TQ White II

The courts originally articulated the 'Public Safety Exception' in the case of a cop who, roughly speaking, asked a bad guy about more bad guys out of sight in a violent situation. When the cop testified about that conversation in the trial, it was thrown out since it was not done in the context of a Miranda warning. A (conservative) Supreme Court in the eighties said that was silly. The cops could not be expected to follow procedures when lives were at imminent risk.

During the modern era of international, violent conspiracy, the government has found itself with a nasty problem. After Miranda, a (supposed) bad guy can get a lawyer. During interrogation, the lawyer is there to prevent the interrogator from getting too much information from the bad guy.

This is the normal, American process intended to prevent the cops from coercing people into incriminating themselves and makes a lot of sense. However, it is really frustrating when you think that the guy might know the location of a factory making bombs or biological weapons.

It turns out that there are interrogation techniques that are pretty effective in extracting information from people who don't really want to talk. This is the category of things that are being referred to when people say that "torture is not the most effective way to get information.

However, these techniques require (I surmise) a prolonged game where the interrogator is able to establish a complicated rapport with the person. That rapport is not really possible when you have a third party, the lawyer, interrupting and saying, "Don't answer that," and "That's not necessarily true," and "He's trying to trick you here." That is, the presence of a lawyer is an active impediment to finding out the location of the bomb factory.

Tough luck!, some might say. Our system is based on the premise that it's better to allow a hundred guilty people go free than to put a single innocent person in jail. This premise responds the the very real, very important danger of government overreach. Government through history have used the legal system to illegitimately imprison enemies.

The challenge is the modern age where there are technologies available that allow killing on a scale never considered by the 'let a hundred guilty go free' idea. Yesterday, that one bad guy could, at worst, run around shooting people. Today, there are bombs, dirty bombs and biological weapons that can kill or injure thousands. Letting one bad guy go free who can kill thousands of people changes the calculation if all of a hundred times the number innocents that were protected are killed.

It turns logic on its head to say that, if a person is so bad that they are trying to kill thousands, we have to choose between preventing the killing and putting the bad guy in jail. But it also violates our sense of decency to allow authorities to have a team of highly sophisticated interrogators work over a person and make him or her face it alone. The rules that insist that a person must have a lawyer is very important.

But so is closing the bomb factory.

A decent government is based on the idea of balancing help and harms and this is a balancing act for which we are painfully unprepared. Liberals knee-jerk against the use of state power to manipulate individuals. Conservatives knee-jerk in favor of maximum use of state power to protect society. Over the last several years, the balancing point has moved strongly toward protectiveness.

The Bush administration took a pretty simple view of the matter: protecting society is always more important than civil rights. Obama has been more nuanced. He accepts rules but has transformed them in ways that codify a diminished view of civil rights. In particular, he has claimed that the 'Public Safety Exception' applies to more than the instant safety of the police and public. He says it applies to the finding of the bomb factory, too.

In the original use of the exception, it was very easy to know if it was properly applied. Not so in the modern use. If the CIA has been tracking a guy and claims he knows the location of the bomb factory, there is a long leap of faith to believe that he should be denied normal legal protections, especially since much of the information can't be revealed without compromising the information sources that make you know about the bomb factory in the first place.

The country needs a process to deal with these things that protects our basic constitutional civil rights. If all leaders were as sophisticated as Barack Obama, it would be acceptable to leave the decision to the good judgement of the government. The problem is that we could elect another George Bush any time and be faced with a leader whose disdain for civil rights resulted in many people being imprisoned without any trial at all after having information extracted from them in a way that, was it used in a trial, would make a mockery of our judicial system.

In this case, the use of the 'Public Safety Exception' distorts the idea of imminent threat beyond recognition because it is dealing with a real issue that is important but has not been accommodated by the law in any way. We need to find a way to deal with the need to extract information from people who know information that is important to the safety, perhaps the survival of our society. It's not that the person is a terrorist, or an enemy, or even a criminal.

• We need to figure out a way to decide that a person knows something essential to the survival of society and can be compelled to reveal it. There are some challenges in this:
  
  
• If the person is not otherwise subject to the justice system, what happens? (Imagine a person who inadvertently found the location of the nuke but, for some reason is unwilling to tell. Can he be interrogated, even though he's not even vaguely suspected of committing a crime?)
  
  
• How can this process be constructed so that information gained doesn't ruin our ability to have a fair trial for the person? (Imagine that innocent guy above actually is guilty of, say, parking illegally and that information is revealed during said interrogation. What happens to his parking trial considering that he is 100% innocent of involvement in the nuke problem?)
  
  

How do we adjudicate the boundary between 'risk to society' and 'very bad behavior'? If we allow the use of sophisticated interrogation, do we want it used to, say, cause a gang member to reveal all of the details of his gang because they are bad guys and going to do bad things in the future? What about a guy who knows about irregularities at Goldman Sax? It would be very useful to know if he knows things that might let us prevent another Great Recession.

It is legitimately important that our society has the ability to extract existentially important information from people who do not want to give it. The use of the idea 'Public Safety Exception' is dangerously inappropriate. It is not sufficiently accountable. It also does not provide adequate latitude. Some accountable process is needed that protects us from government overreach yet also supports just outcomes for bad guys is needed.

When a battle commander sends soldiers off to neutralize a machine gun nest, there is going to be a cost in lives. He or she does it because dealing with the enemy is so important that the tradeoff is justified and essential.

We are in a fucking battle. Barack Obama and us are confronted with a vicious set of opponents. They have stymied our progress in many brutal, unfair and dishonorable ways. Our President is trying to find a way to get things done. When he tries to pass an obvious and moderate jobs act, he finds that path blocked by a machine gun. When he tries to make an easy-going and conciliatory budget plan, we all get screwed.

Unlike you and me, he's determined not to just flap his gums but to fucking get something done. Sacrifices have to be made. Nobody likes it and, if you think that Barack Obama has an affirmative desire to cut Social Security benefits, you're deeply misguided.

Just as we have been screaming about the need to get additional revenue for years, the other side has been screaming about entitlement cuts. It is very, very difficult, perhaps literally impossible, for him to say anything that can get a reaction. He is fighting a war on our behalf and I am truly pissed about the negative attitude that is being expressed about Barack Obama's administration.

Here's what I think is going on and that, if you were thinking right, you would  say: Barack Obama is trapped in a battle with negative forces. Those people have cornered us on the battlefield. They are forcing Barack Obama to talk about changing Social Security. We have to fight those bastards so our guy doesn't have to sacrifice this point. They suck.

Because, that's closer to correct. Barack Obama is a good guy. Sure, he's more calculating now than before. Sure, he's been beaten down by years of partisan conflict but, there is nothing I can see in his face when he is interacting with that kid who was 'Kid President' on Monday. This guy hasn't changed his values any more than Eisenhower wanted more dead soldiers in World War II ...

(and before you start accusing me of being extreme, I stand by the judgement that we are engaged in a battle for our future of equal proportions to that of WWI and yes, I know the difference between 'total world war' and what is happening here; today is very, very destructive and much longer)

The correct response here is, "THOSE ASSHOLES ARE FORCING OUR GUY INTO A BAD SITUATION. LET'S STOP THEM!"

NOT, "Barack is so bad. The best way to make him do better for us is to hassle him bitterly over everything he does that doesn't suit us. Let's undermine him."

I really think it is time for us to fall in line. Make the argument against the policy but undertand two things, Barack Obama has fundamental values that are largely consistent with our most liberal ideals. The bad compromises that he is making are a consequence of having to do business with very bad people, the Republicans.

CHAPTER THE FIRST: EXECUTIVE POWER

The first thing I have to note is that I do not believe there is anything "emerging" about a president's power to kill someone in a way that is nearly arbitrary. As a consequence of his role as Commander in Chief, all presidents have had the ability to order someone killed. The only thing that's emerging, imho, is that we know about it. I am 100% certain that the cold war saw many murders, for example. In theory, I think that's a good thing.

I read some article about the structure of government. It talked about the reason we have a president at all. Basically, the founders realized that we need the specific, directed 'agency' of an individual to help move the country forward. Imagine a battlefield where the final decision has to be signed by three guys. One would expect that the time needed to bring everyone to agreement would be very dangerous to the troops. It seems clear that it would not work at all unless a single, undivided mind were able to digest the information and decide, for better or worse, on a course of action.

Imagine, then, a situation where we have changed the Commander in Chief so that he does not have the ability to make a unilateral decision to stop an attack. He has to get two other people to sign off on a drone strike– and then, one of them refuses to sign off. This kind of happened when Bill Clinton had Osama bin Laden in the crosshairs of a drone (or something) in the fall of 2000. Bill was weakened politically and had been savaged earlier for having bombed something so he didn't take him out. Oops.

Which is to say, he allowed himself to be conscripted into a political committee that prevented him from taking action. A year later, 3000 Americans dead and ten years later another 3500 soldiers and more than half a million Iraqis dead. Not a good bargain.

So, that makes two points: first, the president has always had this power and second, in some circumstances, it can be an unambiguously good thing. The difference between it being a good thing and a bad thing? The nature of the president.

CHAPTER THE NEXT: THE NATURE OF THE LEADER

It's my opinion that George Bush was stupid and mean. He invaded Iraq when anyone who wasn't completely taken over with emotion knew it was a completely stupid idea. Given this argument, I'm less condemning of those who supported him but still think they and he were fools. It was obvious on the face that he was acting in bad faith. I will never understand how anyone could fail to see it.

Obama, not so bad. I combine the reality that, he has the ability to order any soldier to, "Go shoot that person," and he has the responsibility to prevent America from coming to harm with my observation of his decency. I see nothing "on the face" of things that suggests that Obama is stupid, mean or unwise. I see the opposite.

In the grand discussion about this, people make the point to me that I might be right about Obama but, shouldn't the next Bush be constrained? Others have said that it might be legal and inevitable but isn't it immoral? To the first, I reply that I fear the bad president so, work hard to avoid that. Only vote for good people. To the second, I wonder what moral even means in this world.

I note as preface that, Obama and I were pretty much on the same page about the war on terror before he got elected. He was very skeptical about much of the hard-hearted international action, down on the war in Iraq, Guantanamo, indefinite detention, etc. Almost immediately, his viewpoints changed dramatically, He used to oppose warrantless wiretaps. Now he supports them. (Though Richard Clarke tells me that they are conducted very properly under Obama.) His foreign policy became very much like George Bush's. What happened to change his mind?

If you told me that George Bush had changed and was now intellectually curious, generous and thoughtful, I would not believe it. I am certain that it is almost impossible for a person to undergo such fundamental change. I believe that's the case in the other direction, too. Which is to say, I don't think that Obama went from being a brilliant person with a long career of working for the betterment of people and an inquiring, philosophical bent, to being a hard-hearted dick who thinks it's fun to order drones to blow people to bits.

I believe that the fundamental person doesn't change. What does? The stuff he knows.

It my guess that Barack got into office and got his ultra cool security clearance and then he got briefed. The evidence of his changed attitude suggests that he went, "Holy fuck! I would never have believed it."

For most of the post-911 era, I have said something to the effect that it must be a lot harder to put together a terror team than it seems. Otherwise, where are the acts of terror? It's not as if we don't have a huge country with lots of guns, fertilizer for big bombs, dynamite for smaller ones. It's not like we couldn't be thrown into an incredibly destructive spiral by four or five explosions in crowded malls. I thought that there must be something a lot harder about it than I could imagine.

I now guess that it's that the big problem it's getting past our warrantless wiretaps and whatever other machiaveliian crap the national security apparatus is doing to protect us. I now suspect that Barack Obama got a look at the number of plots, the number of near misses, the destructive potential of those intended attacks and said, I repeat, "Holy fuck!" I don't know of any other way to explain his change of heart on these matters.

Well, except one. My nephew suggests that Obama got into the government and they brainwashed and fooled him. Of course, that's possible but, I think, extremely unlikely. He is a brilliant guy and, except for this national security stuff, he hasn't shown much change in his values. If there were government organizations able to cause a president to fundamentally turn around on issues, I'm guessing there would be more examples for Obama.

Which then brings us back to wondering if the drone strikes are a bad thing. Even if, the president has the ability and we need him to have the ability and we know that there are bad guys out there, is this a wise thing to do? My answer is, I have no idea. I accepted a doctor's analysis of my brother's kidney disease last year, even though the stakes were as high as possible, because I know that, even if he's not perfect, the doctor knows a lot more than I do. I feel the same way about Obama.

I do worry that he's miscalculating the nasty effect on our international reputation. I also worry that his acts might embolden a future George Bush to act on his daddy issues in the international arena. I am not happy about the fear and damage to innocents in target areas.

But I also figure that Barack is likely to be worried about these same things and, given his infinitely better access to information, I guess that he's more likely to make a good decision about it than either myself or Ed Schulz (and all the other whiney liberals) could do.

NEW CHAPTER: DUE PROCESS

One of the great innovations of the Obama era was to remind us that due process does not only refer to the courts. For example, the Supreme Court considered the Florida recount in 2000 to be invalid because it would have been a failure of due process. The counts, being conducted differently in different places would result in each citizen having a different process that, in their opinion, was not sufficiently 'due'.

I use this example for two reason. If anyone knows the definition of due process, it's the justices on the Supreme Court. They realize, as Obama's people have now reminded us, that due process exists in a million forms. What's required is that the process is 'due', ie, "of proper quality or extent". The other reason I use this is to remind us that judicial proceedings, even when 'due', can be completely, politically, mindlessly wrong.

So, what's the due process that people are worried about with drones? Mainly two things. There is no trial for the condemned and that there is no trial for the killer, in this case, the president. (I say trial, you say review or transparency, in any case, no airing of the facts for judgement). Both are good principles but being thought about simplistically.

Obama has made clear that there is a process and that, in his opinion as the leader of the country, it is 'due'. It does not involve the courts. It involves some other process that he feels is sufficiently thoughtful that he can go to sleep at night after having ordered some guy to be killed. Were it George Bush who told me this, I would say, "Fuck you. You'd order a killing of someone because he insulted your daddy." Not so with Obama.

The media and congress are all enraged that they don't get to know enough to decide whether he is right. I sympathize, for sure, but what on earth makes them think they could make a better decision? Certainly they cannot possibly have access to all the secret stuff. That's obviously a disastrous course. Without that, how could anyone believe that they are doing any more than second guessing?

The Obama administration is releasing papers explaining its legal justification. What has happened so far and will happen as more comes out, is that people will nitpick. They will say, "not even directly engaged in an attack? That's simply immoral. If he's not attacking then go arrest him," and so on. A complicated topic like this necessarily has many components that you can argue with. Even more because we can never know half of the story.

Sure, the guy was not actually engaged in an attack but, he was incredibly charismatic and gaining a following at a terrifying pace. He hadn't ever actually suggested violence himself but has a patron who has already bankrolled several terrorist attacks that have killed many people. His politics are viciously anti-American and we know that a dozen of the nastiest terrorist guys are part of his gang.

Given that story, you could treat him like we treat criminals in America. Wait until he commits a crime and then arrest him. Or, until he has put the plan into place.

But what if Barack can easily see where this is going? What if he knows that this guy is putting people in the mood for sacrifice and violence very effectively and, the longer he is allowed to do so, the greater the potential for violence will be? What if he has seen this before a dozen times and, when he didn't send in the drones soon enough, there were another dozen vicious people that our security people had to deal with.

Do we really want Barack to be looking over his shoulder? To be making the calculation in ihis head, "even though I know that this is going to end badly, I will lose so much support in Congress that I won't be able to pass the extension for unemployment benefits that millions depend on?" Or some other nasty tradeoff.

I don't actually think Barack is saintly. I just think he is as good as me and I know that I would not kill some bad guy who was only mildly bad. (Unlike Bush, who I think would make bad judgements.) The only serious leap I make in my analysis is where I infer that the terrorist threat caused Barack his "Holy fuck!" moment.

ANOTHER CHAPTER: American Citizen

I've never thought this was an important point. It's my opinion that the Constitution applies to the government, not the people, and that everyone the government touches is protected by the Constitution. I am furious (and here Obama gets my full opprobrium) about the indefinite detention of immigration violators. The idea that they do not get trials, a lawyer, etc, merely because they are not citizens seems completely immoral to me.

So, Anwar al Awlaki deserves the same treatment, to my mind, as does Osama bin Laden. Whatever process is 'due', should be the same. I consider the notion that he deserves more consideration because he is an American to be flawed on its face.

But then, one worries, does that mean that Barack can send a drone into your neighborhood to kill your American ass? What's to stop him from sliding down some slippery slope and declaring martial law, killing everyone, sending us all to Guantanamo? If he can kill al Awlaki, why not you and me? Of course, that's just silly: you are not a terrorist, neither am I.

The old 'nuclear bomb in downtown LA' scenario is so overused that it's become a canard but, that doesn't mean it's entirely useless. It is possible and, so are lots of other things that are equally bad. Would you really prevent Obama from torturing someone to find out where the bio-terror vial is? Would you really prevent him from sending soldiers to capture the terrorist cell while they are putting on their armor in a suburban house before they drove the the Mall of America? Would you really prevent Obama from using a drone to blow up a truck full of fertilizer bomb while it's on the outskirts of Denver? Just because it's in America or it might be an American citizen?

THE BOTTOM LINE: FOLLOW THE LEADER

I think the principle applies everywhere. If it is important to prevent mass murder then the citizenship of the bad guy is not important. Nor is the nature of the process. Nor is the means. The only questions I want answered are: Will the prevention happen in time? Is it going to be effective? And (and I agree that this is very important) will the right people, and only the right people, be killed?

For me, the conclusion is pretty clear. First, if I were president and was presented with a law that said, "You can't do this!", I reply, "Sorry, but you can't take away my role as Commander in Chief nor my obligation to protect our citizens, so forget about it." That is, it is an intrinsic power of the Presidency. Second, I accept as real the threat that is being addressed in this way. And, third, with some reservations, I think that the person who is making the judgment is more likely than most to be doing it correctly. While I am ok with people chewing this over in the public dialog, I conclude that the situation is as it should be.

States should not have the freedom to assign electors as they choose. If I had my way, they would have no say in it whatever. We are a long way from the time when William Penn could sink the country if we didn't cater to his ego and effectively let him organize his state so that only his vote counts. Voting should be fair. Scientifically neutral mechanisms should be developed to organize representative districts and elections should be managed by internationally monitored bodies to insure that they fairly represent the will of the people.

Our election process is a disgrace that would make the authors of the constitution puke. I'm certain they didn't like the compromise they had to make to keep William Penn and the other big landholder/governors in the fold but I'm equally sure they would be astonished to find that their descendants would behave with such dishonor.

More to the point, though, I'm convinced that gerrymandering violates equal protection and due process and is thereby unconstitutional. It might be that, in the case of state offices, they are allowed to manipulate their election processes so that the results actually disenfranchise voters (though I only say this to be polite, it's only arguable, not right).

For federal elections, I do not think that states are allowed to tinker with the elections (even if we have a Supreme Court that would not rise to the challenge) so that the result demonstrably conflicts with the right answer. Fortunately, in elections, we have a standard that can be measured to tell us the right answer, majority. And it can tell us when we have the wrong one.

The changes Republican controlled states propose would, demonstrably, have resulted in a presidential election where the answer would have been wrong. Obama would have gotten a majority of the vote but Romney would have had the presidency.

Not only does that mean they would have violated the basic tenet of democracy, majority rule, but they would have made it so that many of their citizens had votes that, for practical purposes, don't count.

That happens anyway in some cases. The electoral college has fundamentally the same problem. However, it is not subject to manipulation. A person who is powerfully motivated to have their voice count can move to a battlefield state. But, nobody can escape gerrymandered districts. They change whenever too many of the wrong people get power, thus keeping them permanently disenfranchised and those people have no meaningful recourse.

There is also the awful stink test. Unlike disgusting uses of the freedom of speech, there is no benefit to society of tolerating partisan manipulation of elections. We should change it and the first thing that should go is the idea that states have the right to choose their own electors however the partisan majority feels will serve them best.

I'm annoyed that the Times refers to this as "popular outrage" when it's really "extra terrible riot by a bunch of known-to-be-violent soccer thugs.

The condemned went to a soccer match with weapons and intentionally started a riot. Some of the dead where actually killed by police bullets, clearly a consequence of the gunfight they were forced to fight.

The false "popular outrage" is actually the consequence of explicit threats made by the friends of the same people who went to the soccer game armed.

These people are really doing the same thing to the local society as their friends did to the soccer match. That is, they are going into a civilian population to incite violence – over a soccer team! A soccer team whose players and fans inclined to fight and murder.

At Least 30 Die in Egyptian Riots After Soccer Verdict - NYTimes.com

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