What Me Worry?


The economy is finally struggling out from under ObamaNomics, but not to worry … our president is regaining the upper hand[1]. Today, he will announce draconian carbon standards for existing power plants, forcing many coal-fired plants to close their doors. What does he have in mind to replace the lost capacity? Not a damn thing.

Not his problem … “What me worry?”

The net results of this plan? More expensive electricity from the plants that decide to install the necessary equipment; more expensive electricity resulting in decreased supply from those that had to close; lost tax-base and jobs in whatever already hurting municipalities those closed plants happen to be; lost jobs in the mining industry; lost equity in millions of pension plans and 401(k)’s resulting from a permanently lower Dow. Less and more costly electricity, another shock to unemployment, and a jolt to the stock market. And – and this can’t be emphasized enough – all for no measurable difference in atmospheric greenhouse gasses, worldwide temperature, ocean levels, or anything else he says he’s doing this for. “What me worry?”

Just as Benghazi took our minds off of Fast and Furious, and the IRS took our minds off of Benghazi, and the AP debacle took our minds off of the IRS, and NSA took our minds off of the AP, and Edward Snowden took our minds off of what NSA was doing, the coming energy implosion will take our minds off of Fast and Furious, Benghazi, the IRS, the AP, NSA and Ed Snowden. Clever.

We need to tell Wiley to publish a new book on economics. Maybe, “Economics for Dummies for Dummies.” The man is not stupid, I know that, but he can’t understand economics and keep doing what he’s doing. I keep telling my conspiracy-minded friends that he’s not doing this on purpose, he’s just making mistakes, but I’m beginning to sound silly to myself when I say it. It just keeps happening. At some point, the random distribution of mistakes would occasionally benefit the economy, but not yet.

Is he really interested in weaning us off of coal? Why not press for conversion to natural gas? We’ve got it in abundance, it’s cleaner and cheaper (with the equivalent infrastructure) than coal, and a conversion strategy wouldn’t take power off of the grid. This is also a good bridge technology between gasoline and electric for transportation – no need to completely retool the automotive industry and it is a cheaper retrofit for filling stations. But none of that fits Mr Obama’s screw-the-oil-companies agenda, so don’t look for it to happen. Also, it would actually create jobs, result in affordable options, you know … benefit the economy … so that’s apparently out.

Following his foreign policy of not having a coherent policy, he is, at once, trying to replace gasoline cars with electric ones (even though we don’t have the electric grid to support that change-over), and removing power from the grid (by forcing many coal-fired plants out of business). I still don’t believe the president is trying to bring down our market economy, but it is getting harder and harder to see how, if one wanted to, one would act differently.

[1] Title illustration: soundofheart.org/EagleWatch.

Quis Custodiet Ipsos Custodes?


Who watches the watcher? This is one of those questions that seeks the origin of an infinite regression – not unlike, “Yes, but what caused God?”

First posed by Juvenal, the late 1st and early 2nd century-AD Roman satirist, in Book II of his Satires:

… I know, the plan that my friends always advise me to adopt: “Bolt her in, constrain her!” But who can watch the watchmen? They keep quiet about the girl’s secrets and get her as their payment; everyone hushes it up.

He allegorically frames the central problem with preventing corruption, and it’s still with us. In Benghazi – the tragic result of gross incompetence rather than corruption – nobody was watching those watching security in a flash-pot of terrorist activity; the IRS, for five years(!), stacked the money-deck against Republicans during two election cycles, and nobody noticed (or has admitted they did); the Justice Department vastly abused their power against media organizations – in one case after the fact, and the other when they already had the culprit in-hand; and now we learn that NSA is plugged into our phones, computers, credit card accounts, and for all I know, our toaster ovens.

The State Department’s internal structure failed in the first case – people in Benghazi and Tripoli were continually pleading for help, and if testimony is to be believed, neither the descriptions of conditions nor the volume of pleas got the attention of anyone above the serial denier. The other three situations are all overseen by Congressional committees in both Houses, and two of them (IRS and NSA) are accompanied with histories of warning signs – conservative groups had been complaining about IRS abuse for at least three years, and Wired magazine laid the NSA program out in detail in March 2012[1]. Still the watchers weren’t watching, and no one seemed to mind.

In a republic, the voters are supposed to watch the watchers, and that happened in 2010, removing the legislative majorities that rammed through a deeply unpopular ObamaCare bill. In 2012, we essentially re-elected the same government that we put in-place in 2010. But now, the administration’s apathetic leadership is showing. Benghazi was just pathetic incompetence, but generated no moral outrage on part of the White House – they just lied about it to get past the election, and are now ignoring it. The IRS, even showing the appearance of political activism, drains whatever credibility the agency had in the public eye. Even if innocently, felonies were committed (the sharing data with other agencies – EPA, OSHA, ATF, FBI; leaking taxpayer information to their political enemies). The suppression of conservative groups may actually have been the result of the improbable unbroken string of coincidences that the administration claims, but that would just be another case of pathetic incompetence. Not very encouraging. The alternative is that the IRS was, in fact, doing the beneficiary’s political bidding, and that’s very dangerous[2]. Either way, the agency has not shown itself worthy of being given a new, numbingly convoluted and complex mission (ObamaCare). Justice Department’s operatic overreach may have been just bureaucratic laziness – it’s easier to spy on the messenger than it is to spy on the culprit – pathetic incompetence yet again. Or, DoJ may have trying to send a message to the beneficiary’s political enemies, and that’s very dangerous.

Prism, NSA’s Orwellian data collection program, makes tapping Larry O’Brien’s phone in the Watergate complex look like tying somebody’s shoe laces together. This is chilling stuff. The Bluffdale [UT] facility they’ve built is a million square-foot warehouse designed to house yottabytes of data. A yottabyte is a septillion bytes, or a million exabytes (each of which is a billion gigabytes), or ~500 quintillion (500,000,000,000,000,000,000) full pages of text. Meanwhile, the High Productivity Computing Systems program underway at Oak Ridge’s Building 5300 is working to build the fastest supercomputer the world has ever seen – a requirement for data-mining yottabytes of information and decryption of secure files. The immediate aim is to meaningfully surpass Oak Ridge’s unclassified warehouse-sized Cray XT5 Jaguar, a 2.33 petaflop machine. A petaflop is a quadrillion (1015) floating-point operations per second. Long term, NSA hopes to reach exaflop speed, one quintillion (1018) operations a second, and eventually zettaflop (1021) and yottaflop (1024). A significant (20 or more) petaflop machine could break the current public encryption systems now widely used. These generally use 56-bit (now obsolete), 128-bit or 256-bit encryption keys, the latter two of which have not been broken by NSA. A significant petaflop (20 or more) machine would begin to have the speed to threaten these systems, rendering billions of opaque records (in storage at NSA) suddenly visible. Bank records, diplomatic and military intercepts, industrial secrets. 512-bit encryption could, of course, re-blind NSA, but the widespread transition would take two to five years, and an exaflop (a thousand petaflop) machine would likely endanger those systems. And so on.

Code-breaking is well within NSA’s purview, and designing and building the machines to do it is not problematic. Broadband monitoring of communication channels is arguably within NSA’s purview, and on-the-fly data-mining of perishable data (kept only long enough to yield negative results on that transmission) can be defended to those who understand the intelligence process. But the collection and storage of virtually every type of communication it can lay its hands on, and data-mining it after the fact is indefensible. It absolutely requires an unbroken string of altruistic administrations – both political and at NSA – to prevent abuses of this enormously tempting power.

The appearance of recent events is the abject abandonment of the rule of law in favor of political expediency. It may not be, but the presumption of innocence cannot be given to power. Those who ask us to believe that everything that has been going on is only inadvertently and coincidently benefiting the administration cannot, prima facie, be taken seriously.

[1] See James Bamford, The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say), in Wired, March 15 2012.

[2] It was Article II in the impeachment charge against Richard Nixon.

the Fifth Amendment


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The way in which most people think of the Fifth Amendment has to do with the right not to be compelled to self-incriminate – we’ve all seen it in movies (and, most recently, before Congressional committees): “On advice of counsel, I respectively refuse to answer under the rights granted me by the Fifth Amendment to the United States Constitution,” or some such variant. Two interesting Fifth Amendment situations have presented themselves in the last couple of weeks, and I would like to discuss them.

First, the infamous Lois Lerner of IRS fame presented her loquacious and self-serving opening statement to the House Oversight and Government Reform Committee, and then promptly refused to answer any questions, invoking her Fifth Amendment rights, later clarifying: “Part of the purpose of the Fifth Amendment is to protect the innocent, and it is in that light that I use it.” Second, Jeffrey Feldman, a Wisconsin man has been told to provide the decryption keys for stored files to investigators under penalty of contempt (i.e., he can be incarcerated without further proceedings until he complies). His attorney, Robin Shellow, is making an argument that the federal magistrate’s decryption order is akin to forcing her client to build a case for the government.

First, Ms Lerner. The formulation of modern Western law follows two basic philosophies: the accusatorial and the inquisitorial. British Common Law (upon which American jurisprudence is based) uses the accusatorial, where the burden of proof lies with the State – the presumption of innocence. Napoleonic Law (practiced in most of the rest of Europe) uses the inquisitorial, where the burden of proof lies with the defendant – the presumption of guilt. Under the accusatorial method there exists the maxim nemo tenetur seipsum accusare, that “no man is bound to accuse himself.” And it is this maxim that is embodied in the “nor shall be compelled in any criminal case to be a witness against himself” clause. It does not speak to “protecting the innocent” because its purpose is to prohibit government from using the accused as evidentiary material. The State, in other words, must prove guilt without benefit of the accused. It’s agnostic on the guilt or innocence of the accused; it merely limits government in how it may go about proving guilt. Ms Lerner is just wrong in her assertion that part of the reason for the Fifth Amendment is to protect the innocent – the whole thrust of the Amendment – as well as the whole of the Constitution to which it is attached, is the limitation of government.

This was not a trivial or obscure aspect of law. Following the Revolution six states had embodied the privilege against self-incrimination in their constitutions[1], and the privilege was one of those recommended by several state ratifying conventions for inclusion in a federal bill of rights[2]. Madison’s version of the clause read “nor shall be compelled to be a witness against himself[3],” but upon consideration by the House an amendment was agreed to insert “in any criminal case” in the provision[4]. If there is any assumption of guilt or innocence on the part of the accused, it’s clear that the Founders are protecting the rights of a guilty defendant by not requiring him to testify against himself (not a problem with exculpatory evidence).

Now for Mr Feldman. Federal authorities believe he downloaded child pornography on the file-sharing e-Donkey network[5]. They seized 15 drives and a computer from his suburban Milwaukee apartment with a search warrant. A federal magistrate has ordered Feldman to decrypt the drives by Wednesday the 5th. Feldman has refused, citing the 5th Amendment, and the federal judge could find him in contempt, jailing him pending his compliance. The magistrate in the case stepped aside Monday the 3rd after Ms Shellow argued that only US district court judges, not magistrates, have the legal power to issue decryption orders. As of now, the new judge in the case has not decided whether to uphold the magistrate’s order.

When the magistrate ruled against the government last month, the magistrate said the authorities did not have enough evidence linking Feldman to the data, and that forcing the computer scientist to unlock it would be tantamount to requiring him to confess that it was his. But last month the authorities were able, on their own, to decrypt one drive from Feldman’s “storage system” and discovered over 700,000 files, some of “which constitute child pornography,” and financial information linking Feldman to the “storage system,” the magistrate said. So the original argument (requiring Mr Feldman to confirm the data was his) is now moot. The remaining question involves Mr Feldman’s requirement to assist in recovering information the government has already demonstrated the ability to recover.

Such cases have never squarely been addressed by the Supreme Court, despite conflicting opinions in the lower courts.

This is unplowed ground. The whole world of encryption – and whether or not it is an analog for a padlock – is legally untested territory. My feeling is that the original situation in which Mr Feldman found himself – supplying the key being tantamount to admitting the data on the drives are his – would be a breach of his Fifth Amendment rights. The new situation – where the authority’s computer expert has cracked the encryption on one drive – is a bit murkier (and therefore more interesting). Mr Feldman claims that, since the State has demonstrated the ability to defeat the encryption in one case, making the State’s case easier (by providing the remaining keys) falls within the penumbra of the Fifth Amendment, if not the core – making the State independently prove guilt.

In the current atmosphere of pandemic governmental overreach, I am inclined to agree with Mr Feldman, in full knowledge of the disgusting nature of the crime with which Mr Feldman is accused.

[1] F Thorpe, The Federal and State Constitutions, reprinted in H Doc No 357, 59th Congress, 2nd sess, 1891 (1909) (Massachusetts); 4 id at 2455 (New Hampshire); 5 id at 2787 (North Carolina), 3038 (Pennsylvania); 6 id at 3741 (Vermont); 7 id at 3813 (Virginia).

[2] Amendments were recommended by an Address of a minority of the Pennsylvania convention after they had been voted down as a part of the ratification action, 2 Bernard Schwartz, The Bill of Rights: A Documentary History, pp. 628, 658, 664 (1971), and then the ratifying conventions of Massachusetts, South Carolina, New Hampshire, Virginia, and New York formally took this step.

[3] Annals of Congress, p. 434 (June 8 1789).

[4] Id at 753 (August 17 1789).

[5] For details of this case, see David Kravets, Deadline Looms for Suspect to Decrypt Laptop, or Go Directly to Jail, in Wired, June 4 2013.

National Security versus a Free Press


Just as his stance on gun control has President Obama being named Salesman of the Year by gun store owners countrywide, he has found a way to get the press’s face out of the Kool-Aid bucket – harass them. While there are serious questions raised by this case, the case itself is symptomatic of an administration run amok. We’ve got a State Department where everyone is clueless – even though we’ve got some of them, in writing, directing what’s going on. We’ve got an IRS doing partisan sabotage for five years with impunity. We’ve got a Pentagon that’s too sclerotic to act. We’ve got a Justice Department whose AG apparently signs subpoenas and warrants while in some sort of trance. We’ve got a president who’s taking golf lessons from Tiger Woods, fund-raising in Las Vegas, or throwing star-studded parties at the White House instead of governing (at least he’s got an alibi).

First the case. Twenty phone lines used by Associated Press were surveilled (call logs obtained), compromising more than a hundred reporters and editors, over a story that was held until classification was waived. CIA thwarted an al Qaeda plot in Yemen to bomb an airliner in-bound to the United States. AP got the story and was asked to spike it while sensitive details were worked out. They sat on it for a week, at which time, the White House asked them to wait 24 hours so the president could release the story the next day. AP ran the story, not willing to wait so someone else could break it. Justice then seized the phone records, saying that AP was disseminating classified information revealing sources and methods (even though neither were mentioned in the story). Not only do we have a vindictive IRS, we’ve apparently got a vindictive DoJ.

Two days after the attorney general testified that he was “not familiar with, nor heard of” cases pursuing reporters for disclosing leaked information, it was revealed that his DoJ had a dump of FOX News’ James Rosen’s eMails. That requires a warrant, and that warrant (for a journalist’s records) requires the AG’s involvement. Turns out that two months’ worth of phone logs and eMails were gathered on Rosen’s activity – in addition to State Department visits – regarding a story about DPRK’s probable reaction to additional sanctions by the UN. The problem is that they already had the leaker of classified State Department information – indicted and charged – rendering moot a need to reconnoiter Mr Rosen’s data (DoJ had access to all of Stephen Jin-Woo Kim’s (the leaker) phone logs, eMails, appointment books, pocket lint, etc). The simplest explanation of the AP and FOX News cases, given their similarity and chronological proximity, is to intimidate the press and their sources.

On May 31, General Holder held a meeting with press organizations about freedom of the press and criminalizing journalism issues. It was “off the record” – no one could report on what was said. Several national news organizations, including AP, FOX News and the New York Times, refused to attend a censored meeting on press freedom. This administration just can’t seem to get out of its own way.

Now the serious matters raised by the case. The Justice Department’s heavy-handed investigations into Associated Press and FOX News (that we know of) begs the question of the proper balance between legitimate national security concerns and a responsible free press. Every administration has leaks and every administration hates them – the ones they don’t initiate, and that’s part of the problem. Administrations have a schizophrenic relationship with leaks: they abhor “unauthorized” leaks while participating in the practice when it fits their political agenda. Unless and until the government takes a philosophically consistent stance (and meaningfully enforces it) on the release of insider information, it has no credibility on the subject. The press, for their part, also has a dysfunctional relationship with classified information – it has no qualms about printing something it knows to be some degree of secret if it thinks the “news value” outweighs the fact that it is classified. Normally, no real harm, no foul. But occasionally it does endanger ongoing operations, sources and methods. The press has an opportunistic view of national security – a phenomenon for which it is not responsible, but one that it can be culpable in breaching.

To find equilibrium between legitimate national security and a responsible free press we must define “legitimate national security” and a “responsible free press.” Legitimate national security means apolitical national security – not events that may prove embarrassing to the administration. Responsible free press means apolitical critical thinking – not knee-jerk agenda-centric responses.

Currently neither side is acting as Americans first, they are both behaving in an agenda-centric manner. It’s human nature to carry a professional bias into murky situations, but when those biases infringe on defendable legality, it is the function of the courts to rein them in. In this case, we have an obvious case of overreach by the government, blanketing news organizations instead of exhausting efforts to extract the information by other means (as the law stipulates), and to make matters worse, the effect is chilling on reporters and sources – to the political benefit of the administration. It doesn’t have to be intentional to be harmful, as government needs to avoid even the appearance of the abuse of power.

The problem this administration is having is the cumulative effect of multiple agencies engaged in questionable activity, all of which does the political bidding of the administration. It all leaves an unseemly taste in the mouth of anyone interesting in good government over good policy. This is the vital question in all of this – is policy more important than the legitimacy of a sitting government? One thing that tends to get lost in the brouhaha is that the whole American experiment is based on limited government – that was the raison d’être for severing ties with Britain – self-rule (market republicanism) is diametrically opposed to a paternalistic ruling class.

The president may have taught constitutional law but his administration seems hell-bent on avoiding it. 

the One Agency that Touches Us All


The IRS targeting of conservative groups seeking 501(c)4 tax-free status is the most troubling ring in ScandalPalooza because the IRS is the one government agency that touches us all, and if it has become a political tool of the sitting administration (of whatever party), that is a very dark and dangerous development. It doesn’t even require the complicity of the White House (which I don’t think this does) to be so. The IRS can shut down your business, confiscate assets, tie you up in court, out-spend you in proceedings, and, as in this case, suppress free speech and unleash other federal agencies.

The administration has said that the targeting was the doing of two “rogue” agents in the Cincinnati office (where exempt organizations are handled), and that the practice was stopped a year ago. The list of people documented as to have worked on this project stretches to Washington; and groups are still getting improper interrogation letters from the IRS (singed by Lois “I did nothing wrong” Lerner). So, as with Benghazi, the official version is at variance with the facts. We were told that the grouping of “political sounding” organizations was an attempt to add efficiency to the process, and had no partisan basis. While over 400 conservative organizations were targeted, only two liberal groups were; and the average time to classification or denial runs three to four times what it does for non-targeted groups. The explanation, again, doesn’t fit the facts.

Groups were targeted for having “Tea Party,” “9/12,” or “patriot” in their name. That was quickly expanded to include such subversive things as “Constitution,” “Liberty,” “tax reform,” or “improve America” in their title. Signatories of targeted groups were routinely subjected to audits of business and personal taxes, visited by OSHA, FBI, and in one case, ATF. The names of donors were demanded, complete hard copies of all social network activity by the group. Handouts, scripts of speeches and names of speakers (past and projected). To fall into this bureaucratic black hole was to experience a full-blown inquisition. This horror was in full blossom during two election cycles (2010 and 2012).

A group of anti-abortion activists, led by Sue Martinek of Cedar Rapids [IA], had to promise the IRS it wouldn’t picket in front of Planned Parenthood (a 501(c)4 organization). Catherine Engelbrecht’s family and business in TX were audited by the government (IRS, OSHA, ATF) after her voting-rights group sought tax-exempt status from the IRS. Retired military veteran Mark Drabik of NE became active in and donated to conservative causes, then found the IRS challenging his church donations. Steven Miller, the former IRS commissioner relieved by President Obama shortly after replacing Doug Shulman, IRS commissioner during the fiasco, testified that “the extra attention the IRS gave to Tea Party groups was clearly wrong, but that the scrutiny was not politically motivated.” Only conservative groups got extra scrutiny, and their status was delayed while their principles were subjected to anal exams by an alphabet soup of government agencies through two election cycles, and it wasn’t political? Might as well have said it was caused by a hateful internet video.

This has been going on since Mr Obama took office, and as of May 6, still is. Non-political coincidence?

At least Nixon’s enemies list was retail – scattered individuals singled out for agency harassment – this administration’s enemies list is wholesale – great swaths of people notable for nothing more than guilt by association to wholly legal organizations. And these are same selfless public servants that will enforce ObamaCare. What could go wrong?