Another Law Decided at the Buzzer

Have you ever heard the joke, “How many people voted for Bush in 2000? Five.” Yeah, it’s a pretty lame and dated anecdote meant to point out just how fragile the difference can be between something being considered the law of the land or blatantly illegal.

It all came down to one vote again today. When the Supreme Court released its decision that basically throws out the Voting Rights Act of 1965 until the criteria that was used in determine what states are subject to it gets a huge overhaul. A criteria that will garner huge support in congress to act on immediately, such that if we are lucky will be completed sometime right after they fix the budget, medicare, social security, and win the war on terror. The part of the decision that catches my attention is that, yet again, a Supreme Court decision that will affect millions of Americans came down to effectively a single vote.

It wasn't always this way. From 1801 to 1940, less than 1 in 50 of the Supreme Court's total rulings were resolved by 5-to-4 decisions. Under Chief Justice Roberts, who assumed his role in 2005, more than 1 in 5 Court's rulings have been decided by "minimum-winning coalitions." In the two most recent Courts, more than a fifth of all rulings were decided by 5-to-4 votes.

That's not to place the blame on Robert's feet. The trend started a decade before his appointment, and he actually acknowledged the trend early in his term. "I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions," Roberts told The New Republic's Jeffrey Rosen in 2006. "I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn't, it's going to lose its credibility and legitimacy as an institution."

Now is the day and age when a suit is brought before the court that we start to tally the votes for one side or the other without even hearing the merits of the case itself. Such as today’s decision concerning the Voting Rights Act. Most people predicted that a decision would be within the narrow range of 3-6 to 5-4. Most pundits only considering Kennedy and perhaps Roberts as the votes that could ultimately make or break the law of the land.

This is the law of the land, not a questionnaire pertaining to the case of Boxers v. Briefs. How can nine people with resumes the size of the decisions they publish seem incapable to build some degree of consensus in matters like this? OR the Affordable Care Act OR Citizens United OR Walmart v. Dukes OR Ashcroft v. Iqbal OR the aforementioned Bush v. Gore? I find myself asking that if the Supreme Court of the United States can't come to a true consensus about what the government should and shouldn't be able to do, how is it that anyone can claim any such knowledge. Poll four of the highest judges in the land and they'll tell you that Obamacare is illegal, but since they are outvoted by one person, all 300,000,000+ Americans must abide by it. It seems like a titanic switch to be hinged on the whim of a couple human beings.

So much is determined not as a result of an interpretation of law, but because one interpretation swayed one more person then another. Maybe the Supreme Court should be more like a trial jury, where consensus needs to be built or another court panel gets to make the decision. The process seems to have worked up until recent times. when both parties leverage anything they can to pass their agendas, partisan nominees seem to be more common place at all levels of federal courts. Sides with slight advantages doing what they can to hold onto them, while the side with a slight disadvantage does everything they can to get an in. If I where a movie writer, I'd get to work on a screen play about justice assassination plots in order to swing a 4-5 vote to a 5-4. Perhaps the writers of 24 over at Fox would pick up on that?

Alas, the problem will continue to get worse before it gets better, with both conservative and liberal senators very aware of the tally when deciding how many skeletons to dig out of the closet before even allowing a confirmation vote to proceed. The idea of a president on either side of the isle nominating a true moderate in the hopes of having a more mature Supreme Court seems about as likely as Congress getting audited by the IRS only to be told they are entitled to a larger refund.

Practice what you Preach

Readers of this blog know that I can be critical  of the representatives of my home state, Iowa. But, this week I'm quite proud of my Senator Chuck Grassley, not for any specific action taken this week, rather for an amendment to a bill he presented years ago during the now infamous Affordable Care Act debate.

The Grassley Amendment in the Affordable Care Act (a.k.a. Obamacare) legislation that ensured that the government could not offer members of the House and Senate and their staffs any insurance plans but those created by the bill or those that were part of the exchanges set up in association with it. A simple exercise in practicing what you preach. If Congress, acting at the behest of President Obama, was going to shove this unpopular idea down the throats of an unwilling nation, those involved in making the law were going to have to live with it the same as the rest of the country. Fast forward three years later when there are only six months remaining before this provision goes into effect, it appears a new bipartisan consensus has emerged in  Congress, I'll pause here for you to get back up in your chair after being blown away by that little factoid... good? OK. It appears that nobody in Congress wants any part in participating in the nationally mandated program

Though Democrats have berated the House Republicans over more than a few dozen attempts to repeal the act,many in Washington view the impending deadline with horror since the prospect of being forced into ObamaCare insurance has set off a mass exodus of members and their senior staffs who would rather retire and stay grandfathered into their current insurance programs, touted as being very nice, then be submitted to the same type of rules and regulations that you and I are subject to. As Politico reports, there could be a surge in resignations before December 31 among congressional staff since doing so will allow representatives, senators and other congressional employees to retain their old federal insurance plans.

This has led the same Democrats who pushed for the passage of ObamaCare to demand that it be changed to let the inhabitants of Capitol Hill off the hook, one such outspoken person was John Larson of Connecticut who seems quite confident that an arrangement will be made to suit their own specific needs and wants without it effecting anyone else who may want the same considerations. But even though Republicans have just as much incentive to want to amend the bill to save their own members and their staffs, their answer should be no. If Congress doesn't want to cope with the far higher costs and poorer coverage that ObamaCare will ensure, they can scrap the entire bill rather than just adding a single paragraph to the already  it to suit their own interests.

If a Democratic like Connecticut’s John Larson, who voted for the legislation probably without reading it, thinks it’s unfair to expect his employees to be put in the same boat as his constituents, then maybe he should rethink the entire measure that he played a pivotal role in passing when his party controlled Congress.

Most Americans, who already think about as much of Congress as a vegan thinks of McDonalds, will shed few tears for the travails of these servants of the masses. Nor will they think the exodus of said members and staff will do the country much harm. But, to be fair, if the kind of turnover really does take place, a void of experienced staffers and veteran politicians could make Capitol Hill an even more dysfunctional place than it already has become. Losing their staffs (who provide much of the expertise and institutional memory of this branch of government) may be a disaster, but Congress must suffer along with the rest of us if they are to retain even a shred of credibility.

Secrets: Part 3 of 3 - Whistleblowers

Deep Throat would be hunted down like the dog he is today.

The story of wiretapping a reporter did not begin last month with James Rosen, back in 2006, a panel of three federal appeals court judges in New York struggled to decide whether a prosecutor should be allowed to see the phone records of two New York Times reporters, Judith Miller and Philip Shenon, in an effort to determine their sources for articles about Islamic charities.

One of the Judges of that panel, Judge Robert D. Sack recited lines from the movie "All the President's Men" when forming his arguments. He spoke of the part where Bob Woodward, in the process of unraveling the Watergate scandal for The Washington Post, meets his source in an underground parking garage.

“First of all,” Judge Sack asked, “do you really have to meet in a garage to maintain your confidentiality? Second of all, can the government go and subpoena the surveillance camera?”

Six years and six press leak prosecutions later, those questions seem as naive as their answers are obvious: yes and yes.

It used to be that journalists had a sporting chance of protecting their sources. The best and sometimes only way to identify a leaker was to pressure the reporter or news organization that received the leak, but even subpoenas tended to be resisted. Crazy talk about the freedom of the press kept being brought up. Today, advances in surveillance technology allow the government to keep a perpetual eye on those with security clearances, and give prosecutors the ability to punish officials for disclosing secrets without provoking a clash with the press.

But in today's government structure, the ability for the watchmen of our secrets to maintain them as such is inhibited. We live in a world where data flows too easily, to too many people, at such speeds and frequency that oversight is impossible, the perfect example of this issue can be explained in one proper name, Edward Snowden.

The tools that allow a person to keep a secret for themselves no longer apply in such a huge superstructure. Information needs to change hands, be reviewed, and ultimately end up in the correct hands for it to be actionable and worthy of being gathered in the first place. So rather then trying to find the leak that is causing this seepage of information, the government has decided to go after then sponge that is socking our secrets up. My crude metaphor is of course, meant to refer to the government pursuing the persons who are publishing the secrets, rather then those who share them.

The changes have unsettled a decades-long accommodation between national security and press freedom, one in which the government did what it could to protect its secrets but exercised discretion in resorting to subpoenas and criminal charges when it failed. Even the administration of George W. Bush, no friend of leaks, more or less stuck to this script.

That does not seem to be the view of the Obama administration's Justice Department, which has used the tools of the Patriot Act and other recently made legal avenues to bring more prosecutions against current or former government officials for providing classified information to the media than every previous administration combined.

To what end does this new culture of pursuing these links lead? An obvious conclusion would be that it increases the level of paranoia of those within the system, feeling eyes lurk over them every time they hit 'send' on an email, causing high levels of anxiety that a misstep or a mistake could lead towards a leak investigation. This adds a second layer of 'security' around the governments secret keeping apparatus as information that could or would normally be shared with the general public as a way of maintaining the public trust begins to become omitted out of fear of prosecution. The shining example of that is a bureaucratic being led in front of congress to give testimony only to claim innocence and then claim the fifth.

We, the people, are left forced to trust a system that forces itself to be less trustworthy. The government won their case in a 2-1 decision against the ability for the press to maintain their leaks confidentiality back in '06. Opening the way for these historic levels of prosecutions. In a dissent, Judge Sack said he feared for the future.

Part 1: Too Many Parts
Part 2: What is Sacred?

Secrets: Part 2 of 3 - Citizen's Secrets

Who are you?

The rock band The Who asked this question quite famously, and for most of our lives, we will be asking ourselves that very same question, but in a very static and literal sense, this question can be answered

The Supreme Court recently ruled in a 5-4 decision that people who are arrested, not convicted, but simply arrested as suspects in certain crimes, can be forced to place a cotton swab in their mouths and to give up a DNA sample that could be stored in a national government database.

Now, when you think about the secrets you hold as a person, as a citizen, your DNA may not be at the top of your mind, but it is actually the ultimate secret. It is your very biological essence. What diseases you might be prone to, where you come from -- quite simply, who you are.

The court decided that that information can be taken without your consent and kept in a database. Of course, Justice Anthony Kennedy who wrote the 5-4 majority opinion a point of noting that all of the precautions taken with the database in this case, the state is not allowed to just play around with it and search it for fun or interesting facts about people. It can only be used to identify suspects.

Fingerprinting? That is a form of identification, I can't tell your real hair color, if you were adopted, or your proneness to athletes foot. As science progresses, the answers to these and so many questions can be gleamed from DNA, and our ability to store and categorize this information is expanding at a logarithmic pace.

Now, even as a write this, news is breaking of a massive accumulation of phone records and other internet data that the government simply asked for. Tens of millions of data points now stamped with 'top secret' and added to the stack of intelligence guarded by the government.The strongest protection is a promise of those in power not to abuse this power. A promise that the admission to their gathering off all this metadata, seems to have been broken.

But no matter how responsible the state promises to be with it, it is a government database that is subject to the statement forces that our top secret clearance system is. And that system that America, as I've already discussed, is trying and failing to keep everyone, from Chinese hackers to 19 year old Army Privates, out of these days, which is to say that we have system that cannot keep its secrets.

No more secrets. Who you are, down to the very molecular fiber of your being, and what you do, from emails to call logs to what dirty websites you visit late at night, could find itself on a spreadsheet that 10 years or 20 years from now, that is printed out and carried out of an office just about anywhere in the world. The question this begs is do we believe in a government structure that holds these secrets. Do we accept that to live in a free and safe society, these secrets need to be held? That we will still recognize our country in the rubble as the scaffolding that held these secrets, lays in ruin.

Click here to read part 1

Part one dealt about the size and scope of the structure, part two about the type and volume of data they attempt to hold up, Part three will looks into the chinks that may ultimately bring it down.

Secrets: Part 1 of 3 - Bradley Manning

Can you keep a secret?

At the end of 2011, there were 1.4 million people who answered that question yes to the satisfactory of the government and were bestowed with top secret security clearance in the United States. One of those people is now on trial for leaking the largest trove of government secrets ever, that he had promised to keep.

Bradley Manning is the 25-year-old army private accused of turning over hundreds of thousands of government files to Jesse Ventura by way of WikiLeak. Including diplomatic cable, battlefield reports from Iraq and Afghanistan, and videos of airstrikes that killed civilians. His trial got under way this week and he faces life in prison if he is convicted.

Some will look to him as a hero on the verge of an imprisonment martyrdom, others see a villain who betrayed his country. That conversation will ensue in the coming weeks and months, though there is very little doubt in my mind as to the outcome of a trial that occurs in the wake of Manning already confessing to numerous lesser charges.

But what Bradley Manning really is, is proof that the government cannot keep its own secrets. If 1.4 million people had access to the information that Bradley Manning had access to, or other information that is held just as closely to the governments breast, that information is not a secret in any real way.

I'm reminded of a time that I tried to keep a secret that I had a crush on the girl on the other side of my third grade playground, once ten of my peers learned of this, I did not deem it a secret any more.

If I asked you to tell me what is a secret that 1.4 million people know, the correct answer would be "nothing", because it`s not a secret if that many people know it. The grand irony of the construction and the post-9/11 securities state is this country is grown so large, it laid claim to so many secrets, that it is now beginning to implode under its own weight.

Other cases include Jeffrey Alexander Sterling, Thomas Andrews Drake, Shamai K. Leibowitz, Stephen Jin-Woo Kim from this presidency alone. One hundred years ago, a traitor would have to swipe a piece of paper off a desk then run to the border and take weeks to sail to another country to be considered a spy.  Are these men smuggling critical information out of the country and into the arms of the enemy? No, at least not directly, in almost all of these cases, the leak came in the form of sharing information with the media.

And so, the government has to act with increasing aggression and desperation to make examples of people among the droves who leak these secrets. Under President Obama, we see more prosecutions of government officials for alleged leaks under the World War I era Espionage Act than all of his predecessors combined. This at the same time that the Obama administration promised to strengthen protections for whistle-blowers, it has launched an aggressive crackdown on government employees who have leaked national security information to the press.

Government is larger then ever, our stacks of secrets are sky high, the amount of people with access to these secrets is so large it's hard to grasp, and the ease by which these secrets are shared can be done with a few clicks of a computer mouse. The task of managing our data flow and truly keeping this information secured and away from public sight is Herculean.

But for now, we get Bradley Manning on trial, a trial brought by a government that is quite understandably chilled by imagining a world without secrets, terrified of the thought that in this century, the answer to the question, "Can you keep a secret?" when it is asked of this government, is "No, you can`t."


Next: Where does the government draw the line on the secrets WE can keep?