FISA and the Independent Judiciary

All the executive-branch access to phone records and whatnot only concerns me a little. The fact is that we live in public, and efforts to guarantee that all our conversations -- though held while walking down the street -- are perfectly secret are misplaced.

On the other hand, these things do need to be watched carefully, and we have people in place with the legal and constitutional authority to do all the necessary watching: judges. As long as we require the executive to ask a judge before wiretaps are secured or records are collected, we should be fine ... as long as the judges do their jobs. If the judges see themselves not as independent arbiters but as extensions of the executive, we do have a serious problem.


The courts established by the Foreign Intelligence Security Act have blurred that important line. The very fact that their decisions are secret and that they do not have to publish their rationale is a problem. Courts should never operate in secret. Whether the judges like it or not, when they work out of the public eye, they are more liable to be considered "rubber stamps" for the government.

Now concerns arise about how judges get the job in the first place. While Republicans block nominations by the President all the time, they have no say over FISA court appointments; Chief Justice Roberts makes those appointments, and recent analysis suggests that he puts people on the court who are even more likely than most to approve of government surveillance.

FISA courts ought to operate within very narrow parameters. Mostly, open court proceedings are better. But even within those confines, they need to work under the system of checks. What they are doing now is not good enough.

Is the Filibuster Constitutional?

Republicans these days like to complain that they are being bullied by Democrats who are challenging GOP use of the filibuster to block routine nominations to the executive branch. That master of cynicism and corruption, Kentucky Senator Mitch McConnell, declared that any reform to the use of filibusters would "kill the Senate" by limiting the ability of minorities to slow things down.

Of course, this whining is just more sour-grapes entitlement from the party that does not like being told it can't have its way.

Senator Mitch McConnell (R-Ky). As corrupt as the day is long.
image from http://www.politico.com/news/stories/1110/44888.html

But it's also more than that. If McConnell is not careful, he will bring an end to the filibuster entirely, because the whole concept does not stand much scrutiny. In fact, I believe that it is probably contrary to the spirit and and letter of the US Constitution, though no direct challenge to it  is possible.

Article I section 5 allows each house of Congress to set its own procedures of deliberation. In the Senate, which fancies itself a gentleman's club, members defer to each other's desire to continue debate on a subject indefinitely. As long as someone wants to keep talking, we should allow him to do so. The practical effect of the rule is to prevent a vote on the matter at hand and to stop the Senate from doing any business at all unless the speaker agrees to sit down. (It is notable that this rule originated from Aaron Burr, famous primarily for his incessant manipulation of "gentleman's" rules for his own benefit, to the extent that he killed Alexander Hamilton and tried to organize a coup to make him King of the United States.) A filibuster is the deliberate use of this rule to obstruct the proceedings of the Senate, and can represent an important tool for a minority to prevent the majority from railroading a bill through.

Without question, the role of the Senate in the US system of government is to slow down the action of majorities. In contrast to the House of Representatives, the Senate is not especially democratic: it's elections occur less frequently, its members are fewer in number and are unattached to any specific district within a state, and under the original constitution were not elected directly. In this context, the filibuster makes sense as an extension of the spirit of the body.

But even under more recent Senate rules, which allow for cloture (the ending of debate) with a vote of 60 members, the filibuster runs counter to some of the most fundamental rule of the Constitution. Articles I, II and V outline very specific applications of majority and super-majority votes. The Constitution explicitly overturned the system of the Articles of Confederation, in which super-majorities were the norm in the national legislature, but direct majority votes ruled all elections. Article I section 7 describes in detail the ways in which a bill is to become a law, and only when both houses wish to overturn a presidential veto is a super-majority necessary. Under current rules, major legislation effectively requires 60 votes from the Senate rather than the 51 that would be required for a simple majority.I believe it therefore undercuts the essential system of government laid out in the founding document.

Especially as the rule has been applied recently, so that an obstructionist need not even speak, but can simply express his wish to stop a vote, the filibuster is dramatically un-democratic even in the context of the Senate. It has stopped the normal functioning of the government for years, and has thwarted the popular will even more than was intended for the Senate to do.

McConnell may want the Senate to remain that way, because he sees the writing on the wall: he and his ilk can not muster the support of the majority of Americans, and the trend is only moving farther away from him. He may want to maintain his privilege, and probably figures he's entitled to it, just as he thinks he's entitled to get whatever he wants all the time. But he might not want to make it so public. With a little luck, people will catch on.

What Does the Zimmerman Trial Say About Race in the Judicial System?

One of the jurors in George Zimmerman's trial in the death of Trayvon Martin has begun to talk to media outlets, less than a week after the non-guilty verdict was announced. One of the members of the all-female jury, who says she and her husband own gun permits, did not think that race played a part in the shooting or in the jury deliberations. In an interview with CNN, Juror B37 said "Anybody would think anybody walking down the road, stopping and turning and looking -- if that's exactly what happened -- is suspicious," she said. "I think all of us thought race did not play a role," the juror said . "We never had that discussion." She also said that if the person acting and dressed in that way were "white or Spanish or Asian," Zimmerman would have reached the same alarmed conclusion he did because he "just got displaced by the vandalism in the neighborhoods, and wanting to catch these people so badly that he went above and beyond what he really should have done."

I have no doubt that Juror B37 is sincere in her claims that she did not consider race, but I think she may also be mistaken. An young Korean man walking down Zimmerman's street would not have aroused the same emotions as Trayvon Martin did, and that was not Trayvon Martin's fault. Young black men scare people because of the long tortured history of racist depictions of African-Americans in almost every element of our culture. Zimmerman probably did overreact to Martin because he is a product of his time and place. And Juror B37 considers that reaction to be perfectly reasonable because she is a product of the same time and place.

To that extent, the judicial system is infused with racism. It's a problem. But I don't think it's right to say that Zimmerman's trial was unfair. I believe the jurors acted in good faith and with minds as open as they could be. I do not believe the jury was rigged.

According to Juror B37, another juror, who wanted to convict Zimmerman of manslaughter, wanted to take into consideration all of his actions leading up to the confrontation with Martin, but did not believe that she was permitted to do so under the judges instructions. This is an interesting point. At what moment did Zimmerman take action that led to Martin's death. In the popular conception, his actions began as soon as he called the local police and was told to stop following Martin. But under the law, at least in Florida as interpreted by Debra Nelson, the relevant events began with the confrontation itself.

It seems to me that this is the mistake made by the prosecutors. At least in retrospect, prosecutors overcharged the case and should have spent a lot more time trying to show that Zimmerman was culpable for Martin's death because of a series of overzealous and foolish acts. 

How to Avoid Imprisoning People? Kill Them.

The problem with the US prison at Guantanamo Bay is that it has been allowed to lie outside the ordinary system of justice. Prisoners captured by the CIA, by military intelligence, and even by militias just barely allied with the United States have been hauled to Cuba because there is no legally usable evidence against them, and the American government has denied that the Geneva Conventions apply to them.

from the Guardian.com

Jess Bravin (from that hotbed of radicalism, The Wall Street Journal) described in his book The Terror Courts: Rough Justice at Guantanamo Bay the failure of the system of military commissions designed by a group of cynical men in the second Bush Administration. The courts collapsed under the weight of the negligence of the people who made it. Dick Cheney, John Yoo and others so totally disdained the concept of the rule of law that they deliberately placed incompetent judges on the courts, says Brevin, so defendants could not get a fair trial. Even when people within the administration protested, these bizarrely un-American men railroaded though a series of deliberately dysfunctional procedures.

Turns out that this kind of thing does not work. Our legal system does work, though imperfectly. We can convict bad guys while also defending their rights. Security and ordered liberty are not incompatible.

Now, I understand the problem with closing Gitmo. The people in there really do want to kill us now, whether they did before or not. Arbitrary, nasty imprisonment over 12 years radicalized them, and now we can not in good conscience free them to wreak havoc on the population.

But why is it better to just off the bad guys instead? I'm not sure I fully believe the claim that Obama is using drone strikes solely because he can't close Guantanamo. Still, the correlation is ugly.

Trust Our Courts

America's strength lies in our deep-seated belief in the value of the rule of law. At the core of that belief is a faith that questions of guilt or innocence are best resolved in a court of law, run by a judge and adjudicated, in part, by a jury.

Now we have a number of Americans, many of whom consider themselves great patriots, who argue that our system of justice can't handle its fundamental purpose. For example, John McCain and Lindsey Graham say that terrorists and other criminals, like Dzhokar Tsarnaev, should not be tried, but should be held indefinitely as "enemy combatants." "Our goal at this critical juncture," they said in a joint release "should be to gather intelligence and protect our nation from further attacks." Graham later added, “The last thing we may want to do is read Boston suspect Miranda Rights telling him to 'remain silent.'" 

These comments reflect a serious -- and tragic -- misunderstanding of the principles of justice underlying our system. This is not "Law and Order," in which some heinous criminal goes free on an arbitrary ruling from a character actor. Federal judges know their business, and federal prosecutors seldom lose cases they pursue. Not only that, but the rights of the accused do not hinder prosecution or impede justice. Quite the opposite is true: by ensuring a fair trial, courts increase the likelihood that convictions will "stick" and that sentences will be fulfilled.

McCain's comments are especially sad. This is a man who, rightfully, has argued for years against the use of torture because it reflects badly on Americans and endangers our soldiers. Why can't he see the implications of his position here/

"Guns Don't Kill People, Immigrants Kill People"

Chuck Grassley wants us to be safe. To prevent the kind of behavior that led to the Boston Marathon bombings, he wants to change the way we regulate immigration. Speaking before the Senate Judiciary Committee this week, Senator Grassley wondered

How can individuals evade authorities and plan such attacks on our soil?How can we beef up security checks on people who wish to enter the U.S.? How do we ensure that people who wish to do us harm are not eligible for benefits under the immigration laws, including this new bill before us?

What we know now is that one of the suspected bombers was a nineteen-year-old who graduated from Cambridge Rindge and Latin, a remarkably successful public school. He was a college kid who tweeted about doing laundry. Grassley may not have been able to know these details when he made his comments, but that's no excuse for the silliness of his message.

The speech is silly because just before he delivered it, he helped kill the Obama Administration's proposed gun-control bill. Why? Because it would have made owning and trading assault rifles more difficult for "law abiding citizens."

Of course Dzhokar Tsarnaev was a law-abiding citizen right up to the moment when he filled a backpack with explosives, walked to Copley Square, and detonated a bomb that killed an eight-year-old boy, among others. And the police officers he killed did not die from the explosions. They died because Tsanaev and his brother had guns and ammunition designed to kill people.

Grassley and his ilk cannot have it both ways. If they support the 2nd Amendment, they must face the fact that, if the right to own guns is a fundamental right it is so because the founders wanted to permit occasionally violent dissent against the government. Place the 2nd Amendment between the 1st and the 3rd and take the group as seriously as Grassley and that whack-job Wayne LaPierre want to do, and you get armed opposition to the government.

Like the Tsarnaevs.

What Rutgers and Horace Mann Have in Common

There's no need for another voice condemning Rutgers men's basketball coach Mike Rice; he's been fired as a result of an enormous public outcry over his "coaching methods." In light of the recent revelations about long-standing sexual abuse at Horace Mann and other schools, however, it is time to start talking about how to hold teachers accountable for important stuff.

First and foremost, the best way is decidedly not to link teachers' evaluations to arbitrary statistical performance. Test scores do not make a teacher, and won-lost records do not make a coach. Both of these measures are arbitrary because they do not take into account "distance traveled" by the students in the charge of teachers and coaches. A good coach brings his players from one level of play to another; as players improve, they ought to win more games than before, but only if the schedule and other factors allow it. Won-lost records can measure the talent of players, and some test scores can measure the talent of students, but they are not good ways of assessing educators.

On the other hand, eccentricity and bizarreness are not teaching methods. Being self-involved and weird is neither necessary nor sufficient for good teaching. I don't buy the Dead Poets' Society model of excellence, in which the teacher inspires kids to "be themselves" by himself being entirely different from anyone else. High-quality instruction also requires patience, discipline, and hard work. Individuality, free-thinking, innovation, and a certain amount of quirkiness often do reflect and allow excellent teaching. Teachers have to dig new ground and push students beyond their comfort.

But both Horace Mann and Rutgers confused extremity with originality. Kicking kids is not quirky, it's violent, undisciplined and ineffective. Rutgers should have recognized that fact immediately. Athletic Director Tim Pernetti, also fired in the wake of the scandal, should not have entertained for a moment the idea that Rice was just "intense." Convincing kids that they only have value except insofar as they worship the teacher is not avant-garde, it's abusive and selfish. Horace Mann administrators chose to interpret clearly bent behavior as a "method," when it really was pathology. In both cases, the supervisors in question were lazy and unprofessional.

As a private school teacher myself, this stuff angers me personally. The number of comments I have seen recently suggesting that sexual abuse is rampant at prep schools, that only someone with similar pathologies would be interested in working at one, and that all students in such places are snot-nosed are not only unfair, but harmful. The comments come from the ignorant, but they are the responsibility of the bad teachers who created the impression.