Category: Politics

Unwarranted

Let’s talk about the fourth amendment.

Now to be upfront, I am not a lawyer. That sentence is usually followed by a “but, I blah blah blah might as well be” bullshit justification for being an expert, even if on the layman level.

I am not a constitutional law expert either.

I’m a weird bird. I consume trial transcripts. There’s probably half a dozen cases where I have read every brief, motion transcript or filing. US v Microsoft is probably where I got the bug. Such a fascinating case from end to end.

BUT

That doesn’t make me a lawyer.

I do, however, have opinions on the law. I also where possible, repeat guidance that learned lawyers have stated publicly.

With that, let us examine the 4th amendment to the Constitution of the United States:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This is a good amendment, and very important. It essentially is the protection in our society from the government simply looking at whatever it wants to on a fishing expedition and it has served us well to date.

But then 9/11.

I’ve stated it before, but there is an old joke that a liberal is simply a conservative that has never been mugged. On 9/11 our entire country got mugged. To put it succinctly: We lost our collective minds.

Shrouded in cries of “Never forget” and “Protect the homeland” we quite simply did shame to our founding fathers by agreeing to give up many of the things that make America unique. All in the interests of thinking we could prevent another 9/11 from happening.

We can’t. Another major terrorist attack will happen on American soil. If you count domestic terrorism, many already have. It is not a “solve for zero” problem. The safest society in the world is one that chains everyone in the country to their beds 24/7. The greatest victory Osama Bin Laden achieved is our own violation of our principles. Every shoe taken off at an airport, every email read by the NSA, every time a TSA agent violates someone’s body in the interests of the greater good of security is in the final analysis, a victory for those who attacked us. They terrorized us.

So why does this bring me to the 4th amendment?

The word “Warrant”.

We put a lot of stock in that word. I don’t know an American who would not say “well if they had a warrant then…”

But here’s the thing. It’s trivial to get one. It is the linchpin of the entire 4th amendment. It is the very due process we trust. That a judge considered the arguments and, having weighed the impact and risks, issued the command that bypasses the amendment.

How many warrants are denied? Less and less I fear. I am concerned that in the post 9/11 world no judge wants to be the one to deny a warrant if the word terrorism is involved. I am concerned the process of obtaining a warrant, often on very tight timelines, has been so diluted as to make the 4th amendment itself useless.

Let us consider a hypothetical. I tweet to Edward Snowden. He replies. Because his twitter stream is followed closely by law enforcement, and I am a well-known member of the security industry, how difficult would it be on the part of a judge to issue a warrant to search my computers and phone due to Snowden’s status as a fugitive whose actions have (according to those pleading the warrant) materially affected the security of the United States?

I see struggles like this all the time. Thanks to the Patriot act one need simply find some way to invoke terrorism in the application for a warrant and many safeguards that might give a judge or controlling authority pause simply melt away.

This problem is not related to political administrations. It existed under Bush, Obama, and now Trump.

Armor is only as strong as its weakest point. In the case of the 4th amendment, the strongest link is now made of brittle, poorly cast metal.

Thoughts on an Election

It’s not going to be ok. Not for a while. Strangely, that’s the magic of our American system.

***

I woke up this morning thinking of a Star Trek: The Next Generation episode. It was a fairly good one as I recall, where the Enterprise was evaluating first contact with a race who wasn’t quite ready for it.

The away team was found out, and an enlightened leader of the race seemed set to push his civilization to the next phase. But they were not ready. Institutionalized pride and fear, some religious and some xenophobia caused tragedy and in the end first contact had to be delayed. Bad for the civilization involved as the Federation could have helped them solve numerous problems. But good in the sense that forcing a change will always be met with the elements of tradition and protection and that could now let them know there was a change on the horizon. Don’t worry, just not today.

We get caught up in waves of positive change. We have a short time on the Earth. We tend to believe in momentum despite the fact history has shown us over and over again the momentum surges back quickly, sharply, and sometimes with great pain.

***

I was talking last week with a fellow Bernie supporter and we were joined in the conversation by a Trump supporter who opined:

“You guys should have run Bernie. I like him as much as Trump. He would shake things up. But Hillary, all she and her husband want is another turn at the power wheel.”

It wasn’t a sexist comment. It wasn’t a conservative comment. It was an expression of dissatisfaction with the status quo.

***

What has bothered me most by far are my scared friends. People of color. Non-Christians. People who, thanks to the gradual removal of morality from a biological imperative, have come out as gay or gender neutral or fluid or been able to embrace their true physical identity or their religious preference openly for the past eight years.

These people are afraid not just for the direction of the country they are terrified for their marriage, their ability to use a restroom, their ability to practice their faith, their feeling that it is unreasonable for a police officer to be able to shoot them under lax rules of engagement.

I can’t tell them to calm down, they are rightfully losing their shit over what this means for them and I have zero frame of reference to help.

***

While Trump may indeed be the least qualified person to run and win, the long arc of history in general shows there have been far worse presidents. Harding, Buchanan, Hoover all come to mind immediately. Granted Trump has not started yet, but I do take heart in that we’re still here and the gradual trend while never moving fast enough for my liking is ever better.

***

The status quo sucks. Hillary Clinton was, by the traditional sense of the idea, one of the most qualified candidates in years according to the job description. Donald Trump, in objective contrast, was one of the least by the same definition. But the reality is many of my fellow citizens simply feel slighted by a system that rewards playing by Washington rules. By playing the game.

I make no apologies nor regrets for my support of Hillary Clinton. I find Donald Trump in every way abhorrent in his behavior and his inability to understand you can lie for the rest of your life to make people like you but that will not change the fact you lie constantly.

The only downfall to Hillary as a candidate is that she and her husband have consistently handed their enemies the ammo needed to build a long and sustained narrative that they are untrustworthy. I still boggle over the email server. I get how it happened, and I understand its implications are not near as severe a “crime” as one side would like it to be. But it’s still a self-inflicted wound in a career riddled with them. The sum total of controversies over the Clinton’s that have been disproven is staggering but it is undercut on an almost two-year basis by something they say or do themselves that actually can be used against them.

***

I said on twitter that Trump has a mandate now. That’s not correct and I should have put it better. You cannot have a mandate when the other candidate won the popular vote.

What the Republicans have now is unfettered control. They have the three branches of the Federal government and a majority of the state legislatures and governorships. That means effectively if the Republican party wanted to add an amendment to the constitution they could do so far more easily than at any time in recent history. (note I said more easily not easily. It’s still a difficult process)

What this means is: They have no one to blame and no excuses. If the next four years is the dawning of a new golden age of prosperity or worse the dawning of a new dark age, it will be the direct result of conservative policy and no one else’s.

***

I hope Trump is the Republican party’s Carter.

***

What does this mean for NASA? One of the “Make America Great Again” pillars is a throwback to times when America had great successes. What was a more crowning achievement of American greatness than landing on the moon? Someone tell President-elect Trump that the Chinese are headed to Mars first. That ought to do it.

***

Talk of secession and faithless electors upsets me. The former was settled over the lives of 600,000 Americans. It is settled. No state can legally peacefully secede from the United States. It is not possible.

The latter would give us a powerless democrat in the white house against the aforementioned full republican control of the rest of the governing apparatus.

Both are folly.

***

I keep coming back to that Star Trek episode. One-half of the country isn’t listening to the other half. If we’re not listening, we’re missing the opportunity to assuage fear. To address concern. To actually learn that maybe some of what we think is wrong. I used to watch that episode thinking “screw it just do the first contact and deal with the fall out” But in that fictional world the fear meant people’s lives.

On this side of the real world it’s already costing lives and the full brunt of change isn’t even realized yet. What do you actually do in that situation?

You can sit and hate I suppose. But that’s going to be a long four years.

***

Michelle 2020.

On Bernie, On Hillary, On Comet and Cupid.

This is pretty much a short post because the hyperbole is bonkers strong over this primary battle. From people calling Hillary a crook to people saying Bernie secretly wants Trump to win. (c’mon people. For serious. Stop it.)

I’m a Bernie supporter. I truly believe he was the best hope to throw the chain in the wheels of a broken system. Yes I think the superdelegate thing was a rig from the beginning (in 2008 they weren’t counted in totals, then suddenly from the very beginning this primary Hillary had a 500 superdelegate lead and all the networks fell in line.) The email thing worries me not from the perspective of I hope Bernie gets in because of it but because, objectively speaking, it was *insanely* boneheaded and gives the opposing party a wonderful narrative on through November. It is a completely self-inflicted wound. That combined with votes on Iraq and other questionable choices really bother me. But not as much as anything else, and I do assume on the face of it she’s a good person who wants to do well.

My qualms don’t bother me a sliver as much as even the most progressive of the Republican options. Hell they don’t even bother me a sliver as much as the most conservative of the Democratic options.

Bernie lost. Definitively. You could argue he was playing from a slightly stacked deck but let’s be honest, isn’t it about time that the male in the male vs. female contest was playing disadvantaged?

A historic milestone was achieved for women everywhere not just Hillary. She’s more than capable of navigating and managing the busted machinations of the modern US system. Donald Trump is a tire fire wrapped up in asbestos taped to a neutron bomb on a crazy sensitive tripwire that he dances around clumsily while wearing big spikey clown shoes. Also he’s a racist.

Let’s put this part behind us like Hillary did when Obama won. I’ll say it plainly:

She’s the nominee, I doubt anything will change that. I’m with the nominee, so I’m with her.

There is American Exceptionalism. We’re the Exception to Running a Modern Country Well.

There *is* American Exceptionalism. It’s that we intentionally confuse social welfare with totalitarianism. We confuse economic models with "more" or "less" individual freedom. This belief is actually not the case. Our freedom lies in our ability to speak our minds, limitations on the government to intrude on our homes or compel us to incriminate ourselves, providing a non-violent means of revolution, etc.

What has resulted from our economic model is the situation we have today, no matter who is in office Americans work more for less "life" than pretty much any modern country. Furthermore, we stubbornly resist any idea that has been implemented elsewhere (say, Europe) before we thought of it as being "European". Except for describing a vacation location, the word "European" is pejorative.

I’m an incredibly lucky person. I was born into a place on Earth where, as a white male, I could enjoy "The American Dream" at the lowest difficulty level needed to obtain it.

But today that same demographic doesn’t have the same option. And it’s not being taken away by increasing minority populations or affirmative action or illegal immigration. It’s being taken away by student loan debt, a housing market viewed as a profit center, a health industry that is so institutionalized against change it is actually incented to treat disease for money rather than cure it, corporate taxes that have so many loopholes the effective rate is zero which deprives the government of revenue, politicians that have to worry about re-election more than governing, and finally, a system that feeds direct control of our well being, infrastructure, defense, drug approval, rights, and all the machinations of government into a tiny fraction of the population who gamed the system then used it to buy and sell the politicians they need to achieve their goals.

Their goals. Not our goals. Not society’s goals. Not the country’s goals. It’s hard for the lowest difficulty people, so imagine everyone else.

I’ve left out a bunch. The challenges of sex and race, our privatized prison system and militarized police. Our need to build weapons we don’t need to fight wars we should have thought twice about before getting into.

This article really resonated with me and I urge everyone, conservative and liberal to read it. It’s not anti-conservative or anti-patriotic or anti-liberal to suggest someone is doing something better. It doesn’t much affect our power as a nation state to implement some of these ideas.

http://www.thenation.com/article/after-i-lived-in-norway-america-felt-backward-heres-why/

We used to be a country that took on big social changes or projects. The Civil War. An income tax. The railroads. The highway system. Social Security. Medicare and Medicaid. Federal oversight of safety of everything from cars to food to drugs. Landing on the moon. Rovers on Mars. The space shuttle.

I don’t expect anyone to wholesale change their minds over one article, and there are loads of challenges and caveats to some of what I said above. But when solving these problems the American Way is to let the perfect be the enemy of the good, then work to undo as much of the good as we can because either it wasn’t perfect or it’s a "non-american" idea.

It’s time we looked around, and realized we’re not some lone beacon on a hill that no one else must ever live without. Because we’re feeding our own people, our values, and the very future of the country into the fire that lights that beacon. And it’s not necessary.

Today’s the greatest. Time to get to work.

There’s so many things to write about today. There’s so many ideas or moments or points to reflect upon.

For instance, I do not believe like a lot of people that George W. Bush or Dick Cheney are bad people, or have evil intent.

Like most people who discover themselves out of their league, they merely became single minded of purpose. They circled their mental wagons around ideas that seemed sound, but ignored history, and reality. I don’t especially believe we can rightly call their administration "the worst ever." Such a determination will take time, decades, to fully rate the ramifications. I do believe their administration took actions that were unamerican, and unconstitutional. The men themselves weren’t unamerican, but they were (and still are) blinded by that most dangerous of virtues: moral certainty. Their actions thus, have been damaging to our country as well as to our heritage and reputation.

But such things are quickly undone. I read as I write this from my Twitter feed, that White House Chief of Staff Rahm Emanual has just ordered an immediate and full suspension of all pending Bush administration regulations. And I see on the newly redesigned White House web site that they have dramatically expanded Civil Rights agendas with a focus as well on the LGBT community. In a way, without the mistakes and bad policies we would not have had this morning, this day. But see how easy it is to undo it? See how good it feels to be proud and not afraid?

I’d booked today off shortly after the election. I knew I really wanted the time to experience it and reflect upon it. When Rochto and I discovered that the Paramount Theatre in downtown Seattle was having a free celebration and putting coverage of the Inauguration on the big screen, we scrapped our plans of a breakfast feast and beer and mimosas to join thousands of people to watch the historic moment.

And so it was my sorry ass got up at 5:30am to get down there. We ran a bit later than the 7am opening doors, and the line wrapped around Pine and Pike st, almost a half mile. For a brief moment we wondered if we should abort and run back home, we were afraid the theatre would fill up. But we parked and risked it. It did indeed fill up but thankfully we got seats. The theatre was extremely dark because the projection was a bit weak on the screen, but the pics show.

waiting for the moment

The crowd was absolutely electric. People were hugging and smiling. Strangers were making way for people to reach seats.

Rochelle turned to me and said "I think this is the first one of these I have ever sat down and watched."

"You picked a good one" I replied.

The coverage was already on the screen and the requisite boos when Bush was shown or Cheney had an almost jovial feel to them. There was coffee and breakfast foods and I noted with some amusement, mimosas and alcohol too for celebrating. The first time we clearly saw the President-elect as he was exiting the White house all action stopped and a thunderous standing ovation occured. I’ve been in that theatre a million times. I don’t think I’ve ever heard anything like it.

Almost there.

Just as the oath was about to be administered the coverage we were watching noted, irrespective of the oath, Barack Obama officially was already President of the United States. The laughter and cheers were muted at that, because I think all of us needed the oath. We needed so badly to hear the words. We weren’t going to accept it until it was too late to take back, too real to be some fevered dream.

As the oath began I noted with extreme amusement the strict constitutional textualist Chief Justice John Roberts get the oath of office (Laid out in the Constitution) wrong. There was a hard edged grace in the President’s letting him correct it before they continued. You could almost sense the unspoken thought, "This is one of many reasons why I voted against your confirmation John"

There was pregnant silence during those words that only 43 had spoken before. When that "So help me God" came out, the roar from the crowd put the earlier ovation to shame. People were applauding, crying, laughing. Hey don’t take my word for it.

I can’t imagine any better place to have been besides perhaps Washington D.C. itself, to have shared that experience with so many.

I’ve said it before, and I’ll say it again. Barack Obama is no superhuman. He will stumble. He will make mistakes, and he will disappoint us sometimes. But his call to us is what is important. He said today:

"What is required of us now is a new era of responsibility – a recognition, on the part of every American, that we have duties to ourselves, our nation, and the world, duties that we do not grudgingly accept but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character, than giving our all to a difficult task.

This is the price and the promise of citizenship."

If he fails, we failed. If we fail, he’ll fail. And with that, we get to work.