could escape their grip, they have been told, unless the party eradicates seven subversive currents coursing through Chinese society.

    These seven perils were enumerated in a memo, referred to as Document No. 9, that bears the unmistakable imprimatur of Xi Jinping, China’s new top leader. The first was “Western constitutional democracy”; others included promoting “universal values” of human rights, Western-inspired notions of media independence and civic participation, ardently pro-market “neo-liberalism,” and “nihilist” criticisms of the party’s traumatic past.

    Even as Mr. Xi has sought to prepare some reforms to expose China’s economy to stronger market forces, he has undertaken a “mass line” campaign to enforce party authority that goes beyond the party’s periodic calls for discipline. The internal warnings to cadres show that Mr. Xi’s confident public face has been accompanied by fears that the party is vulnerable to an economic slowdown, public anger about corruption and challenges from liberals impatient for political change.


The evidence now suggests the contrary — that Wang Qishan is by no means alone in his convictions, that Xi Jingpin and his lieutenants take quite seriously the possibility that China is in a pre-revolutionary situation, and that they are intent on putting a lid on everything. Where Tocqueville might have suggested that the way forward was for the country’s leaders to embrace the “seven subversive currents,” to carry out a revolution from above, and to gradually introduce into the country the rule of law, constitutionalism, freedom of the press, judicial independence, civil associations, and a respect for human rights, they have decided in this year — the 120th anniversary of Chairman Mao’s birth — to return to the path he charted more than 60 years ago.

August 20, 2013

Another reason to stick with printed books – “undownloading”

Filed under: Business, Law, Media, Technology — Tags: , , , — Nicholas Russon @ 10:22

At Techdirt, Glyn Moody has another word you need to know about those convenient ebooks you’ve been adding to your reader:

So, it seems that ebook users need to add a new word to their vocabulary: “undownloading” — what happens when you leave the authorized zone in which you may read the ebooks you paid for, and cross into the digital badlands where they are taken away like illicit items at customs. If you are lucky, you will get them back when you return to your home patch — by un-undownloading them.

What makes this tale particularly noteworthy is the way it brings together a host of really bad ideas that the publishing and distribution industries insist on deploying. There’s DRM that means you can’t make backups; there’s the country-specific usage that tries to impose physical geography on your digital ebooks; and there’s the update that spies on you and your system before deciding unilaterally to take away functionality by “undownloading” your ebooks. And copyright maximalists wonder why people turn to unauthorized downloads….

I have dozens of books stashed away on my iPhone … but they’re all public domain works. I doubt I’ll be adding any DRM-afflicted items to my library any time soon.

August 10, 2013

CBC notices social conservative group is critical of the government

Filed under: Africa, Cancon, Government — Tags: , , , , , , — Nicholas Russon @ 09:05

This is probably the most attention the CBC has paid to REAL Women of Canada since … well, ever:

REAL Women of Canada, a privately funded socially conservative group, says Foreign Affairs Minister John Baird is imposing his own views on Uganda, Kenya and Russia when he criticizes those countries for passing legislation targeting homosexuals.

The group, which describes itself as a “pro-family conservative women’s movement,” issued a press release Wednesday decrying what it called Baird’s “abuse of office” and his awarding of a $200,000 grant to “special interest groups” in Uganda and Kenya “to further his own perspective on homosexuality.”

REAL Women also lambasted Baird for admitting he worked extensively behind the scenes to persuade Russia not to pass laws restricting foreign adoption of Russian children by gay couples and cracking down on gay rights activism to control the spread of “homosexual propaganda.”

Finally, the press release states, “Mr. Baird’s actions are destructive to the conservative base in Canada and causing collateral damage to his party.”

It’s not often that the CBC can find this kind of anti-Harper criticism coming from a group they would identify as being “core” Harper supporters, so it’s not surprising they give it the full treatment it really doesn’t deserve.

H/T to Brendan McKenna for the link.

August 6, 2013

Get used to seeing the term “parallel construction”

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas Russon @ 00:01

From Zero Hedge:

Undated documents discovered by Reuters show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial.

“I have never heard of anything like this at all,” is one law professor’s response to the fact that a secretive DEA unit is funneling wiretap, informant, and telephone database information to authorities across the nation in order to launch investigations of Americans (targeting common criminals, primarily drug dealers), “It is one thing to create special rules for national security, ordinary crime is entirely different. It sounds like they are phonying up investigations.”

Agents are instructed to use “normal investigative techniques to recreate the information provided by [the secret DEA source],” and as the documents reveal — “remember that the utilization of [data] cannot be revealed or discussed in any investigative function.”

Stunningly, after an arrest was made, agents then created a “parallel construction” to suggest the information secretly gathered was stumbled up during the course of the investigation — “It’s just like laundering money — you work it backwards to make it clean.” One recently retired federal gent noted, “It was an amazing tool; our big fear was that it wouldn’t stay secret.”

August 4, 2013

New tools for the surveillance state

Filed under: Government, Liberty, USA — Tags: , , , , — Nicholas Russon @ 11:01

James Miller on token attempts to roll back the security state by local governments and other groups:

New surveillance technology lowers the barrier of effort needed to soak the productive class of the surplus fruits of its labor. From monitoring backyards to ensure taxes are being paid on swimming pools to spying on farmers who violate agricultural regulations, states across the globe are already using new spy tools to extort more loot from the greater public.

All the while, the political class gives an assurance that the technological innovation will not be abused. Newspaper editors parrot the message and paint any critic as a tinfoil hat loon who thinks Big Brother sleeps under their bed. And then there are the television intellectuals who take great joy in making flippant remarks about conspiracy theorists. Each of these personalities pictures him or herself as sitting a few ladder rungs above the horde of bumbling mass-men.

One has to be either lying or painfully ignorant to believe government will not abuse surveillance drones. State officials have rarely failed to use their capacity to terrify the populace. Just recently, journalist Glenn Greenwald and the Guardian revealed that the National Security Agency sweeps up the internet activity of all U.S. residents absent any warrants. Prior to the leak, those politicians in charge of overseeing the government’s oversight activities claimed the snooping was done in the public good and not as widespread as suspected. The new details of the program contradict the assurance, as the NSA’s spy activity is more intrusive – and prone to abuse – than originally thought.

A sterling record of misconduct is still not enough to convince enlightened thinkers and academics of the state’s propensity to terrorize. There are still a handful of civil liberty organizations calling attention to the dangers of the widespread use of surveillance drones and data gathering. But their beef is focused more on the right to privacy rather than a usurpation of basic property rights.

July 23, 2013

The rights of the mentally handicapped

Filed under: Law, Liberty, USA — Tags: , , — Nicholas Russon @ 08:35

In the Washington Post, Theresa Vargas covers the struggles of Margaret Jean “Jenny” Hatch, who is fighting a court case to be allowed to take greater control of her own fate.

It wasn’t her turn to talk, but early on during a hearing that will determine the limits of her independence, Margaret Jean Hatch stood up in a Newport News courtroom and cut the judge off in mid-sentence.

“I don’t need guardianship,” she declared. “I don’t want it.”

“Remove her from the courtroom,” the judge demanded.

“Judge, she’s very upset with this,” the woman’s attorney began.

“Don’t do it,” Hatch pleaded.

Hatch, a diminutive blonde known as “Jenny,” learned to read at the age of 6, has volunteered on political campaigns (always for Republicans) and once, after finding a job she wanted, showed up repeatedly until she got it. She also has Down syndrome, an IQ of 52 and tends to shower affection on strangers as well as friends.

The details of Jenny Hatch’s life have come under scrutiny in a complicated guardianship case that is pitting her wishes against those of her parents and testing the rights of adults with disabilities to choose how they live. The 29-year-old wants to move in with friends and continue the life she had, working at a thrift shop and riding her bike everywhere. Her parents want her to remain in a group home, supervised and protected.

H/T to Tyler Cowen, who writes:

On the basis of what I can glean from this article, I vote for Jenny [...]

This is a much-neglected issue, and not just for Down Syndrome individuals. At a time when Edward Snowden, drones, and Gitmo are leading many people to reexamine many civil liberties issues, this one ought to be put on the table as well. It needs its Radley Balko. Ask yourself a simple question: if you don’t require guardianship, and yet have been placed under the legal guardianship of another, practically speaking how strong are your rights? What chances of amendment or redress do you really have and in the meantime how can you represent yourself?

Update, 6 August: The Washington Post reports on the outcome of the case.

In a victory for the rights of adults with disabilities, a judge declared Friday that a 29-year-old woman with Down syndrome can live the life she wants, rejecting a guardianship request from her parents that would have allowed them to keep her in a group home against her will.

The ruling thrilled Jenny Hatch and her supporters, who included some of the country’s most prominent disability advocates.

“Oh my God,” Hatch said over and over again, shedding tears. “I’m so happy to go home today. I deserve it. It’s over. My God, it’s over.”


Legally, Hatch’s case came down to two questions: Was she an incapacitated adult in need of a guardian, and, if so, who would best serve in that role — her mother and stepfather, or Morris and Talbert?

But for national experts on the rights of people with disabilities, several of whom testified on Hatch’s behalf, the case was about much more. It was about an individual’s right to choose how to live and the government’s progress in providing the help needed to integrate even those with the most profound needs into the community.

In the end, Newport News Circuit Court Judge David F. Pugh said he believed that Hatch, who has an IQ of about 50, needed a guardian to help her make decisions but that he had also taken into account her preferences. He designated Morris and Talbert her temporary guardians for the next year, with the goal of ultimately helping her achieve more independence.

July 22, 2013

When is an “arrest” not really an arrest?

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas Russon @ 00:01

Answer: when you try to sue them for false arrest:

The Portland police and City Attorney are making an argument in federal court this month that gives another glimpse into the increasing claims of authority of police in our society. Scott Miller was stopped for jaywalking by Officer Dean Halley in 2010 and admitted that he committed the common violation of pedestrians. The officer however proceeded to handcuff him, tell him “you’re under arrest,” throw him into the back of a cruiser and then drove him a block away. He was in custody for about 30 minutes, but Deputy City Attorney William Manlove is arguing that citizens cannot sue because such acts do not constitute an actual arrest. They are something between a chat and custody, but not an arrest for purposes of legal action.

So, according to Portland, this constitutes just being detained and is effectively beyond any challenge of a citizen. In other words, police can routinely handcuff citizens, lock them in court and even tell them that they are under arrest without being subject to accountability for wrongful arrests.

Deputy City Attorney William Manlove insists that when Miller briefly jaywalked one morning while trying to catch a bus, he could be detained and handcuffed but not treated as an arrested person despite the express statement of the officer. It is an argument that would allow officers virtually unchecked authority in handcuffing citizens and holding them. It is the perfect authoritarian loophole and the city Portland wants to help establish it for future cases.

When Officer Friendly roughs you up, searches your car, and detains you for an indeterminate period of time, in no way does that imply that your rights have been infringed, citizen. Move along … nothing to see here.

July 17, 2013

Nonsense on stilts – Civil libertarians “caused” 9/11, so we have to curtail civil liberties

Filed under: Government, Law, Liberty, USA — Tags: , , , , — Nicholas Russon @ 13:02

While some pro-surveillance folks may be content to hint that the world is a far more dangerous place if we don’t let the NSA have access to everyone’s electronic communications, there are others willing to go a lot further:

    And so, when a law enforcement task force of the FBI found out in August of 2001 that al Qaeda had sent two dangerous operatives to the United States, it did … nothing. It was told to stand down; it could not go looking for the two al Qaeda operatives because it was on the wrong side of the wall. I believe that FBI task force would have found the hijackers — who weren’t hiding — and that the attacks could have been stopped if not for a combination of bad judgment by the FISA court (whose minimization rules were later thrown out on appeal) and a climate in which national security concerns were discounted by civil liberties advocates on both sides of the aisle.

Got that? Anyone advocating for basic civil liberties is to blame for 9/11. Holy fuck. This kind of thinking is about as anti-American as I can think of. As we’ve discussed, protecting civil liberties is at the core of the American way of life. “Give me liberty or give me death” is the phrase that Patrick Henry chose, and apparently Stewart Baker believes the American motto should be “you’re all going to die if you fight for civil liberties!” Shameful.


    Forty years later, though, we’re still finding problems with this experiment. One of them is that law changes slowly while technology changes quickly. That usually means Congress has to change the law frequently to keep up. But in the context of intelligence, it’s often hard to explain why the law needs to be changed, let alone to write meaningful limits on collection without telling our intelligence targets a lot about our collection techniques. A freewheeling and prolonged debate — and does Congress have any other kind? — will give them enough time and knowledge to move their communications away from technologies we’ve mastered and into technologies that thwart us. The result won’t be intelligence under law; it will be law without intelligence.

Basically, shut up with the debate, just let us go back to spying on fucking everyone. If we actually have to “debate” and “protect the Constitution,” some “bad guys” might talk without us knowing about it. And then we’ll all die.


He then tries to flip the whole thing around and argue that supporters of civil liberties are actually anti-technology, because they’re trying to limit the government’s use of technology. That’s ridiculous, since many of the loudest supporters of civil liberties come from the tech and innovation communities. No one thinks the government shouldn’t make efficient use of technology — but that’s very different from saying it’s okay for the government to either convince or force companies to cough up all sorts of private data on everyone or risk the wrath of the US government. That’s not a fair fight. The government has the power to compel people and companies to do things that they would not do otherwise, though I guess an extreme authoritarian like Baker either doesn’t realize this or doesn’t see it as a problem.

At the end, he makes a bunch of claims about how it’s the US government’s job to “protect” everyone — though I’d like to see where that’s laid out in the Constitution. As mentioned above, he makes some valid points that other countries are just as bad, if not worse, but that’s hardly a compelling argument, because that just allows others to flip it around, and claim that the US has no moral high ground, since it’s ignoring the civil liberties of the public — something that Baker notes he directly supports in this testimony — for some vague and impossible promises of “safety.”

July 13, 2013

Same Sex Marriage in America: What Now?

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas Russon @ 09:20

The Supreme Court’s decisions on same sex marriage are just the beginning of a long process of determining what roles marriage will play in the legal environment of states and the country. Walter Olson and Ilya Shapiro detail some of the implications of the rulings.

July 3, 2013

US public opinion on abortion has been stable for decades

Filed under: Health, Law, Media, Politics, USA — Tags: , , , , — Nicholas Russon @ 10:31

Nick Gillespie says the stability of beliefs on the topic of abortion is one of the most striking things about the whole debate:

So despite decades of polling data showing that large majorities of Americans believe abortion should be legal under some circumstances, you could be excused for thinking there are only two possible positions when it comes to terminating pregnancies: either all abortions should be allowed, or none should be.

Yet the most striking thing about attitudes toward abortion is how stable they’ve been over the 40 years since Roe v. Wade. Gallup has been tracking public sentiment on the matter since 1975, when 22 percent of Americans agreed that abortion should be illegal under any circumstances and 21 percent believed it should be legal under any circumstances. Those numbers are now 18 percent and 28 percent respectively. In 1975 54 percent believed abortion “should be legal only under certain circumstances.” The number is now 52 percent and has never gone above 61 percent or below 48 percent. Over the past 15 years, the number of Americans calling themselves “pro-life” and “pro-choice” has narrowed to a few points, with 48 percent identifying as pro-choice and 44 percent as pro-life (in 2011, those figures were basically flipped).

Official political stances on abortion are absolutely Manichaean, however, with the Republican Party and most of its leading figures stressing that life begins at conception, a belief that would outlaw virtually all abortions except those necessary to protect the health of the mother. The Democratic Party platform — and most of its highest-profile members, including President Barack Obama — “strongly and unequivocally supports” abortion at any time and for any reason during a pregnancy.

Most Americans reject such categorical, extreme views and instead offer conditional support for abortion depending on when it’s performed. Gallup found that while 61 percent of Americans think abortion for should mostly be legal in the first three months of pregnancy and 27 percent felt it should be legal in the second trimester, just 14 percent agreed it should be allowed on demand in the final three months.

Unlike their political representatives, then, Americans hold a far more nuanced view of abortion, and one that comports with the reality of the procedure. Of the roughly 1 million abortions performed a year in America, about 90 percent take place within the first 12 weeks of pregnancy and only 1 percent take place after 20 weeks (in fact, over the past decade, there has been a marked trend toward earlier abortions). That helps explain why 62 percent of Texans supported S.B. 5, the bill that Wendy Davis filibustered.

Update: You went full Satanist. Never go full Satanist:

Not that invoking Satan isn’t serious, but the response on Twitter included some great humor. A few of my favorites:

The Blaze noted:

Obviously, it is much more likely that the abortion supporters were chanting “Hail Satan!” to mock pro-lifers rather than actually hailing Lucifer, but anything is possible.

Ed Morrissey responded:

I’m certain that the intent was mockery. The overall effect of chanting “Hail Satan”? That’s another story, but one of those effects is surely clarity.

Right. Having been to Texas, I can assure you that the defense of “We were mocking Christians by invoking Satan,” might actually make things worse.

June 19, 2013

The press and Rand Paul

Filed under: Liberty, Media, Politics, USA — Tags: , , , , , — Nicholas Russon @ 11:03

In The Atlantic, Conor Friedersdorf looks at the mainstream media’s obsession with Rand Paul’s (to borrow a time-worn term from Canadian politics) “hidden agenda”:

Critiques of democracy are as old as the excesses of the Athenian variety. Here’s a classic: The unmediated masses are as capable of doing an injustice as any aristocracy or tyrant. In America, it’s acceptable to say, as shorthand, that we’re living in a Western liberal democracy. But the fact is that we live in a federal, constitutional republic, because the Framers mistrusted democracy, and the vast majority of Americans retain a great part of that mistrust. We’ve extended the franchise, amended the Constitution to permit the direct election of senators, and we’re likely to eventually abandon the electoral college and elect presidents by the popular vote. But there is broad, deep support for anti-democratic features of our system, like the Bill of Rights.

All of this is totally uncontroversial — unless it is uttered by Senator Rand Paul, the national politician most likely to evoke irrational paranoia from the political press. Serial anti-libertarian Jonathan Chait is the latest to demonstrate this truth in an unintentionally revealing item at New York.

Here’s how he begins:

    The most unusual and interesting line in Julia Ioffe’s highly interesting profile of Rand Paul is Paul’s confession, “I’m not a firm believer in democracy. It gave us Jim Crow.” Of course, that’s an awfully strange way to condemn Jim Crow, which arose in the distinctly undemocratic Apartheid South (it was no coincidence that the dismantling of Jim Crow and the granting of democratic rights to African-Americans happened simultaneously).

This is an uncharitable beginning. If a scholar of political thought said of ancient Athens, “I’m not a firm believer in democracy — it required slavery, war, or both, to subsidize the lower classes while they carried out their civic duties,” no one would think that a strange formulation — it is perfectly coherent to talk about democracy in places that didn’t extend the franchise universally, given how the term has been used and understood for two thousand years of political history.

[. . .]

What Chait did is hardly unique. In the political press, it happens again and again: libertarian leaning folks are portrayed as if they’re radical, extremist ideologues, even when they’re expressing ideas that are widely held by Americans across the political spectrum. Here is the absurd cover The New Republic chose for the issue in which the Paul profile appears:

TNR Rand Paul cover

This would seem to imply that, relative to other politicians, the guy who went on Rachel Maddow to discuss the nuances of his take on the Civil Rights Act is the one hiding his “real” self from us. Remember the conservatives who kept saying, “Obama is hiding something — he’s not one of us”? That magazine cover is what it looks like when liberals cave to a similar pathology.

June 18, 2013

Console game industry model is broken – must be patched with huge wads of customer money

Filed under: Business, Gaming, Technology — Tags: , , , , — Nicholas Russon @ 10:23

At Techdirt, Tim Cushing explains why the console gaming industry’s problems should not be “fixed” by taking away the customer’s rights:

If the current business model is unsustainable, why is that the consumer’s fault? More specifically, why are customers being pushed into giving up their “first sale” rights, along with being asked to plug the holes in the leaky business model with wads of hard-earned cash?

On top of this imposition is the assumption the current model is the only model [$200m movie, anyone?] and that mankind greatly benefits from “thousands of developers” crafting AAA titles. This is completely backward. The industry exists because of its customers, not despite them. AAA studios are not benevolent deities. They’re companies that exist because there’s a market for their products. If this market dies, so do they. If the prices are too high, customers buy elsewhere. Or not at all.

[. . .]

It’s beginning to look like a few members of the industry have been cribbing pages from the disastrous playbook of the recording industry. Raise prices. Blame customers. Bend the world to your business model. Is it only a matter of time before the gaming industry begins lobbying Congress to shut down secondhand sales?

Oh, and if the above twitrant weren’t galling enough, Cliff B. throws in a little something for those who find the online requirements of the Crossbone to be dealbreaker.

    “If you can afford high speed internet and you can’t get it where you live direct your rage at who is responsible for pipe blocking you,” he said.

Really? Maybe I’ll direct my rage at the entitled jackass who’s supporting a company’s decision to effectively limit its own market simply because it can’t live without some sort of DRM infection. And what if you can’t afford high speed internet? Well, you must be one of those people who live in the area marked “Whogivesashitland” in Cliffy’s mental map. And trust me, plenty of rage has been directed at the “pipe blockers,” but they care even less about their customer base than the area of the gaming industry Bleszinski represents.

Those interested in gutting the resale market to protect their margins are turning potential customers into enemies. If you can’t adapt, you can’t succeed. These moves being made by Microsoft (and supported by industry mouthpieces) are nothing more than attempts to subsidize an unsustainable business model by forcibly extracting the maximum toll from as many transactions as possible. The industry is not a necessity or a public good. If it’s going to make the changes it needs to survive, it needs to give up this delusion.

A brief history of Habeas Corpus

Filed under: History, Law, Liberty, USA — Tags: , , , , — Nicholas Russon @ 10:09

In Reason, Jonathan Hafetz reviews a new book by Anthony Gregory called The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror:

This tension between the ideal and the reality of habeas corpus is central to Anthony Gregory’s excellent new book, The Power of Habeas Corpus in America. Gregory, a research fellow at the Independent Institute, provides a valuable contribution to the literature on habeas corpus, one with broader implications for civil liberties, state power, and justice in a liberal democracy. The book does not attempt to capture all of the complex doctrinal shifts in habeas over the centuries. Instead, it synthesizes these developments to underscore a paradox: the way habeas serves as “both as an engine and a curb on state power.” In the process, Gregory charts how power dynamics have historically shaped struggles over habeas and its role in American society.

Gregory situates this paradox early in habeas‘ history. During the 15th and 16th centuries, habeas served mainly as a mechanism for England’s central courts to assert control over ecclesiastical courts and other rival tribunals. By demanding that reason be given why any of the king’s subjects was imprisoned, habeas helped increase the crown’s authority and legitimacy.

By the late 17th century, on the other hand, habeas had become a means of challenging royal authority itself, eventually taking on its modern incarnation as the Great Writ of Liberty. Yet even here, the story is more complex. Building on the pioneering work of historian Paul Halliday, Gregory points out that, contrary to popular interpretations, habeas‘ potential as a judicial constraint on state power was threatened by legislation. Gregory notes, for instance, how the famous Habeas Corpus Act of 1679, labeled by William Blackstone as a “second Magna Carta and stable bulwark of our liberties,” ultimately diluted the writ’s potency and flexibility by tying it down to statute. Increasingly, habeas‘ efficacy would be seen to depend on legislative action — an understanding perhaps best illustrated by U.S. Supreme Court Chief Justice John Marshall’s statement that a federal court’s power to award the writ “must be given by written law.”

[. . .]

The contradictions within habeas were manifested during antebellum America, where the writ was used both to bolster slavery and to undermine it. Slave owners employed habeas to apprehend runaways — for example, by petitioning state courts in the North to assist in apprehending their “property.” Other state courts in the North, by contrast, sometimes used habeas to free slaves or block their return to the South. Ultimately, the ability of state courts to wield habeas in defense of individual liberty was limited by Supreme Court rulings barring state interference with the enforcement of federal fugitive slave laws and, eventually, with federal detentions generally — an example of what Gregory describes as the dangers of centralization.

A significant counter to Gregory’s thesis is the role federal habeas corpus played during the 20th century in helping enforce civil rights in the South and in advancing the criminal procedure revolution undertaken by the Supreme Court to protect the rights of defendants. Gregory’s account here runs against the traditional narrative in which habeas‘ centralization was critical to its continuing role in protecting liberty. In response, Gregory cites the declining utility of federal habeas corpus following several decades of Supreme Court decisions and congressional restrictions that have made it more difficult for prisoners not merely to obtain relief but even to have their claims heard by a judge. Federal habeas, Gregory writes, has become a “shell of what it promised to be.”

June 10, 2013

Daniel Ellsberg on rolling back an “executive coup” against the US constitution

Filed under: Government, Liberty, Media, USA — Tags: , , , , , — Nicholas Russon @ 09:14

In the Guardian, Daniel Ellsberg explains why the Snowden leak is so important:

In my estimation, there has not been in American history a more important leak than Edward Snowden’s release of NSA material — and that definitely includes the Pentagon Papers 40 years ago. Snowden’s whistleblowing gives us the possibility to roll back a key part of what has amounted to an “executive coup” against the US constitution.

Since 9/11, there has been, at first secretly but increasingly openly, a revocation of the bill of rights for which this country fought over 200 years ago. In particular, the fourth and fifth amendments of the US constitution, which safeguard citizens from unwarranted intrusion by the government into their private lives, have been virtually suspended.

The government claims it has a court warrant under Fisa — but that unconstitutionally sweeping warrant is from a secret court, shielded from effective oversight, almost totally deferential to executive requests. As Russell Tice, a former National Security Agency analyst, put it: “It is a kangaroo court with a rubber stamp.”

For the president then to say that there is judicial oversight is nonsense — as is the alleged oversight function of the intelligence committees in Congress. Not for the first time — as with issues of torture, kidnapping, detention, assassination by drones and death squads — they have shown themselves to be thoroughly co-opted by the agencies they supposedly monitor. They are also black holes for information that the public needs to know.

The fact that congressional leaders were “briefed” on this and went along with it, without any open debate, hearings, staff analysis, or any real chance for effective dissent, only shows how broken the system of checks and balances is in this country.

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