Category Archives: General

Transparency No Longer* In Vogue in Democrat Controlled Congress

Gosh, it doesn’t seem like all that long ago the American public was promised hope, change, and a more open, transparent, ethical federal government if we only elected Obama the next President of the United States. Before that, in 2006 Pelosi and Co. made many of the same promises. Now the Democrats have the House, the Senate, and the White House. The “dark days” of the “most secretive administration in American history” (i.e. the Bush Administration) and the “culture of corruption” of the G.O.P. controlled congress are over…right?

As Congress lurches closer to a decision on an enormous overhaul of the American health care system, pressure is mounting on legislative leaders to make the final bill available online for citizens to read before a vote. […]

[…]

At town hall meetings across the country this past summer, the main topic was health care, but there was a strong undercurrent of anger over the way Congress rushed through passage of the stimulus, global warming and bank bailout bills without seeming to understand the consequences. The stimulus bill, for example, was 1,100 pages long and made available to Congress and the public just 13 hours before lawmakers voted on it. The bill has failed to provide the promised help to the job market, and there was outrage when it was discovered that the legislation included an amendment allowing American International Group, a bailout recipient, to give out millions in employee bonuses. […]

[…]

The [Sunlight Foundation] has begun an effort to get Congress to post bills online, for all to see, 72 hours before lawmakers vote on them.

“It would give the public a chance to really digest and understand what is in the bill,” Rosenberg said, “and communicate whether that is a good or a bad thing while there is still time to fix it.”

A similar effort is under way in Congress. Reps. Brian Baird, D-Wash., and Greg Walden, R-Ore., are circulating a petition among House lawmakers that would force a vote on the 72-hour rule.

Nearly every Republican has signed on, but the Democratic leadership is unwilling to cede control over when bills are brought to the floor for votes and are discouraging their rank and file from signing the petition. Senate Democrats voted down a similar measure last week for the health care bill.

Hope.

Change.

Transparency.

Damn…just…damn.

» Read more

Downsizing Government

Our friends at the Cato Institute, the only think tank in DC dedicate to personal and economic liberty, have launched a new site, DownsizingGovernment.org, committed to cutting waste from the federal budget.

From the press release:

The research on the site also exposes that many public outlays—though vigorously defended by the politicians who created them and the constituencies they purport to help—are remarkably ineffective at achieving their core aims.

“Some people have lofty visions about how government spending can help society,” said Chris Edwards, director of tax policy studies at the Cato Institute and the project leader for DownsizingGovernment.org. “But the essays on this website put aside such bedtime stories about how government programs are supposed to work, and instead focus on how they actually work in the real world.”

DownsizingGovernment.org is an ongoing project that launches today with detailed information on five cabinet-level agencies: Agriculture, Commerce, Education, Energy, and Housing and Urban Development. Subsequent departments will be added as they are completed in the coming months.

The site offers detailed examples of inefficiency, ineffectiveness, redundancy and corruption inside federal government agencies. It provides charts showing federal spending by department, federal aid to states and the number of subsidy programs.

You can follow Downsizing Government on Twitter @DownsizeTheFeds and you can become a fan on Facebook.

The NEA Con-Call; There’s Not Much “There” There

On August 10th, a conference call occurred, including folks from the White House, the National Endowment for the Arts, and the arts community. The purpose of the call was to “rally the troops” of artists who had spent time working for the Obama campaign, enlisting their help to push national service initiatives. The revelation of this call was the follow-up by Andrew Breitbart to the ACORN scandal, and as a fellow contributor to his “Big Hollywood” site put it, was pretty damning.

Monday, we have the NEA under the microscope. The Obama Administration was caught red-handed (is that “racist”?) funneling tax payer dollars into an official propaganda department. I can’t wait to see what the excuse will be this time.

Yeah, that’s pretty damning — if true. If there are taxpayer dollars being funneled into the arts community as a walking campaign for Barack Obama, there’s definitely something to be concerned about.

Thankfully, though, this is the internet age. Some anti-government crank in California like me can look at the transcript of the call (available here, courtesy of the very same Andrew Breitbart site), and piece together exactly what happened and what this means.

Because this is going to be a long post, let me set my thesis up front. I don’t like this call. I don’t like what it means. I view what occurred on this call as more properly being the domain of the DNC than the NEA or White House. But I don’t think any laws were broken, I don’t think this is really a walking Barack Obama campaign ad, and what was discussed on the call is not outside the mandate of the NEA.

So let’s look at the call:

Main Participants:
Mike Skolnic: Organizer of call. Independent filmmaker now Political Director for Russell Simmons, asked by United We Serve to arrange this call due to his extensive contacts within the art community.
Buffy Wicks: White House Office of Public Engagement (actual title not disclosed)
Nell Abernathy: Outreach Director for United We Serve
Yosi Sargent: Director of Communications, National Endowment For the Arts
Various artists: Mainly artists already engaged in Democratic activism, some who worked for Obama campaign.

Purpose of Call:
United We Serve is an initiative managed by the White House and the Corporation for National & Community Service, a federal agency formed in 1993 (as an outgrowth of existing agencies) to administer programs like SeniorCorps and AmeriCorps, and expanded in 2002 by George W. Bush to include USA Freedom Corps. United We Serve is an initiative looking to publicize and coordinate community and volunteer service through their Serve.gov web site. The conference call was intended to publicize this site and the United We Serve initiative to influential artists to help them further this in their communities. As such, the call was directed at furthering United We Serve primarily (although assuredly benefiting Barack Obama is a secondary benefit for the White House).

Potential Issues Raised by the Call:
There are several things that could be improper about this call, some of which I will accept and some of which I hope to dispel.

  • Using the National Endowment for the Arts, a funding arm for art and art education, in the furtherance of partisan goals of Barack Obama.
  • Similar to the above, the use of taxpayer funds for the same.
  • Direct influence of the White House Office of Public Engagement on the NEA.

So, again, we need to look at the transcript of the call to hash a lot of this out, because looking at the purpose of the call as I state it above compared to the potential issues raised by the call leaves a lot of room for subtlety and nuance. So if you didn’t click over already, I suggest you read the transcript itself. The advantage of the internet tends to be great access to primary sources, and you do well to make yourself familiar with them before forming a full opinion.

So let’s dispel a few things right up front.

Are taxpayer funds being used?
As far as I can tell, no. There was never a single mention that I could find in the transcript of offer or even discussion of the NEA providing grants or funds for these programs. It was rather one-sided, inasmuch the artists were pretty much told “you’ve shown previously that you care about X, here are some ways that YOU can help make X happen in your community and how Serve.gov will help you do so.”

Is this about partisan legislative efforts and Barack Obama’s agenda?
Again, no. The topic of the call was community service and volunteerism, and the furtherance of Serve.gov rather than legislation. A question was asked by one of the artists at the very end of the call regarding Organizing for America, and Nell Abernathy on the call very expressly stated that the two groups are different, unrelated, and that United We Serve has no intention of using the assistance of the artists for anything other than the furthering of community service and volunteerism. It was left by Nell along the lines of ‘the most I can do is tell you who to contact at OFA, but that’s a ball they need to run with.’

Alternatively, the language from Mike Skolnic (who, as he points out, is not employed by the government) was a bit more open. But I think it was clear that he was speaking not as a voice of United We Serve, the NEA, or the Office of Public Engagement when he made his statements in this manner.

Is the White House exerting partisan pressure on the NEA?
This, again, I don’t really see. It is clear that the NEA is signing up to help United We Serve, but the implications of that are far more interesting.

This is an excerpt (some portions cut to remove unnecessary language) from Yosi Sargent’s portion of the talk. It immediately suggested to me that the NEA was overreaching its mandate to further the arts and art education. The language here is arguably the most objectionable of the entire call (emphasis added):

This is what we fought for. We fought for a chance to be at the table and not only at the table but we’re setting the table. And now the official rule of National Endowment for the Arts, as director of communication and say, We here at the NEA are extremely proud to participate in the president’s United We Serve initiative.

This is a chance for us to partner with the White House and the corporation for national community service along the arts community in immediately affecting some change in our communities.

Really I want to emphasize, and I know that other people have brought it up already, but I want to just hearken back to it really quickly in that this is just the beginning. This is the first telephone call of a brand new conversation. We are just now learning how to really bring this community together to speak with the government. What that looks like legally, we’re still trying to figure out the laws of putting government Web sites on Facebook and the use of Twitter.

This is all being sorted out. We are participating in history as it’s being made. So bear with us as we learn the language so that we can speak to each other safely and we can really work together to move the needle and to get stuff done.

He is quite clearly saying that the NEA is excited to be joining in a partnership with United We Serve and the Corporation for National & Community Service. He is clearly saying that the NEA will be working not just to promote the arts, but to promote actual Federal government programs outside the arts.

Now, this seems to go beyond the NEA’s mandate as explained in their “About Us” page:

The National Endowment for the Arts is a public agency dedicated to supporting excellence in the arts, both new and established; bringing the arts to all Americans; and providing leadership in arts education. Established by Congress in 1965 as an independent agency of the federal government, the Endowment is the nation’s largest annual funder of the arts, bringing great art to all 50 states, including rural areas, inner cities, and military bases.

You see, nothing there says that they should be serving the government’s agenda. Their mandate, according to this very short blurb, is to promote the ARTS, not the government. So, on its face, it appears that the NEA will be going too far…

…but that doesn’t take into account the legislation forming the NEA (PDF), and what mission it was truly tasked with. From Title 20 U.S.C. § 954:

(o) Correlation and development of endowment programs with other Federal and non-Federal programs; expenditure of appropriations. The Chairperson shall correlate the programs of the National Endowment for the Arts insofar as practicable, with existing Federal programs and with those undertaken by other public agencies or private groups, and shall develop the programs of the Endowment with due regard to the contribution to the objectives of this Act which can be made by other Federal agencies under existing programs. The Chairperson may enter into interagency agreements to promote or assist with the arts-related activities of other Federal agencies, on a reimbursable or nonreimbursable basis, and may use funds authorized to be appropriated for the purposes of subsection (c) for the costs of such activities.

What does this mean? The Corporation for National & Community Service is a federal agency, and United We Serve is a portion of that agency that may need arts-related activities. Thus, the National Endowment of the Arts, per the actual founding legislation created by Congress, is well within its authority to use its power, through funding or without funding, to help United We Serve achieve its goals. The NEA is not overstepping its bounds here. Those bounds may be farther out than we realized, but there’s nothing I see that suggests they cannot be doing this.

Now, as a libertarian, I don’t expect myself or most conservatives to like what was discussed on this call. There are reasons to object, largely based on the appearance of impropriety and the fact that the government views these artists as vessels to promote its agenda. There’s a fundamental view of the relationship between the government and its citizens that I believe gets confused. This administration seems to see a path to self-actualization for all Americans through collectivism organized by government. But I don’t see this as anything different, new, or particularly “damning” knowing what we already know about this administration. This is certainly less of a “gotcha” than the ACORN tapes, in factual terms, but I suspect that if you listen to the Glenn Becks of the world, they’ll make a mountain out of a molehill.

The ACORN Tapes

I’m about to write a very long-winded post on the story that dropped from Breitbart on the NEA “scandal”, and in doing so, I need to clear the air about ACORN. When the ACORN tapes hit the street, I considered posting about it.

My initial reaction was this:

1) I’m a libertarian. In my world, prostitution would be legal.
2) I’m a libertarian. In my world, the IRS would be illegal.

Thus, I wasn’t all that up in arms about an organization advising someone on how to hide the proceeds of a prostitution business from the IRS. In fact, I was a bit jealous — nobody exists to help me hide MY legal income from the IRS! Who’s gonna help out us engineers?!

But, then I started to actually dig into the story, and there were two additional bits of information that pushed me to the other side of the fence:

3) ACORN was advising these folks on how to bring in underage girls from overseas to work as prostitutes. Libertarianism doesn’t quite extend to human child sex trafficking.
4) ACORN is an organization that I learned is significantly funded by the government. I’m against government funding of most things, but I’m particularly against government funding of groups which are working very hard to advise people how to break the law.

So I’m pretty glad to see that ACORN got what was already likely coming to them, in the form of public ridicule and scorn and being tossed off the public dole. Advising someone on how to hide the fact that you’re bringing in foreign children to work as whores is despicable, and ACORN should be ashamed for what their employees did on those tapes.

Republicans Were Against Big Government Before The Election, Too.

Apparently, the Obama administration is learning that calling a large percentage of the American people racist wackos isn’t a very good idea: it cheapens the terms, which carry more charge if applied to Stormfront and the birthers, respectively. Obama on Leno last night (text via LA Times) suggested that maybe people are opposing him because that’s what the opposition in politics does, not because he’s black:

Asked about Jimmy Carter’s charge that opposition to Obama health care reform is rooted in racism, Obama said, “I was actually black before the election.” Attributing the criticism to the heat of the issues, the president noted that FDR was reviled as a socialist, Ronald Reagan as a reactionary.

“This is not untypical,” he said. “One of the things you sign up for in politics is folks yell at you.”

So let’s go through one other charge. Some say that Obama is being called a socialist because he’s black. That’s patently false. He’s being called a socialist because he’s a Democrat. Want some evidence? See this [fairly socialist] ad from Hillary’s campaign, which was widely pilloried on the right (and here at TLP):

And, speaking of some wackos, let’s take a quick look at some choice responses in the comments from the freepers after the ad dropped (after the fold):
» Read more

H.R. 3311 is an oxymoron

Democratic Congressman Earl Blumenauer is seeking to inflict yet another tax on the American people. This one, though, is far more insidious than the average tax thought up by Congress:

The “Road User Fee Pilot Project” would be administered by the US Treasury Department. This agency in turn would issue millions in taxpayer-backed grants to well-connected commercial manufacturers of tolling equipment to help develop the required technology. Within eighteen months of the measure’s passage, the department would file an initial report outlining the best methods for adopting the new federal transportation tax.

So, why is it an oxymoron? Here’s the offending passage from Blumenauer’s legislation:

(3) EVALUATION OF METHODS AND TECH-
NOLOGIES.—Technologies and methods tested under
the Road User Fee Pilot Project shall be evaluated
on the basis of—

(A) protection of personal privacy,

- H.R. 3311

Blumenauer calls the Oregon experiment on this subject a success:

“Oregon has successfully tested a Vehicle Miles Traveled (VMT) fee, and it is time to expand and test the VMT program across the country,” Blumenauer said in a statement on the bill’s introduction. “A VMT system can better assess fees based on use of our roads and bridges, as well as during times of peak congestion, than a fee based on fuel consumption. It is time to get creative and find smart ways to rebuild and renew America’s deteriorating infrastructure.”

In January, I posted here on the same Oregon experiment:

[T]he device must be receiving precise positional data as an input from its GPS unit. It must also have a clock set to the real time and date as an input. This means that the device is getting data on the exact position of the vehicle at any moment, and that the control software is only storing certain datapoints based on this. This is an adequate privacy safeguard, right? Probably not.

Imagine this scenario: You’re driving a car with one of these GPS devices at the leisurely clip of 60 MPH on the highway leading into Klamath Falls. Like all highways in Oregon, the limit is still 55 MPH. A cop catches you going over the limit and pulls you over. You go through the normal rigmarole with him, except this time he checks your GPS devices and finds out that you’ve exceeded 55 MPH in the state of Oregon 22 times since the device was last read. You leave this encounter with 22 speeding tickets instead of one.

That scenario is possible with the hardware described in the device and minimal changes in the software. Only the good will of the Oregon state government is keeping it from being so. Should Oregonians really rely on that alone to protect their privacy?

The same holds true of Blumenauer’s proposal. To accomplish its stated goals, the technology must be designed in such a way that it either keeps a complete and total record of one’s driving or can be modified to do so. If Blumenauer’s proposal becomes law, each and every vehicle in the US will have a device carrying data about the habits of its drivers.

Even if we operate under the foolish assumption that the devices will, through their lifetimes, only be readable by those authorized to read them, they still pose a massive threat to privacy. There will exist a massive data set on each vehicle, tied by name to the owner. Such data sets are prime targets for “creative use” by miscreants both within government and outside it.

When one takes into account the exposure to cracking the Oregon model presents with readers in every gas station across the country and devices in every car, the idea that the content of these will remain secret to all but the government becomes ludicrous. The model presents the same problem as cell phone encryption. Once a security measure is cracked and vulnerable, how does one go about updating millions of pieces of hardware scattered over thousands of miles? If the devices’ security can be updated remotely, then malware can be inserted. If the devices’ security cannot be updated, then the device must be replaced every time the system is sufficiently compromised.

So, how does this bill meet its own requirement of protecting privacy? To abide by the quoted section of H.R. 3311, the researchers commissioned for the study must recommend that the other goals of the bill not be pursued. Of course, considering the bill’s intent is to find a way to track our cars, the people studying this issue are highly unlikely to issue such a recommendation, instead saying that the good graces of Washington and the presumed integrity of the security measures will be enough to keep our privacy intact. Like so much of what emanates from Congress, that will be pure bull****.

Quote of the Day

From former GAO head David Walker in the WSJ:

Mr. Walker’s own speeches are vivid and clear. “We have four deficits: a budget deficit, a savings deficit, a value-of-the-dollar deficit and a leadership deficit,” he tells one group. “We are treating the symptoms of those deficits, but not the disease.”

Remember, this is from someone who has seen the books of the Federal Government.

Open Thread – Government Debt

From the Treasury, as of Tuesday 9/1:

Total US Debt: 11,792,918,170,836.43
——————————–
Debt Held By The Public: 7,481,218,854,095.12
Intragovernmental Holdings: 4,311,699,316,741.31

Debt held by the “public” includes anything not held by other government agencies. I.e. this is t-bills sold to individuals, corporations, foreign individuals and even foreign governments or sovereign wealth funds.

Intragovernmental holdings a money the government owes the government, such as the social security trust fund.

I contend that the ONLY meaningful number is debt held by the public.

Tell me why I’m wrong.

All I Have to Say About Ted Kennedy

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Real Solutions for Health Care, Part I – The Problem

If one looks at Barack Obama’s principles for health care, the basic ideas are right. His three principles are:

  • Reduce Costs
  • Guarantee Choice
  • Ensure Quality Care for All

Unfortunately, the health care measures the president is backing shows he clearly doesn’t understand the main problem with American health care.

In America today, doctors rarely answer to patients. Instead, they answer to layers of faceless bureaucracy that ultimately answer to either employers or politicians. This makes doctors unresponsive to patient needs and results in ham-fisted results to control costs like senseless denials from private insurers and underpayments by government health care programs.

This system also presents a clear incentives for patients to get as much as they can without regard to cost. Since costs are borne by insurers and the government, the patient seeking treatment is shielded from them and have no incentive to seek only the treatment they need. In addition, they are further spurred to get “their share” by being set up as adversaries of insurance companies, employers, and the government.

The result of this incentive structure is a completely dysfunctional price system in health care. In a functioning price system, buyer and seller are competing for opposite purposes. The buyer wants to get the most product for the least money, while the seller wants to deliver the least product for the most money. When the price system is working, these incentives balance each other out and prices are controlled.

In health care, insurers-both private and government-try to deliver coverage as cheaply as possible without regard to quality because that’s what their masters want. Patients try to get as much value from their insurers without regard to cost. The result of these crossed incentives is a health care system that doesn’t meet the needs of patients while becoming ever more expensive.

Barack Obama’s health care plan does nothing to change this, and in fact goes to great lengths to make this incentive structure inescapable. Barack Obama, like many before him, is proceeding with good intentions but a poor understanding of what he’s trying to fix. The result is a health care plan that takes our problems and apply them to everyone.

Coming soon: Part II – Divorcing Health Care from Employment

SCOTUS: No Constitutional Right for DNA Testing Post-Conviction

Last week in District Attorney’s Office for the Third Judicial District et. al. v. Osborne the U.S. Supreme Court ruled 5-4 that convicts have no Constitutional right to DNA testing even if such testing would conclusively determine the guilt or innocence of the convict. In this particular case, William Osborne was willing to pay for the DNA test at his own expense but the DA’s office refused to allow Osborne to have access to the sample. Roberts, writing for the court’s majority joined by Thomas, and Scalia, ruled against Osborne because of lack of legal precedents and that Osborne did not avail himself of the available evidence and technological advances at the time of trial. Alito with Kennedy joining wrote a concurring opinion in which Alito worried that allowing Osborne to have access to his DNA sample would flood the criminal justice system with demands that more DNA evidence be preserved. Both opinions stressed that the domain for making guidelines for DNA preservation and testing would better be handled by state legislatures rather than the federal courts.

First, some excerpts from Justice Roberts:

A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man. At trial, the defendant is presumed innocent and may demand that the government prove its case beyond reasonable doubt. But “[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.” Herrera v. Collins, 506 U. S. 390, 399 (1993). “Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.” Dumschat, supra, at 464 (internal quotation marks and alterations omitted). (p. 15)

Osborne seeks access to state evidence so that he can apply new DNA-testing technology that might prove him innocent. There is no long history of such a right, and “[t]he mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U. S. 292, 303 (1993). (p. 19)

Establishing a freestanding right to access DNA evidence for testing would force us to act as policy makers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. Cf. Arizona v. Youngblood, 488 U. S. 51, 56–58 (1988). If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives. See, e.g., Harvey v. Horan, 285 F. 3d 298, 300–301 (CA4 2002) (Wilkinson, C. J., concurring in denial of rehearing).

In this case, the evidence has already been gathered and preserved, but if we extend substantive due process to this area, these questions would be before us in short order, and it is hard to imagine what tools federal courts would use to answer them. At the end of the day, there is no reason to suppose that their answers to these questions would be any better than those of state courts and legislatures, and good reason to suspect the opposite. See Collins, supra, at 125; Glucksberg, supra, at 720.” (p. 20 & 21)

I think Roberts is making this issue more complicated than necessary. As he points out, the evidence has been preserved. There is no need to get into “policy making” to say that the DA must allow Osborne access to the sample that the DA physically possesses. And even if the presumption of innocence disappears and the burden of proof falls on Osborne to prove his innocence, how can he possibly attempt to do so without having the sample?

Now an except from Alito:

Respondent was convicted for a brutal sexual assault. At trial, the defense declined to have DNA testing done on a semen sample found at the scene of the crime. Defense counsel explained that this decision was made based on fear that the testing would provide further evidence of respondent’s guilt. After conviction, in an unsuccessful attempt to obtain parole, respondent confessed in detail to the crime. Now, respondent claims that he has a federal constitutional right to test the sample and that he can go directly to federal court to obtain this relief without giving the Alaska courts a full opportunity to consider his claim […]

[…]

[E]ven though respondent did not exhaust his state remedies, his claim may be rejected on the merits, see §2254(b)(2), because a defendant who declines the opportunity to perform DNA testing at trial for tactical reasons has no constitutional right to perform such testing after conviction.” (p. 1 & 2)

Stevens in his dissent (joined by Ginsburg and Breyer; Souter filed a concurring opinion) responded to the majority opinion as follows:

The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all. (p. 1)

The liberty protected by the Due Process Clause is not a creation of the Bill of Rights. Indeed, our Nation has long recognized that the liberty safeguarded by the Constitution has far deeper roots. See Declaration of Independence¶2 (holding it self-evident that “all men are. . . endowed by their Creator with certain unalienable Rights,” among which are “Life, Liberty, and the pursuit of Happiness”);see also Meachum v. Fano, 427 U. S. 215, 230 (1976) (STEVENS, J., dissenting). The “most elemental” of the liberties protected by the Due Process Clause is “the interest in being free from physical detention by one’s own government.” Hamdi v. Rumsfeld, 542 U. S. 507, 529 (2004) (plurality opinion); see Foucha v. Louisiana, 504 U. S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause”).

Although a valid criminal conviction justifies punitive detention, it does not entirely eliminate the liberty interests of convicted persons. For while a prisoner’s “rights may be diminished by the needs and exigencies of the institutional environment[,] . . . [t]here is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U. S. 539, 555–556 (1974); Shaw v. Murphy, 532 U. S. 223, 228–229 (2001) (“[I]ncarceration does not divest prisoners of all constitutional protections”). Our cases have recognized protected interests in a variety of post conviction contexts, extending substantive constitutional protections to state prisoners on the premise that the Due Process Clause of the Fourteenth Amendment requires States to respect certain fundamental liberties in the post conviction context. See, e.g., Thornburgh v. Abbott, 490 U. S. 401, 407 (p. 7 & 8)

Wow, if I didn’t know any better, I would think Stevens was of a libertarian or Lockean ideology because I think he is spot on in this case. There are times whenever “judicial activism” is necessary whenever state legislatures fail to uphold due process and other Constitutional protections.

Stevens continues:

The fact that nearly all the States have now recognized some post conviction right to DNA evidence makes it more, not less, appropriate to recognize a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court. (p. 9)

Throughout the course of state and federal litigation, the State has failed to provide any concrete reason for denying Osborne the DNA testing he seeks, and none is apparent. Because Osborne has offered to pay for the tests, cost is not a factor. And as the State now concedes, there is no reason to doubt that such testing would provide conclusive confirmation of Osborne’s guilt or revelation of his innocence.7 In the courts below, the State refused to provide an explanation for its refusal to permit testing of the evidence, see Brief for Respondent 33, and in this Court, its explanation has been, at best, unclear. Insofar as the State has articulated any reason at all, it appears to be a generalized interest in protecting the finality of the judgment of conviction from any possible future attacks. See Brief for Petitioners 18, 50.8 (p. 11)

In other words, if the state properly convicted the right person, what is the state so afraid of?

It seems to me obvious that if a wrongly convicted person were to produce proof of his actual innocence, no state interest would be sufficient to justify his continued punitive detention. If such proof can be readily obtained without imposing a significant burden on the State, a refusal to provide access to such evidence is wholly unjustified. (p. 13)

It’s really is too bad that Stevens’ opinion did not carry the day. It’s also too bad that Osborne was the test case for this very important issue (Osborne is not what most might consider a sympathetic person; even if he was proven innocent of these charges, he faces other charges unrelated to this case). It doesn’t seem right that the Supreme Court would allow the state to withhold exculpatory evidence which would lead to the truth. Isn’t getting to the truth the point of our criminal justice system?

Or Else We Will Be Very, Very Angry With You!

Apparently the UN has said it has the right to stop any North Korean ship suspected of smuggling arms. Or, not really… We have the right to ASK them to stop. And if they don’t stop, they will be in deep trouble with the UN. How deep? They might be angry and write a letter pass a resolution!

Caution: Language NSFW

As Bruce from QandO asks:

Reading this carefully, it seems the UN has authorized them to “query” a NoKo ship and ask to inspect it. NoKo can say “no”. If NoKo says no, we can demand they go to the nearest port for inspection. But again, all the NoKo ship has to do is say “no” and that ends it. Result: Strong report sent to UN. Sounds more like punishment for those who have to fill out the report to the UN than NoKo.

Where else in the universe are such steps considered “tough” besides the UN?

So you’re on notice, Kim Jong Il. Instruct your ships to stop when asked. If you don’t, we will be very, very angry with you.

Barbara Boxer is the One Who Needs the Etiquette Lessons

This behavior on the part of Barbara Boxer* would be appalling if the comments were directed at a regular citizen at a town hall meeting much less a decorated general in a Senate hearing! She “worked so hard” to earn this title? What did she have to do to “earn” this title vs. what General Walsh had to do to earn his?

This woman isn’t even worthy of shining the general’s shoes. What a bitch.

» Read more

Some Thoughts About the Iranian Demonstrations

Christopher Hitchens has a must read article about the Iranian “elections” that saw the “reelection” of Mahmoud Ahmadinejad as “President”.

Iran and its citizens are considered by the Shiite theocracy to be the private property of the anointed mullahs. This totalitarian idea was originally based on a piece of religious quackery promulgated by the late Ayatollah Ruhollah Khomeini and known as velayat-e faqui. Under the terms of this edict—which originally placed the clerics in charge of the lives and property of orphans, the indigent, and the insane—the entire population is now declared to be a childlike ward of the black-robed state. Thus any voting exercise is, by definition, over before it has begun, because the all-powerful Islamic Guardian Council determines well in advance who may or may not “run.” Any newspaper referring to the subsequent proceedings as an election, sometimes complete with rallies, polls, counts, and all the rest of it, is the cause of helpless laughter among the ayatollahs. (“They fell for it? But it’s too easy!”) Shame on all those media outlets that have been complicit in this dirty lie all last week. And shame also on our pathetic secretary of state, who said that she hoped that “the genuine will and desire” of the people of Iran would be reflected in the outcome. Surely she knows that any such contingency was deliberately forestalled to begin with.

In theory, the first choice of the ayatollahs might not actually “win,” and there could even be divisions among the Islamic Guardian Council as to who constitutes the best nominee. Secondary as that is, it can still lead to rancor. After all, corrupt systems are still subject to fraud. This, like hypocrisy, is the compliment that vice pays to virtue. With near-incredible brutishness and cruelty, then, the guardians moved to cut off cell-phone and text-message networks that might give even an impression of fairness and announced though their storm-troop “revolutionary guards” that only one form of voting had divine sanction. (“The miraculous hand of God,” announced Supreme Leader Ali Khamenei, had been present in the polling places and had announced a result before many people had even finished voting. He says that sort of thing all the time.)

The whole election process in Iran is a farce. The President of Iran has little power, instead the “Supreme Leader” has most of the power in the country.

The Islamic Republic of Iran has proven throughout its existence to be the enemy of the civilized world with its repression of women, religious minorities, homosexuals, among others at home; and its support for international terrorism and warmongering abroad.

These demonstrations we’re seeing, which began in an attempt to “reform” this vile and inherently evil form of government, may instead see what the demonstrations that returned Gorbachev to power in 1991 in the Soviet Union started as an attempt to “reform” Soviet Communism. Instead, the 1991 coup and its aftermath led the final destruction of the Soviet Union.

Meanwhile, some of the best coverage of the “Green Revolution” is right now on Andrew Sullivan and enjoy a roundup from Michael Moynihan at Hit and Run.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ Review.com and Rare. You can also find me over at the R Street Institute.

Quote of the Day: Sotomayor’s “Pro-State Bias” Edition

This article in The Boston Globe about Sonia Sotomayor ought to delight “tough on crime” conservatives and cause great concern for civil libertarians of all stripes. Prosecutors and law enforcement organizations give her high marks for her “aggressiveness” both as a prosecutor and as a judge.

One quote from the article stood out and seems to support what I wrote about her in a post I wrote last week:

“[Sotomayor] certainly doesn’t seem to have a pro-criminal bias and, if anything, because of her history, may have a pro-state bias.” – Law Professor and Sentencing Expert Doug Berman

I take exception to the “pro-criminal” part of the quote because in our system (at least in theory), individuals are innocent until proven guilty. Beyond this, I am troubled that a nominee for the Supreme Court would show a detectable bias toward either toward the prosecution or the defense. The only bias a judge should have should be toward the Constitution (the Bill of Rights in-particular).

This is one bias Judge Sotomayor appears not to have.

Comment of the Day: A Welcome Voice from Liberty Papers Past

Re: Mancow gets waterboarded

It’s always a treat to hear from Eric, the founder of The Liberty Papers. Its comments like this one which make me miss his “grumbles.” This comment was in response to a discussion sparked by Stephen Gordon’s post concerning waterboarding:

Interesting discussion. Chris has a very valid point about altering the meaning of the language. He also points out that waterboarding is a form of coercion and that coercion should not be used on prisoners. But, in the heated and traumatic rejection of his assertions about what torture is, the more important point he makes is lost.

The point is, coercive interrogation is wrong to do to someone who we hold prisoner. Chris said that loud and clear, but folks are so incensed that he might not agree that something is torture that they miss the fundamentally more important point. Another fundamentally important issue, if you believe in The Rule of Law, is that we don’t have clear laws on what to do with terrorist combatants and that poses a problem. One of the keys to solving the problems of piracy in the 17th and 18th centuries was to promulgate clear, consistent, logically and legally sound laws and regulations for dealing with pirates.

We don’t have that for terrorists today, and that’s a problem.

P.S. adding to the point about use of language. We used to know that torture meant causing permanent injury to someone. When we talked about the police giving someone the “third degree”, it meant physically injuring someone to coerce them to do something. The reason we said “third degree” is that there were three levels of Inquisition used during the Catholic Inquisition.

1st Degree – Discussing the crimes someone is accused of and informing them that stronger methods of inquisition can be used if they don’t cooperate

2nd Degree – Showing the accused person the methods that can be used, like racks, knives, flails and other implements of torture

3rd Degree – Actually using those implements on the accused person, i.e. the Third Degree of Inquisition.

So, the very tortured definitions of torture that folks are trying to come up are actually changing the meanings of the language in ways that support the individual’s position. This is something that Orwell argued strenuously against and that most “libertarians” argue against, as well. Except, it seems, when being for it supports their personal beliefs.

Causing PTSD does not automatically make something torture. PTSD can be caused by a car accident, by seeing your sibling die, by participating in violent combat and many other things. None of which are “torture”. I suggest that we should return to the traditional definition that doing things which would be considered “the third degree” is torture. Let’s use the language right. AND we can still agree that things which are not torture, but are inhumane or coercive, or both, are wrong for US interrogators to do to our prisoners.

Comment by Eric — June 5, 2009 @ 8:24 am

Liberty Rock Friday: Another Brick in the Wall, Part II by Pink Floyd

This is one of my all-time favorites. To truly appreciate the message, one needs to see the video (below).

Pink Floyd
Another Brick in the Wall, Part II
The Wall (1979)

By Roger Waters

We don’t need no education
We dont need no thought control
No dark sarcasm in the classroom
Teachers leave them kids alone
Hey! Teachers! Leave them kids alone!
All in all it’s just another brick in the wall.
All in all you’re just another brick in the wall.

We don’t need no education
We dont need no thought control
No dark sarcasm in the classroom
Teachers leave them kids alone
Hey! Teachers! Leave them kids alone!
All in all it’s just another brick in the wall.
All in all you’re just another brick in the wall.

“Wrong, Do it again!”
“If you don’t eat yer meat, you can’t have any pudding. How can you
have any pudding if you don’t eat yer meat?”
“You! Yes, you behind the bikesheds, stand still laddy!”

Sonia Sotomayor: Endorsed by The Badge Worshippers and Law Enforcement Bootlickers of America

Those who are of the badge worshipping and law enforcement bootlicking persuasion might assume that Judge Sonia Sotomayor may not have much to offer them as a Supreme Court Justice until they take a look at her record on the 2nd Circuit. As it turns out, Sotomayor has quite an authoritarian streak. It seems that when the powers that be are challenged by an ordinary individual, Sotomayor’s empathy seems to be with those who are employed by the government (and the facts of the circumstance be damned!).

Emily Bazelon writing for Slate warns those who are inclined to support Obama’s nominee: “Liberals, be careful what you wish for.”

The case which concerns Bazelon following her warning in Jocks v. Tavernier illustrates Sotomayor’s badge worshipping tendencies.

The story leading up to Jocks v. Tavernier begins in 1994 with truck driver Thomas Jocks’ truck breaking down on the Long Island Expressway. When the truck came to a stop, the end of his trailer was about 4 feet into the right lane. Trying to be a safe, responsible, and law abiding citizen, Jocks places safety flares as required to warn other drivers and walks nearly a mile to a gas station to find a pay phone* to call 911 about the unsafe situation. Upon arriving at the gas station, Jocks encounters Augusto Tavernier using the pay phone from inside his car.

Bazelon writes [emphasis mine]:

Jocks gave the following account of what happened next: He ran up and told Tavernier there was an emergency because his truck was jutting out onto the expressway. Tavernier told him to find another phone. Jocks repeated the emergency part of his story. Tavernier swore at him. Jocks knocked on his windshield and kept urging him to give him the phone. Finally, Jocks went into the phone stand and hung up on Tavernier’s call. At that point, Jocks said, Tavernier threw the receiver at him, tried to get out of his car, couldn’t because the phone stand was blocking his door, and drove forward. Jocks dialed 911. Tavernier charged him, yelling. Jocks yelled back. Tavernier said, “Why don’t I blow your fucking brains out?” and drew his gun. He pressed the gun into the back of Jocks’ head, and said, “Freeze, police”; and then an off-duty Nassau County police officer arrived, got the situation under control, and arrested Jocks.

Tavernier, too, proved to be an off-duty cop. After his arrest, Jocks was held for 24 hours and ended up having to make 28 court appearances before he was found not guilty of felony assault. He spent $20,000 on legal fees, lost his truck driving job, and had to give up full custody of his daughter, who went to live with her mother, his ex-wife. That dire, black moment on the LIE truly cost him.

Though Jocks was found not guilty of felony assault, much damage had been done. He still was out $20,000, his job, and custody of his daughter. Understandably, he wanted to be compensated for these very real damages. Jocks sued Tavernier and the detective who booked him for false arrest and malicious prosecution. The jury agreed and ordered Tavernier and the detective to pay damages of $600,000; the parties at fault successfully appealed to the 2nd Circuit.

Enter Judge Sotomayor – Bazelon continues:

The judges on the panel for the U.S. Court of Appeals for the 2nd Circuit were Sotomayor; Pierre Leval, a Clinton appointee; and John Walker Jr., appointed by President George Herbert Walker Bush […]

Walker wrote an opinion affirming the jury verdict, 2-1. But the drafting took a long time, and when a draft was finally circulated, Sotomayor responded to it by arguing that the grounds for a reasonable arrest are broad. As an off-duty cop who’d been hit in the face with a phone after an altercation, she argued, Tavernier was justified in making the arrest as a matter of law. That meant throwing out the jury verdict. Walker could not get her to change her mind. Instead, Leval decided he was persuaded by Sotomayor’s argument about how broad the grounds for making an arrest can be and switched sides. Finally, Walker gave up and switched, too. His written opinion throws one bone to Jocks by leaving open the possibility of a new trial based on one narrow argument (that he acted in self-defense when he threw the phone). But throwing out the $600,000-plus jury award was a huge blow to the plaintiff. The case was retried in 2007, and Jocks lost, based on the more constraining jury instructions that the trial judge gave because of the 2nd Circuit ruling.

Hold the damn phone** for a minute! In Sotomayor’s world view, even off duty police officers are given more standing, more benefit of the doubt***, and yes, more empathy than the rest of us? Whatever happened to “equal justice under law,” the very words engraved on the very U.S. Supreme Court building she intends work in?

If we want Judges and Justices to decide matters of law with empathy rather than the law and the facts, this is exactly the kind of “justice” we should come to expect.

But never mind that. The important thing is that we have a Supreme Court Justice who is a woman, Latina, and has “life experiences” that the rest of us couldn’t possibly understand!

» Read more

Governments Collapsing In Tough Economy

In the Wall Street Journal today, an article is published that details how cities are disincorporating as a result of the declining economy. Cities are dissolving themselves in order to escape city union contracts, among other things.

As the recession batters city budgets around the U.S., some municipalities are considering the once-unthinkable option of dissolving themselves through “disincorporation.”

Benefits of this move vary from state to state. In some cases, dissolution allows residents to escape local taxes. In others, it saves the cost of local salaries and pensions. And residents may get services more cheaply after consolidating with a county.

In Mesa, Wash., a town of 500 residents about 250 miles east of Portland, Ore., city leaders have initiated talks with county officials about the potential regional impact of disincorporating. Mesa has been hit by a combination of the recession and lawsuits that threaten its depleted coffers, leaving few choices other than disincorporation, said Robert Koch, commissioner of Franklin County, where Mesa is located.

Two California towns, Rio Vista and Vallejo, have said they may need to disincorporate to address financial difficulties; Vallejo filed for bankruptcy protection last year. Civic leaders in Mountain View, Colo., have alerted residents that they are left with few options but to disincorporate because the town can’t afford to pay salaries and services.

Incorporation brings residents a local government with the ability to raise money through taxes and bond issuances. It also gives them more control of zoning decisions and development, and usually provides for local services such as trash pickup and police as well.

On the national level, the Federal government would simply cease to exist. You’re probably wondering that’s not possible. Well, given the extreme financial conditions of borrowing nearly 50 cents of every dollar spent, fighting two wars, having massive entitlements like Social Security and Medicaid that cannot be funded at current levels of taxation, having government expand at unparalleled levels, and the fact that Americans are already spending nearly half their income in taxes and other compliance costs as is; perhaps the Federal government may have to disincorporate.

The problem is cultural, we Americans have never learned to live within our means. That’s why we have the credit crunch and that’s why we have these outrageous government programs we can’t fund. We need to have a serious discussion about the role of government and how we should pay for it.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ Review.com and Rare. You can also find me over at the R Street Institute.

Open Thread Question of the Day: To Whom or What Do You Pledge Your Allegiance?

I was listening to the local talk show host on my way to work this morning and the topic was the ongoing saga surrounding the auto makers. This particular talk show host is a very pro-union “buy American” (and therefore anti-free trade) kind of guy in the mold of Lou Dobbs. As I pulled into my parking space, he posed 2 questions 1.) To whom or what do YOU pledge your allegiance and 2.) To whom or what do these multi-national corporations pledge their allegiance?

My response was an immediate “to myself and to my family, but certainly not the federal government of the US!” (for many of the same reasons that tarran so eloquently explained). I’m quite certain that this is not a response this talk show host would appreciate. I’m also quite certain that in his view, these corporations are supposed to “provide American jobs” no matter how costly and no matter how much the federal government punishes them with taxes and regulations. To suggest that a business should make its first loyalty to pursuing profits for shareholders would be heretical! These populist propagandists ask such questions of these businesses but fail to ask the question of government “to whom or what does Washington pledge its allegiance?” (Hint: it certainly isn’t to free market principles or liberty).

After thinking about the question a little longer, I concluded that my allegiances are as follows: myself*, my family, and the defense of the principles of life, liberty, property and justice for all**.

Now I pose this question to you, the reader: To whom or what do you pledge your allegiance?

» Read more

1 3 4 5 6 7 23