The Commentariat -- Dec. 28, 2013

Michael Schmidt & Adam Liptak of the New York Times: "A federal judge in New York on Friday ruled that the National Security Agency's program that is systematically keeping phone records of all Americans is lawful, creating a conflict among lower courts and increasing the likelihood that the issue will be resolved by the Supreme Court. In the ruling, Judge William H. Pauley III, of the United States District Court for the Southern District of New York, granted a motion filed by the federal government to dismiss a challenge to the program brought by the American Civil Liberties Union, which had tried to halt the program. Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies." CW: Pauley is a Clinton appointee. ...

... New York Times Editors: "The ruling, which repeatedly defers to the government's benign characterization of its own surveillance programs, demonstrates once more the importance of fixing the law at its source, rather than waiting for further interpretations by higher courts." ...

... Charles Pierce: "The subtext of what [Judge Pauley] is saying is simply that terrorists from 'a seventh-century milieu' -- actually, strip clubs in Tampa and an apartment in Hamburg -- have rendered the Fourth Amendment obsolete in a dangerous and interconnected world, and that only our all-too-human, and curiously error-prone, heroes of the surveillance state can keep us safe. Oh, and also, we common folk shouldn't ever have known about this anyway.

It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets -- including the means and methods of intelligence gathering -- could frustrate Congress' intent. -- Judge William Pauley, in his opinion on NSA phone-records collection

     ... Thanks to James S. for the link.

... Pierce is also incensed about what he describes as numerous instances of infringement of First Amendment rights by "law enforcement in the service of corporate interests.... That, my friends, is how you seriously abridge freedom of speech in this country. You take someone with an explicitly political message who commits a specifically political act and you throw him in jail for having committed it." CW: While I appreciate Pierce's sentiments, I think Pierce is wrong about this, as I'll elaborate in the Comments. I'll expect blowback & would especially appreciate it coming from a Constitutional lawyer.

Caren Bohan of Reuters: "On the eve of the expiration of federal benefits for the long-term unemployed, U.S. President Barack Obama and his Democratic allies are stepping up pressure on Republicans to renew the program. Top White House economic adviser Gene Sperling said in a statement issued on Friday that a failure to renew emergency jobless benefits would harm the economy and he urged Congress to move quickly to pass a short-term extension of the aid. Senate Majority Leader Harry Reid, a Democrat, has vowed to bring to a vote a bill extending federal unemployment insurance benefits as soon as Congress returns from its holiday recess...." ...

... Ryan Cooper in the Washington Post: "I've been ragging on the centrist brigades lately, even suggesting that their newfound focus on job growth might not be 100% sincere. But if they'll mobilize fully behind an extension of unemployment insurance, I'll eat my words. This is a simple, cheap issue that will concretely help some of our most vulnerable fellow citizens. So how about it, Third Way?" ...

... Let Them Eat Walnuts. David Fahrenthold of the Washington Post takes a charitable view of Congress -- the poor things just don't know how to budget: "... sequestration [is] a policy that -- at least in theory -- cut the good and the bad equally. That created odd contrasts: Meals on Wheels was cut, and Army units reduced training; Washington kept paying for dubious expenses such as a plane that didn't fly, an airport with no passengers and farm subsidies in Manhattan. And a private industry's 'spokes-squirrel.' This month, Congress canceled sequestration's across-the-board cuts and gave itself another chance to demonstrate that legislators can make smarter, more judicious cuts. But so far, it has mainly demonstrated the power of old Washington habits, the political reflexes that make cutting government so hard." CW: If an inability to budget is Congress's problem, how come they have no trouble slashing programs to help the needy but rally 'round a program that is supposed to help wealthy walnut growers but has no proven effect?

New Yorker: "... Hendrik Hertzberg and Ryan Lizza join host Dorothy Wickenden to take a look back at the year in politics, with a particular focus on the news we can be happy about":

AP: "The number of reported sexual assaults across the U.S. military shot up by more than 50 percent this year, an increase that defense officials say may suggest that victims are becoming more willing to come forward. A tumultuous year of scandals shined a spotlight on the crimes and put pressure on the military to take aggressive action. According to early data obtained by The Associated Press, more than 5,000 reports of sexual assault were filed during the fiscal year that ended Sept. 30, compared to the 3,374 in 2012."

New York Times Editors: "Even if the new defense bill spurs progress in reducing the detainee population, the delivery of credible justice for those at the Guantánamo prison camp is far from complete."

David Kocieniewski of the New York Times: "... interviews with dozens of academics and traders, and a review of hundreds of emails and other documents involving two highly visible professors in the commodities field -- [Professor Craig] Pirrong [of the University of Houston] and Professor Scott H. Irwin at the University of Illinois -- show how major players on Wall Street and elsewhere have been aggressive in underwriting and promoting academic work [that benefits the businesses]. The efforts by the financial players, the interviews show, are part of a sweeping campaign to beat back regulation and shape policies that affect the prices that people around the world pay for essentials like food, fuel and cotton."

Illustration by Dale Stephanos for the Washington Post.Dave Barry's year in review, in the Washington Post Magazine: "It was the Year of the Zombies. Not in the sense of most of humanity dying from a horrible plague and then reanimating as mindless flesh-eating ghouls.... As bad as a zombie apocalypse would be, at least it wouldn't involve the resurrection of Anthony Weiner's most private part."

Robert O'Harrow of the Washington Post: "The Small Business Administration is moving to ban one of the government's most prominent small-business contractors from new federal work, saying that the firm provided false information about its ownership and operations, documents show. The SBA said it has information showing that Tysons Corner-based MicroTechnologies LLC and its founder, Anthony R. Jimenez, submitted 'false and misleading statements' in order to receive preferential treatment, according to a Dec. 20 letter from the agency to the company."

Patricia Murphy of the Daily Beast: "If Ted Cruz seems like a one-of-a-kind, give it time. A slew of young, hard-charging, Tea Party-endorsed Senate wannabes is looking to knock off the Republican establishment again in 2014. Some have better chances than others, but all have the unmistakable Cruzian commitment to refusing to toe the Republican Party line and make headlines while doing it." Murphy introduces us to the Cruz clones.

Dexter Filkins of the New Yorker: "Prime Minister Recep Tayyip Erdoğan, one of the most remarkable figures in the modern Middle East, is fast discovering that the authoritarian measures he has increasingly relied on to govern Turkey, and the cult of personality he has built around himself, are conspiring to bring about his political demise.... In recent years, intoxicated by his own ascent, Erdoğan began to act like a leader who believed that Turkey's success and his own could not be separated. " CW: Just another NonMandela. And a reminder we should be grateful for the 22nd Amendment.

Will This Story End Now? Please. Reuters: "Cable network A&E said on Friday it was bringing back family patriarch Phil Robertson to the hit reality show 'Duck Dynasty' after fans protested his suspension over anti-gay remarks and big-name corporate sponsors stuck by the series." ...

... Dave Nemetz of Yahoo! News: "Conservative groups that called for Robertson's reinstatement are applauding the move...." CW: Some of those "conservatives applauding the move" are probably unemployed people who will lose their benefits today & their food stamps tomorrow. Yep, it's more important to them that a crude rich guy keeps his job than that they themselves have enough to survive. People are stoopid. ...

... Richard Kim of the Nation: "... Duck Dynasty should get real. It should show Robertson being as homophobic as he pleases, in his home, his church, his community. The show's editors have previously been criticized for asking Robertson to not say 'Jesus' at the end of his prayers; they should now let him get his Jesus freak on.... And, as long as the show's producers 'guide' reality along, they should film Robertson interacting with actual gay people." CW: AND "actual black people," too, of the sort who sing the blues.

Local News

John Ingold of the Denver Post: "Denver's first recreational marijuana store owners picked up their city licenses Friday, the final step before opening on Jan. 1 among the first shops in the world approved to sell pot to all adults."

Marissa Lang of the Salt Lake Tribune: "In the week since a federal judge overturned Utah's ban on same-sex marriage, the number of weddings in the state has skyrocketed, shattering records and accruing thousands of dollars for Utah's 29 counties. As of close of business Thursday, more than 1,225 marriage licenses had been issued in Utah since last Friday, according to numbers obtained by The Salt Lake Tribune. Of those, at least 74 percent were issued to gay and lesbian couples." ...

... Brooke Adams of the Salt Lake Tribune: "The state of Utah has turned to outside counsel for help with its efforts to stop same-sex marriages, a move the office said Thursday would temporarily delay its application for a stay to the U.S. Supreme Court. The Attorney General's Office planned to file a stay request Thursday but said the application would be made on Friday or Monday as it coordinates with the outside firm, which it has not yet identified.... The stay appeal will be made to Justice Sonia Sotomayor, who is assigned oversight of the 10th Circuit Court of Appeals."

Rosalind Helderman of the Washington Post: Johnnie R. Williams, Sr., "the businessman at the heart of a federal investigation into Virginia Gov. Robert F. McDonnell (R), stepped down Friday as chief executive of Star Scientific Inc., the dietary supplement maker. The company has also been given permission by stockholders to look at changing its name, indicating that it might ditch Star Scientific Inc. in favor of Rock Creek Pharmaceuticals Inc."

News Ledes

CNN: Former President Bill Clinton will swear in New York City Mayor-Elect Bill de Blasio on January 1.

New York Times: "Four American military personnel assigned to the United States Embassy in Tripoli, Libya, were detained Friday and then released after being held for hours by the country's Interior Ministry, American officials said. The four were believed to have been reviewing potential evacuation routes for diplomats when they were detained...."

Comments

[James Singer]

Charlie Pierce on Pauley: "Let us congratulate U.S. District Judge William Pauley III. It cannot be easy issuing an important ruling while hiding under your bed."

[DaveS]

It's a few days early but the thought is in my head and I'll lose it otherwise:

First off I would like to again thank Ms. Burns for keeping on. This is a news source that in my view is about as fair and balanced as it gets these days.

But to the point of my comment, I'm 52. Even though I'm at the tail end of the boomer generation I was lucky to grow up knowing what it's like to have opportunity in a society where government leveled the playing field. Then came the Reagan Revolution and all the cultural and economic battles that followed.

So as we trudge past (I hope!) the nadir of that movement, I give you all 3 young (2 very young) voices that inspire and give me hope going forward.

Best Wishes for a Happier New Year all!

[Marie Burns]

What Pierce is arguing is that we all have a right to speak out & assemble on the public square at all times & under all circumstances & that any time officials curb that right, they are acting against the public interest, sometimes or oftentimes in the interests of private corporations.

That's nonsense. There is a public interest in keeping the peace & guarding public safety. Free speech & assembly must be exercised within those parameters.

I agree with Pierce that public officials, including law enforcement, don't always conform to Constitutional prerogatives, & are happy to arrest people who may be acting within their rights. At the same time, protesters often (or usually) mean to be disruptive. They want to bring attention to their issue. Some protesters are happy to be arrested -- this makes their issue more newsworthy & brings it more attention. Pierce implies that local curbs on First Amendment freedoms is some new trend. That's ludicrous. First Amendment freedoms will almost always be in tension with the rights of the general public.

There is some religious group that sets up a microphone every Sunday night in a grocery-store parking lot two blocks from my home & blares their message, an exercise that can go on for hours. I suppose they get a crowd. Now, here are people who think they're exercising their free speech rights, their religious freedom & their right to assembly. But even two blocks away, they're disturbing my peace. I used to call the cops -- who shut them down -- until I got triple-paned windows -- now their blasts are just a dull, annoying noise, so I leave it to people living closer-by to call the cops & I just turn up the sound on "Masterpiece Theater."

Pierce -- just like right-winters -- seems to think that people espousing causes with which he agrees have rights that trump the rights of others. Personally, I don't mind when others inconvenience me even when they're protesting about something with which I disagree. But I do mind if they cause a public hazard or they seriously limit the reasonable rights of others -- occupying a park, a public building, a street, etc., should have limits & require permitting except under extraordinary circumstances. Others have a right to go about their business in public offices, travel on the public streets, have lunch in the park, whatever.

As to the main story that so incensed Pierce, probably both the protester & the cops were wrong. The protester should have done as the cops suggested & the cops should have taken the guy's jarful of dust & tossed it in the dustbin. But this is hardly something to get excited about. The protester, who was still in jail at the time of publication the story Pierce linked, is probably happy for the attention -- attention he would not have received if he had taken the cops' advice. Everybody, including Pierce, should get a grip. We live in a civil society. It won't stay that way if everyone -- cops included -- insists upon his own rights at the expense of the rights of the rest of us.

Marie

[Barbarossa]

Re: NYT region quiz. I was amazed to find that it pegged exactly where I'm from--Southern Idaho and Eastern Oregon.

[Ken Winkes]

It's hard to argue with reason, and hence easy for this not-at-all constitutional scholar to agree with the CW when she takes Pierce to mild task.

BUT, I do have a concern with the bigger picture. To be sure, those exercising their rights to assembly and speech in a public place are often at least annoying, if not downright disruptive (when they are not, as they are--I think of the downtown street corner Bible-waving preachers I could hear every Saturday night in my hometown--occasionally entertaining.)

So in each instance, there are rights that have to be weighed and balanced. Should the act, the assembly, the speech, be allowed at all? Where and when? Thus the permit process and the rules promulgated to delimit public assembly and protest. That I understand.

But when I look at trends, I see reason to be concerned. As is true everywhere else, when it comes to public assembly and speech issues, we have more rules and regulations every year. From Presidential appearances to the kinds of anti-Keystone activities Pierce cites, the state exerts more and more control. One reason for that increase is simply size. More people participating, at the same time by virtue of that participation infringing on even more people's expectations of peace and quiet, require more control.

But there's also something else going on, I think. The entrenched, those with the money and power, don't have to go to the streets to make their point. Often they use the police they directly or indirectly hire to make it for them.

I think of the way protestors were handled by the paranoid Bush II Presidency. Here we were, engaged in an illegal war initiated by an illegitimate President and the public outcry was kept at great physical distance, muffled and often illegally arrested en masse (only to be quietly released later, when no one was looking). The peace sought here was peace for the President. Now, while the Iraq War is no longer the issue and we have another President, too many of the Bush II crowd control practices persist, and I do not believe they are all in the interest of properly balancing rights.

And like many of us I have been a member of groups assembling to bring attention to something we considered unjust. Let's say we were calling attention to Walmart's wage and employment practices by gathering on a street corner near one of their superstores. When the police cruised by repeatedly and when they parked across the street and gave our group the eye, I never had the impression they were likely to jump out of their cars and join us. Regardless of what they might have thought about our cause, their role as "peace" keeper would not have allowed them to. In that case and in many others, while a goal devoutly to be wished, "peace" is often the natural ally of the bullies.

As Mr. Romney (remember him?) said, corporations are people, my friends. But they're certainly not people like us. Because they have the money and the power, most often they also--just like the government--have the police on their side.

[JJG]

Re: "Takin' it to the streets..." or "Street fighting man" Remember the sixties? The be-ins, the sit downs, the Merry Pranksters, civil and uncivil disobedience, the days of rage? No? Neither do I.
I do remember being a sixteen year old kid and driving my mother's car (which I did not have permission to do) down to Chicago during the Democratic Convention and trying to get to Grant Park. Cops, big Chicago cops, were everywhere. I watched kids older than me, but not by much, throw teargas canisters back from where they came from. I watched three cops beat some guy bloody who wasn't fast enough to get out of the way. I saw public order disappear in front of my eyes.
I was scared shitless I don't mind saying.
I remember thinking at the time that the cops were breaking the law rather than upholding it. I went from some dumbass suburban white kid who went downtown for a hoot and giggle to a dumbass white kid scared shitless by the power of the State.
You want to fuck with the powers that be? Great, better really believe in what you march, sit in, protest, for; cause the man is going fuck you up.
Like it or not, right or wrong, just or not society needs rules and regulations.
So when you place a jar of coal dust on the governor's door step you've pretty much guaranteed a reaction.
Isn't that the point?
Like Marie points out if the cops had not arrested the man chances are we would not have heard about the incident.
What scares me more than angry cops with batons and shields are the new rules and regulations that restrict public protests and assembles. Oh, you can protest all you want; six miles away from the action. Or, fine, you need thousand and two permits for your parade. And on and on, because the powers that be want to remain as such.
Recently we had a group here in my little town that set up right on the main street. Had pictures of President Obama with clever little Hitler mustache photo shopped on. Offered reasons for why President Obama should be impeached. I rode by three days without a word but on the fourth day I had to stop my bike and ask when did the President grow a mustache and did they think he looked better or worse.
I assumed that they knew I was pulling their legs, I figured if you are trying to get attention, don't be surprised when you do.
I've quoted the band Clash here before; the quote works here to;
"Know your rights, you have the right to free speech as long as you aren't dumb enough to actually try it."
I respect people who are willing to go public with their beliefs. We can't only accept those that we agree with, we have to accept those that we don't too.
Stepping over the line into civil disobedience involves a price.
If you're willing to do the crime, you better be willing to do the time.
Oddly enough, that's the way I feel about Mr. Snowden.

[oldstone50]

The right to free speech - like any other right - can't be absolute. That seems pretty clear. But Marie Burns, in her comment above, suggested there may be 'extraordinary circumstances' that allow the exercise of civil disobedience, i.e., to 'cause a public hazard or [...] seriously limit the reasonable rights of others -- occupying a park, a public building, a street, etc.' in the pursuit of being heard. If that is indeed the case, then how does one know when extraordinary circumstances are in effect, and whose judgement is determinant? It seems to me there is a terrible element of wiggle room here that can be used by anyone who knows the Truth to insist that now is the time to be civilly disobedient or, conversely, to insist that no disobedience be tolerated at this time in this, the most civil of all societies. So how can inquiring minds be sure of where to find the high ground?