Search and Seizure: does the government's power have limits?

This was posted by "Pete Guither and Hypatia" to the blog "Unclaimed Territory," and I think it's worth repeating.

Anybody see a problem here? I mean, the government has given themselves the right to break into your house with guns specifically in order to take your stuff. (And "stuff" here includes money-- if they find any money in your house, they keep it.) And, here's the nice thing about it (nice for the government, I mean-- not nice for you.) They don't need to go through the legal system if they want to keep your stuff, or sell it. If you want your stuff back, you have to go to court and prove that you're not using it in a criminal enterprise. Isn't that nice? It's a civil seizure, you see-- there's none of that inconvenient stuff like "civil rights" or "guilty until proven innocent."

I mean, doesn't anybody have a problem here other than the inconvenient fact that this is specifically and blatantly against the constitution?

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From glenngreenwald.blogspot.com/2006/04/using-drug-war-to-expand-government.html
by Pete Guither and Hypatia

"[The Patriot Act] allowed the Department of Justice to use the same tools from the criminal process on terrorists that we use to combat mobsters or drug dealers."
- John Ashcroft

"The law allows our intelligence and law enforcement officials to continue to share information. It allows them to continue to use tools against terrorists that they used against -- that they use against drug dealers and other criminals. ... And the bill gives law enforcement new tools to combat threats to our citizens from international terrorists to local drug dealers."
- George W. Bush, March 9, 2006

Whether it's terrorism or drugs, declaring war is an opportunity for the state to demand more tools, more weapons, more power. All the Department of Justice needs to do is utter the words "terror" or "drugs," and Congress starts writing blank checks. These days they utter both, and the sky's the legislative limit.

We discussed what is arguably the most vicious drug war weapon – prison – at this site in our guest post Prison & the War on Drugs: Just Say No. But the drug warriors have long employed many other dangerous and/or inhuman additional weapons, and these are now growing more numerous. Most recently that is thanks to The Patriot Act (“TPA”), sold as an essential tool in fighting terrorists, but one that it also being used with increasing frequency in many criminal investigations that have little or no connection to terrorism, especially the investigation of suspected drug traffickers. (And, as will be seen, no one understands and objects to this state of affairs more strongly than Senator Russ Feingold.)

About 110 million Americans age 12 or older (46% of the population) have reported using illegal drugs at some time in their lives. Further, many if not most users also qualify as “dealers” in the eyes of the law. With close to half of our country constituting "the enemy,” the government must have a heavy and varied armory, if it is to effectively wage battles on this massive domestic horde of drug belligerents. Let us consider what, then, in addition to prison, comprises the drug warriors' arsenal that it trains on nearly half of us.

Drug War Weapon: Asset Forfeiture

Forfeiture -- the seizure of the personal property of traitors or certain felons -- has its roots in English common law and was used to a limited degree in the American colonies. Our Founders, however, despised it, and in 1790 the very first Congress abolished forfeiture. That repeal held for 180 years, until 1970 and Richard Nixon's drug war push.

The new federal asset forfeiture law is civil, not criminal, and unlike the English common law, which required conviction prior to seizure, American forfeiture dispenses with the need for proving the property owner guilty of anything. All that is necessary is for the state to claim a connection between the thing seized and drugs, whereupon the government may confiscate the property. It is then up to the owner to prove (at their own expense, hiring a lawyer & etc.) that the property is "innocent." Critically, the proceeds from the seizures go into the budget of the state or federal law enforcement agencies and prosecutors offices, creating a horrible incentive for officers to go after seizures solely for the purpose of enriching their units with a swell new fleet of fully loaded police cruisers, or lovely new desks for the DAs.

Forfeiture Endangers American Rights documents some of the myriad, rampant abuses of civil asset forfeiture:

• Willie Jones, the black owner of a Nashville nursery business. Jones aroused the suspicions of a ticketing agent by purchasing an airline ticket with cash. He was traveling to Houston to buy nursery inventory with cash. Jones was not arrested or charged with a crime, but the $9,600 so essential to his family business was seized. Law enforcement assumes that anyone carrying that much cash, especially to a city where drug trafficking occurs, must be a drug dealer. While there was no evidence to charge Jones, lack of evidence wasn't necessary to charge his cash (the concept, again being, that since objects aren't people, they aren't entitled to the presumption of innocence.)


• Donald P. Scott was a reclusive millionaire in California with a 200 acre ranch in Malibu. His home was raided by 30 law enforcement officers hoping to find marijuana plants, with a plan to seize the property. In the course of the raid, Scott was shot to death by two sheriffs deputies. No drugs were found. According to District Attorney Michael Bradbury:"It is the District Attorney's opinion that the Los Angeles County Sheriffs Department was motivated, at least in part, by a desire to seize and forfeit the ranch for the government... Based in part upon the possibility of forfeiture, Spencer obtained a search warrant that was not supported by probable cause. This search warrant became Donald Scott's death warrant."
  


• Last fall, 56-year-old Cynthia Warren of Boulder City, Colorado pled guilty to a misdemeanor charge of growing 6 marijuana plants in her home and was fined $500. But that wasn't the end of it. City Attorney Dave Olsen attempted to seize her $400,000 home.

And yes, this is all constitutional; thus has held our Supreme Court. The state may seize your “guilty property” even if you are an “innocent owner,” unaware of or uninvolved in any illicit activity. Further, asset forfeiture having been brought back to us for the drug war,it may now apply to other vice crimes, according to our Highest Court; even if you are an innocent wife who co-owns a vehicle with your husband, and in that car the cad avails himself of the services of an, um, “sex worker.” You lose your "guilty" vehicle to the state.

The Civil Asset Forfeiture Reform Act of 2000 (pdf) made some minor corrections to the federal law, but the program is still a major law enforcement agency budget enhancer, and is rife with corruption. Abuse of state asset forfeiture laws is rampant. Since 1997, less than half of the law enforcement agencies in Ohio have filed reports listing money and property seized, despite a state law that mandates reporting. Utah tried to reform the laws by requiring seized assets to go to education rather than law enforcement, but were stymied by their own law enforcement agencies who refused to comply as well as the federal government. Getting around state law often merely requires involving a federal agent in the bust. That renders it a federal case, and the feds automatically kick back a percentage to local law enforcement. Federal seized assets totalled $500 million in 2005-- not a bad little petty cash fund.

Drug War Weapon: Criminal and Paid Informants

The informant is an essential tool in the war on drugs, most commonly sent out to buy drugs and then law enforcement arrests the sellers. Informants did not used to be heavily employed by the police, but they are “necessary” in vice crimes, and especially so in the drug war. That is because unlike in the instance of, say, rape or robbery, there is no complaining witness; drug transactions do not normally involve an aggrieved party -- "Officer, that man sold me some weed, help me!"And since drug dealers are also generally unwilling to conveniently conduct transactions in front of law enforcement officers, the drug warriors simply “must” make extensive use of informants. These are either paid (sometimes by the bust or according to the amount of drugs involved), or s/he is working for a reduced sentence. Either way, the incentive is to deliver the arrest and conviction of other citizens, any way they can.

The results are predictable:

• In 1999, a drug sting operation in the small town of Tulia, Texas resulted in the arrest of 46 people, 40 of whom were black. The remaining six individuals were either Latinos or whites dating blacks. This drug bust resulted in the incarceration of almost 15% of the black population of Tulia. All were charged based on the word of Tom Coleman, a paid operative who worked alone, did not wear a wire, and did not record the locations of any of the supposed drug transactions. Despite a paucity of evidence other than Coleman's claims, several of the accused were convicted (including one who received a 99 year sentence). But then things began to fall apart. Some of the suspects had proof they were elsewhere at the time of the supposed drug buys. Information surfaced that Coleman had a criminal past and a history of lying. Eventually the case got some visibility and public pressure. A special prosecutor dropped the charges for those being held, and the Governor signed a bill in 2003 freeing those who had already been sent to prison.
  


• In 2001, narcotics informants on the Dallas police payroll planted packages of billiards chalk on dozens off innocent Mexican immigrants, who were then arrested and imprisoned for cocaine trafficking. The bigger the "buy," the more the police would pay their informants. This travesty came to light when several Dallas police officers were prosecuted for corruption.

Drug War Weapon: No-knock Searches

The most dangerous tool used in the War on Drugs is the no-knock drug raid. It's 4 a.m. and dozens of officers dressed in black prepare to storm a house. They come with battering rams to smash down the door, flash grenades are employed, and before the residents can fully wake up and figure out what's going on, armed men are swarming through the house and into the bedrooms. Anything can happen. And it does.

Federal constitutional law generally requires "knock and announce" before entering a residence with a search warrant. However, there is an "exigent circumstances exception" -- generally held to include situations threatening physical safety, or the imminent destruction of evidence. And we cannot have drug dealers flushing evidence down the toilet, so officers crash into homes without first knocking and announcing themselves.

Prior to the drug war, no-knock searches and SWAT teams were generally reserved for hostage situations and extremely rare cases where lives were in danger. And for good reason -- storming into a house is incredibly dangerous for both officers and residents. These are military tactics and should only be used on civilians as a last resort. But, of course, this is a “war,” hence the commando raids. (See this excellent post at QandO about a case currently being reviewed in the Supreme Court pertaining to the constitutionality of no-knock searches.)

Indeed, with the advent of the war on plants, pills and powders, there has been an explosion in SWAT teams and no- knock drug raids around the country (why does Mount Orab, Ohio -- population 2,701 -- need its own 12-man SWAT team?). In the 1980s, there were about 3,000 annual SWAT team deployments each. Today, courtesy of the drug war, there are at least 40,000 a year.

These raids entail high risk of two serious dangers: officers understandably on edge ready to fire at the slightest provocation, and confused residents who may think their home is being invaded (some of whom may be legally or illegally armed). With the increase in the use of these tactics, therefore, comes an increase in the frequency of these kinds of stories:

• 8-year-old Xavier Bennett was accidentally shot to death by officers in a pre-dawn drug raid during a gunfight with one of Xavier's relatives.


• 11-year-old Alberto Sepulveda was killed by a shotgun blast to the back while following police orders and lying face down on the floor during a SWAT raid.


• 84-year-old, bed-ridden Annie Rae Dixon was in her room at the time of a drug raid. An officer kicked open her bedroom door and accidentally shot and killed her.
• 56 year-old Alberta Spruill died of a heart attack during a wrong- address drug raid. The same thing happened to the elderely, Reverend Accelyne Williams in a separate wrong-address raid.


• 23-year-old Anthon Diotaiuto was working two jobs to pay for the house he lived in with his mother. He died after he was shot 10 times during a raid on his house that yielded 2 ounces of marijuana.


• 46-year-old Willie Heard thought his home was being invaded and he grabbed his unloaded rifle to protect his wife and daughter. He was shot to death in front of them. The police had gone to the wrong address.


• During a drug raid, smoke grenades started the house on fire. 21- year-old John Hirko was shot to death in the back trying to escape the burning building. (The city of Bethlehem, PA is paying an $8 million settlement to his family.)


• 20 year-old Jose Colon made the mistake of visiting a house targeted for a raid. He was standing outside when SWAT shot him in the head.


• 45 year-old Ismael Mena was killed in his home by police. They were at the wrong address.


• 65 year-old Mario Paz died when he was shot twice in the back in his bedroom during a drug raid.

Well, but we are war. During war, collateral damage and friendly fire are to be expected in harsh battle zones. But is this the America we want? A country where we engage in military-style invasions of citizens’ homes to prevent dried weeds and powders from being flushed?
Do we want more drug war weaponry, and escalation of the tactical offensives, sanctioned in the name of the war on terror via TPA? No, thinks the estimable Russ Feingold, who has been much maligned for his vote against it, but who approves of most of TPA. Among his objections, however, is opposition to enhancing the use of an un-American weapon in the drug warriors' armory, namely expanded use of “sneak and peek” searches (our emphasis):

Notice of [a] search is part of the standard Fourth Amendment protection. It’s what gives meaning, or maybe we should say “teeth,” to the Constitution’s requirement of a warrant and a particular description of the place to be searched and the persons or items to be seized. Over the years, the courts have had to deal with government claims that the circumstances of a particular investigation require a search without notifying the target prior to carrying out the search. In some cases, giving notice would compromise the success of the search by leading to the flight of the suspect or the destruction of evidence. The two leading cases on so-called surreptitious entry, or what have come to be known as “sneak and peek” searches, came to very similar conclusions….

Let me make one final point about sneak and peek warrants. Don’t be fooled for a minute into believing that this power is needed to investigate terrorism or espionage. It’s not. Section 213 is a criminal provision that could apply in whatever kind of criminal investigation the government has undertaken. In fact, most sneak and peek warrants are issued for drug investigations. So why do I say that they aren’t needed in terrorism investigations? Because FISA also can apply to those investigations. And FISA search warrants are always executed in secret, and never require notice. If you really don’t want to give notice of a search in a terrorism investigation, you can get a FISA warrant. So any argument that limiting the sneak and peek power as we have proposed will interfere with sensitive terrorism investigations is a red herring.

The drug war and its odious arsenal are a danger to our society. They result in lost lives, police corruption, and a severe erosions of citizens' rights -- and familes destroyed by loved ones going to prison. Even if the drug war were considered a success (a truly absurd belief), it is surpassingly clear that the tools of prohibition are worse than the drugs prohibited. The Bush Administration’s expansion of the types and occasions for use of these weapons, while invoking and piggy-backing on terrorism as an excuse, is wholly unjustified; it is right for Feingold, and all of us, to just say no.

The case for gridlock

This is from 2004, but still seems to be valid for the coming elections. Brian Doherty made the case that gridlock would be the best thing for the government:
Adapted from www.lewrockwell.com/ocregister/kerry-doherty.html: "In praise of gridlock"

In the past, growth of federal spending has slowed only when the national government was divided

[adapted from an original essay by Brian Doherty]

Can you imagine Republican House Speaker Dennis Hastert and Senate Majority Leader Bill Frist proudly standing beside President John Kerry in a Rose Garden signing ceremony as he signs a bill that they handed him - a bill that will increase government spending over the next decade by more than half a trillion? Especially if that bill would give Democrat Kerry the loyalty of a politically powerful
constituency?

Of course, the GOP's congressional leadership did help President George W. Bush - their own party's man - pass his Medicare bill, whose projected costs keep rising above that budget-busting level. In fact, Bush, with the exception of his tax cuts, has been a shockingly big-government conservative.

Having the President and congress from opposite parties is the most likely hope for curbing excessive government growth in the next four years. Why? The party stereotypes don't always hold up, and a Republican president and a Congress led by Democrats creates a kind of institutional impasse that actually slows the momentum of government.

Ever since the Goldwater vs. LBJ contest of 1964, the two major parties have staked out rough philosophical positions along these lines: the Republicans are, at least rhetorically, for a lean and limited government; the Democrats are unreconstructed advocates of state power, state spending and state solutions to every problem.

But the facts - the performance of the parties when they have the power - have never borne that out. We got such regulatory state measures as the Clean Air Act and wage and price controls under Nixon, and the Americans with Disabilities Act under the first George Bush. And it was under Democrat Bill Clinton that we got meaningful welfare reform that has knocked nearly 3 million families off the federal dole so far, even as child poverty rates shrink.

But the most vivid example that Republicans can't be relied on as consistent defenders of smaller government is our current Republican president. Bush has increased domestic discretionary spending 25 percent in less than four years, compared to an increase under Clinton over his entire two terms of only 10 percent.

Bush's administration is spending over $20,000 per American household, the highest level, adjusted for inflation, since World War II. He can't blame it on war and post-9/11 security measures alone, either. Even with those taken out of the equation, according to an analysis by the usually GOP-leaning Heritage Foundation, discretionary spending under Bush has increased 16 percent, from $340 billion to $395 billion.

And then there's his Medicare expansion. Clinton had an opposition Congress to curb his health-care expansion enthusiasms; Bush, alas, had a GOP Congress mostly compliant to his wishes.

Bush has betrayed the humble, restrained small-government vision of the Republican Party in other ways as well, for example, by engaging in a spectacularly expensive nation-building project in Iraq, despite talking intelligently against that sort of big-government hubris while campaigning in 2000. He's shown no firm dedication to free-trade principles, hiking tariffs on steel and shrimp. He's supported restrictions on free political speech by signing the McCain-Feingold campaign finance reform bill.

...Nothing is certain when contemplating the political future. But we do know some things about the recent political past that should help guide a strategic voter who wants smaller government: In the past, divided government has shown great power to curb federal spending. As William Niskanen, a former chairman of President Reagan's Council of Economic Advisers, has noted, the only two post-World War II periods of genuine restraint in federal spending growth (with annual increases of less than 1 percent) came during the Eisenhower and Clinton administrations. Both presidents mostly lacked Congresses controlled by their parties.

It couldn't be clearer that the combination of Bush in the White House and a GOP-dominated Congress has been a disaster when it comes to curbing the growth of government spending and programs. It might just be that partisan spite can make a Democrat-controlled Congress do the right thing where a principled dedication to reining in government seems MIA. Since Democratic lawmakers don't have the political reputation of their party's standard-bearer to protect, they are more likely to stiffen their spines and help obstruct much of the damage.

And if George Bush doesn't receive some electoral punishment for his profligate ways, the Republican Party's value as a vehicle for limiting government will plunge lower than a 10-year-old Ford Escort. Bush might earn some short-term electoral advantage through expensive schemes like his Medicare reform. But such schemes are sure to bankrupt the republic in the long run. His own party's Congress don't seen about to stop him. A Democratic congress might.

As paradoxical as it seems, for those who believe in the Republican Party that Barry Goldwater and Ronald Reagan promised, the Democrats may be their greatest realistic chance to express their support for preserving that tradition.

Republican view of Republicans

Here's an article from the Washington Post that has me saying yes, yes.
" A new AP poll shows 60 percent of Republicans now disapprove of the Republican Congress." Add my name to the list; I'm disgusted with the Republicans, and I am one.

www.washingtonpost.com/wp-dyn/content/article/2006/04/08/AR2006040801031.html

GOP Sees Disturbing Reflection in The Mirror
Democrats Fell in '94 After Abuses of Power
By Jim VandeHei and Juliet Eilperin
Washington Post Staff Writers
Sunday, April 9, 2006; Page A03

The Tom DeLay era is ending much as it began. An entrenched majority, battered by ethical scandals involving its top leaders, is running what many see as a politically polarized and profligate House of Representatives.

What is most remarkable, according to more than a dozen GOP lawmakers and aides, is that it took a little more than a decade for DeLay and House Republicans to succumb to many practices they railed against in the 1990s. From stifling congressional dissent to the raw use of power, they say, Republicans have become like the Democratic barons they ousted in 1994.

Former House majority leader Richard K. Armey (R-Tex.) said that former majority leader DeLay (R-Tex.) was largely to blame for leading Republicans away from their core values. "DeLay, as much as anybody, was responsible for putting the party on the wrong track," Armey said last week. "He always wanted his place in the sun."

Yet many others said the problem was much bigger -- and more complicated -- than the excesses of DeLay. They said it was a general sense of hubris and self-preservation that prompted GOP leaders to gradually abandon the tenets of the 1994 revolution: smaller government, accountability, and a new and cleaner way of doing business in Washington.

"It is a little like a reformed alcoholic taking little drinks -- pretty soon, you have a real problem on your hands," said John S. Czwartacki, who served as a key communications strategist for House Republicans in the 1990s. Czwartacki was talking about the Republicans' embrace of big government spending in particular, but others said the idea applies to the undoing of the entire revolution.

DeLay's career tracks the rise and fall of the Republican Revolution. He was a little-known conservative backbencher in the early 1990s agitating for change. And he was part of a broader movement led by then-Rep. Newt Gingrich (R-Ga.), who sought to take down not only the Democratic Party but also the more moderate and compromise-minded leadership led by Minority Leader Robert H. Michel (R-Ill.).

The parallels between the Democrats that DeLay and Gingrich abhorred 12 years ago and the Republicans of today are striking. In 1994, Democrats who had been the majority for more than four decades were heavily favored to remain so. But the public was discontent with their performance. Polls then showed that about one in three Americans approved of the Democratic-controlled Congress; polls today show that about one in three respondents approve of the Republican-control Congress.

Democrats were increasingly perceived by the public as corrupt and unethical. Speaker Jim Wright (D-Tex.) had become the first man in that office to resign because of ethics charges, while then-Rep. Tony Coelho (D-Calif.), who pioneered many of the money-for-access techniques DeLay would later adopt, had stepped aside after his financial dealings came under scrutiny. Then the House Bank scandal erupted, and reports that members had routinely kited checks served as a symbol of Democratic abuse.

DeLay, Gingrich and other conservatives mounted a national campaign based on a promise to end corruption and enact a new "Contract With America," which promised institutional restructuring, tax cuts and a reduction in government red tape.

After the Republicans toppled the Democrats that fall by picking up 52 seats in the House, they promised big changes -- and often delivered. With Gingrich as speaker, Armey as majority leader and DeLay as whip, the Republicans instituted a series of reforms aimed at curbing some of the Democrats' worst excesses. They applied federal workplace laws to Congress, so lawmakers had to comply with the same rules as other federal employers, and eliminated proxy voting so members had to actually show up and vote when committees were in session.

GOP leaders abolished bastions of patronage, such as the House mailroom, and eliminated perks including daily ice delivery to House offices. These changes, along with decisions to eliminate 621 committee staff jobs, saved taxpayers $50 million in 1995, according to the House Oversight Committee. The Republicans cut taxes, eliminated many regulatory restrictions on business and took aim -- unsuccessfully -- at eliminating the Departments of Education and Commerce.

But as the Republicans became more entrenched and accustomed to their position of power, leaders shifted their emphasis from reforming government to consolidating their power and self-preservation. "I do think for both parties -- and it has happened for Republicans now -- there is a risk of majority fatigue where you run out of new ideas," said Ari Fleischer, who worked in Congress in the 1990s before becoming White House spokesman. "The other risk is people's zest for reform yields to their desire to maintain power."

Gingrich said the party became too preoccupied with creating and maintaining safe GOP districts as part of an effort to cement a lasting majority. Gingrich, who originally championed the idea, said he now thinks the tactic has had the effect of undermining democracy and distancing House members from their roots.

Democrats "get to rip off the public in the states where they control and protect their incumbents, and we get to rip off the public in the states we control and protect our incumbents, so the public gets ripped off in both circumstances," Gingrich said. "In the long run, there's a downward spiral of isolation."

During their decades in the minority, Republicans lambasted Democrats for excluding them from decision-making in drafting major legislation and denying them the opportunity to amend bills on the floor using arcane House rules.

After having vowed to eliminate the "closed rules" Democrats used to quash GOP ideas, Republicans used the same tactics to stifle debate. During the past Congress -- the 108th -- only 22 percent of legislation was considered with an open rule allowing the minority to offer amendments from the floor, compared with 30 percent under the Democrats' 103rd Congress. When Democrats offered 29 amendments to a medical malpractice bill last Congress, GOP leaders blocked all of them from coming to a vote.

"Here we are fighting for democracy in Iraq and Afghanistan, and we have more and more closed rules here," Rep. Gil Gutknecht (R-Minn.) said. "We don't want democracy to flourish on the floor of the House of Representatives."

DeLay and others also grew increasingly focused on campaign fundraising, especially how much others were raising for the party and fellow members. They abolished the seniority system that controlled chairmanships and committee assignments, and replaced it with ideological and financial litmus tests. Those who raised the most money for the party often had the best chance of snaring a top committee assignment.

DeLay "had a tremendous influence making [money] a consideration, and once you have adopted those criteria, other members take note and say 'Gosh, I better do whatever it takes to get the nod for the job,' " Michel said.

The Republicans built a powerful legislative machine that rarely faltered. House Republicans were highly effective at passing legislation, especially tax cuts and measures benefiting businesses. The GOP leaders rarely lost floor votes, and since President Bush took office in 2001, they have shaped and pushed the Republican agenda. But along the way, the core conservative principle of shrinking the size of government was jettisoned, according to some Republican members. During the past six years alone, government spending has increased by more than 25 percent under their watch.

Rep. Mark Edward Souder (R-Ind.) said the party has compromised away its commitment to smaller government. "The moderates went along with us on policy as long as we gave them more money at the end of the year," Souder said. "We got addicted to spending." Souder, who first won office in 1994, said that it is no longer clear what the party stands for.

"This is a campaign where we're each fighting on our own, hoping we can survive with a bare majority," Souder said. "Even if we had a unified vision, I don't know exactly what our vision would be."

Of all of the examples of backsliding, it is the ethical ones that Republicans fear could hurt them most in the fall election. Rep. Randy "Duke" Cunningham (R-Calif.) recently resigned after pleading guilty to taking bribes. Last week, DeLay announced he will resign from Congress this spring, just as the investigation of his former top aides in money-for-favors scandals is heating up. Many members said they expect at least one more GOP member to be indicted this year. A new AP poll shows 60 percent of Republicans now disapprove of the Republican Congress.

"If it's about your power, you lose," Armey said, quoting one of his own favorite axioms. "If it's about you, you lose."

In Favor of Freedom

Today, many politicians are telling us that to preserve "freedom," we have to be prepared to give away our liberty

In the blog Unclaimed Territory
"Hume's Ghost" recently posted quotes from the Founding Fathers about liberty. (I won't repeat the whole list of quotes-- find them here: glenngreenwald.blogspot.com/2006/03/what-would-founders-say.html). Many of the quotes warn in the strongest way against giving excessive power to the government, and to the chief executive.

I can think of no more eloquent defenses of liberty.


James Madison in Federalist #47:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

George Washington, in his Farewell Address (1796):
"The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position.
"...let there be no change by usurpation; for although this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield."

Thomas Paine in Dissertation on the First Prinicples of Government (1795) said:
"An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."


Thomas Jefferson, in "Bill for a More General Diffusion of Knowledge" (1778) :
"Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny."

Jefferson expands on this in the "Kentucky Resolutions" (1798):
"... In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

John Adams, in Notes for an Oration at Baintree (1772):
"There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty."

James Madison wrote in 1798 to Thomas Jefferson:
"Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad."

In the Federalist #8 Alexander Hamilton recognized that external threats can erode liberty:
"Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free."

All of these quotes are doing little more than amplifying on what was attributed to Benjamin Franklin in 1759, and often misquoted:
"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."

"Humes Ghost" ends with an appeal from Patrick Henry, telling us that it is not worth sacrificing our freedom in the name of security:

"Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!"

US Citizen Held Without Trial

OK. The guy's an American citizen, born in America-- if he gets arrested, he has the right to a trial, a lawyer, all that. This is what America means by freedom. We don't hold people in secret jails, in solitary confinement, without the right to talk to their family or a lawyer, without charges, indefinitely. That's what dictatorships do.

There it is, right in the bill of rights... still there, yep--- due process of law, amendment V.

from the LA Times (quoted by The Moderate Voice:
The court's action leaves unresolved the question of whether the president as commander in chief has the power to arrest and hold without trial Americans whom he believes are working for the enemy.

President Bush and his lawyers have claimed this power as part of his wartime authority. However, both the Constitution and U.S. law say that American citizens cannot be arrested and held without due process of law. That usually involves, at minimum, a hearing before a judge in which the detained person can challenge the government's basis for holding him.

The Bush administration has accused Padilla of being part of a terrorist conspiracy. It has steadfastly refused to give him a hearing to challenge those chargess. Rather than charge him as a criminal, the White House said the president had decided to hold Padilla in military custody. He was not permitted to speak with his family or with a lawyer, and no charges were filed against him.

This is not just a little while here-- we're talking about a guy being held for four years without being charged. Let me check, yep, it's still there in the constitution: a right to a speedy trial, and to be informed of the nature and cause of the accusation, and to be confronted with the witnesses, right there in the U.S. Constitution, Amendment VI. Nothing about "unless the president says otherwise."

The Republican summarizes it:
www.masslive.com/editorials/republican/index.ssf?/base/news-0/11441369207010.xml&coll=1

Padilla was born in Chicago. He is a U.S. citizen. He was apprehended on U.S. soil. But he was not afforded the rights of a native-born citizen captured inside our borders. Why? Because, the administration says, we are at war. But Padilla was not detained as a prisoner of war. Why? Presumably, the administration would argue, because this is a different kind of war with its own set of rules.

That is not the logic of our constitutional form of government, our system of checks and balances. The high court stepped aside when it should have stepped forward.

Voting Machines

I've recently been looking at some articles on electronic voting machines, and I find them frightening. It looks like these things are an open invitation to hackers, and nobody seems to care.

From cyber.law.harvard.edu/briefings/dvb:
Computer scientists have been grumbling about the transition to electronic voting for years. They have claimed that electronic systems are too unreliable to entrust with the most sacred exercise in a democratic society. But it was Diebold's systems in particular that generated interest and outrage in July 2003 when a team of computer scientists published a scholarly review of the machines' software.
The report cataloged hundreds of flaws, which ranged from lack of password protection on central databases to a glitch that would allow holders of a certain "smart card" to vote as many times as they liked. As Avi Rubin, the principal researcher, explained, "We found some stunning, stunning flaws."
These flaws had not attracted widespread attention prior to Rubin, few people knew how to access Diebold's source code. As Joe Richardson, a spokesperson for Diebold explained, "We don't feel it's necessary to turn [the source code] over to everyone who asks to see it because it is proprietary."
This lack of access was one of the main objections computer scientists raised about electronic voting. They argued that electronic voting is inherently undemocratic because, when a company's software cannot be viewed by the public, voters have no way to ensure that it works properly-the public must simply accept the company's assurance that touching a button on a computer screen registers as a vote for the correct candidate. As critics have explained, the systems are also highly vulnerable to tampering, malfunctions, and problems with voter-privacy because results are aggregated in centralized databases - databases that can easily be altered.

Some more links: www.freepress.org/departments/display/19/2005/1636
www.freepress.org/departments/display/19/2005/1593
blackboxvoting.com/

I'd be more willing to trust the computerized machines more if the source code were open to inspection. The computer industry has time and time again proven that "security by obscurity" doesn't exist; flaws exist in the security of every computer system, and if you don't bring them out in the open, then they will be exploited in the dark.
In fact, testing software without having any knowledge of what's going on inside is not likely to reveal any security flaws at all.

From Wired: www.wired.com/news/politics/0,1283,60563,00.html
"Last January the electronic voting machine maker faced public embarrassment when voting activists revealed the company's insecure FTP server was making its software source code available for everyone to see.
"Then researchers and auditors who examined code for the company's touch-screen voting system released two separate reports stating that the software was full of serious security flaws."

Notice the trend here? The voting machine software was, in fact, insecure, but the fact that it was insecure wasn't revealed until researchers EXAMINED THE SOURCE CODE.
Second, the computer voting machines have been pushed into place with little or no testing, and the voting machine companies have been frantic to *avoid* independent testing.
Here's a story from NBC www.msnbc.msn.com/id/5762054/
"Michael Shamos, a Carnegie Mellon computer scientist and electronic voting expert, told lawmakers in Washington, D.C. the system for 'testing and certifying voting equipment in this country is not only broken, but is virtually nonexistent.'
"Virtually no oversight" "Although up to 50 million Americans are expected to vote on touchscreen machines on Nov. 2, federal regulators have virtually no oversight over testing of the technology. The certification process, in part because the voting machine companies pay for it, is described as obsolete by those charged with overseeing it.
"The testing firms - CIBER and Wyle Laboratories in Huntsville and SysTest Labs in Denver - are also inadequately equipped, some critics contend.
"Federal regulations specify that every voting system used must be validated by a tester. Yet it has taken more than a year to gain approval for some election software and hardware, leading some states to either do their own testing or order uncertified equipment."
Third, when independent testing has been done, all too often the machines have failed.
www.bbvforums.org/forums/messages/1954/5921.html
www.freepress.org/departments/display/19/2005/1636
www.freepress.org/departments/display/19/2005/1529
www.votersunite.org/electionproblems.

Our voting system should be absent flaws, period. I would like to *stop* the process of challenging and recounting; I'd like a system where it is possible to count votes and know the total, without manifest doubt about the validity of the system.
I desire the kind of security that comes when hundreds or thousands of independent eyes examine the program and look for flaws. This does rely on an assumption, which is that the number and cleverness of people trying to expose the flaws to the world exceeds the number and cleverness of the people trying to exploit the flaws. I believe that this is true of America, and that openness is a good thing.
I think Democrats are sleazy and untrustworthy. I think exactly the same about Republicans. The "consequences" I want is for all source code for computerized voting machines to be available for inspection. That sounds simple and straightforward enough to me. I don't see what you think is gained by not allowing us to see the details of the software that counts our vote, and the more you argue that we shouldn't be allowed to see it, the more I really start to worry about exactly what it is that you think we shouldn't see.

Some more disturbing links:
news.mywebpal.com/partners/680/public/news674236.html

wishtv.com/Global/category.asp?C=49590&nav=0Ra7JXq2

www.onlinejournal.com/evoting/042804Landes/042804landes.html

Just a couple of snippets showing a few more recent problems with electronic voting machines. San Angeleno Times: www.sanangelostandardtimes.com/sast/news_local/article/0,1897,SAST_4956_4559073,00.html

"...About 1:30 p.m. today, county Republican Chairman Dennis McKerley stopped the recount after workers found discrepancies of as much as 20 percent between what was counted Monday and what was reported Election Night. "We're having some trouble with the electronic equipment," McKerley said."

Chicago Tribune
www.chicagotribune.com/news/custom/newsroom/chi-060321voterproblems,1,1831943.story?coll=chi-news-hed
"... At one point, a dozen repair technicians showed up to test the faulty equipment. It turned out someone had forgotten to flip an internal switch in another device that authorizes each voter and transmits the results.
"At Chute Middle School in Evanston, voters only cast paper ballots when the electronic touch screen didn't work. "The little memory card is kaput," said election judge Jerry Smith.
"Among the paper ballots cast by 1 p.m., Smith said five or six out of 57 had been spoiled because voters had accidentally filled in more than one candidate for several judgeships.
"The error wouldn't have occurred if the voters had been able to use the electronic touch screen to vote, Smith said.
"Across town at Evanston's Grace Lutheran Church, election judge Carol Straus lamented low turnout and three machines that failed to work: The electronic touch screen, the election counter, and the scanner that counted the manual votes...."


The Morning call online:
www.mcall.com/news/opinion/anotherview/all-brau3-23mar23,0,3808305.story?coll=all-newsopinionanotherview-hed summarizes my worries. "If easy-to-manipulate, computerized voting machines ever become the standard for elections across the country, we would lose forever the ability of a citizen to have his or her vote cast and counted accurately. Simply put, the United States of America would no longer be a democracy."

Hypocrites in the house

In one day, the House budget committee finalized the 2.8 trillion dollar U.S. budget, with almost no debate. But representative Dennis Moore made an interesting suggestion: fiscal responsibility:

from the Olympian online: 159.54.227.3/apps/pbcs.dll/article?AID=/20060402/OPINION/60402019/1005

... Moore and other Democrats were trying to reimpose the budget rule known as “pay-go.” That requirement simply says any spending increase or tax cut be offset by a comparable saving in order to avoid increasing the deficit, unless a supermajority of 60 percent of the lawmakers voted to make an exception.

[note that this doesn't forbit deficit spending-- it just means that the legislators who vote for it need to go on record as approving it. What we call "accountability."]

The rule was in effect from 1991 to 2002 and contributed directly to whittling away the deficits and moving the budget into surplus. But when Bush became president, Congress discarded the rule — an action that Alan Greenspan and many other fiscal conservatives deplored.

In the Senate on March 14, Democrats tried to revive the rule, and failed on a 50-50 tie vote. Judd Gregg of New Hampshire, the Republican chairman of the Senate Budget Committee, led the effort to defeat it, arguing that it would inevitably force a tax increase. Gregg was not the least embarrassed when Sen. Kent Conrad, the North Dakota Democrat who offered the amendment to bring back “pay-go,” quoted Gregg’s own words from a 2002 debate.

Four years ago, Gregg said: “If we do not do this, if we do not put back in place caps and pay-go mechanisms, we will have no budget discipline in this Congress, and, as a result, we will dramatically aggravate the deficit, which, of course, affects a lot of important issues,
but especially impacts Social Security.”

When Conrad quoted those words, Gregg replied: “I was right then [to support fiscal responsibility] and I am right now [to oppose it]. Times change, and the dynamics of what is happening around here change substantively.”

[The only "substantive" change is that now the Republicans control the checkbook, they want to borrow borrow borrow spend spend spend without accountability.]

That argument was replayed in the House Budget Committee, with Republicans unanimously opposing the reimposition of the pay-go rule, while Democrats supported it.

Back in 1991, in his first year in Congress, Nussle was a budget hawk, even proposing that lawmakers’ salaries be cut 5 percent every year they tolerated a deficit of any size.

This year, in his final year as Budget Committee chairman, he sent the House a fiscal plan that — by his staff’s optimistic forecast — would add $3 trillion dollars to the national debt in the next five years and boost the annual interest payments by 35 percent during that period.

Jim Nussle and Judd Gregg are not alone. The budget policies that conservatives and Republicans are swallowing these days are policies you would think would cause them to gag.

No wonder they’d rather be home campaigning.

Conservatism means fiscal conservatism

The Baltimore Sun
www.baltimoresun.com/news/opinion/oped/bal-op.debt02apr02,0,4092151.story

Rising debt is very scary

By Diane Lim Rogers and Andrew L. Yarrow

Anyone who has visited Disney World's Haunted Mansion remembers the ride's signature beginning: Visitors enter a room, the doors close and the ceiling appears to keep rising and rising as a spooky voice intones that there is "no way out."

There are frightening similarities to America's national debt.

Congress recently raised the national debt ceiling by $781 billion to $9 trillion.

It marked the fourth increase in the last five years, making for an aggregate increase of more than $3 trillion since George W. Bush became president.

Like the Haunted Mansion, the ceiling keeps rising and rising, and whether there is "no way out" is a matter of economic and policy debate and political will.

Either way, the prospect of runaway deficits and debt are a good bit scarier for the American people and their nation's future than Disney's animatronic wizardry.

As Mr. Bush said shortly after he took office in 2001, when the debt was a third lower:
"Future generations shouldn't be forced to pay back money that we have borrowed."

Nice sentiment.

But on our current course, if you add in deficits that will skyrocket after baby boomers retire and the long-term unfunded commitments to entitlement programs such as Medicare and Social Security, every man, woman and child is saddled with $156,000 in debt.

That is roughly three times the average American household's net worth.

One can rail against the fiscal irresponsibility of an administration and Congress that have let federal spending grow by 5 percent a year in real terms, the fastest in 40 years, while slashing taxes and reducing revenues to levels that haven't been seen since cars had tail fins.

One can also rail about the hypocrisy of policymakers agonizing over budget cuts that amount to three-tenths of 1 percent of federal spending while approving tax cuts and new supplemental appropriations for the wars in Iraq and Afghanistan and Hurricane Katrina that dwarf the Lilliputian budget cuts.

But, you may say, it's all mind-numbing numbers.

Or you may think that we've worked our way out of deficits before, as we did as recently as the Clinton administration.

Or, if you're really cynical, you may think - and not care - that the Chinese, Japanese and Saudis will bail us out by lending us ever more money, as they have been doing at unprecedented rates in the last few years.

[yeah, sure, these are all governments that love America so much that they will give us a billion dollars a day, forever]

However, deficits have a way of hitting home in much more personal terms.

If they continue to rise, they will crowd out investment, slow economic growth and reduce the average family's annual income by $1,800 in just eight years.

Government debt is also likely to drive up interest rates, making the typical $250,000 mortgage, plus the interest that Americans pay on other purchases, cost about $3,000 more a year.

Moreover, if we keep our current promises to the elderly, without reforming entitlements, the average family would have to pay $7,000 a year more in taxes by 2030.

And, like the Haunted Mansion, deficits ultimately might spook the paying customers so much that they go running to the exits:

Those foreign investors who have been so willing to finance our debt could decide to pull out, throwing the financial markets and the economy into turmoil.

Deficits are such a large and growing problem that we need to come up with additional tax revenues and well-targeted cuts in spending.

And the big entitlement programs need to be fundamentally reformed so that ever-rising health care costs, in particular, can be contained.

Developing such policies that produce meaningful reductions in the deficit requires political will and bipartisan compromise.

But the public should demand such noble bravery from their government.

Unlike the Haunted Mansion, our country cannot just "get off" the scary ride; instead, our children and grandchildren will face the horrors wrought by deficits every day.

Diane Lim Rogers is research director for the Brookings Institution's Budgeting for National Priorities project. Andrew L. Yarrow is outreach director for special projects for Brookings' Economic Studies program.

---

It's been clear for years now; but it's hard to get the message: Bush borrows conservative rhetotic to get elected, but he is not himself a conservative, and once in office he has basically trampled on the concept of conservative fiscal responsibility to go for big-government spend spend spend policies.

He's not a conservative. He's not even close.

--
Franklin Jefferson

Reading the White Man's Burden

Current reading
THE WHITE MAN'S BURDEN: Why the West's Efforts to Aid the Rest Have Done So Much Ill and So Little Good
By William Easterly

Review from Business Week
www.businessweek.com/magazine/content/06_14/b3978114.htm


Throwing Money -- And Missing

THE WHITE MAN'S BURDEN: Why the West's Efforts to Aid the Rest Have Done So Much Ill and So Little Good
By William Easterly

The Good: A brilliant diagnosis of the failings of Western aid to underdeveloped lands.
The Bad: Easterly himself is disappointingly skimpy on solutions.
The Bottom Line: His indictment may be overbroad, but aid agencies deserve criticism.

The international development community is still reeling from William Easterly's 2001 book, The Elusive Quest for Growth. In it, the former top World Bank economist demonstrated how the panaceas concocted by the West to save the Third World, such as huge injections of aid, conditional loans, population control, infrastructure spending, and debt forgiveness, have all failed to stimulate sustainable growth and cut poverty.

Easterly is at it again. In The White Man's Burden, he marshals a wealth of fresh studies, original statistical analyses, his own anecdotal reporting, and historical precedents to buttress his argument that today's foreign-aid system doesn't work. He shreds practically every new strategy by the World Bank, International Monetary Fund, U.N. agencies, and other donors aimed at lifting the world's poor out of misery. This book is disappointingly skimpy on solutions, but it is brilliant at diagnosing the failings of Western intervention in the Third World.

The real tragedy, says Easterly, isn't Western indifference toward the human crises in Africa and elsewhere, as many advocates of huge aid hikes claim. The problem is the development community's miserable record of treating the most basic needs of the poor. The West "spent $2.3 trillion on foreign aid over the past five decades and still has not managed to get 12 cents medicines to children to prevent half of all malaria deaths." Throwing greater sums at the problem under the existing system will actually be detrimental because "the current wave of enthusiasm for addressing world poverty will repeat the cycle of its predecessors: idealism, high expectations, disappointing results, cynical backlash." So before digging further into their wallets, rich donors should demand hard results and hold international aid agencies accountable.

Easterly's 16 years as a World Bank economist and his broad experience in developing nations make the critiques hard to dismiss. He is as harsh on U.S. conservatives as on free-spending liberals. He blasts the Bush Administration's antipoverty programs as naive and poorly conceived. He rips into the President's much-ballyhooed African AIDS initiative because it focuses mainly on expensive drugs while discouraging the use of condoms, whose widespread application could save many more millions of lives. He also ridicules neoconservatives who believe the U.S. can make poor failed states better places by forcibly removing dictators and imposing democracy and free-market economics.

Yet the author admits he has no big answers of his own. In fact, he says he's allergic to anything smacking of ambitious planning. The fatal flaw of big aid initiatives, he writes, is that they derive from rich Westerners' utopian agendas rather than input from the needy. Another problem with broad, collective goals is that no one agency bears responsibility for achieving anything concrete.

Instead, Easterly advocates "piecemeal interventions." For instance, donors should fund well-focused projects created by "seekers," highly motivated individuals who find creative ways to solve real-world problems. He profiles many grass-roots success stories that deserve help, from a private college in Ghana to an Indian outfit that cut HIV incidence by working with prostitutes. Aid agencies should focus on specific tasks, such as building roads and clinics or providing textbooks. Independent auditors should scrutinize sample projects in the field to see if they are delivering results. Poor villagers ought to decide for themselves what they need, receive cash vouchers supplied by donors, and use these to hire the most effective agencies to provide what's wanted.

These are great ideas. But would hundreds of thousands of independent microprojects really make a bigger impact -- or be more cost-effective and freer of abuse -- than if such efforts were coordinated through existing channels? More to the point, well-off, conscientious Westerners are unlikely to sit by and watch millions of Africans die of preventable causes as they wait for verifiably waste-free aid projects to materialize.

Easterly's book also has some glaring omissions. What to make, for example, of the immense foundations guided by tycoons such as Bill Gates that aim to bring the focused, results-based methods Easterly advocates into the war on AIDS, tuberculosis, malaria, and other diseases? Nobody would label Gates a central planner, but he does believe in international coordination, high goals, and big expenditures. Surprisingly, the Bill & Melinda Gates Foundation isn't mentioned in this book.

Easterly's thesis may be overstretched. Still, he is right that we should be tough on aid agencies that don't deliver. The White Man's Burden is disturbing but essential reading for would-be Samaritans -- and a powerful call for reform.

--
Franklin Jefferson