Well Known Biases

Politics, Economics, and the Law

Monthly Archives: February 2013

Privacy Link Roundup – 02/09/13

Your password is bad and you should feel bad. Seriously, review your passwords.

Facebook’s ‘Graph Search.’ Making something already horrifying slightly more horrific.

Speaking of Facebook, you do know they monitor, record, and turn over to police the things you write, right? Just making sure.

Your WiFi-enabled smartphone could be used to track where you go in stores, in the not-that-distant future. But maybe it’s not really that bad.

The NSA pinky-swears that there’s no domestic spying.

The DEA would very much like to snoop through the medical records of Oregon residents without the hassle of a warrant.

In a two-page paper, devoid of argument or analysis, the DHS concludes that it may seize travelers’ electronic devices for any reason at all. This power apparently extends 100 miles inland as well, which covers the entirety of Florida, Hawaii, several states in the northeast, and more than a handful of large cities.

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Firearms Link Roundup – 02/09/13

Firearms controls don’t work nearly as well as politicians would like.

Moorfield Storey Blog has a couple of articles examining firearm ownership and homicide rates.

It seems a draft proposal for tighter restrictions in New York was draconian enough that a Democratic legislator urged his Republican counterpart to keep the proposal a secret.

San Diego police chief William Lansdowne thinks that with the right laws, Americans could be disarmed within a generation, and that would be just great. I’d suggest he read some Small Arms Survey publications, and see how well that idea has worked in other parts of the world.

The California Senate Democrats seem to be on board with him, though.

On the flip side, various counties and cities are looking to nullify any bans.

And enforcement might require an IT overhaul.

Wyoming legislators are looking to criminalize any enforcement of a federal ban.

And finally, in home-state news, right-to-carry reforms are advancing through the Kansas legislature.

Drone Link Roundup – 02/09/13

Charlottesville, Virginia becomes the first U.S. city to ban drones, though they admit the move is essentially symbolic.

The Oregon Senate aims for somewhat less symbolic regulation, but the FAA may well take issue with a claim of state control of airspace.

The Volokh Conspiracy rounds up more drone memo reactions.

Use drones to try and keep those pesky illegals out? Sure, why not. Will it be effective? Probably not.

Ilya Somin’s take on the drone memo.

Constitutional Originalism and Drone Strikes.

A Closer Look at the NBC Drone Memo

Commentary and analysis concerning the Justice Department “white paper” is just pouring in.

All those links are good reading, and more thorough analysis than I will do at this time, when there’s not yet much new to say. But for the link-averse, here are a few of the highlights:

Killing an American can happen if the citizen is “a senior operation leader of al-Qa’ida or an associated force.” While not amorphous, that’s pretty vague. What is an associated force, exactly? That’s not defined, so I guess it’s whatever the government wants it to be.

This killing will be hunky-dory when:

  1. An informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States
  2. capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and
  3. the operation would be conducted in a manner consistent with applicable law of war principles.

Let’s talk about (1):

Who is making the decision as to whether a given American citizen is a terrorist? Oh, you know… somebody. They’ll be “informed” and “high-level.” Don’t worry about it, they know what they’re doing. Is there any oversight or review to this decision? Doesn’t seem to be, so I guess we’ll just have to trust whomever makes the call to not make any mistakes, because there’s no clear recourse available should that happen.

But hey, at least we know that should it come to this, at least we’ll know there was an imminent threat against our nation. Well… you know how sometimes you have to interpret a word liberally to make it work in context?

“Certain aspects of this legal framework require additional explication. [. . .] [A]n ‘imminent’ threat of violent attack [. . .] does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

That’s certainly a non-traditional definition of the word.

Also, this totally wouldn’t be an assassination in violation of Executive Order 12333, because it’s an act of “national self defense” against an imminent threat. By which they mean a threat that lacks any clear evidence of its existence, any known target, or any particular time that it might occur. Also, let’s not box ourselves in… the Terrorist might not even be plotting anything at the moment, but if he’s “recently been involved in activities posing an imminent threat”, and there’s no evidence he’s turned in his membership card and gone home, we can infer that he’s still hard at it. That assumption is probably generally accurate, but when coupled with the Justice Department’s new-and-improved definition of “imminent,” it appears to open the time-frame up to such a degree as to render it basically meaningless.

(2):

“[C]apture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant. Feasibility would be a highly fact-specific and potentially time-sensitive inquiry.”

Part of that sounds pretty reasonable. You can’t capture someone who cannot be reached during a given period of time. That’s just physics, and such. The country in which they reside might not want U.S. forces running around looking for the target (but naturally they’ll be fine with drones dropping bombs within their territory). And whether or not this is feasible would be fact-specific and time-sensitive, which looks a lot like a roundabout way of saying it’s just a judgment call, and one with little in the way of definite criteria. “If you can capture ’em, maybe do that, as long as it’s not too much trouble.”

And what, if anything, does it really mean that “the United States continues to monitor whether capture becomes feasible”? The three-point criteria dictate when it’s legal to bomb an American citizen, so I suppose the U.S. will continue to monitor whether capture is becomes feasible, right up until our “person of interest” is exploded?

(3):

The paper asserts that all of this is definitely legal, at one point analogizing the action of bombing a declared terrorist to a police officer shooting a dangerous suspect who’s attempting to flee the scene. For reasons illustrated on Lowering the Bar’s commentary, I don’t really think this analogy works. Another argument states, basically, that since this declared terrorist would be an American, it might be argued that killing them would be murder or manslaughter, but those terms only apply to “unlawful killings,” and since the government would be exerting “public authority” then it can’t be unlawful. In short, it would sure be illegal if we weren’t the one’s defining what illegal means. This section is long on assertions, and short on clear analysis.

The whole paper buries the reader in arguments that depend on you acceptance of either questionable propositions or the very conclusions they  purport to reach.

NBC Acquires Justice Department Drone Memo

It is being reported that NBC has acquired a Justice Department white paper which purports to provide legal justification for targeted killings (read: assassinations), using drones, of American citizens abroad.

Initial commentary suggests that some key terms used in the justification are being used in a somewhat “innovative” fashion, shall we say.

When I’ve a few moments to dedicate to it, I’ll give the memo a real read, form a semi-coherent opinion, and announce said opinion here. Yes, really. Two days, tops.

For now, you can read the memo yourself here.

(Hat tip to the Volokh Conspiracy)

I’m Back (-ish)

After starting law school, this blog got put on the very farthest back burner, with nothing in the way of explanation to my (very few) readers. Having emerged from the shadow of my first semester, and entered the fray of my second, I now hope to shoe-horn in some time every few days to post something, even if it’s only a collection of links to articles or posts elsewhere. All apologies for the months of unexplained silence.