News Judgment

Acceptance of the Politicization of the IRS

A Tale of Two Scandals

 Peggy Noonan, WSJ, June 26, 2014

Forty-one years ago, during a small and largely ignored government scandal, a great mystery occurred. A group of determined congressional investigators, who had learned the president of the United States was running a voice-activated taping system in the Oval Office, pressed to get their hands on the tapes. The courts ruled in their favor. The White House had to hand over a number of tapes. But it turned out one of them, which was understood by the timeline to potentially be the key one, the one that might reveal exactly how the scandal began, turned out to have an 18½-minute gap.

It came to pass that the longtime personal secretary of the president, Rose Mary Woods, who had been transcribing the tapes in preparation for turning them over, said she had made “a terrible mistake.” She had been listening to the tape when the phone rang; she turned, picked it up, meant to hit the stop button on the tape recorder but hit the record button instead, spoke on the phone for five minutes and when the conversation was over found that five minutes of the tape had been recorded over. Later, and doubly mysterious, it turned out that a total of 18½ minutes of the tape had been erased. No one knows to this day how that happened. The president’s chief of staff, Alexander Haig, once mused it might have been the work of some “sinister force.”

A few members of Congress went mad with fury, but nobody else really noticed or cared. It was a time of such drama—Vietnam, student demonstrations, a cascade of other scandals to distract the attention of the press. So everyone ignored what happened with the tape, and the Watergate scandal, as it was called, did not end in the impeachment of a president. It just went away, in time became “old news.” Well, the president had said there was “not even a smidgen” of corruption in the story, so there you are.

*   *   *

Ha, wait, that’s not what happened.

The 18½ minutes of destroyed evidence had a galvanizing effect on an already galvanized national scandal. Rose Mary Woods was hauled before a grand jury, questioned, derided, called a pawn in a criminal coverup. She endured for the rest of her life what the New York Times in its obituary called a “hideous, disfiguring fame.”

And Richard Nixon’s government of course came crashing down, as did he.

Why is this pertinent?

Because the Obama administration is experiencing what appears to be its own Eighteen-and-a-Half Minute moment. In a truly stunning development in the Internal Revenue Service scandal, the agency last week informed Congress that more than two years’ of Lois Lerner’s email communications with those outside that agency—from 2009 to 2011, meaning the key years at the heart of the targeting-of-conservatives scandal—have gone missing. Quite strangely. The IRS says it cannot locate them. The reason is that Lerner’s computer crashed.

What are the implications of this claim? It means no one can see any emails Lerner sent to or received from other agencies and individuals, including the White House and members of Congress.

And what is amazing—not surprising, but amazing—is that if my experience of normal human conversation the past few days is any guide, very few people are talking about it and almost no one cares.

The IRS scandal as a news story carries a stigma, and the stigma is in part due to the fact that when it broke, when Lois Lerner last year made her admission, with a planted question at an American Bar Association gathering, that the IRS had made some mistakes with conservative groups, and disingenuously suggested the blame lay with incompetents in a field office far from the Beltway, conservatives and partisans jumped. The mainstream press was inclined to believe Lerner, or believe at least that a series of mistakes had produced a small if embarrassing so-called scandal. Some conservatives, activists and partisans, not all of them sincere and not all of them serious, viewed the story primarily as another cudgel to use against the president and his party. Some no doubt viewed it as a fundraising opportunity.

The press viewed it not as a story but as a partisan political drama. And in partisan political dramas they are very rarely on the Republican side.

I haven’t ever met a reporter or producer who wasn’t a conservative who didn’t believe the IRS scandal was the result of the bureaucratic confusion and incompetence of some office workers in Cincinnati who made a mistake.

But the IRS scandal is a scandal, and if you can’t see the relation between a strangely destroyed key piece of evidence in an ongoing scandal and what happened 41 years ago with a strangely destroyed key piece of evidence in an ongoing scandal, something is wrong not with the story but with your news judgment. (We won’t even go into the second story last week, that the IRS sent a big database full of confidential taxpayer information to the FBI.)

It would be very good to see the mainstream press call for a special prosecutor, fully armed with the powers to get to the bottom of the case.

Democrats don’t want this for the obvious reasons, and Republicans on the Hill haven’t wanted it because they want all the attention while they hold hearings. Why share the lights with a boring old independent investigator who’ll take his time? But the very number of hearings and their lack of effect makes Republicans look worse than incompetent workers in a field office. They have proved themselves no match for the administration, which runs circles around them delaying documentation and testifying in incomprehensible gobbledygook.

Moreover, Republicans are probably wrong that they help themselves with the base by showily going after the administration. Eric Cantor long supported Congressional prerogatives here before changing his mind just a month ago, and look where he is.

*   *   *

The mischief of the Nixon administration was specific to it, to its personnel. When Chuck Colson left, he left. All the figures in that drama failed to permanently disfigure the edifice of government. They got caught, and their particular brand of mischief ended.

But the IRS scandal is different, because if it isn’t stopped—if it isn’t fully uncovered, exposed, and its instigators held accountable—it will suggest an acceptance of the politicization of the IRS, and an expected and assumed partisanship within its future actions. That will be terrible not only for citizens but for the government itself.

And the IRS scandal will also have disfigured government in a new and killing way. IRS scandals in the past were about the powerful (Richard Nixon) abusing the powerful (Edward Bennett Williams). This scandal is about the powerful (Lois Lerner, et a.) abusing the not-powerful (normal, on-the-ground Americans such as rural tea-party groups). If it comes to be understood that this kind of thing is how the government now does business, it will be terrible for the spirit and reality of the country.

So many of those who decide what is news cannot, on this issue, see the good faith and honest concern of the many who make this warning. And really, that is tragic.

Reveal rest of post >>

Nixon's Superior

The IRS Loses Lerner's Emails

And other news that the Beltway press corps won't cover.

WSJ Editorial, June 13, 2014

The IRS—remember those jaunty folks?—announced Friday that it can't find two years of emails from Lois Lerner to the Departments of Justice or Treasury. And none to the White House or Democrats on Capitol Hill. An agency spokesman blames a computer crash.

Never underestimate government incompetence, but how convenient. The former IRS Director of Exempt Organizations was at the center of the IRS targeting of conservative groups and still won't testify before Congress. Now we'll never know whose orders she was following, or what directions she was giving. If the Reagan White House had ever offered up this excuse, John Dingell would have held the entire government in contempt.

The suspicion that this is willful obstruction of Congress is all the more warranted because this week we also learned that the IRS, days before the 2010 election, shipped a 1.1 million page database about tax-exempt groups to the FBI. Why? New emails turned up by Darrell Issa's House Oversight Committee show Department of Justice officials worked with Ms. Lerner to investigate groups critical of President Obama.

How out of bounds was this data dump? Consider the usual procedure. The IRS is charged with granting tax-exempt status to social-welfare organizations that spend less than 50% of their resources on politics. If the IRS believes a group has violated those rules, it can assign an agent to investigate and revoke its tax-exempt status. This routinely happens and isn't a criminal offense.

U.S. Director of Exempt Organizations for the Internal Revenue Service Lois Lerner Reuters
Ms. Lerner, by contrast, shipped a database of 12,000 nonprofit tax returns to the FBI, the investigating agency for Justice's Criminal Division. The IRS, in other words, was inviting Justice to engage in a fishing expedition, and inviting people not even licensed to fish in that pond. The Criminal Division (rather than the Tax Division) investigates and prosecutes under the Internal Revenue Code only when the crimes involve IRS personnel.

The Criminal Division knows this, which explains why the emails show that Ms. Lerner was meeting to discuss the possibility of using different statutes, specifically campaign-finance laws, to prosecute nonprofits. A separate email from September 2010 shows Jack Smith, the head of Justice's Public Integrity Unit (part of the Criminal Division) musing over whether Justice might instead "ever charge a 371" against nonprofits. A "371" refers to a section of the U.S. Code that allows prosecutors to broadly claim a conspiracy to defraud the U.S. You know, conspiracies like exercising the right to free political speech.

The IRS has admitted that this database included confidential taxpayer information—including donor details—for at least 33 nonprofits. The IRS claims this was inadvertent, and Justice says neither it nor the FBI used any information for any "investigative purpose." This blasé attitude is astonishing given the law on confidential taxpayer information was created to prevent federal agencies from misusing the information. News of this release alone ought to cause IRS heads to roll.

The latest revelations are a further refutation of Ms. Lerner's claim that the IRS targeting trickled up from underlings in the Cincinnati office. And they strongly add to the evidence that the IRS and Justice were motivated to target by the frequent calls for action by the Obama Administration and Congressional Democrats.

One email from September 21, 2010 shows Sarah Hall Ingram, a senior IRS official, thanking the IRS media team for their work with a New York Times NYT -2.44% reporter on an article about nonprofits in elections. "I do think it came out pretty well," she writes, in an email that was also sent to Ms. Lerner. "The 'secret donor' theme will continue—see Obama salvo and today's [radio interview with House Democratic Rep. Chris Van Hollen ]."

Several nonprofit groups have recently filed complaints with the Senate Ethics Committee against nine Democratic Senators for improperly interfering with the IRS. It's one thing for Senators to ask an agency about the status of a rule or investigation. But it is extraordinary for Illinois's Dick Durbin to demand that tax authorities punish specific conservative organizations, or for Michigan's Carl Levin to order the IRS to hand over confidential nonprofit tax information.

And it's no surprise to learn that Justice's renewed interest in investigating nonprofits in early 2013 immediately followed a hearing by Rhode Island Sen. Sheldon Whitehouse in which he dragged in officials from Justice and the IRS and demanded action.

***
It somehow took a year for the IRS to locate these Lerner exchanges with Justice, though they were clearly subject to Mr. Issa's original subpoenas. The Oversight Committee had to subpoena Justice to obtain them, and it only knew to do that after it was tipped to the correspondence by discoveries from the watchdog group Judicial Watch. Justice continues to drag its feet in offering up witnesses and documents. And now we have the two years of emails that have simply vanished into the government ether.

New IRS Commissioner John Koskinen promised to cooperate with Congress. But either he is being undermined by his staff, or he's aiding the agency's stonewalling. And now that we know that Justice was canoodling with Ms. Lerner, its own dilatory investigation becomes easier to understand. Or maybe that was a computer crash too.

After Me, The Deluge

Does Anyone Else Feel Dirty?

Behind the White House's ObamaCare Dodges

The delays are designed to shield Democrats from voter retribution, at least as long as he's in office

By Karl Rove, February 12 2014

When President Obama told Russian President Dmitry Medvedev in March 2012 that "after my election I have more flexibility," most assumed he was referring to foreign policy. It turns out Mr. Obama's ambitions weren't so limited.

Earlier this week, Mr. Obama demonstrated his imperial flexibility again, delaying another important provision of the Affordable Care Act. For firms with 50-99 employees, the president waived until 2016 the requirement they provide health insurance or pay a fine. Also, companies with 100 or more workers can avoid most of the law's penalties if they provide coverage to at least 75% of their workforce. The House Energy and Commerce Committee says this is Mr. Obama's 22nd delay or modification of his signature law.

Why did the president do this? Politics. Mr. Obama saw the firestorm that erupted last fall when Americans lost their health policies because their policies didn't conform to ObamaCare's requirement for "essential benefits" and other mandates. Based on a flurry of reports and estimates that have come out since October, Jim Angle of Fox News says that 6.2 million have lost their health coverage so far. (There is no hard number from the Department of Health and Human Services.)

The president didn't want another avalanche of cancellations before this fall's midterm election. Yet one was coming because the law discourages small businesses from providing health-care coverage. Here's how it works: Businesses can continue to pay a hefty share of their workers' premiums (AON Hewitt estimates they now run roughly $11,000 a year per employee) or dump coverage and pay a $2,000 fine per employee. Companies would have to decide this summer or fall whether to continue providing coverage for 2015.

Roughly 42.1 million Americans worked in firms with 100 employees or fewer in 2008, the last year for which Census Bureau numbers are available. And if millions of them lose their insurance plans shortly before the election? The consequences would be disastrous for the president's popularity, and that of the congressional Democrats who loyally voted for the Affordable Care Act, sight unseen and text unread.

Yet the dirty little secret is that this loss of coverage is by design. ObamaCare was intended to move America toward a single-payer system as more small businesses dropped coverage, dumped workers into the exchanges, and substituted a $2,000 fine for the ever-increasing premiums.

Mr. Obama is constantly amending his own law not because it doesn't do what it was intended to do, but because it's accomplishing precisely what it was meant to. His challenge is to transform the system without blowing up his party in the meantime.

And after he's gone? ObamaCare won't be fully operational until at least 2016, just in time for the next president to deal with its exploding costs and imploding private insurance system.

Mr. Obama's pattern is to act, or fail to act, in a way that will leave his successor with a boatload of troubles. The nation's public debt was equal to roughly 40% of GDP when Mr. Obama took office. At last year's end it was 72% of GDP. The Congressional Budget Office said this month that the government's "deficits are projected to decline through 2015 but rise thereafter, further boosting federal debt." Yet Mr. Obama ignored his own Bowles-Simpson deficit commission and has made no effort to reduce the long-term debt burden.

Then there's Medicare, whose Hospital Insurance Trust Fund will go bankrupt in 2026. For five years, Mr. Obama has failed to offer a plan to restore Medicare's fiscal health as he is required by the law establishing Medicare Part D. When Medicare goes belly-up, he will be out of office.

From the record number of Americans on food stamps to the worst labor-force participation rate since the 1970s to rising political polarization to retreating U.S. power overseas and increasing Middle East chaos and violence, Mr. Obama's successor—Republican or Democratic—will inherit a mess.

At Monticello earlier this week with French President François Hollande, Mr. Obama was overheard joking, "That's the good thing about being president, I can do whatever I want." His words call to mind the famous words attributed to one of Mr. Hollande's predecessors, Louis XV : " Après moi le déluge."

Contempt for Constitutional Limits

Power Grab from a Constitutional Professor in the White House

Obama's Constitutional Education
The Supreme Court seems skeptical of his appointee power grab

WSJ Editorial, January 13, 2014

President Obama treats limits on executive power like college students treat the 21-year drinking age, and judging from oral arguments Monday the Supreme Court may respond by limiting his driving privileges. The vote may even be 9-0 that a President can't tell Congress when it is in recess so he can shred the Senate's power to offer "advice and consent" on his nominees.

That's our reading of Monday's back and forth in National Labor Relations Board v. Noel Canning, which challenges Mr. Obama's three Jan. 4, 2012 recess appointments to the NLRB. The Senate had met on Jan. 3 to gavel in its constitutionally required first day of the session. It then declared itself in pro-forma session without objection precisely to block the President from using his recess power. Each day the Senate gavelled itself into session and then adjourned.

Yet Mr. Obama ignored all this and declared a recess that entitled his lordship to make the recess appointments. We have supported the recess appointment power. But no President had ever claimed to decide for himself when Congress was in recess, and George W. Bush had expressly declined to act in similar circumstances.

The appointments gave the NLRB a quorum that allowed it to make hundreds of pro-union decisions. A Washington state Pepsi bottler is challenging one of those decisions as illegal because the recess appointments were illegal. In an especially pungent opinion for a unanimous three-judge panel, Judge David Sentelle of the D.C. Circuit Court of Appeals struck down Mr. Obama's power grab as a violation of the separation of powers.

The Obama Administration appealed, and judging by the questions on Monday it is going to lose. Both the liberal and conservative Justices seem wary of letting the President decide when the Senate is in session.

Justice Elena Kagan, an Obama appointee, noted that the original purpose of the recess power was to fill vacancies in the horse-and-buggy era when Congress was out of session for months. But now Presidents use it to make end runs around the Senate's confirmation power.

"And that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have," said Justice Kagan. She added later that the arguments suggest "it really is the Senate's job to determine whether they're in recess or whether they're not."

If the President can arbitrarily declare the Senate in recess when it gavelled in the day before, what's to stop him from making recess appointments overnight, or on the weekend, or any other time the Senate is "unavailable" to act on his nominees? Contrary to White House claims that pro-forma sessions are a sham, the Senate conducted business during those days, even passing an extension of the payroll tax cut.

As Justice Anthony Kennedy put it to Mr. Obama's lawyer, Solicitor General Donald Verrilli : "Your argument [that the President can define a recess] is, it seems to me, in search of a limiting principle. A lunch break, a one-day break—you've thought about this—a three-day break, a one-week break, a one-month break. How do you resolve that problem for us?"

Someone should put "had no limiting principle" on Mr. Verrilli's tombstone.

The Justices didn't seem as willing to go as far as the D.C. Circuit and find that the President can only make recession appointments between sessions of Congress, never during a recess within a session. Judge Sentelle made a compelling case that this was the intent of the Constitution's Appointments Clause.

But Presidents of both parties have made recess appointments within sessions, and only Justice Antonin Scalia seemed tempted to overturn that practice based on original intent. Chief Justice John Roberts is also unlikely to do so if he can get a nearly unanimous decision on the narrower question.

Even a narrow ruling would be welcome, however, because it would highlight Mr. Obama's contempt for constitutional limits. His agencies rewrite statutes as they like, and he chooses to suspend the enforcement of laws (immigration, marijuana) when it serves his political goals.

Those abuses don't make it to court because the aggrieved party is Congress, which usually lacks the standing to sue. In NLRB v. Noel Canning, the Pepsi bottler has standing as a private party that suffered harm, and the Chamber of Commerce was willing to fight on its behalf.

The immediate practical impact may also be less important now that Senate Democrats have changed Senate rules to confirm nominees by 51 votes instead of 60. But someday the Senate will be ruled by a different party than the President, and the advice and consent power will be relevant again. The Supreme Court can do a public service by telling the constitutional lawyer in the White House that he can't unilaterally rewrite the Constitution.

WSJ Gets Obamacare Wrong, Apologizes

Employer Mandate? Never Mind

Obama decides not to enforce the heart of his health-care law.

These columns fought the Affordable Care Act from start to passage, and we'd now like to apologize to our readers. It turns out we weren't nearly critical enough. The law's implementation is turning into a fiasco for the ages, and this week's version is the lawless White House decision to delay the law's insurance mandate for businesses, though not for individuals.

The employer mandate is central to ObamaCare's claim of providing universal coverage. Companies with 50 or more "employee equivalents" must pay a $2,000 penalty per full-time employee if they don't provide government-approved health insurance. The provision was supposed to start in January, and delaying it is like Ford saying its electric car is ready to go, except the electric battery doesn't work.

But all of a sudden on Tuesday evening Mark Mazur—you know him as the deputy assistant Treasury secretary for tax policy—published a blog post canceling the insurance reporting rules and tax enforcement until 2015 as Washington began to evacuate for the long Independence Day weekend. Enjoy the holiday, mate.

White House fixer Valerie Jarrett tried to contain the fallout with a separate blog post promising that ObamaCare is otherwise "staying the course." That's true only if she's referring to the carelessness and improvisation that have defined the law so far.

Mr. Mazur cited the "complexity of the requirements" as the reason for the delay. He isn't talking about business confusion and uncertainty, as damaging as those are. This is probably an admission that Treasury's information technology isn't ready to process and cross-check paperwork across the 5.7 million businesses in America, especially the pass-through S-corps and partnerships that file under the individual tax code.

This is more than a typical government snafu. It relates directly to the design of the law, which was thoughtlessly written and rammed through Congress with instructions for the bureaucracy to figure it all out.

And, lo, over eight interim final rules, three final rules, 20 requests for comment, 21 proposed rules, one information collection request, two amendments to the interim final rules, six requests for information and one frequently-asked-questions document, the Administration has created an employer-mandate system that, for example, requires business to track and report every full-time employee's hours of service on a monthly basis.

Meanwhile, the law stipulates that a full-time workweek for the purposes of the mandate is 30 hours, when general business practice is at least 35. The result is that businesses have been scrambling to insulate themselves from higher labor costs by hiring part-time workers, or splitting shifts, or in some industries like fast food even sharing workers. Small firms trying to expand while avoiding the 50-worker trigger have come to be known as 49ers.

The delay will help these and other employers avoid immediately higher costs, which is why the main business lobbies endorsed it. But the decision will continue to dampen overall job creation because businesses know they'll still be whacked in a year. Businesses don't hire workers with the intention of sacking them later.

The Administration's media cheerleaders are nonetheless portraying this as a stroke of political genius to push all the pain past the 2014 elections. But if that's the goal, it is too clever by half. If Republicans have any sense, they will move immediately to delay the rest of the bill for at least a year too. They should start with the individual mandate to buy insurance or pay a tax.

Individuals are only supposed to be eligible for ObamaCare's subsidies if their employer doesn't offer the right benefits. But how will the Treasury know who qualifies in 2014 if they lack the information that businesses are supposed to provide? Citizens must also pay the individual mandate-tax if they decline coverage from their employer. How will the Treasury verify these offers?

Which brings us to the dubious legality of this delay. The Affordable Care Act's Section 1513 states in black-letter law that "(d) Effective Date.—The amendments made by this section shall apply to months beginning after December 31, 2013." It does not say the Administration can impose the mandate whenever it feels it is politically convenient.

This selective enforcement of laws has become an Administration habit. From immigration (the Dream Act by fiat) to easing welfare reform's work requirements to selective waivers for No Child Left Behind, the Obama Administration routinely suspends enforcement of or unilaterally rewrites via regulation the laws it dislikes. Now it is doing it again on health care, without any consultation from, much less the approval of, Congress. President Obama probably figures business and Republicans won't object because they don't like the law anyway.

***
But Republicans should give Mr. Obama the legal authority to suspend the mandate—in return for other concessions. In addition to forcing votes on suspending the individual mandate-tax, this could include repealing the medical device tax and other harmful provisions. Democrats will find it hard to defend an individual mandate-tax now that businesses are spared. And a delay of one year can easily become two, then three, and then past the next Presidential election.

ObamaCare has become a rolling "train wreck," in Senator Max Baucus's memorable phrase, and it gets worse the more of it the public sees. The employer mandate is terrible policy, as the law's critics said before it passed. Now the Administration is all but admitting it can't implement it properly, and the task for opponents is to press the concession and begin to delay the rest of the law and dismantle it piece by piece.

Jim Crow Be Gone

The Impossible Quiz

A reminder of how far the South has come on voting rights.

Representative John Lewis of Georgia speaks with considerable authority on the question of voting rights, for he still bears the scars of his March 1965 beating at the hands of a racist mob in Selma, Alabama. Not surprisingly, Mr. Lewis was unhappy last week when the Supreme Court struck down a provision of the 1965 Voting Rights Act establishing a formula that kept voting practices in certain jurisdictions, including most of the Deep South, under strict federal supervision.

Mr. Lewis claimed on MSNBC that in recent years "there's been a systematic, deliberate attempt to take us back to another period," by which he meant the Jim Crow South. He observed that the Justices who decided the case "never had to pass a so-called literacy test." That's probably true, since Justice Clarence Thomas wasn't old enough to vote until 1969.

For a little historical perspective, the liberal online magazine Slate last week reproduced a transcript of a Louisiana "literacy" test, believed to date from 1964, which it obtained from the Civil Rights Movement Veterans website (http://www.crmvet.org). The test is a baffling series of 30 brainteasers that was to be administered to anyone who could not "prove a fifth grade education." You can see the original at http://on.wsj.com/1964orig. READER SHOULD CHECK THIS OUT

Some of the questions were confusingly worded: "Circle the first, first letter of the alphabet in this line." (We guess that's the "a" in "alphabet.") Others tried to overload the test-taker with instructions: "Place a cross over the tenth letter in this line, a line under the first space in this sentence, and circle the last the in the second line of this sentence." And some tested not reading but math: Would-be voters had to complete the sequence "2 4 8 16 __" and to "draw five circles that have one common interlocking part."

To be permitted to vote, a citizen had to answer every question correctly within 10 minutes—an average of 20 seconds per question. That would be a tall order even for somebody with a college education.

The test powerfully illustrates how determined white Southern Democrats were to keep blacks from voting, and why the Voting Rights Act's extraordinary measures were necessary in 1965. Louisiana was among the states subjected to federal "preclearance" until last week.

But today no one is proposing to reinstitute literacy tests, which are banned by a section of the Voting Rights Act that was unaffected by last week's decision. Louisiana has an Indian-American Governor, an African-American Member of Congress and a 32-member Legislative Black Caucus in Baton Rouge. Without meaning to, Slate has offered a powerful illustration of how far we have left that "earlier period" behind—and how little reason there is to fear its return.

DOMA - Scalia's Argument

A Call for the Democratic Process

Dissenting from this morning's opinion on the Defense of Marriage Act, Justice Antonin Scalia – as expected – holds nothing back.

In a ripping dissent, Scalia says that Justice Anthony Kennedy and his colleagues in the majority have resorted to calling opponents of gay marriage "enemies of the human race."

But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to con- demn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority's judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to "dis- parage," "injure," "degrade," "demean," and "humiliate" our fellow human beings, our fellow citizens, who are homo- sexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence— indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Scalia says that the court's holding – while limited to the Defense of Marriage Act – is a sure sign that the majority is willing to declare gay marriage a constitutional right.

It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.

And, he says, the holding will short circuit the debate over gay marriage that should have been carried out in the states.

In the majority's telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one's political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today's Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

 But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

Gang of Civil Liberty Opportunists

Democratic two-facedness on civil liberties

By Michael Hastings 

This is the last published article (06/07/13) by Hastings who was killed in a traffic accident on June 18.  He is most famous for his Rolling Stone career-ending article (hit piece) on Gen. Stanley McCrystal.  He was 33.

For most bigwig Democrats in Washington, D.C., the last 48 hours has delivered news of the worst kind — a flood of new information that has washed away any lingering doubts about where President Obama and his party stand on civil liberties, full stop.

Glenn Greenwald’s exposure of the NSA’s massive domestic spy program has revealed the entire caste of current Democratic leaders as a gang of civil liberty opportunists, whose true passion, it seems, was in trolling George W. Bush for eight years on matters of national security.

“Everyone should just calm down,” Senator Harry Reid said yesterday, inhaling slowly.

That’s right: don’t panic.

The very topic of Democratic two-facedness on civil liberties is one of the most important issues that Greenwald has covered. Many of those Dems — including the sitting President Barack Obama, Senator Carl Levin, and Sec. State John Kerry — have now become the stewards and enhancers of programs that appear to dwarf any of the spying scandals that broke during the Bush years, the very same scandals they used as wedge issues to win elections in the Congressional elections 2006 and the presidential primary of 2007-2008.

Recall what Senator Levin told CNN in 2005, demanding to “urgently hold an inquiry” into what was supposedly President Bush’s domestic wiretap program.

Levin continued, at length: “It means that there’s some growing concern on Capitol Hill about a program which seems to be so totally unauthorized and unexplained…The president wraps himself in the law, saying that it is totally legal, but he doesn’t give what the legal basis is for this. He avoided using the law, which we provided to the president, where even when there is an emergency and there’s a need for urgent action can first tap the wire and then go to a court.”

There are two notable exception to this rule are Senator Ron Wyden, from Oregon, and Sen. Mark Udall from Colorado, who had seemed to be fighting a largely lonely, frustrating battle against Obama’s national security state.

As Mark Udall told the Denver Post yesterday: “[I] did everything short of leaking classified information” to stop it.

His ally in Oregon, Ron Wyden, was one of the first to seize on the Guardian’s news break: “I will tell you from a policy standpoint, when a law-abiding citizen makes a call, they expect that who they call, when they call and where they call from will be kept private,” Wyden said to Politico, noting “there’s going to be a big debate about this.” The Director of National Intelligence, James Clapper, admitted he’d mislead Senator Wyden at a hearing earlier this year, revising his statement yesterday to state that the NSA didn’t do “voyerustic” surveillance.

The state of affairs, in other words, is so grave that two sitting Senators went as close as they could to violating their unconstitutional security oaths in order to warn the country of information that otherwise would not have been declassified until April of 2038, according to the Verizon court order obtained by Greenwald.

Now, we’re about to see if the Obama administration’s version of the national security state will begin to eat itself.

Unsurprisingly, the White House has dug in, calling their North Korea-esque tools “essential” to stop terrorism, and loathe to give up the political edge they’ve seized for Democrats on national security issues under Obama’s leadership. The AP spying scandal — which the administration attempted to downplay at the time, even appointing Eric Holder to lead his own investigation into himself —was one of the unexpected consequences of one of two leak investigations that Obama ordered during the 2012 campaign.

It’s unclear where a possible third leak investigation would lead. However, judging by the DOJ’s and FBI’s recent history, it would seem that any new leak case would involve obtaining the phone records of reporters at the Guardian, the Washington Post, employees at various agencies who would have had access to the leaked material, as well as politicians and staffers in Congress—records, we now can safely posit, they already have unchecked and full access to.

In short: any so-called credible DOJ/FBI leak investigation, by its very nature, would have to involve the Obama administration invasively using the very surveillance and data techniques it is attempting to hide in order to snoop on a few Democratic Senators and more media outlets, including one based overseas.

Outside of Washington, D.C., the frustration that Wyden and Udall have felt has been exponentially magnified. Transparency supporters, whistleblowers, and investigative reporters, especially those writers who have aggressively pursued the connections between the corporate defense industry and federal and local authorities involved in domestic surveillance, have been viciously attacked by the Obama administration and its allies in the FBI and DOJ.

Jacob Appplebaum, a transparency activist and computer savant, has been repeatedly harassed at American borders, having his laptop seized. Barrett Brown, another investigative journalist who has written for Vanity Fair, among others publications, exposed the connections between the private contracting firm HB Gary (a government contracting firm that, incidentally, proposed a plan to spy on and ruin the reputation of the Guardian’s Greenwald) and who is currently sitting in a Texas prison on trumped up FBI charges regarding his legitimate reportorial inquiry into the political collective known sometimes as Anonymous.

That’s not to mention former NSA official Thomas Drake (the Feds tried to destroys his life because he blew the whistle ); Fox News reporter James Rosen (named a “co-conspirator” by Holder’s DOJ); John Kirakou, formerly in the CIA, who raised concerns about the agency’s torture program, is also in prison for leaking “harmful” (read: embarrassing) classified info; and of course Wikileaks (under U.S. financial embargo); WikiLeaks founder Julian Assange (locked up in Ecuador’s London embassy) and, of course, Bradley Manning, the young, idealistic, soldier who provided the public with perhaps the most critical trove of government documents ever released.

The attitude the Obama administration has toward Manning is revealing. What do they think of him? “Fuck Bradely Manning,” as one White House official put it to me last year during the campaign.

Screw Manning? Lol, screw us.

Perhaps more information will soon be forthcoming.

You Have Zero Privacy

The Sum of All Fears

By DANIEL HENNINGER, WSJ Opinion, June 13, 2013

The IRS audits and NSA surveillance flow

 into the same national anxieties.

Here is Barack Obama commenting last Friday on the National Security Agency's antiterrorist surveillance programs: "We've got congressional oversight and judicial oversight. And if people can't trust not only the executive branch but also don't trust Congress and don't trust federal judges to make sure that we're abiding by the Constitution, due process and rule of law, then we're going to have some problems here."

Uh-huh.

Herewith a partial list of political groups that said they were subjected to over-the-top audits by the Internal Revenue Service:

Greenwich Tea Party Patriots, Greater Phoenix Tea PartyPatriots, Laurens County Tea Party, Northeast Tarrant Tea Party, Myrtle Beach Tea Party, Albuquerque Tea Party, San Antonio Tea Party, Richmond Tea Party, Manassas Tea Party, Honolulu Tea Party, Waco Tea Party, Chattanooga Tea Party and American Patriots Against Government Excess.

What that target list shows is there was never one "tea party." It was collections of citizens spontaneously gathering all over the country under one easy-to-remember name. Their purpose was to do politics. For that, their government hit them hard.

In January the pollsters at the Pew Research Center reported that for the first time a majority of Americans—53%—now agree that "the federal government threatens your own personal rights and freedoms."

This is far beyond concerns about the size of government. A majority of people now see the government of Madison, Jefferson and Franklin as a direct, personal threat.

So yes, we have "some problems" here.

People ask whether the IRS scandal will damage the president. Who knows? It depends on who talks to avoid prison. The IRS audits matter because they are a destructive event that happened at a particularly unsettled moment in the country's political and social life.

Cynics say presidents have always sicced the IRS on opponents. Perhaps. But those were simpler times. The IRS audit scandal and the NSA's metadata surveillance may be apples and oranges, but for many the distinctions aren't so obvious. We live today inside a constant torrent of big government and big data. No one should be surprised if a political backlash, however inarticulate, forms against both for inconsistent reasons.

Consider what people are asked to absorb in the news flow now—some of it political, some not. Beyond the IRS audits and NSA surveillance we have a Department of Justice penetrating press activity protected by the First Amendment, stories about Iran's hackers accessing the control-room software of U.S. energy firms, China hacking into everything, reports last month of cyberthieves siphoning millions of dollars from ATMs, rivers of email spam that fill inboxes alongside constant warnings to protect yourself against phishing and malware by storing industrial-strength passwords on encrypted flash drives, stories in this newspaper about social-media apps that exist mainly to collect your personal data for sale to advertisers.

Books have been written about governments using Web technology to censor and control their populations. What's good and evil, helpful and menacing, comes at us with equal force from the same technologies. "Dual-use" was formerly a phrase used mostly in the military. We're all living in a dual-use world now.

Electronic sophisticates say it's all good. Sun Microsystems' former CEO Scott McNealy famously said: "You have zero privacy. Get over it." That's what he thinks. This is a sum-of-all-fears environment tailor-made for eventually producing a public backlash. It's already in the water, with Sen. Rand Paul offering a Fourth Amendment Restoration Act, which he says would stop the NSA's data-mining program. That would be the one protecting us all from homicidal Islamist bombers.

Scott McNealy was almost right. Unavoidably, the citizens of the U.S. or any free society will have to reach an accommodation—a modus vivendi—with complex systems created by experts with abstruse knowledge. But if so, those citizens need to be free to talk about the terms of their accommodations. In short, they need to be free to do politics.

Effective antiterrorism programs such as metadata surveillance or for that matter efforts to produce progress through genetic manipulation may seem self-evidently good to their proponents. But these technologies are inevitably controversial and will only survive if they gain public support. Today that means exposing them to politics.

The goal of the IRS audits was to suppress politics, to shut up those "conservative" tea-party groups to increase the odds that Mr. Obama's side would win. One doubts that Mr. Obama's supporters were distressed about it. But this week they're stressed about "an alarming age of surveillance."

Whatever inchoate anxieties predated this presidency are now worse: a politics rife with suspicion and retribution, and most of the people believing the government, for starters, threatens their freedom.

One may hope Mr. Obama has sufficient political skill to protect the antiterrorism structures he inherited. It will be the job of the next president to prevent the public's sense of personal political threat from heading toward 60% and beyond.

One of These Presidents Was/Is A Defender of Liberty

Which, of course, Is Where the Word 'Liberal' Comes From

When Words Mean Nothing

Ends Justify the Means

Hey, Idiot, There is a Process For This

Bloomberg Says Interpretation of Constitution Will ‘Have to Change’ After Boston Bombing

By Jill Colvin 4/22 

In the wake of the Boston Marathon bombings, Mayor Michael Bloomberg said Monday the country’s interpretation of the Constitution will “have to change” to allow for greater security to stave off future attacks.

“The people who are worried about privacy have a legitimate worry,” Mr. Bloomberg said during a press conference in Midtown. “But we live in a complex world where you’re going to have to have a level of security greater than you did back in the olden days, if you will. And our laws and our interpretation of the Constitution, I think, have to change.”

Mr. Bloomberg, who has come under fire for the N.Y.P.D.’s monitoring of Muslim communities and other aggressive tactics, said the rest of the country needs to learn from the attacks.

“Look, we live in a very dangerous world. We know there are people who want to take away our freedoms. New Yorkers probably know that as much if not more than anybody else after the terrible tragedy of 9/11,” he said.

“We have to understand that in the world going forward, we’re going to have more cameras and that kind of stuff. That’s good in some sense, but it’s different from what we are used to,” he said.

The mayor pointed to the gun debate and noted the courts have allowed for increasingly stringent regulations in response to ever-more powerful weapons.

“Clearly the  Supreme Court has recognized that you have to have different interpretations of the Second Amendment and what it applies to and reasonable gun laws … Here we’re going to to have to live with reasonable levels of security,” he said, pointing to the use of magnetometers to catch weapons in city schools.

“It really says something bad about us that we have to do it. But our obligation first and foremost is to keep our kids safe in the schools; first and foremost, to keep you safe if you go to a sporting event; first and foremost is to keep you safe if you walk down the streets or go into our parks,” he said. “We cannot let the terrorists put us in a situation where we can’t do those things. And the ways to do that is to provide what we think is an appropriate level of protection.”

Still, Mr. Bloomberg argued the attacks shouldn’t be used as an excuse to persecute certain religions or groups.

“What we cant do is let the protection get in the way of us enjoying our freedoms,” he said.  “You still want to let people practice their religion, no matter what that religion is. And I think one of the great dangers here is going and categorizing anybody from one religion as a terrorist. That’s not true … That would let the terrorists win. That’s what they want us to do.”

Liberal: Four Ways Obamacare Could Still Fail

Critical Condition
Conservatives were right about ObamaCare, a lefty website concedes.

By JAMES TARANTO, WSJ Opinion, February 16, 2013

When we saw the headline "Four Ways ObamaCare Could Still Fail," our reaction was that it sounded like an unrealistically low estimate. But we were intrigued enough to read the article because of the source: TalkingPointsMemo.com, a news site with a strong (and acknowledged) liberal Democratic slant. Its framing as friendly criticism makes the piece, by congressional reporter Sahil Kapur, a powerful indictment of ObamaCare.

To be sure, it's not clear Kapur intends to indict ObamaCare, and if he does, he downplays it, presumably in order to avoid alienating his liberal readers or his liberal editors. In his lead paragraph, he summarizes the problem as follows: "Republicans remain committed to botching its implementation, which--along with inherent complexities in implementing parts of the law--leaves in place significant obstacles to achieving its key goals."

When you read the rest of the piece, however, it's clear that the emphasis should be reversed: The law's deficiencies--or "inherent complexities," to use Kapur's obfuscatory euphemism--are the primary difficulty. The Republican commitment to botchery is real, and it does compound ObamaCare's problems, but it is a secondary problem.

Kapur lists "the four biggest obstacles the law faces in meeting its key goals." Let's go through them one by one (or read for yourself: Four Ways Obamacare Could Still Fail):

"1) Ongoing Disapproval of the Law." Kapur quotes "two leading health policy experts," both ObamaCare proponents, who argue that, in Kapur's words, public disapproval is "the overarching threat to Obamacare."

Actually one of them, Jonathan Gruber, "a professor at MIT who helped craft the Affordable Care Act," argues just that, while the other, Washington and Lee's Timothy Jost, blames "the relentless negativity and opposition of the Republicans and their media outlets." But Kapur acknowledges that public disapproval of ObamaCare is a necessary condition for sustaining GOP opposition and obstruction. (Kapur notes parenthetically that ObamaCare supporters of the law are still waiting for Godot, which is to say they are "convinced" the public will "come around.")

"2) States Declining to Expand Medicaid." Although the U.S. Supreme Court upheld most of ObamaCare last year, by a 7-2 vote it ruled that Congress had exceeded its authority in threatening to cut off all Medicaid funds from states that declined to participate in the new law's expansion of the program. Thirteen governors (acting "under pressure from the right," according to Kapur) have announced that they'll decline to participate, and another 10 may yet do so. That leaves it "an open question how--or whether--Americans below 133 percent of the poverty line will obtain insurance" in those states.

"3) States Refusing to Build Insurance Marketplaces." ObamaCare "encourages" states to set up "exchanges" for the sale of one-size-fits-all health-insurance policies, but many states are balking. "The problem: The ACA [Affordable Care Act, an abbreviation for the law's formal title] lacks a funding mechanism for Department of Health and Human Services to set up exchanges for states that decline to do so themselves--and congressional Republicans are unlikely to appropriate additional money for that."

"4) Nullification of the Medicare Cost-Cutting Board." That would be the Independent Payment Advisory Board, colloquially known as the death panel, which would recommend which medical services to deny in order to cut costs. "The problem," according to Kapur, is that "Senate Republicans can--and have signaled their intention to--filibuster nominees to the board."

But that isn't the only problem. As Kapur notes, "even some House Democrats" have voted to abolish the board. Kapur ignores another problem, reported last month by the Washington Post's Sarah Kliff: ObamaCare proponents despair of finding enough experts to serve on the 15-man panel, "a federal job where the compensation is low, the political controversy high and the ultimate payoff unclear."

Kapur's argument amounts to the following: Democrats passed a law that had and still has insufficient public support (points 1 and 4), that cannot achieve its goals without unconstitutional means (point 2), that did not allocate the necessary resources to accomplish its objectives (point 3), and that lacks and still lacks even minimal support across the political aisle (all four points).

That sounds very much like the conservative critique of ObamaCare. At this point it's fair to say that ObamaCare opponents have won the argument. Of course, since supporters won the political battle three years ago (and Obama won re-election), this monstrosity is now the law of the land, ensuring that both sides' victories will have been Pyrrhic.

Political Appeal to the Ignorant

Gun Laws and the Fools of Chelm†
                                                                     † A city in eastern Poland.

The individual is not only best qualified to provide his own personal defense, he is the only one qualified to do so. 

By David Mamet, Newsweek, January 25, 2013

Karl Marx summed up Communism as “from each according to his ability, to each according to his needs.” This is a good, pithy saying, which, in practice, has succeeded in bringing, upon those under its sway, misery, poverty, rape, torture, slavery, and death.

‘In announcing his gun control proposals, President Obama said that he was not restricting Second Amendment rights, but allowing other constitutional rights to flourish.’

For the saying implies but does not name the effective agency of its supposed utopia. The agency is called “The State,” and the motto, fleshed out, for the benefit of the easily confused must read “The State will take from each according to his ability: the State will give to each according to his needs.” “Needs and abilities” are, of course, subjective. So the operative statement may be reduced to “the State shall take, the State shall give.”

All of us have had dealings with the State, and have found, to our chagrin, or, indeed, terror, that we were not dealing with well-meaning public servants or even with ideologues but with overworked, harried bureaucrats. These, as all bureaucrats, obtain and hold their jobs by complying with directions and suppressing the desire to employ initiative, compassion, or indeed, common sense. They are paid to follow orders.

Rule by bureaucrats and functionaries is an example of the first part of the Marxist equation: that the Government shall determine the individual’s abilities.

As rules by the Government are one-size-fits-all, any governmental determination of an individual’s abilities must be based on a bureaucratic assessment of the lowest possible denominator. The government, for example, has determined that black people (somehow) have fewer abilities than white people, and, so, must be given certain preferences. Anyone acquainted with both black and white people knows this assessment is not only absurd but monstrous. And yet it is the law.

President Obama, in his reelection campaign, referred frequently to the “needs” of himself and his opponent, alleging that each has more money than he “needs.”

But where in the Constitution is it written that the Government is in charge of determining “needs”? And note that the president did not say “I have more money than I need,” but “You and I have more than we need.” Who elected him to speak for another citizen?

It is not the constitutional prerogative of the Government to determine needs. One person may need (or want) more leisure, another more work; one more adventure, another more security, and so on. It is this diversity that makes a country, indeed a state, a city, a church, or a family, healthy. “One-size-fits-all,” and that size determined by the State has a name, and that name is “slavery.”

The Founding Fathers, far from being ideologues, were not even politicians. They were an assortment of businessmen, writers, teachers, planters; men, in short, who knew something of the world, which is to say, of Human Nature. Their struggle to draft a set of rules acceptable to each other was based on the assumption that we human beings, in the mass, are no damned good—that we are biddable, easily confused, and that we may easily be motivated by a Politician, which is to say, a huckster, mounting a soapbox and inflaming our passions.

The Constitution’s drafters did not require a wag to teach them that power corrupts: they had experienced it in the person of King George. The American secession was announced by reference to his abuses of power: “He has obstructed the administration of Justice … he has made Judges dependant on his will alone … He has combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our Laws … He has erected a multitude of new offices, and sent hither swarms of officers to harass out people and to eat out their substance … imposed taxes upon us without our consent… [He has] fundamentally altered the forms of our government.”

Who threatens American society most: law-abiding citizens or criminals? (Matt Rourke/AP)

This is a chillingly familiar set of grievances; and its recrudescence was foreseen by the Founders. They realized that King George was not an individual case, but the inevitable outcome of unfettered power; that any person or group with the power to tax, to form laws, and to enforce them by arms will default to dictatorship, absent the constant unflagging scrutiny of the governed, and their severe untempered insistence upon compliance with law.

The Founders recognized that Government is quite literally a necessary evil, that there must be opposition, between its various branches, and between political parties, for these are the only ways to temper the individual’s greed for power and the electorates’ desires for peace by submission to coercion or blandishment.

Healthy government, as that based upon our Constitution, is strife. It awakens anxiety, passion, fervor, and, indeed, hatred and chicanery, both in pursuit of private gain and of public good. Those who promise to relieve us of the burden through their personal or ideological excellence, those who claim to hold the Magic Beans, are simply confidence men. Their emergence is inevitable, and our individual opposition to and rejection of them, as they emerge, must be blunt and sure; if they are arrogant, willful, duplicitous, or simply wrong, they must be replaced, else they will consolidate power, and use the treasury to buy votes, and deprive us of our liberties. It was to guard us against this inevitable decay of government that the Constitution was written. Its purpose was and is not to enthrone a Government superior to an imperfect and confused electorate, but to protect us from such a government.

Many are opposed to private ownership of firearms, and their opposition comes under several heads. Their specific objections are answerable retail, but a wholesale response is that the Second Amendment guarantees the right of the citizens to keep and bear arms. On a lower level of abstraction, there are more than 2 million instances a year of the armed citizen deterring or stopping armed criminals; a number four times that of all crimes involving firearms.

The Left loves a phantom statistic that a firearm in the hands of a citizen is X times more likely to cause accidental damage than to be used in the prevention of crime, but what is there about criminals that ensures that their gun use is accident-free? If, indeed, a firearm were more dangerous to its possessors than to potential aggressors, would it not make sense for the government to arm all criminals, and let them accidentally shoot themselves? Is this absurd? Yes, and yet the government, of course, is arming criminals.

Violence by firearms is most prevalent in big cities with the strictest gun laws. In Chicago and Washington, D.C., for example, it is only the criminals who have guns, the law-abiding populace having been disarmed, and so crime runs riot.

Cities of similar size in Texas, Florida, Arizona, and elsewhere, which leave the citizen the right to keep and bear arms, guaranteed in the Constitution, typically are much safer. More legal guns equal less crime. What criminal would be foolish enough to rob a gun store? But the government alleges that the citizen does not need this or that gun, number of guns, or amount of ammunition.

But President Obama, it seems, does.

He has just passed a bill that extends to him and his family protection, around the clock and for life, by the Secret Service. He, evidently, feels that he is best qualified to determine his needs, and, of course, he is. As I am best qualified to determine mine.

For it is, again, only the Marxists who assert that the government, which is to say the busy, corrupted, and hypocritical fools most elected officials are (have you ever had lunch with one?) should regulate gun ownership based on its assessment of needs.

Q. Who “needs” an assault rifle?

A. No one outside the military and the police. I concur.

An assault weapon is that which used to be called a “submachine gun.” That is, a handheld long gun that will fire continuously as long as the trigger is held down.

These have been illegal in private hands (barring those collectors who have passed the stringent scrutiny of the Federal Government) since 1934. Outside these few legal possessors, there are none in private hands. They may be found in the hands of criminals. But criminals, let us reflect, by definition, are those who will not abide by the laws. What purpose will passing more laws serve?

My grandmother came from Russian Poland, near the Polish city of Chelm. Chelm was celebrated, by the Ashkenazi Jews, as the place where the fools dwelt. And my grandmother loved to tell the traditional stories of Chelm.

Its residents, for example, once decided that there was no point in having the sun shine during the day, when it was light out—it would be better should it shine at night, when it was dark. Similarly, we modern Solons delight in passing gun laws that, in their entirety, amount to “making crime illegal.”

What possible purpose in declaring schools “gun-free zones”? Who bringing a gun, with evil intent, into a school would be deterred by the sign?

Ah, but perhaps one, legally carrying a gun, might bring it into the school.

If President Obama determines a need to defend his family, why can’t we defend our own? (Jonathan Ernst, Reuters/Landov)

Good.

We need more armed citizens in the schools.

Walk down Madison Avenue in New York. Many posh stores have, on view, or behind a two-way mirror, an armed guard. Walk into most any pawnshop, jewelry story, currency exchange, gold store in the country, and there will be an armed guard nearby. Why? As currency, jewelry, gold are precious. Who complains about the presence of these armed guards? And is this wealth more precious than our children?

Apparently it is: for the Left adduces arguments against armed presence in the school but not in the wristwatch stores. Q. How many accidental shootings occurred last year in jewelry stores, or on any premises with armed security guards?

Why not then, for the love of God, have an armed presence in the schools? It could be done at the cost of a pistol (several hundred dollars), and a few hours of training (that’s all the security guards get). Why not offer teachers, administrators, custodians, a small extra stipend for completing a firearms-safety course and carrying a concealed weapon to school? The arguments to the contrary escape me.

Why do I specify concealed carry? As if the weapons are concealed, any potential malefactor must assume that anyone on the premises he means to disrupt may be armed—a deterrent of even attempted violence.

Yes, but we should check all applicants for firearms for a criminal record?

Anyone applying to purchase a handgun has, since 1968, filled out a form certifying he is not a fugitive from justice, a convicted criminal, or mentally deficient. These forms, tens and tens of millions of them, rest, conceivably, somewhere in the vast repository. How are they checked? Are they checked? By what agency, with what monies? The country is broke. Do we actually want another agency staffed by bureaucrats for whom there is no funding?

The police do not exist to protect the individual. They exist to cordon off the crime scene and attempt to apprehend the criminal. We individuals are guaranteed by the Constitution the right to self-defense. This right is not the Government’s to “award” us. They have never been granted it.

The so-called assault weapons ban is a hoax. It is a political appeal to the ignorant. The guns it supposedly banned have been illegal (as above) for 78 years. Did the ban make them “more” illegal? The ban addresses only the appearance of weapons, not their operation.

Will increased cosmetic measures make anyone safer? They, like all efforts at disarmament, will put the citizenry more at risk. Disarmament rests on the assumption that all people are good, and, basically, want the same things.

But if all people were basically good, why would we, increasingly, pass more and more elaborate laws?

The individual is not only best qualified to provide his own personal defense, he is the only one qualified to do so: and his right to do so is guaranteed by the Constitution.

President Obama seems to understand the Constitution as a “set of suggestions.” I cannot endorse his performance in office, but he wins my respect for taking those steps he deems necessary to ensure the safety of his family. Why would he want to prohibit me from doing the same?

With Democrats Like This, Who Needs Bush?

Senate bill rewrite lets feds read your e-mail without warrants

Proposed law scheduled for a vote next week originally increased Americans' e-mail privacy. Then law enforcement complained. Now it increases government access to e-mail and other digital files.

Revised bill highlights

✭ Grants warrantless access to Americans' electronic correspondence to over 22 federal agencies. Only a subpoena is required, not a search warrant signed by a judge based on probable cause.

✭ Permits state and local law enforcement to warrantlessly access Americans' correspondence stored on systems not offered "to the public," including university networks.

✭ Authorizes any law enforcement agency to access accounts without a warrant -- or subsequent court review -- if they claim "emergency" situations exist.

✭ Says providers "shall notify" law enforcement in advance of any plans to tell their customers that they've been the target of a warrant, order, or subpoena.

✭ Delays notification of customers whose accounts have been accessed from 3 days to "10 business days." This notification can be postponed by up to 360 days.

by Declan McCullagh |November 20, 2012 

Sen. Patrick Leahy previously said his bill boosts Americans' e-mail privacy protections by "requiring that the government obtain a search warrant." That's no longer the case.

A Senate proposal touted as protecting Americans' e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law.

CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns. A vote on his bill, which now authorizes warrantless access to Americans' e-mail, is scheduled for next week.

Leahy's rewritten bill would allow more than 22 agencies -- including the Securities and Exchange Commission and the Federal Communications Commission -- to access Americans' e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

It's an abrupt departure from Leahy's earlier approach, which required police to obtain a search warrant backed by probable cause before they could read the contents of e-mail or other communications. The Vermont Democrat boasted last year that his bill "provides enhanced privacy protections for American consumers by... requiring that the government obtain a search warrant."

Leahy had planned a vote on an earlier version of his bill, designed to update a pair of 1980s-vintage surveillance laws, in late September. But after law enforcement groups including the National District Attorneys' Association and the National Sheriffs' Association organizations objected to the legislation and asked him to "reconsider acting" on it, Leahy pushed back the vote and reworked the bill as a package of amendments to be offered next Thursday.

One person participating in Capitol Hill meetings on this topic told CNET that Justice Department officials have expressed their displeasure about Leahy's original bill. The department is on record as opposing any such requirement: James Baker, the associate deputy attorney general, has publicly warned that requiring a warrant to obtain stored e-mail could have an "adverse impact" on criminal investigations.

Marc Rotenberg, head of the Electronic Privacy Information Center, said that in light of the revelations about how former CIA director David Petraeus' e-mail was perused by the FBI, "even the Department of Justice should concede that there's a need for more judicial oversight," not less.

An aide to the Senate Judiciary committee told CNET that because discussions with interested parties are ongoing, it would be premature to comment on the legislation.

Markham Erickson, a lawyer in Washington, D.C. who has followed the topic closely and said he was speaking for himself and not his corporate clients, expressed concerns about the alphabet soup of federal agencies that would be granted more power:

❝ There is no good legal reason why federal regulatory agencies such as the NLRB, OSHA, SEC or FTC need to access customer information service providers with a mere subpoena. If those agencies feel they do not have the tools to do their jobs adequately, they should work with the appropriate authorizing committees to explore solutions. The Senate Judiciary committee is really not in a position to adequately make those determinations. ❞

The list of agencies that would receive civil subpoena authority for the contents of electronic communications also includes the Federal Reserve, the Federal Trade Commission, the Federal Maritime Commission, the Postal Regulatory Commission, the National Labor Relations Board, and the Mine Enforcement Safety and Health Review Commission.

Leahy's modified bill retains some pro-privacy components, such as requiring police to secure a warrant in many cases. But the dramatic shift, especially the regulatory agency loophole and exemption for emergency account access, likely means it will be near-impossible for tech companies to support in its new form.

A bitter setback

This is a bitter setback for Internet companies and a liberal-conservative-libertarian coalition, which had hoped to convince Congress to update the 1986 Electronic Communications Privacy Act to protect documents stored in the cloud. Leahy glued those changes onto an unrelated privacy-related bill supported by Netflix.

At the moment, Internet users enjoy more privacy rights if they store data on their hard drives or under their mattresses, a legal hiccup that the companies fear could slow the shift to cloud-based services unless the law is changed to be more privacy-protective.

Members of the so-called Digital Due Process coalition include Apple, Amazon.com, Americans for Tax Reform, AT&T, the Center for Democracy and Technology, eBay, Google, Facebook, IBM, Intel, Microsoft, TechFreedom, and Twitter. (CNET was the first to report on the coalition's creation.)

Leahy, a former prosecutor, has a mixed record on privacy. He criticized the FBI's efforts to require Internet providers to build in backdoors for law enforcement access, and introduced a bill in the 1990s protecting Americans' right to use whatever encryption products they wanted.

But he also authored the 1994 Communications Assistance for Law Enforcement Act, which is now looming over Web companies, as well as the reviled Protect IP Act. An article in The New Republic concluded Leahy's work on the Patriot Act "appears to have made the bill less protective of civil liberties." Leahy had introduced significant portions of the Patriot Act under the name Enhancement of Privacy and Public Safety in Cyberspace Act (PDF) a year earlier.

One obvious option for the Digital Due Process coalition is the simplest: if Leahy's committee proves to be an insurmountable roadblock in the Senate, try the courts instead.

Judges already have been wrestling with how to apply the Fourth Amendment to an always-on, always-connected society. Earlier this year, the U.S. Supreme Court ruled that police needed a search warrant for GPS tracking of vehicles. Some courts have ruled that warrantless tracking of Americans' cell phones, another coalition concern, is unconstitutional.

The FBI and other law enforcement agencies already must obtain warrants for e-mail in Kentucky, Michigan, Ohio, and Tennessee, thanks to a ruling by the 6th Circuit Court of Appeals in 2010.