Marginal Utility

by Tom Bozzo

After reading this, and weeping a bit, some Deep Thoughts:

1. If the nice people at Fort Meade already have a bunch of quantum computers in the basement, then presumably public key cryptography isn't an obstacle to U.S. government access to the content of private communications. [*]

2. If the nice people at Fort Meade already are directly tapped into (e.g.) the Googleborg and not just communication switches, then we already live in a surveillance state more intrusive in many ways than (e.g.) the UK's CCTV panopticon. [**]

If neither 1 nor 2 is true, at least yet, then the general — versus privacy geek — appeal of encrypting one's personal communications has increased a lot.

Update: How could I have forgotten about first-class mail?! The venerable postal product is sealed against inspection and impervious to electronic surveillance.


[*] Which is not to say that it's lawful for them to be scooping up even ciphertext of U.S. domestic communications in contravention of FISA.

[**] Clearly some of Google's "free" services come at the price of letting its computers process one's communications and other online activities for the purpose of directing advertising, which is not without privacy considerations. Of course if Google decided to enter businesses such as blackmail, there would be legal remedies. Indeed, after posting this originally, Google served up a bunch of ads pertaining to commercial surveillance products and/or services.

Labels: computers, the rule of law

by Ken Houghton

"[N]ot...every violation of the law, is a crime." - Michael Mukasey, making it clear to the world that a Columbia education isn't worth jack.

Labels: Democracy, LGandM, the rule of law

by Ken Houghton

Ignore the Federal/State issues (fair enough), buy into the strange delusion that this is a "follow the money" issue, and ignore Larry Ribstein's points entirely (especially the ones here).

As of Monday, the New York State Governor will be a blind, black man.

Take that, Geraldine?

Labels: homeland security, Politics, Sex, the rule of law

by Ken Houghton

Jane Hamsher and Digby have noticed what anyone who looked at the indictment would know: this is a political smear job.

Not that Spitzer didn't do it, but, not to be subtle about it: you can't keep that high-end a business running with only one client.

Now, I know that no one would ever believe that the Bush administration—and certainly not someone who worked closely with Michael Chertoff—would ever do anything for purely political reasons.

But don't be surprised if that is exactly what happened.

As a side note, I got the chance to see the most famous person prosecuted under the Mann Act live last summer (thank you, Ruth), and it's difficult not to think that that prosecution also made the world a slightly nastier place than it should be.

UPDATE: Felix Salmon summarizes the power struggle that led to the prosecution, and is more optimistic about the results than I (but who isn't?).

UPDATE 2: Lance speak, you listen. But see also the comments from Velvet Goldmine and, especially, actor212:

Ask yourself this, Lance:

Since when has $5G ever been considered "large sums of money"?

That would mean, the next time you buy a car and put a down payment down, the Feds ought to be allowed to look at it first.

UPDATE #3: See Reg at Beautiful Horizons, who appears to have noticed what Tom Tomorrow pointed out, and (via Felix) Justin Wolfers, who basically explains (without noting it directly) why David Vitter and Larry Craig are still in office.

Labels: homeland security, Politics, Sex, the rule of law

by Ken Houghton

If a 17-year-old tries to buy cigarettes in a store in Bangor, the clerk is required by Federal law to check his or her ID, and refuse the sale.

If that same 17-year-old buys cigarettes over the Internet (without paying state taxes), The Supreme Court believes that's a Great Idea:

The US Supreme Court on Wednesday struck down key portions of a Maine state law aimed at preventing minors from purchasing cigarettes and other tobacco products over the Internet or through other mail-order services. The vote was 9-0.

At issue was whether the 2003 state law was preempted by federal efforts to deregulate the shipping industry nationwide.

In agreeing with the shipping companies, the high court said Maine's law, while well intentioned, interfered with a congressional determination to prevent shipping companies from becoming mired in conflicting state regulations. Instead, Congress sought to leave it to the competitive marketplace to determine which services companies might offer or decline to offer.

"To allow Maine to insist that the carriers provide a special checking system would allow other states to do the same," writes Justice Stephen Breyer in the court's 11-page decision. "To interpret the federal law to permit these, and similar, state requirements could easily lead to a patchwork of state service-determining laws, rules, and regulations." [emphases mine]

I leave it to The Rest of the Story to explain to me what is so special about requiring a confirmation that local retailers are required to make.

Meanwhile, tobacco dealers who rent space and pay taxes and check ID (or get fined for not doing so) in Maine are wondering why they got rogered.

Labels: free trade, Smoking, the rule of law

by Ken Houghton

I have been watching in (somewhat mock) horror as Hillary Rodham Clinton gets triangulated out of the race for the Presidency and Roger Clemens—who for the past ten-plus years has shown the same trends and the same physical changes as Barry Bonds, in a much more fragile position—denies having used steroids.

But if Howard Bryant is to be believed—always an open question—Roger is about to get, well, rogered.*

I believe it was Gerald Wilkins, after "losing" a slam-dunk contest to Michael Jordan when the All-Star Game was in Chicago, who most poignantly observed, "It's difficult to win on the road in the NBA."

If Bryant's description of Wednesday's hearing is correct, Wilkens description applies aptly to Clemens's position :

As titillating, tawdry and undignified as the blood feud between Roger Clemens and Brian McNamee has been, the real showdown Wednesday before Congress is not between Clemens and McNamee, but between Clemens and former U.S. Sen. George Mitchell.

Let me be clear: The Mitchell Report, as it currently stands, is the Black Sox Scandal of the 21st Century. Despite that, as Bryant notes:

When Mitchell, union head Donald Fehr and baseball commissioner Bud Selig testified in Room 2154 of the Rayburn Building on Jan. 15, Mitchell was praised for his "fair and impartial" report, produced under the difficult circumstances of not having the players' cooperation. Mitchell's approach, methodology, findings and conclusions went unchallenged. No member of the committee probed with specific questions about the information gathering process on Clemens, even though each knew within a month that Clemens, and McNamee, would testify before them.

The normally-astute National Law Journal ran an op-ed two week's ago discussing the legend-in-his-own-mind Mitchell Report. It was a relatively balanced piece—certainly better than the ESPN coverage—but it still suffers from an attempt to be "fair and balanced." Especially egregious is this statement, whose sentiment is assumed throughout the piece:

It appears that Major League Baseball needed to have a George Mitchell not only conduct a vigorous investigation but also identify alleged wrongdoers.

The short answer is, well, yes, that would have been a good idea.

Let's be clear: the Mitchell investigation was not "vigorous" and did not "identify" any wrongdoers who were not found by other means.

The bulk of the "report" is based on two New York-based people who worked in the clubhouses of the Yankees (Brian McNamee) and Mets (Kirk Radomski). Note that the links are both to extant court cases that involve public testimony.

Mitchell had no subpoena power. He started by speaking with people under indictment and people they implicated as having dealt with them directly. His information came (primarily) second-hand from the Mcnamees and Radomskis and Jason Grimsley.

The result was by no means "vigourous"—it couldn't be, given the constraints. The result was what Mitchell always does: a report that made his paymasters (in this case, the baseball owners) happy that they had "identified the problem," that it was relatively limited, and that they themselves were not complicit.

And the thing is, Cohen and Gershman know everything I'm saying. While they open with:

Not surprisingly, the credibility of the now-famous Mitchell Report that publicly identified 85 baseball players as having used illegal drugs is about to be tested

they never support the claim in the report. Indeed, the closest they come is to say that it "would have appeared less credible" without including those 85 often-unsubstantiated names. Indeed, Cohen and Gershman are clear-sighted in the true purpose of the report:

It appears that Major League Baseball needed to have a George Mitchell not only conduct a vigorous investigation but also identify alleged wrongdoers. However, given the protocol he chose, there may be innocent victims whose protestations will be heard but, in most cases, not believed.

At least this time, some lawyers know the truth, and are telling it—even if it is by what they do not say. One can only wish Congress had acknowledged the same.

*Sorry, started this yesterday and don't feel like changing all the tenses throughout. But having now seen The Daily Show medley of clips of people discussing Clemens's bum and its bleeding, I don't feel much of a need to change anything else, either.

Labels: baseball, the rule of law

by Ken Houghton

Peter Dorman at EconoSpeak attempts to find the "intellectual roots of Obamaian Post-Partisanship."

The result pretty much explains my no-secret at all antagonism to seeing Obama as a purveyor of "hope":

Cass Sunstein. Sunstein has been cited as an advisor to Obama, and he has written extensively on the dangers of a world in which people only communicate with those they already agree with....

...I know how important it is to listen with an open mind to those whose point of view challenges your own. You do yourself and the quality of your thinking no favor when you live and converse in an echo chamber.

But there are two problems with the let’s-all-get-along school. First, there is the issue of power....

Second, what counts as moderation in America is often hopelessly skewed to the right, even by the standards of other capitalist countries. I generally distrust corner solutions—all this or all that—and look for blending and balancing, but if John Edwards is too far to the left to be taken seriously, I’m a speck on the thin edge of the political distribution, several sigmas out. In this respect, the Sunstein/Obama analysis is correct, but radically incomplete. We need to really extend the conversation to the vast regions beyond the pale of approved discourse. The resulting zone of consensus will be moderate by the standards of intelligent human thought but extreme with respect the political constraints we live under today.

So far I could have written this, if I could write that well. But he doesn't discuss Cass Sunstein's public statements, which in themselves exemplify the "partisanship" he studies. Sunstein on Obama in September of 2006:

As a member of the University of Chicago Law School community, where economic analysis reigns, he knows a lot about how markets work, and he is hardly committed to left-wing orthodoxies about either the economy or the culture.

Sunstein praises Obama at length, attacking Sean Wilentz for noting that

Dreams From My Father contains composite characters and other fictionalized elements—not exactly a portrait of sterling honesty or authenticity.

Talking about liberals with Salon, Sunstein says:

Liberals are sometimes defined as people who can't take their own side in an argument. I actually don't think there's a difference, though. I would say that there are many liberals who think that, in the last few elections, to vote for a Republican presidential candidate is just mindless, that there's no rational reason that people would vote Republican. If liberals are thinking that, there's probably a problem. I think many liberals think that to vote for Bush, some part of their brain is on fire and the rest of it isn't functioning, or that they've been fooled in some way, or that they're not paying attention. So I think that a lot of liberals are in an echo chamber where they share a set of views, some of which are probably wrong.

He attacks Wilentz for making the obvious connection (and not because its obvious):

In Wilentz' account, the delusional "Obama-awed commentators" have failed to learn the true lesson of the Bush Administration, which is that the last time America opted for intuition-based governance, it produced a "catastrophic presidency."

Sunstein, of course, was immune to that:

In contrast, in 2000 I had high hopes for President Bush. I thought he could be a very good president. I think he has failed terribly in part because his White House is [They started out somewhat open-minded on these issues, somewhat diverse, and after discussion the diversity was squelched and the extremism was increased.].

we have to wonder if this is the same man who told Salon

[S]avvy political entrepreneurs are creating the conditions of our experiment because they want to decrease internal diversity. Karl Rove could be described as a "polarization entrepreneur." [emphasis mine]

The evidence that they started out "open-minded" is notably lacking, which is why when Sunstein declares in his TNR piece that

Wilentz is right to say that some members of the press were excessively generous to Bush's candidacy, perhaps because they preferred him to the not-terribly-fun Al Gore. Many of Bush's supporters, in the press and elsewhere, have been disappointed, but they were hardly deluded.

we have to wonder what he thinks he himself was.

And, finally, we need to understand why we have to understand the other side:

As a law professor I would say, If you think there's nothing to be learned from Justice [Antonin] Scalia's opinions, then there's a real problem. Because some of his opinions are really good. And some of them are even right. And those that are wrong, you improve your thinking a lot if you grapple with what he has to say.

Great: my thinking will be improved,* even as my rights are further constricted. I believe this is what Sunstein means when he refers to Obama as "the visionary minimalist." So what is the case here? Much straw, little fire:

Unlike most Democratic senators, he acknowledges that large increases in the minimum wage might "discourage employers from hiring more workers," which helps explain his enthusiasm for the Earned Income Tax Credit, an anti-poverty policy with Republican roots that supplements wages but does not have disemployment effects. Rejecting the orthodoxy of many Democrats, Obama does not want to excise religion from the public sphere. He insists only that "[w]hat our deliberative, pluralistic democracy does demand is that the religiously motivated translate their concerns into universal, rather than religion-specific, values." In 2005, Obama voted with Republicans in favor of the Class Action Fairness Act, which increases the rights of defendants in class action suits. After he received an e-mail from a pro-life doctor, Obama softened his website's harsh rhetoric on abortion, writing: "[T]hat night, before I went to bed, I said a prayer of my own--that I might extend the same presumption of good faith to others that the doctor had extended to me." [italics mine; emphases his]

For someone who talks a lot about reaching out to the other side, Sunstein fluffs a lot of Republicans, even from over thirty years ago.

Teresa has joined the list of those who are convinced Obama will be the nominee for the Democratic Party. So the answer to my semi-rhetorical question at the end of Caroline's endorsement on the basis of her pragmatism ("When did Democrats become Republicans?") appears more and more to be "when they nominated one."

Fortunately, either alternative is MUCH worse.

It will be nice, for the first time in eight Presidential elections, to be able to vote for a member of the Ancestral Party—even if he is passing.

*Can't I just outsource legal analysis to Scott or Bean, who actually spent time learning the background that Sunstein appears to prefer to actual consideration of the results of those decisions? Isn't Chicago the place where specialization is part of the Pentateuch?

Labels: 2008, ObamaNation, Politics, the rule of law

by Ken Houghton

We (by which I mean Brad DeLong and Tom, but possibly not Chris Dillow or I) believe that economic growth thrives best in a democracy, or at least a democratic republic.* Strong institutions, respect for the rule of law, avenues of redress, all that rot.**

Marshall Jevons notes the imminent death of Suharto (the man whose rule began with Mel Gibson getting a hard knock in the eye), and asks the obvious:

Here's someone who has embezzled huge amounts (15 to 35 billion) of money from state coffers, still loved by the people? Does it really truly reflect the view of the Indonesian people? What lesson can development practitioners learn from it?

With all the talk of Second-Best Institutions, is it possible that Not Being a Democracy is a better choice for economic growth?

*I would prefer to believe it, but do not see the supporting evidence. I can't speak for Chris Dillow's preferences.

**Of course, this requires one to presume that, for instance, 11 Sep 1973 never happened, except to create a Miracle(tm). But I sidebar, if not digress.

Labels: Brad DeLong, Democracy, Economic Development, Politics, the rule of law

by Ken Houghton

There may be a tenure-track spot available at Penn.

A former Ivy League professor pleaded guilty Monday to voluntary manslaughter for killing his wife as she wrapped Christmas presents last year....

"We started a discussion about that. The discussion was tense," Robb said. "We were both anxious about it. We both got angry. At one point, Ellen pushed me. ... I just lost it."

Labels: Economics, just life, teaching, the rule of law

by Ken Houghton

In the grand tradition of Scott at LG&M, here's the lede opening paragraphs (corrected; h/t, Gary in comments) for today's article on the faith of Rudy "I Hate Ferrets" G., the thrice-married Devout Catholic, as it should be:

Minutes before the South Tower of the World Trade Center collapsed into a roar of white dust and debris, Mayor Rudolph Giuliani caught a glimpse of the Fire Department's chaplain, Father Mychal Judge.

"Pray for us," the mayor said, reaching out to grab the chaplain's hand as the two raced past each other in the chaos.

"I always do," replied Father Judge. "I always pray for you."

It was the last time Mr. Giuliani would see his close friend and spiritual adviser. Judge was killed minutes later as he administered last rites to a firefighter who might not have died had Mr. Guiliani not both moved the Emergency Headquarters from the safety of the basement of One Police Plaza to the 25th floor of the WTC and failed to work over the previous eight years to provide the fire department with proper communication equipment, such as the police who had been warned to evacuate the building by then were using. The chaplain was just one of many personal friends among the casualties, which the mayor summed up for the stunned nation simply as "more than we can bear."

There. That's better.

Labels: 2008, Journamalism, LGandM, Politics, the rule of law

by Ken Houghton

I wasn't going to blog again tonight—too much paperwork, cleanup, and other life things that should but don't have cute pictures—but this post by Scott is so offensive that it requires comment.

Steve Smith has nothing in common with Harry Reid. Let's compare:

1. Steve Smith made a mistake that he immediately regretted. Harry Reid is bending over and saying, "More please, sir."
   
2. Steve Smith got up again and returned to his job. When the Oilers won the Cup in 1987, Wayne Gretzky immediately handed the Cup to Smith. If Harry Reid's team wins anything next year—which his actions keep putting in doubt—no one will even give a fly*ng f*ck* about him.
   
3. It wasn't until the end of his career that Steve Smith Played for The Other Team in Scott's video. Harry Reid has no such excuse.
   
4. Smith's mistake was in the heat of play, and you can see what he was trying to do. Reid's act is deliberate and meditated and has no rational explanation.
   
5. Smith's error was at least a boon for Scott. Harry Reid's error is a disaster for 300 million U.S. citizens and countless others.

In short, Scott has insulted Steve Smith directly and, by implication, the integrity of NHL players everywhere by comparing Smith to someone who would commit what he (Scott) correctly calls "an appalling abdication of constitutional responsibility; there's nothing else one can say."

He should be ashamed of himself. Not so ashamed as Harry Reid, to be certain, but ashamed nonetheless.


*Reference to a song by my favorite Christian rocker, Bruce Cockburn. The lyrics are especially worth quoting in this context:

North South East West
Kill the best and buy the rest
It's just spend a buck to make a buck
You don't really give a fly*ng f*ck
About the people in misery....

See the paid-off local bottom feeders
Passing themselves off as leaders
Kiss the ladies shake hands with the fellows
Open for business like a cheap bordello

And they call it democracy
And they call it democracy
And they call it democracy
And they call it democracy

Labels: hockey, LGandM, Politics, the rule of law

by Ken Houghton

I guess Rudy, Mitt, and Obama* are safe, but if another candidate withdraws from the race in the next 48 hours, TSG knows why:

A federal judge today gave the green light to the so-called D.C. Madam to distribute phone records that contain the numbers of her upscale and connected clientele.

*IIRC, Obama didn't get to the Senate until after the shutdown.

Labels: just life, Politics, the rule of law