Month: August 2013

Liberty and the Overly Prescriptive State

Few things reveal a person’s views on liberty more than their attitude toward the right of others to say or do things they disagree with. The First Amendment to the Constitution of the United States protects our right of free speech and assembly, later interpreted to include the right of association. “The NSA Unravels a Civil Rights Era Win”/2013/08/29/ None of these rights is absolute (yelling fire in a theater, etc), but where we as a society draw the line has a great deal to do with how successfully our diverse citizens will live together in harmony and freedom.

The latest example of the imposition of the state into what should be private issues of belief is California’s ban on health practitioners “offering psychotherapy aimed a making gay youth straight.” The U.S. Court of Appeals for the 9th Circuit in San Francisco ruled that the law does not violate the free speech rights of licensed counselors and patients seeking treatment.” “US Court Upholds First in Nation Law Banning Gay to Straight Therapy for Minors”/2013/08/29/

Conversion therapy is a scientifically documented scam, but if its practitioners believe in it, it is not a deliberate fraud (maybe they do and many they don’t). We are freer, and live in greater harmony the more we allow people to pursue and experiment with their own beliefs. This includes things the rest of us might think are silly. Such freedom, when exercised within a strong set of moral values, also tends to move society more quickly to a more virtuous level. The caveat is that in allowing people to live according to their own creed, they must do no real harm to others.  Even the “doing no harm to others” standard is subject to discussion and can moved a bit this way or that – toward more freedom or less. In the case of the California law against conversion therapy, the law was aimed at protecting minors from harm inflicted by such therapy and we have rightly been quicker to protect minors than others. In short, drawing an appropriate line between private rights and state intervention is a serious and not particularly easy undertaking.

Those of you who are lucky enough to be Facebook friends of Jonathan Rauch, author of “Denial” and currently a contributing editor of the National Journal and The Atlantic, and a guest scholar at the Brookings Institute, have access to a very thoughtful discussion of the freedom of conscience, association and speech and equal protection of the law. In comments to one of Jonathan’s postings, Charlotte Allen, Tom Palmer, and Walter Olson, Walt Becker (a pseudonym), David Dalton and others explore the interface between the freedom of association and equal protection of the law in the context of same sex marriage. In such discussions it is critical for those of us who defend the importance and morality of liberty to clearly distinguish what we individually believe is right and good from what is or should be allowed under the law. The law should allow people to make their own stupid mistakes.

In reaction to slavery and Jim Crow laws, which legally discriminated against blacks, America has gone well beyond repealing such legislation and has adopted a range of anti-discrimination laws limiting the ability of “public” businesses to choose their employees and customers. These anti-discrimination laws are now increasingly being extended to GLBTs (Gays, Lesbians, Bisexuals and Transgenders). Personal beliefs and preferences, whether we agree with or respect them or not, thus confront state interference in our personal choices and behavior. Doctors, who do not believe in abortion, are required to perform them. Companies whose owners do not believe in contraception are forced to provide health insurance and condoms to employees wanting them. A New Mexico photographer and baker are sued for refusing to provide their services to a same-sex wedding ceremony.

Equal treatment in the law was put aside for Affirmative Action giving preference to blacks in some cases on what was meant to be a temporary basis until the damage of earlier negative discrimination could be reversed. The Supreme Court has now started to roll back such preferences. In the above Facebook debate, Charlotte, who has trouble accepting marriage equality for same-sex couples, takes a more libertarian position on other areas of state imposed morality when she says “Why can’t we give people the freedom to set the parameters of their own commercial transactions?” The optimal balance shifts over time and I doubt that we have it anyway.

The government, which is often a lagging reflection of public sentiment, has been one of the last to extend equal treatment to same sex couples. Pure profit motive led corporate American to move ahead several decades ago to extend “marriage” benefits to employee partners of whatever sex. They did so in order to attract the best employees without regard to their color, religious beliefs, or sexual orientation. Discrimination has an economic cost.

No church should be required to marry anyone they don’t want to or don’t believe would be consistent with their beliefs. Allowing same-sex couples to receive a marriage license and the legal benefits that come with it from the State, which is surely required by the principle of equal protection of the law, does not and should not obligate any church to do so. I think that the treatment of the Boy Scouts of American set the right example.  As a private club the law allowed them to exclude gay boys from membership if they wanted to. However, evolving social understanding and attitudes and deeper reflection by Boy Scout leaders are slowly leading the Boy Scouts to change this policy. Getting the balance right will never be easy, but I prefer to error on the side of personal freedom rather than government dictated morality.

Turning a corner on the invasion of privacy?

In a small step to improve transparency, the U.S. government has released a two-year-old opinion by its secret Foreign Intelligence Surveillance Court revealing that “the National Security Agency unlawfully gathered tens of thousands of e-mails and other electronic communications between Americans” The Washington Post, Aug 22, 2013. Perhaps it was pushed to preempt Edward Snowden from doing so before it did. But it was also in response to a year old Freedom of Information lawsuit by the Electronic Frontier Foundation.

“It’s unfortunate it took a year of litigation and the most significant leak in American history to finally get them to release this opinion,” said foundation staff attorney Mark Rumold, “but I’m happy that the administration is beginning to take this debate seriously.”

In the October 3, 2011, opinion, John D. Bates, then the surveillance court’s chief judge, wrote: “The court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program…. NSA’s knowing acquisition of tens of thousands of wholly domestic communications through its upstream collection is a cause of concern for the court.” Bates also noted that the court’s authorization of the NSA’s bulk collection of Americans’ phone-call records was “premised on a flawed depiction of how the NSA” uses the data. “This misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and court-mandated oversight regime.”

That is a mouth full and it is encouraging that the government has finally shared the court’s opinion with the public. It is in sharp contrast with the disclaimers of any wrong doing it was issuing a few weeks ago.

Abuse of Power

If I had more energy, I would gather together all of the recent ways in which the Obama administration has abused presidential authority and lied to us. That would make reading this blog worthwhile. I apologize. I just returned from a very enjoyable week with my two children and six of my grand children. The seventh grandchild, Bryce Davidson, left for college the day before I arrived. The week included all four opera’s of Wagner’s Ring der Nibelungen. So, as all dialogs seem to begin these days, I will just let loose my diatribe at the latest two disturbing atrocities of Big Brother.

We have enemies who wish us harm. We need the best information possible on their plans to harm us. But the technical ability of our government (of any government) to spy on our enemies and thus potentially on each of us (especially those the administration doesn’t like) is also dangerous. Checks and balances and clear limits are needed on the government’s use of these powers. President Obama increasingly demonstrates a lack of interest in limiting his actions to the law. For one of many examples, read my blog on his refusal to call the military coup in Egypt by its obvious real name because he doesn’t like the legal consequences of doing so: https://wcoats.wordpress.com/2013/07/30/the-egyptian-coup/

When Edward Snowden first leaked a number of NSA documents reveling that the National Security Agency (NSA) was illegally collecting massive amounts of data on American citizens, the government fought back by claiming that 50 some odd potential attacks on America had been prevented by such information, thus justifying “stretching” the law. Deeper scrutiny revealed that at most one instance of such data might have materially helped (along with other information) prevent such an attack. Many would say that one instance is enough to justify any risk of government abuse of its access to private information on Americans. But many of us are not comfortable with Big Brothers potential use of such powers.

For starters it is difficult to know the truth of the potential benefits and risks of NSA and other government agencies’ spying activities. The Director of National Intelligence, James Clapper, later admitted that he had lied to Congress when he testified that the NSA doesn’t collect data on “millions or hundreds of millions of Americans.”

When asked what it would take for Congress to hold James Clapper accountable for lying to Congress, Congressman Dennis Kucinich told Cullen Hoback, the director of the documentary on data privacy “Terms and Conditions May Apply:”

Well, you know it’s illegal to lie to Congress, but everyone lies to Congress. As soon as they raise their right hand, watch out! Clapper should be held responsible, but he won’t be, because that’s the condition we’re in right now. In a just world, Snowden, we’d be having ticker tape parades for him. But that’s not what’s going to happen.

President Obama and security officials then attempted to reassure us that they only overstepped the limits of the law a few times. Then last week Snowden released another round of damning documents. As reported in The Washington Post an NSA internal audit and other secret documents provided by Snowden showed the agency “has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008.”

A few true believers in Leviathan have suggested that no one—no innocent person—has been harmed or abused by these NSA violations of the law. Step forward David Maranda, the Brazilian partner of Glenn Greenwald, the journalist through whom Snowden has been providing leaked documents to the British news paper, The Guardian. Changing planes in London’s Heathrow airport on his way from Berlin (on assignment for The Guardian with regard to Edward Snowden) to his home in Rio de Janeiro, Mr. Maranda was detained for nine hours of interrogation under the British Terrorism Act of 2000. According to Neil Wallis, former executive editor, News of the World: “This is an appalling, blatant breach of press freedom.” U.S. officials acknowledged that they were aware of Mr. Maranda’s detention but claimed that they had not requested it. Right! We believe every thing our government tells us. Right?

How far do the abuses of power by the Obama administration have to go before we become concerned enough to put a stop to them?

Are We Becoming A Nation of Cowards?

“No nation can preserve its freedom in the midst of continual warfare.”

James Madison, April 20, 1795

Osama Bin Laden’s vendetta against the United States grew out of his anger over our stationing American troops in his home country of Saudi Arabia. Imagine for a moment what might be his most cost efficient weapons for hurting the U.S.  What might give him the biggest bang for the buck? Shutting 19 American Embassies and related diplomatic facilities in the Middle East for at least a week on the basis of intercepted communications between al-Qaeda leader Ayman al Zawahiri in Pakistan and Nasser al-Wuhayshi, who heads the al-Qaeda franchise in the Arabian peninsula, would be high on the list. Such reactions to intel, which could well be a deliberate planted by clever Arabs, must have the ghost of Bin Laden laughing hysterically (if it is possible to imagine Bin Laden laughing at all).

I still carry in my travel bag a nail clipper missing the little nail file that a Miami airport guard broke off as a potentially dangerous carry on weapon not too long after 9/11. It has taken 12 years for our government (the Orwellian named Department of Homeland Security) to figure out a way for me to board planes without taking out my computer and taking off my belt and shoes. At least the perpetual alert status of code Orange has been dropped.

These are minor inconveniences compared to the cost and danger of the billions and billions of dollars spent by NSA and others to invade our privacy (for our own good, of course) in order to better search for needles in hay stacks that might detect plots to harm us (such as the Boston marathon bombings—Upps). We are assured that these data will never be searched by a rogue bureaucrat looking for dirt on political enemies. We are reassured because our political leaders never lie to us.  For example, when National Intelligence director James Clapper informed a Senate Intelligence Committee last March that the government was not “wittingly” collecting information on millions of Americans, he later justified the lie by saying that it was the least dishonest statement he was comfortable making.

Gregory Johnsen, an expert on Yemen at Princeton, recently noted the unrealistic and dangerous expectations of the American public (at least as our government sees or would like to see them):“Unfortunately the way we in the US have talked about the terror threat as a society AQAP [Al-Qaeda in the Arabian Peninsula] doesn’t have to be particularly good or even successful to constitute a serious threat.  As a society we in the US seem to have a zero-tolerance approach to terrorism instead of weighing its risks against other potential threats.  In such an environment any threat from AQAP could be considered serious.” (reported by Foreign Policy Magazine)

I am not one to see conspiracies everywhere, but this latest scare is a nice distraction for recent revelations of potentially dangerous and at a minimum wastefully expensive government over reaches in the name of keeping us safe (Snowden’s NSA and other revelations). This mornings Washington Post has two op-ed pieces on this subject that you should read. The first by Eugene Robinson, “The New Al-Qaeda Menace” /2013/08/05/, is correct in my view. The second (just below it) by Juan Zarate and Thomas Sanderson,  “Adapting to Terrorism 2.0”,  is down right scary. George Orwell’s big brother could not have made the case better for bigger and more intrusive government for our own good. Are they deliberately trying to destroy our liberties or are they over zealot fools. Probably the latter.

Over the centuries our young men and ladies have risked and often lost their lives to keep us free. How ironic that in the name of keeping us secure our liberties are being increasingly eroded and threatened. It is worth reading a more extensive excerpt from James Madison’s prescient April 20, 1795 “Political Observations” quoted above:

“Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other.

“War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.

“In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people.

“The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manner and of morals, engendered in both.

“No nation can preserve its freedom in the midst of continual warfare.

“War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it.

“In war, the public treasuries are to be unlocked; and it is the executive hand which is to dispense them.

“In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed; and it is the executive brow they are to encircle.

“The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venal love of fame, are all in conspiracy against the desire and duty of peace.”

–James Madison, from “Political Observations,” April 20, 1795 in Letters and Other Writings of James Madison, Volume IV, page 491.