Make Love, Not War

It's hard for me to remember the 60's, as the saying goes, because I was there. But I do remember how deeply the hippie motto "make love, not war" resounded then. My generation was sick of war.

Sick of the daily body counts.

Sick of hearing the warmongers' justifications for sending our young men overseas to a foreign country which was supposed to be the right place to fight an "ism" (communism) because of the "Domino Theory."

Sick of seeing men coming home missing limbs or, worse, in body bags.

Sick of the "credibility gap" between the information the executive branch put out for public consumption and the real data they kept secret.

Sick of the persecution of a courageous whistleblower who thought the American public ought to hear the truth about the war.

Sick of a Congress that bled the nation's treasury and couldn't figure out a way to stop the bleeding as the war dragged on for years without a clear vision of what victory could really be.

Sick of the most arrogant and hateful president in American history, who misused our intelligence and law enforcement agencies and even his own loyal friends.

Sick of how the growing disagreement over continuing the war split father from son and friend from friend, causing a rift among the American people that would last for decades.

Sick of having to contemplate all this mess year after year and facing the draft, while we were young and vital and should have been building our careers.

Is it any wonder we were "Sha, la, la la la la, live for today," in the words of a hit song of the day?

Is it any wonder we created our own, radically new culture?

Is it any wonder we spoke of love?

Today I took a walk in the park to fight the winter blues. I passed by our veterans memorial and read the names of men that families, loved ones, and friends lost to war in Korea and Vietnam. Let's not have to add any new names to our Iraq War plaques.

Embryonic Research

A recent article by Reason Magazine's science correspondent, "Is Heaven Populated Chiefly by the Souls of Embryos?", taught me a very interesting fact:

John Opitz, a professor of pediatrics, human genetics, and obstetrics and gynecology at the University of Utah, testified before the President's Council on Bioethics that between 60 and 80 percent of all naturally conceived embryos are simply flushed out in women's normal menstrual flows unnoticed.
. . . .
About half of the embryos lost are abnormal, but half are not, and had they implanted they would probably have developed into healthy babies.
. . . .
Yet millions of intelligent people of good will maintain that seven-day-old embryos have the exact same moral standing as do readers of this column. Acting on this sincere belief, they are trying to block biomedical research on human embryonic stem cells that is desired by millions of their fellow citizens.

This bit of science has implications for the abortion debate as well. One need not believe in the existence of souls to feel squeamish to some degree when it comes to the termination of life in any form or stage of development, whether human, animal, or vegetable -- depending on one's level of awareness and ultimate conclusions about what one's own survival, life plans, and conscience require.

The Reason article goes on to describe some possible scientific workarounds to minimize right-to-life objections to the harvest of stem cells. But people still have to decide what to do with extra embryos left over from successful fertility procedures!

I say donate them to stem-cell research. From another new report:

A complete, functioning breast has been grown from a single stem cell, by researchers in Australia. It was done in a mouse, but experts believe it won't be long before it happens in humans.
. . . .
Comparing the differences in development between normal and tumorous breasts could lead to new treatments that attack the earliest stages of breast cancer. Simpson also mentions the possibility of growing new breasts to replace those lost to surgery. As such medical applications become more likely, commercial interest in using stem cells to enhance breast size could also grow larger.
. . . .
"I'm hoping that the isolation of stem cells that produce such massively complex organs as breasts will become a model for growing organs, such as the lungs and pancreas," both sites of lethal cancers, she says.

Even Senate majority leader and Dr. Bill Frist bucked George Bush and the fundamentalists on stem-cell research. Please ponder these facts and share them with your friends.

UPDATE: Preimplantation genetic diagnosis (PGD). Read the facts; chuck the spin.

UPDATE: Scientists to try to clone human embryos.

UPDATE: Designer Baby Breakthrough Can Identify 6000 Genetic Diseases; and Stem Cells Help Repair Rats' Paralysis.

UPDATE: A barbaric kind of beauty.

UPDATE: Scientists Make Stem Cells Without Harming Embryos.

Masters of War

From Bob Dylan's own site, the lyrics to Masters of War are excerpted below; to hear the first verse as he sang it in 1963, click here:

Come you masters of war
You that build all the guns
You that build the death planes
You that build the big bombs
You that hide behind walls
You that hide behind desks
I just want you to know
I can see through your masks
. . . .
You play with my world
Like it's your little toy
. . . .
You fasten the triggers
For the others to fire
Then you set back and watch
When the death count gets higher
You hide in your mansion
As young people's blood
Flows out of their bodies
And is buried in the mud

Pssst...click on the pic for a secret video.

Non-interventionism

It's a sign of the times that when I ask a store clerk for a carton of regular, original Camel cigarettes, I now have to ask for "non-filter" Camels. It's also a sign of the times that our nation's original approach to foreign policy must be referred to as "non-interventionism," the negative of something newer on the scene.

Interventionists typically use the meme "isolationist" to disparage non-interventionism, as President Bush did in his last State of the Union message; but they are two distinctly different things.

Isolationism is a foreign policy which combines a non-interventionist military and political policy with a policy of economic nationalism (protectionism). In other words, it asserts both of the following:

1. Political rulers should avoid entangling alliances with other nations and avoid all wars not related to direct territorial self-defense.
2. There should be legal barriers to prevent trade and cultural exchange with people in other states.

The term "isolationism" was coined by military interventionists as a pejorative term during World War I to refer to people who opposed the United States' entry into that war. Later, the term "isolationism" was used 1939-41 to refer to opponents of United States' entry into World War Two.... "Isolationism" is often misused to refer to non-interventionism in general, rather than non-intervention conjoined with economic nationalism.

Non-interventionism is a foreign policy which holds that political rulers should avoid alliances with other nations and avoid all wars not related to direct territorial self-defense.

In the United States, this foreign policy has been advocated at various times in the country's history, notably during the first century of US history. George Washington, the first US President, advised the country to avoid "foreign entanglements." Thomas Jefferson favored "peace, commerce, and honest friendship with all nations; entangling alliances with none." John Quincy Adams wrote that the US "goes not abroad, in search of monsters to destroy."

For more information, see the Wiki piece on "United States non-interventionism":

George Washington's farewell address is often cited as laying the foundation for a tradition of American non-interventionism:

"The great rule of conduct for us, in regard to foreign nations, is in extending our commercial relations, to have with them as little political connection as possible. Europe has a set of primary interests, which to us have none, or a very remote relation. Hence she must be engaged in frequent controversies the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves, by artificial ties, in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities."

President Thomas Jefferson extended Washington's ideas in his March 4, 1801 inaugural address: "peace, commerce, and honest friendship with all nations, entangling alliances with none." Jefferson's phrase "entangling alliances" is, incidentally, sometimes mis-attributed to Washington.

If you're a non-interventionist ... you're in good company.

UPDATE: Henry Hyde, retiring chairman of the House International Relations Committee, questions Bush's global crusade for democracy. Read the column and the remarks.

UPDATE: Pat Buchanan -- "Condi and the isolationists"

Electronic Surveillance Sources

I want to keep the best primary sources I've found for information about U.S. electronic surveillance, along with some valuable secondary sources, in one place for future reference; so here they are:

Electronic Surveillance: From the Cold War to Al-Qaeda (2006), from the National Security Archive at George Washington University; a good retrospective with many links to primary source documents.

The National Security Agency Declassified: History, Organization and Operations (2000), again from the National Security Archive, and also with many historical documents.

National Security Act of 1947 (full text, as amended); 50 U.S.C. Ch. 15 (with internal links that work).

Katz v. United States (1967), covered in my post "You Be the Judge" below.

Foreign Intelligence Surveillance Act (1978); 50 U.S.C. Ch. 36; Wikipedia article with references to codification and related cases; and the Federation of American Scientists FISA resource page.

Executive Order 12333--United States intelligence activities (1981), as amended.

DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components That Affect United States Persons (1982).

Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations (1983).

United States Signals Intelligence Directive 18 (1993).

NSA report to Congress on Legal Standards for the Intelligence Community in Conducting Electronic Surveillance (2000).

NSA Transition 2001 report (December 2000).

ECHELON and the Legal Restraints on Signals Intelligence: A Need for Revaluation, by Lawrence D. Sloan, 50 Duke L. J. 1467 (2001).

The Patriot Act (2001); Wikipedia article, with many additional sources (frequently updated).

The Tools of Counterterrorism, PBS Frontline (2003), discussing FISA, the Patriot Act, Attorney General guidelines, the FISA Court and its opinions, and more.

ECHELON, Federation of American Scientists (last updated December 2005); Wikipedia article, with many additional sources (frequently updated).

National Intelligence Strategy (2006), General Michael V. Hayden's defense before the National Press Club of NSA's intelligence collection procedures since 9/11.

"Surveillance Net Yields Few Suspects," a Washington Post article in which a team of reporters glean more details of how the system is operating today.

"Secret Court's Judges Were Warned About NSA Spy Data," another Washington Post article focusing on the FISA court's reaction to the warrantless program.

Let me know in the comments if you come across any more good sources.

Neoconservatives

You've read a lot about neoconservatives. Why not benefit from a concise Wiki article on neoconservatism? .... There, now that you've done that, let's have a look at some of the key characters that have determined our foreign policy in the younger Bush's administration, from their Wiki biographies:

Richard Norman Perle (born September 16, 1941 in New York City), is a Jewish American political advisor who served the Reagan administration as an assistant Secretary of Defense and served on the Defense Policy Board Advisory Committee from 1987 to 2004. He was Chairman of the Board from 2001 to 2003 under the Bush Administration.

Nicknamed "the Prince of Darkness", Perle is a leading neoconservative and was an outspoken advocate of the 2003 invasion of Iraq.
. . . .
From 1969 to 1980, he worked as a staffer for Democratic Senator Henry M. Jackson of Washington.
. . . .
Within months, Perle was embroiled in an affair involving the leaking of a classified CIA report on alleged past Soviet treaty violations.
. . . .
Further controversy followed in 1970. An FBI wiretap authorized for the Israeli Embassy picked up Perle discussing with an Embassy official classified information which he said had been supplied by a staff member on the National Security Council.

Paul Dundes Wolfowitz (born December 22, 1943) ... is currently the President of the World Bank....
. . . .
A former aide to Democratic Senator "Scoop" Jackson in the 1970s....
. . . .
Paul Wolfowitz was the second child of Jacob Wolfowitz ... a Polish national of Jewish descent who fled to the U.S.A. with his parents in 1920 to escape persecution.
. . . .
Under U.S. President Gerald Ford ... the newly appointed Director of Central Intelligence, George H.W. Bush authorized the formation of a committee of anti-communist experts ... Wolfowitz ... was assigned to this committee....
. . . .
In 1977 under U.S. President Jimmy Carter Wolfowitz made the move to the Pentagon ... as U.S. Deputy Assistant Secretary of Defense for Regional Programs ... ordered to examine possible areas of threat to the U.S. in the third world.
. . . .
In 1981, following the election of U.S. President Ronald Reagan, the newly appointed U.S. National Security Advisor Richard V. Allen ... offered him the position of Director of Policy Planning at the U.S. State Department.
. . . .
From 1989-93 under U.S. President George H.W. Bush Wolfowitz served as U.S. Undersecretary of Defense for Policy reporting to the then U.S. Defense Secretary Dick Cheney .... Wolfowitz was reportedly distraught by the administrations decision to stop short of removing Saddam Hussein ... At the time the official administration line was one of containment and the contents of Wolfowitz’s highly controversial plan that included calls for preemption and unilateralism proved unpalatable to the more moderate members of the administration including Chairman of the Joint Chiefs of Staff Colin Powell and the President himself ... Wolfowitz fell out of favor under U.S. President Bill Clinton and left government for a short while.
. . . .
Wolfowitz returned to government from 2001-05 under U.S. President George W. Bush serving as U.S. Deputy Secretary of Defense ... Following the terrorist attacks of 9-11 ... [c]ertain members of President Bush's cabinet, led by Wolfowitz, readvocated pre-emptive strikes against Iraq, alongside those against terror cells in Afghanistan.

Elliott Abrams (born January 24, 1948) is an American lawyer who has served in foreign policy positions for a number of U.S. Presidents, most recently George W. Bush. During Bush's first term in office, he was appointed the post of Special Assistant to the President and Senior Director on the National Security Council for Near East and North African Affairs. At the start of the president's second term (February, 2005), Abrams was promoted to be his deputy national security adviser, responsible for advancing Bush's strategy of advancing democracy abroad. A leading neoconservative, Abrams' appointment by the White House on December 2, 2002 was considered highly controversial due to his involvement in the Iran-Contra Affair, over which he subsequently pleaded guilty to two misdemeanor counts of unlawfully withholding information from Congress.
. . . .
Abrams first came to national prominence when he served as Reagan's Assistant Secretary of State for Human Rights in the early 1980s and later as Assistant Secretary for Inter-American Affairs.
. . . .
During the Iran-Contra Affair, Abrams was indicted for giving false testimony about his role in the illicit money-raising schemes by the special prosecutor handling the case, but he pleaded guilty to two lesser offenses of withholding information to Congress in order to avoid a trial and a possible jail term.... President George H. W. Bush pardoned Abrams along with a number of other Iran-Contra defendants shortly before leaving office in 1992.
. . . .
Like Perle, Abrams favors a Middle East strategy based on the overwhelming military power of both the United States and Israel and a military alliance between Israel and Turkey against what are considered hostile Arab states....
. . . .
In 1997, Abrams published a book, Faith or Fear, which warned American Jews that assimilating within the secular U.S. culture posed the danger of a gradual loss of Jewish identity.

Douglas J. Feith (born July 16, 1953) served as the Under Secretary of Defense for Policy for United States President George W. Bush from July 2001 until he resigned from his position effective August 8, 2005.
. . . .
Feith first entered government as a Middle East specialist on the National Security Council (NSC) under Ronald Reagan in 1981. He transferred from the NSC Staff to Pentagon in 1982 to work as Special Counsel for Richard Perle, who was then serving as Assistant Secretary of Defense for International Security.
. . . .
Feith and other former US officials signed an open letter to President Bill Clinton calling for the United States to oust Saddam Hussein.
. . . .
Feith also served on the board of the Jewish Institute for National Security Affairs (JINSA), a think tank that promotes a military and strategic alliance between the United States and Israel.
. . . .
Feith resigned from the Pentagon on August 8th, 2005. Neoconservative critic and journalist Jim Lobe has linked Larry Franklin's contemporaenous sentencing in the AIPAC espionage scandal with Feith's resignation.
. . . .
Officially, Feith is currently under investigation by the Pentagon's Inspector General and the Senate Select Committee on Intelligence (SSCI).

Departing Wiki now, there is more about the Feith investigation and related matters here:

Despite their checkered past, Rumsfeld's Pentagon reissued clearances to Feith, Perle and Wolfowitz. Clearances were also issued to several of Feith's consultants, some of whom were major players in the Iran Contra scandal.
. . . .
One former intelligence source said only an official of Rumsfeld's seniority could reissue clearances after they had been revoked.

"The DOD has its own security investigators, as all departments do, and they generally follow the same [strict] guidelines," the source said. "But if Rumsfeld says I want these guys on payroll, the security guys fold."

Finally, maverick neocon Francis Fukuyama gives his own explanation of the origins of neoconservatism, what went wrong, and why "Neoconservatism, as both a political symbol and a body of thought, has evolved into something I can no longer support."

Medical Supply and Demand

A recent news piece, "Primary care about to collapse, physicians warn," made me want to write a short note on doctors in the U.S., not an encyclopedia, mind you, which -- having been (formerly) married to a surgeon -- I could foolishly undertake.

Last time I was informed, insurance companies as well as Medicare paid a whole lot more for "procedures" than for mere office visits. This huge difference sets the prestige stage for many if not most medical students, who see surgical and other specialties like radiology and anaesthesia as the training programs to shoot for, while even the supposedly TV-glamorous field of emergency medicine is just a fallback, as is the unglamorous practice of primary care, or family medicine.

Much of doctors' training after medical school is done by voluntarily cooperating practitioners ("attending physicians") who exchange their supervision of "resident" physicians' work on their patients for call coverage at night and on weekends, and for other incentives. But these attending physicians are acutely aware, and make hospital administrators and medical school professors acutely aware, of the "danger" of "oversupply" in their specialties, so that the number of "spots" in their training programs are constrained.

Upon graduation from residency, new specialists are guided by recruiters to communities where they are actively desired, by hospitals or existing practices needing new staff. Sometimes there is disagreement about whether a new specialist is "needed" in a particular locality, and severe pressure can be exerted by the players in this control of supply. With a load of medical school debt and without skills in setting up a practice from scratch, recruiting incentives are all-important to new doctors. But still, before hiring a new physician, the hiring entity has traditionally demanded very restrictive non-compete agreements, which even lawyers have prohibited in their own hiring and which fortunately are coming under increasing disfavor in the courts.

The "law" of supply and demand means that the way to get the price of something down is to increase the supply of that thing. Yet I have seen no concerted general effort by our governments at any level to increase the supply of all kinds of doctors. We the patients cannot trust the medical establishment to cut their own, sometimes huge, incomes as members of the most powerful guild in our economy. To do nothing means we accept either that our current system of producing doctors is the best possible one or that we are powerless to do anything about it. I believe neither of these things to be true.

UPDATE: "Government isn't the best way to provide all Americans with health security. It's the only way. And it's time for liberalism to say so openly." -- The New Republic editorial

UPDATE: Needs of Patients Outpace Doctors.

"Enhanced" 911

Leaving a clothing store one night, having just bought my girlfriend another pair of sexy shoes, I noticed a car in the parking lot that had a window smashed, bits of glass all around on the ground, apparently so the car could be burglarized. Hoping that alerting the police promptly might prevent more break-ins at the large shopping center, I whipped out my cell phone, called 911, and made a report. But when I pressed the End call button, I saw the words "911 mode" stay on the screen; and they remained there for several minutes. This was my introduction to Enhanced 911, or E911, an FCC mandate that all cell phones be "upgraded," ostensibly to allow emergency services to locate people in need more accurately.

You need to know this location-tracking feature can be abused; and you may want to know if there is anything you can do to minimize the potential for such abuse.

First, know the sales points, as summarized in this glowing piece:

E-911 is the high-tech label for a federal mandate known as Enhanced 911 that requires all US wireless phone companies to begin offering improved location capabilities on their networks. This mandate is a response to a large number of emergency calls being made on cell phones. When 911 emergency calls are made from a landline, an address appears on an operator’s screen. However, if the call comes from a mobile phone, the 911 dispatcher cannot locate the position of the caller. Therefore, the FCC is now requiring wireless companies to accurately locate mobile 911 callers. Carriers will be required to have 100 percent of all new handsets able to provide location information by the end of 2002.
. . . .
The true value of cell phones has recently come to the forefront as we acknowledge the important part wireless communication played in our country's response to the September 11th terrorist attack. The compact size of cell phones has made them more convenient to carry in a pocket, and, now, with the ability to pinpoint a caller’s location, the cell phone can become a customized lifeline. Technology will be doing its part to enhance our feeling of security as the new e-911-enabled phones become standard during the next few years.

So actually it's Enhanced 9/11, see? The Privacy Rights Clearinghouse offers more detail:

In the past, your general location could be verified by looking at your phone records to determine which tower was used to connect your call. Now, your location can often be pinpointed in real time if your phone is turned on. Most current-model phones now include Global Positioning System (GPS) chips, which can determine your coordinates by connecting to satellites.
. . . .
The FCC's E911 initiative requires cell phone carriers to be able to pinpoint their customers' location within 100 meters, so emergency responders can reach them in a crisis. However, phones with GPS chips can actually find you within a few feet. Ninety-five percent of cell phones must be E911 compliant by the end of 2005.
. . . .
Although the impetus behind location-based tracking was public safety, many companies are exploring commercial opportunities as well. Several companies now offer non-emergency tracking for a monthly fee (about $15-25).
. . . .
[M]any GPS-equipped phones have two settings: 911-only or location-on. You should examine your phone and select the appropriate setting for your personal needs.

The privacy policies of commercial location-tracking companies usually restrict their services to either the actual owner of the cell phone, the parent of the cell phone user or employer-owned phones.

Your phone company wants to make extra money by giving you directions to the pizza parlor nearest to your current location and alerting you to nearby online friends you might want to hook up with; but the opportunity for abuse of this information is shown by this amusing but disturbing column in the Guardian (U.K.), "How I stalked my girlfriend":

For the past week I've been tracking my girlfriend through her mobile phone. I can see exactly where she is, at any time of day or night, within 150 yards, as long as her phone is on. It has been very interesting to find out about her day.
. . . .
First I had to get hold of her phone. It wasn't difficult. We live together and she has no reason not to trust me, so she often leaves it lying around. And, after all, I only needed it for five minutes.

I unplugged her phone and took it upstairs to register it on a website I had been told about.
. . . .
Almost immediately, my girlfriend's phone vibrated with a new text message. "Ben Goldacre has requested to add you to their Buddy List! To accept, simply reply to this message with 'LOCATE'". I sent the requested reply. The phone vibrated again. A second text arrived: "WARNING: [this service] allows other people to know where you are. For your own safety make sure that you know who is locating you." I deleted both these text messages.

On the website, I see the familiar number in my list of "GSM devices" and I click "locate". A map appears of the area in which we live, with a person-shaped blob in the middle, roughly 100 yards from our home. The phone doesn't go off at all. There is no trace of what I'm doing on her phone. I can't quite believe my eyes: I knew that the police could do this, and telecommunications companies, but not any old random person with five minutes access to someone else's phone. I can't find anything in her mobile that could possibly let her know that I'm checking her location. As devious systems go, it's foolproof. I set up the website to track her at regular intervals, take a snapshot of her whereabouts automatically, every half hour, and plot her path on the map, so that I can view it at my leisure.
. . . .
If you have any reason to suspect that your phone might have been out of your sight, even for five minutes, and there is anyone who might want to track you: call your phone company and ask it to find out if there is a trace on your phone.

Of course, there's even more to be concerned about, as reported on ZDNet:

[T]he FBI and the U.S. Department of Justice have seized on the ability to locate a cellular customer and are using it to track Americans' whereabouts surreptitiously--even when there's no evidence of wrongdoing.

A pair of court decisions in the last few weeks shows that judges are split on whether this is legal. One federal magistrate judge in Wisconsin on Jan. 17 ruled it was unlawful, but another nine days later in Louisiana decided that it was perfectly OK. Nobody is saying, of course, that police should be denied the ability to locate a felon-on-the-run in an actual emergency. Current law allows agents to do precisely that because there would be ample evidence of wrongdoing, or probable cause, that they can present to a judge.

The problem is that the Justice Department's current official position--a flip-flop from its previous official position--says police should be able to secretly monitor your whereabouts as long as they claim that tracking could possibly be "relevant" to some investigation. Not only is that insufficiently privacy-protective, it doesn't track what the law actually says.

Phone companies' cooperation in invasions of our privacy was described by The New York Times in a recent article, "Attention in N.S.A. Debate Turns to Telecom Industry." And remember that phone companies' use of this new location technology is currently only a matter of their own policies, not of laws (that might not be respected anyway). How many cell companies educate their customers adequately about E911 and the availability of phones with 911-only or location-on switchability, or offer customers a block on commercial location services? Is there a "back door" in your phone circuitry by which the company can turn location sending on, even if you have selected 911-only? Do you even know what mode your phone is in right now, or how to change it (if you can)?
UPDATE: Washington Post, 11/23/07:

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime.
. . . .
And precise location data will be easier to get if the Federal Communication Commission adopts a Justice Department proposal to make the most detailed GPS data available automatically.

So I guess this means "Justice" wants to make it impossible for individual cell phone users to select "911 only" emergency call broadcast of location data. I'm not so sure the coming end of the Bush reign of terror will stop this flood of surveillance. Remember, Clinton authorized Carnivore.

UPDATE: "The Spy In Your Hand" on Newsweek online:

Don't talk: your cell phone may be eavesdropping. Thanks to recent developments in "spy phone" software, a do-it-yourself spook can now wirelessly transfer a wiretapping program to any mobile phone. The programs are inexpensive, and the transfer requires no special skill. The would-be spy needs to get his hands on your phone to press keys authorizing the download, but it takes just a few minutes—about the time needed to download a ringtone.


This new generation of -user-friendly spy-phone software has become widely available in the last year—and it confers stunning powers. The latest programs can silently turn on handset microphones even when no call is being made, allowing a spy to listen to voices in a room halfway around the world. Targets are none the wiser: neither call logs nor phone bills show records of the secretly transmitted data.

Read the rest here.

The Man Who Wouldn't Be King

The Man Who Would Be King is the title of an 1888 Rudyard Kipling short story, but the phrase is more widely known today from the 1975 feature film of the same name. Its negative was used as a subtitle in the 1992 PBS program, George Washington: The Man Who Wouldn't Be King, alluding to Washington's rejection of a proposal by one of his officers toward the end of the Revolutionary War that he become constitutional monarch of the nation-to-be. The true details of the proposal are described in The Nicola Affair: Lewis Nicola, George Washington, and American Military Discontent during the Revolutionary War. Washington's response was unequivocal:

Newburgh, May 22, 1782

Sir:

With a mixture of great surprise and astonishment I have read with attention the Sentiments you have submitted to my perusal. Be assured Sir, no occurrence in the course of the War, has given me more painful sensations than your information of there being such ideas existing in the Army as you have expressed, and I must view with abhorrence, and reprehend with severety. For the present, the communicatn. of them will rest in my own bosom, unless some further agitation of the matter, shall make a disclosure necessary.

I am much at a loss to conceive what part of my conduct could have given encouragement to an address which to me seems big with the greatest mischiefs that can befall my Country. If I am not deceived in the knowledge of myself, you could not have found a person to whom your schemes are more disagreeable; at the same time in justice to my own feelings I must add, that no Man possesses a more sincere wish to see ample justice done to the Army than I do, and as far as my powers and influence, in a constitutional way extend, they shall be employed to the utmost of my abilities to effect it, should there be any occasion. Let me conjure you then, if you have any regard for your Country, concern for yourself or posterity, or respect for me, to banish these thoughts from your Mind, and never communicate, as from yourself, or any one else, a sentiment of the like Nature. With esteem I am.

Fourteen years later, setting the important precedent of serving only two terms as President, Washington was just as unequivocal on a related subject in his Farewell Address, presciently relevant to events in America today:

It is important, likewise, that the habits of thinking in a free country should inspire caution in those intrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.... If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.

Declaring War

The Congress shall have Power ...
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water....

Constitution of the United States, Article I, Section 8, Clauses 1, 10-11 (emphasis addded).

Yet, in a recent news report:

President George W. Bush vowed on Wednesday the United States would defend Israel militarily if needed against Iran and denounced Iranian President Mahmoud Ahmadinejad for "menacing talk" against Israel.
. . . .
"Israel is a solid ally of the United States, we will rise to Israel's defense if need be. So this kind of menacing talk is disturbing. It's not only disturbing to the United States, it's disturbing for other countries in the world as well," he added.

Asked if he meant the United States would rise to Israel's defense militarily, Bush said: "You bet, we'll defend Israel."

In view of our Constitution, and out of respect for the people of the United States and their representatives in Congress, one would hope that our own President would avoid the "menacing talk" he denounced and rather would say something like, "If Israel is attacked by Iran, I will ask the Congress to consider authorizing the use of American armed forces in Israel's defense."

Even after the devastating surprise attack on America's own fleet and base at Pearl Harbor -- in its undisputed possession, the Hawaiian Islands -- Franklin D. Roosevelt went to Congress the next day and asked for its declaration:

Yesterday, December 7, 1941--a date which will live in infamy--the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.
. . . .
I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7, a state of war has existed between the United States and the Japanese Empire.

Yet George Bush makes it sound like springing to the defense of Israel is a done deal: the agreement of Congress to do so, if it would even be sought, is presumed, as is the assent of the American people. This imperial presidency truly has dangerous habits.

But it must be recognized that recent statements and actions of Iran's president and government, combined with the hideous spectre of Middle Eastern Islamic mobs rioting and destroying embassies over some negative cartoon depictions of their prophet, are creating an atmosphere of opinion in America, Europe, and elsewhere that may well tolerate extremely deadly measures taken in response.

While it is true that it has only been a few hundred years since Christian heresy was punished by burning at the stake (and indeed, "some US states still have blasphemy laws on the books," although they are now regarded as unconstitutional under the First Amendment), the religion of Islam, at least in several of its forms, is badly in need of modernization itself. Take heed.

UPDATE: Freedom of speech versus blasphemy -- collecting cases

UPDATE: U.S. Speeds Up Bomb Delivery for the Israelis.

You Be the Judge

The most historic U.S. Supreme Court case on wiretapping is still Katz v. United States (1967), which established that electronic surveillance of a telephone call, even when placed from a phone booth, requires a warrant based on probable cause.

In footnote 23, the Court left a question open:

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

Justice White, in concurrence, addressed this footnote by saying:

We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

But Justice Douglas' concurrence, joined by Justice Brennan, disagreed:

While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eavesdropping without a warrant in cases which the Executive Branch itself labels "national security" matters.

Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved, they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that, where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of "adversary and prosecutor" and disinterested, neutral magistrate.

There is, so far as I understand constitutional history, no distinction under the Fourth Amendment between types of crimes. Article III, § 3, gives "treason" a very narrow definition, and puts restrictions on its proof. But the Fourth Amendment draws no lines between various substantive offenses. The arrests in cases of "hot pursuit" and the arrests on visible or other evidence of probable cause cut across the board, and are not peculiar to any kind of crime.

I would respect the present lines of distinction, and not improvise because a particular crime seems particularly heinous. When the Framers took that step, as they did with treason, the worst crime of all, they made their purpose manifest.

UPDATE: Unreasonable Search

The Empire Strikes Back

Excerpts from an ABC News report:

An intense debate erupted during the Ford administration over the president's powers to eavesdrop without warrants to gather foreign intelligence, according to government documents. George H.W. Bush, Donald Rumsfeld and Dick
Cheney are cited in the documents.

Jack Marsh, a White House adviser, outlined options for Ford over the wiretap legislation. Marsh alerted Ford to objections by Bush as CIA director and by Rumsfeld, Henry Kissinger and Brent Scowcroft over the scope of a provision to require judicial oversight of wiretaps. At the time, Rumsfeld was defense secretary. . . .

Lisa Graves, senior counsel for legislative strategy at the American Civil Liberties Union, said comparing the Ford-era debate to the current controversy is "misleading because no matter what Mr. Cheney or Mr. Rumsfeld may have argued back in 1976, the fact is they lost. When Congress passed the Foreign Intelligence Surveillance Act in 1978, Congress decisively resolved this debate.

"Unlike the current administration, the Ford administration never claimed the right to violate a law requiring judicial oversight of wiretaps in foreign intelligence investigations if Congress were to pass such a law."

UPDATE: Executive Power on Steroids -- law professor Richard A. Epstein

Anti-Trust Enforcement?

President Bush defended the huge profits of Exxon Mobil Corp. Wednesday, saying they are simply the result of the marketplace and that consumers socked with soaring energy costs should not expect price breaks.

I have been wondering for years now, stretching back into the Clinton administration, whether our government officials have been aggressive enough in enforcing our anti-trust laws, especially when it comes to mergers and acquisitions.

The Sherman Anti-Trust Act, 15 U.S.C. § 1, is the first significant federal legislation, passed in 1890, and provides starting point language for correcting distortions of the free market:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.

President Theodore Roosevelt based much of his presidency on "trust-busting;" but it was President William Howard Taft who used the Act to break up the Standard Oil trust into 34 separate oil companies:

They formed the core of today's U.S. oil industry, including ExxonMobil (formerly Standard of New Jersey and Standard of New York), Conoco-Phillips (the Conoco side, which was Standard's company in the Rocky Mountain states)[now merged with Phillips 66, Texaco, and Unocal, itself a merger of Union 76 and Pure Oil], Chevron (Standard of California), Amoco and Sohio (Standard of Indiana and Standard of Ohio, respectively, now [all merged into] BP of North America), and many other smaller companies.

You may have already noticed that some of these breakup companies have re-merged or merged with other oil companies. In case you don't see the names of some of the places you used to be able to buy gasoline, you may find them in this nice history of the oil industry. You may also wonder why you see certain stations in one part of the country but not in another, and wonder if there is some market allocation scheme going on. Under the Sherman Act's enforcement procedures:

Some alleged violations of the Sherman Act are not prosecuted criminally, but rather are adjudicated in civil proceedings under a "rule of reason" standard, which examines the economic benefits and harm of allegedly anticompetitive conduct to determine whether it is, on balance, beneficial to consumer and should be permitted to continue. However, the United States Supreme Court has deemed three types of conduct so lacking in economic justification as to be "per se" illegal. The "per se" violations include price fixing, bid rigging, and market allocation schemes, and are generally prosecuted criminally by the Antitrust Division of the United States Department of Justice. The Antitrust Division has sole authority within the federal government to file criminal antitrust cases, though it shares responsibility for civil enforcement with the Federal Trade Commission.

In addition to the original Sherman Act, we now have the Hart-Scott-Rodino Antitrust Improvements Act of 1976, notably 15 U.S.C. § 18a, which provides for a pre-merger or acquisition notification and waiting period "to enable the Federal Trade Commission and the Assistant Attorney General to determine whether such acquisition may, if consummated, violate the antitrust laws."

I agree that a windfall profits tax will not lower these sticky post-Katrina gasoline prices to consumers; but, with one merger after another being approved since the big breakup, I have to wonder if the Antitrust Division and the FTC are asleep at the wheel.

UPDATE: BP annual profit hits record high 22.34 billion dollars

UPDATE:

When AT&T Chief Executive Edward E. Whitacre Jr. announced Sunday that his company would acquire BellSouth in a deal worth $67 billion, it signaled a new era for big telephony as well as the near complete undoing of the 1984 breakup of Ma Bell, with four out of seven Baby Bells soon subsumed back into the company.

[A]n analyst for Medley Global Advisors in Washington, said AT&T executives may feel some urgency to act now when the regulatory climate under the Bush administration is favorable to such industry consolidation.

UPDATE: The Price of Oil, OPEC and Our Laws; and Taxing Oil's Monopoly Profits.