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Category Archives: Law

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)

The Individual Mandate: My 2¢

Firstly, this isn’t a legal analysis of the Supreme Court’s decision. For that, please direct yourself to The Volokh Conspiracy. Go on, go. You can come back here after you’re done.

.   .   .   .

And you’re back. Now don’t you feel smarter?

Good.

So, as you know by now, the Supreme Court upheld almost everything in the Affordable Care Act (“Obamacare”) in a 5-4 decision. I’ve yet to read the Court’s opinions myself, as they’re quite long, but it seems as though things could probably have gone much worse. Yes, the individual mandate was upheld, but it was construed as a tax. This means that Congress’ power to do whatever the hell it feels like hasn’t been expanded to nearly the degree it would have been had the act been upheld on the basis of the ‘Necessary and Proper’ clause, or God forbid, the Interstate Commerce clause.

So, what then?

This isn’t the End of Democracy™, the Death of the Republic™, or any other such fiery polemics espoused by well-paid pundits. It is unfortunate, but by no means the most unfortunate thing that’s happened in recent memory.

*clears throat, and proceeds in a booming voice*

And ye, the assembled politicians stirred from their Scotch-soaked napping, and they didst see: Health care was eye-watteringly expensive, and insurance companies didn’t want to take on customers who were likely to be a net loss. They were a little concerned with the human suffering, and a lot concerned that said humans would find them somehow accountable. What was to be done, they asked, while dramatically wringing their hands and photogenically weeping for the plight. Discovering the reasons for the expense, and correcting the system would be an enormous task, and more importantly won’t be done before the next election. So that’s out. They could, in their magnanimity, provide public health insurance, but no… that’s some commie horseshit. Well, what if they just forced everyone to buy private health insurance? That was some corporatist horseshit, and that’s exactly the kind of horseshit they loved.

And so it was. Instead of attempting to fix the system, there was simply a demand for all and sundry to buy into it. A band-aid for a gunshot wound.

*becomes less dramatic*

Right then…

I don’t think the ACA is going to fix what its creators and supporters hope it will fix. Simply forcing people to buy insurance, and forcing companies to insure those with preexisting conditions is not going to magically make the American health care system not a huge disaster. A system of socialized medicine, perhaps even one built only for those who were unable to get private insurance, may indeed be some “commie horseshit,” but it would be a fair sight more honest than the end run around of compelling everyone to buy insurance, thereby “taxing” the healthy for the benefit of the sick, and for the even greater benefit of the insurance companies. Health care needs fixed, but this isn’t the way to do it. And now that the law has passed through SCOTUS essentially unscathed, we’ve created interest groups who will fight tooth and nail against any efforts to change or repeal it. We’ve done nothing but made things more complicated.

They Shan’t be Content Till We’re All Naked and Tagged

“They would be the shepherds over us, their sheep. Certainly such an arrangement presupposes that they are naturally superior to the rest of us. And certainly we are fully justified in demanding from the legislators and organizers proof of this natural superiority.” – Frédéric Bastiat

Or, perhaps another quote would have sufficed; “Who watches the watchmen?”

Technology marches on, steadily introducing new avenues for oppression. And it would seem that They won’t rest until the whole of us have been examined, numbered, and cataloged. “They” seems to encompass a variety of people and organizations, all of whom appear to believe that the key to making the world More Decent is just a little less privacy for everyone.

For example, the FBI wants tech companies to provide built-in back doors for government access. Presumably, if you oppose the idea of all your social media and communications software coming set up for government snooping, you probably support Terrorism and/or Child Pornography. The rhetoric nearly always frames these sorts of things as the false choice between either “Giving law enforcement the Tools It Needs” or “Letting the bogeymen win.”

The NSA, as part of their continuing efforts to elevate themselves to the status of comic book villains, informed the Senate’s Intelligence Oversight Committee that they essentially had no idea how many Americans had been spied on, couldn’t devote the manpower to figure this out without hindering their ability to continue spying, and would consider it a violation of citizens’ right to privacy to say, even if they did know. I don’t even know where to begin. I would certainly hope the NSA knows how many Americans it has intentionally spied upon. That should be simple math, counting up the files. I can certainly believe they may not know how many Americans have been accidentally spied upon. This is an agency that is attempting to analyze all communications. All. That they’d be unaware they were listening in on your calls to Aunt Mavis back at the farm until someone told them it was happening is completely believable. That doesn’t mean it’s okay, just that it seems like a very real possibility. But that they would tell the people in charge of their oversight that it would violate Americans’ privacy to know that their privacy was being violated is some kind of insane troll logic. It’s hard to formulate a good reply, because you don’t even know how they could arrive at that conclusion.

Or perhaps we do know how they arrive at these sorts of conclusions. These are the kind of statements and policies put forward by people who firmly believe themselves to be our betters. They’re doing important work; protecting the sloppy masses from the demons that live in this world. Demons we may not even be aware exist. Their power has made them arrogant, and given them a profound sense of entitlement. Good People do Good Things, and they are Good. As such, how could anything they do be Bad? They are the Holy Paladins, who’ve turned into the demons they fight.

Or perhaps they’re just thugs. It’s probably a coin toss.

But at least neither the FBI nor the NSA is advocating that everyone be bar-coded (at least not yet). Elizabeth Moon is suggesting just that. This is one of those fanciful ideas that probably seems just swell to the same sort of people who’d advocate for more surveillance. The idea being that our wise rulers are hampered greatly due to the fact that they’re not omniscient. So, naturally, instead of restricting their powers to minimize the damage they can do, we should instead try and get them as close to omniscience as possible.

Moving right along, a company called IDair has developed a system capable of reading fingerprints from six meters away.  The current customers are, predictably, military. But the creator sees the system being rolled out for civilian purposes, foreseeing, among other uses, being used as a way to purchase things without bringing your wallet. This presupposes a system where your bank account is tied to your biometrics. This is probably one of those things that either bothers your a lot, or not at all. I’m firmly in the first camp.

Perhaps IDair could be used right alongside the cameras being deployed around twenty San Francisco bars. SceneTap is the company installing the cameras, and the goal is apparently to build demographic data so that you know which establishments you’d like to go to, when you’re out on the town. Fair enough. But if we take a stroll down the slippery slope, how soon until a system such as this would be used for more objectionable purposes? Facial recognition linked to biometric databases could be used to determine whether a bar patron is of age. Or perhaps subpoenaed for a divorce case to cast one parent’s visits to the local watering hole as evidence of their unfitness to raise children. Crack open a cold one, and let slip the dogs of well-founded paranoia.

In the name of fighting the never-ending War on Drugs™, the DEA would like to scan the license plates of all vehicles travelling I-15 in Utah. Then they’d like to keep that data for two years. This would create a record of movement that I feel certain wouldn’t stay tied to only drug investigations. Mission creep inevitably sets in, and the data would surely be used for purposes that weren’t initially considered. And when they sort out who you are, they could just track you via your cell phone, even if it’s not GPS-enabled.

Or, as Futurama put it, describing the evil robotic Santa, “He knows when you’ve been sleeping! / He knows when you’re on the can! / He’ll hunt you down and blast your ass from here to Pakistan!”

Drones at Home

I don’t care for drones on the battlefield. While it is quite possible they cut down on the number of our own military personnel getting killed and/or maimed (you will hear this referred to as “saving lives,” though the drones certainly don’t appear to be saving the lives of anyone else), I believe they create an insurmountable moral hazard.

I am no happier to have them flying around in U.S. airspace. Wired reports that there are, at present, 64 known drone bases on U.S. soil. The number of drones and bases is likely to increase, and drones are likely to proliferate widely. That there would be drones, and drone bases on American soil is interesting, but hardly shocking. The military also has a great many other vehicles, weapons, explosives, etc. on American soil. After all, where else are they supposed to put these things when they’re not being used for the intended purposes? But what uses will these drones be put to, while they’re here? Well, surveying military bases, government property, the occasional disaster zone, and maybe the odd bit of completely-totally-accidental surveillance.

“Oops, it seems we’ve inadvertently spied on you. Don’t worry, we’ll be sure to get rid of that information. Hand to God. Right after hanging onto it for 90 days to see whether we can make a legal case for keeping it, and passing it on to other government agencies if we can.”

Call me cynical, but in the present political and legal climate, I see little reason to suspect the information won’t be retained, given even the flimsiest pretense of a reason. Especially when you’ve got people such as Virginia’s Governor Bob McDonnell saying that police drones would just fantastic.

Increased safety and reduced manpower are among the reasons the U.S. military and intelligence community use drones on the battlefield, which is why it should be considered in Virginia, he says.

Indeed. It’s vital that our gendarmerie be able to enforce order with minimum of cost and inconvenience. And while police drones, at present, are extremely unlikely to act in any capacity other than tracking and surveillance, is it completely out of reason to expect them to evolve into an armed form? Not a week goes by where you don’t read about a questionable police shooting, or wrong-address SWAT raid, or somesuch event. Are police drones something we actually want?

Not that what we want matters very much. The State will exert its will when and where it cares to, so long as we react with our characteristic passivity.

Lawfare reports that Senator Rand Paul (R. KY) has introduced legislation intended to prohibit (for the most part) the use of drones for surveillance by the U.S. government. I wouldn’t bet the farm on the bill passing, but it is nice that someone in Washington is attempting to nip this in the bud.

DHS to Collect Information on All Air Travelers, Everywhere

The Independent reports that the U.S. Department of Homeland Security will be requiring airlines to submit passenger details, even though they’re flying into Canada, Mexico, or the Caribbean, and not crossing over American airspace. DHS will “make boarding pass determinations up until the time a flight leaves the gate … If a passenger successfully obtains a boarding pass, his/her name is not on the No Fly list.”

Delightful. I’m always impressed when my country enacts policy that sounds somewhat similar to what the Belarussian’s are doing.

The justification for this is, I’m quite sure, that a terrorist might fly into any one of those places, and then simply wander into the U.S. by land or sea. And if you stop thinking about it right about there, it sounds almost reasonable (ignoring things like privacy, jurisdiction, and sovereignty). But why wouldn’t these bogeymen terrorists simply go to Guatemala, Belize, or Greenland? From there they can pass through Mexico or Canada, and into the United States. It’s a little (or, depending, a lot) further, but what’s a little driving when you’ve got something to blow up?

Naturally then, DHS should be collecting information on travellers headed to those locations. But what if they simply land in a country adjacent? You can see where I’m going with this. A security policy such as this, taken to its logical conclusion, leaves you monitoring everyone, everywhere. And if you commit to monitoring every possible external threat, it seems very silly not to keep an eye out for the internal ones too, which would make some sort of internal passport system suddenly appear “reasonable.” As ever, the bigger devils are in the implications.

As for the rest of the countries involved, they all need to go to their rooms and think about what they’ve done.

More On Decryption

I’ve previously discussed encryption, and the state subsequently forcing decryption.

Well, appeals courts have made rulings. The 10th has rejected an appeal on the grounds that no verdict has been rendered in the original case, and the 11th is saying that decryption is tantamount to testimony, and therefore subject to fifth amendment protections. I like this reasoning, myself. The issue going to the Supreme Court is most likely inevitable, but in the meantime it can’t hurt to accumulate some rulings that forbid forced decryption of data. A distinction being made by courts seems to be between data investigators know is on a hard drive, and investigators wishing to decrypt data so that they can poke around a hard drive and see what they can find.

The Lethality of Marijuana

Thanks to ‘The Agitator,’ I am now profoundly depressed.

The NYPD has shot and killed another unarmed young man during a drug bust.

And then there’s Matthew Stewart, the Utah man who found himself in a firefight with police paramilitaries when they raided his home looking for a marijuana growing operation. He killed one officer, and was shot himself. He has finally recovered enough to speak about it. It’s hard to even know where to begin. Why would police need a SWAT team to tackle a guy growing pot? Couldn’t they just cover the exits, knock, announce themselves and their intentions, and resolve the situation peacefully? Why is weed a big enough deal to warrant this?

Well now, boys and girls… they have to use the SWAT team because they have it, and it needs used for something. Never underestimate the power of sheer fun in deciding policy. And if you don’t break down some doors and shoot at folks now and again, that federal gravy train won’t stop by your door anymore. As for the weed itself, the “war on drugs” is a highly profitable venture. Prohibition ensures that prison operators can profit when people go to their prisons, pharmaceutical companies can produce expensive, patented medicines that emulate banned natural substances, and the companies that make police, military, and surveillance equipment keep their wallets padded. Also, the drug trade itself is kept profitable enough to be used to fund off-budget projects. Or were you unaware that the CIA moves drugs to finance pet projects?

It’s enough injustice and hypocrisy to choke a horse.

The Never-Ending Saga of Reproductive Rights

Ross Douthat discusses the wisdom of the Obama administration’s mandate that all employer-provided health insurance plans must provide coverage for contraception, etc. This applies even to religious institution which diagree with such practices and procedures on moral grounds. This move has been lauded as a positive development for women’s rights, but I think that’s short-sighted, and misses the larger point. It’s worth remembering that the hand that gives is the hand that can take away, and compelling someone to provide a product or service doesn’t strike me as morally different from prohibiting them from doing so. Even if you assume the current administration is serving the interests you want served, there’s no guarantee that a future administration will serve those same interests, and you’ve just given them broad, sweeping powers.

On the other end of things, the Kansas legislature is considering a bill to provide legal protection (HB 2523) to medical professionals who refuse to provide abortions, or drugs that they believe will be used to end a pregnancy. In this case, “legal protection” means making it illegal for the employer’s of such people to fire or sanction them. I wonder how the would play out, going toe-to-toe with the federal mandate?

Also in Kansas, HB 2598 is roaming the House. It purports to prohibit the use of public money on abortions, but given the bill is 68 pages long, and written in the typical style of legislation, it’s hard to say what all lurks there, waiting to be sprung upon an unsuspecting public, and careless legislators who did as I did, and only read about the first page and a half. Just skimming through it, there are references to textbooks, aircraft, and tax deductions. Does anyone want to read this beast for me and tell me to what it all applies?

HB 2579, a mercifully short piece of legislation, appears to be aiming for the same end-effect of the ‘Personhood’ Amendment, but without the trouble of changing the Kansas constitution. The language of the bill is also much less inflammatory. Is this an attempt at and end-run around?

All of the above mentioned laws, orders, and bills are objectionable, each in their own special way, but by and large for the same basic reasons. If one truly desires to live in a free society, and not merely to live in a society that’s free for oneself, then you have to allow others to conduct themselves in accordance with their own moral outlook (Assuming, naturally, that their moral outlook isn’t directly harming you. A free society needn’t allow Thuggee cults to roam free.) A policy of “freedom for me, but not for thee” simply won’t cut it.

‘Personhood’ Amendment Full Text, etc.

Today, while poking around for some other bit of legislation, I remembered that I’d said I’d post the bill number, and full text, of the Personhood Amendment. So here it is.

Kansas legislature page for HCR 5029
HCR 5029 full text (pdf)

The bill is much shorter than I’d have assumed it would be. I’m not sure how it compares to the Colorado or Mississippi versions, as I’ve not read them. Without a doubt my favorite parts is the wording of the explanatory statements, chiefly the statement concerning what it means to vote against the bill:

“A vote against this proposition would not amend the constitution, in which case the current federally mandated legal status of preborn humans would remain that of a class of human beings that can intentionally be killed.”

Wow.

Speaking of abortion, you may have already read elsewhere that Oklahoma Senator Ralph Shortey has introduced a bill to ban the use of aborted fetuses in food. To my knowledge, and near as I can tell to the collective knowledge of pretty much everyone else on the planet, this is not something that is currently being done, nor is it something that anyone is presently planning to do. Despite my own tendency to assume that anything horrible that can happen probably will, I wouldn’t lose any sleep over the possibility of this being a problem in the future, either. Ken, at ‘Popehat,’ wrote about the legislation in question, and I’m inclined to agree that Mr. Shortey has perhaps been spending too much time perusing Geocities pages.

Reading the full text of the bill, I’m confused that it specifies only that it shall be illegal to manufacture or sell food or other products made from aborted fetuses that are intended for human consumption. Are we to assume that Senator Shortey is totally okay with aborted fetus rawhides for the dog, or aborted fetus Fancy Feast for the discerning cat in your home? I’ll let you speculate among yourselves whether this oversight is because there exists some developing industry for aborted fetus bits’n’pieces, and they are financing the Senator’s re-election fund. It could also explain why Personhood hasn’t introduced a constitutional amendment in Oklahoma.