If We Can't Have Barabbas, Give Us Cliven Bundy . . .

. . . or a few Occupy Wall Street folk.

6 Now it was the custom at the festival to release a prisoner whom the people requested. 7 A man called Barabbas was in prison with the insurrectionists who had committed murder in the uprising. 8 The crowd came up and asked Pilate to do for them what he usually did.

9 “Do you want me to release to you the king of the Jews?” asked Pilate, 10 knowing it was out of self-interest that the chief priests had handed Jesus over to him. 11 But the chief priests stirred up the crowd to have Pilate release Barabbas instead. (Mark 15:5-11 NIV)

It may be a more a sign of my cynicism than it is an accurate theological observation, but I doubt the chief priests had a difficult time persuading the crowd to demand Barabbas' release. The assembled throng likely found it easier to side with a man who said something like "Let's kill a few of these Roman S.O.Bs before pushing them back into the ocean" instead of a person who enjoined carrying the Roman soldier's pack an extra mile.

My cynicism colors my view of the Cliven Bundy affair. The gist of his non-Fox News supporters seem to be he's a crackpot without a legal leg to stand on. The Fox clips I've seen seem to cast him in the role of martyr standing up to the federal government otherwise known as the evil of evils.

I have little sympathy for Bundy. He's a millionaire rancher who grazes cattle on land he doesn't own or pay rent on. It would take a large number of the apocryphal food stamp recipients buying champagne and lobster to match Bundy's free ride.

On the other hand, if a group of Occupy folks squatted in every Koch brothers' office across the country, I'd take more than a little joy in any discomfort the billionaires were caused. Even though they would not have a legal leg to stand on, I might even complain about how the force the police would use to remove the occupiers.

The disconcerting thing about the Bundy affair is both sides will take the wrong lesson. The fringe right will likely grow in their certainty that one must face the federal government with force never thinking about the fact that federal government has more people under arms and far better weapons. The left will likely push for new regulations and policy solutions forgetting that difficult situations make bad law. Perhaps both sides should see Cliven Budy as a mirror that reveals their indefensible political biases.

Yet More Musings About The Harms Of PRISM

Zack Beauchamp says what I have wanted to say about the NSA and PRISM in a far more clear and concise manner than I could have.

The reaction to the National Security Agency (NSA)’s secret online spying program, PRISM, has been polarized between seething outrage and some variant on “what did you expect?” Some have gone so far as to say this program helps open the door to fascism, while others have downplayed it as in line with the way that we already let corporations get ahold of our personal data.

That second reaction illustrates precisely why this program is so troubling. The more we accept perpetual government and corporate surveillance as the norm, the more we change our actions and behavior to fit that expectation — subtly but inexorably corrupting the liberal ideal that each person should be free to live life as they choose without fear of anyone else interfering with it.

Beauchamp's second paragraph seems so clear and blindingly obvious that I'm angry at myself for not being able to articulate that sentiment.

Beauchamp's point also makes me curious why Dr. Ken Blanchard, South Dakota's resident virtue ethicist, can "side with the Administration on this one." My simple understanding of virtue ethics is that one attempts to act as a virtuous person would act in each situation one confronts. Virtue is a habit and quality that one seeks to develop of one's own volition. A Nafsika Athanassoulis article in the Internet Encyclopedia of Philosophy explains the point:

Aristotelian virtue is defined in Book II of the Nicomachean Ethics as a purposive disposition, lying in a mean and being determined by the right reason. As discussed above, virtue is a settled disposition. It is also a purposive disposition. A virtuous actor chooses virtuous action knowingly and for its own sake. It is not enough to act kindly by accident, unthinkingly, or because everyone else is doing so; you must act kindly because you recognize that this is the right way to behave. Note here that although habituation is a tool for character development it is not equivalent to virtue; virtue requires conscious choice and affirmation.

It's hard to understand how these programs allow individuals to to develop the habit and desire necessary for virtue. If Blanchard ever gets to this spot in the Interwebs' hinterlands, I'd appreciate hearing his view.

Further, Americans have been told that the programs have not been used to track American citizens. Color me skeptical about that claim, so I am also concerned about another result of PRISM. It seems to turn America's premises about justice on their head. At their most basic, these programs seem premised on the idea that someone will eventually do something to cause mayhem and harm; therefore, massive amounts of data must be collected for examination at a later date. It strikes me that this idea leads to a presumption of guilt until proven innocent not a presumption of innocence until proven guilty.

Finally, it strikes me as odd that few have questioned the security of the servers housing the data. It was not that long ago that Chinese hackers were a threat to commerce and the Republic itself. It seems prudent to question not only the acquisition of these massive amounts of data but also the ability of any entity to store it safely.

I'm fairly certain the program is legal; I doubt that it's Constitutional, but I have little confidence the Supreme Court will share my doubts. Constitutional qualms aside, the data mining still seems dangerous and imprudent. Given that the news cycle seems to have moved on, it also seems obvious the Patriot Act and the perpetual war on terror have created subservient American citizens.

A Question About The Boston Bombing Case For Small Government Conservatives

Dzhokhar Tsarnaev, the suspect in the Boston Marathon bombing,is being charged with charged with ""using a weapon of mass destruction that resulted in three deaths and more than 170 injuries." In addition to the three deaths caused by the bombs, Tsarnaev is alleged to have killed a Boston police officer.  Tsarnaev has indicated that he and his brother acted alone. Why, then, is he facing federal charges when the Commonwealth of Massachusetts could simply charge him with murder and destruction of property? .

So far some leading Republican or conservative voices have used the bombing to demand that the Tsarnaev be sent to Gitmo.

"You can't hold every person who commits a terrorist attack as an enemy combatant, I agree with that," Mr. Graham said. "But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda -- I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn't hold him for intelligence-gathering purposes, that would be unconscionable."

Mr. Graham said 30 days of confinement and interrogation as an enemy combatant would be an appropriate amount of time to allow the government to look for evidence that would justify his continued detention under the law of war. He also said he believed that federal judges would grant the government that amount of leeway.

Others want to slow the process on immigration reform:

Sen. Rand Paul (R-Ky.) has been a vocal supporter of immigration reform but Monday called on Senate leaders to hold off until lawmakers know if system failures played a role in aiding the two foreign-born brothers accused of planting the deadly bombs.

Timothy McVeigh bombed a federal building, so the federal government prosecution was justified. Ted Kaczynski, the Unabomber, mailed some of his bombs, so federal involvement was necessary. Umar Farouk Abdulmutallab, the underwear bomber, acted on a plane; once again federal jurisdiction was warranted.

This attack, however, was in a state against citizens of that state. The attack did not use the mail nor did it target a federal property. The state has no history of ignoring crimes against its citizens. The state prosecutes murderers successfully. It, therefore, seems odd that folks who frequently complain that the 10th amendment is being usurped are quiet about the federal government taking over what clearly seems to be a state case.

If The Tea Party Is Serious, . . . .

They should let Republicans raise the debt limit, but most sane people are telling them that.  I'm not going to waste a post repeating something they won't listen to.

If they're really serious about shrinking the intrusive nature of government, this Wall Street Journal article gives them a place to start putting their indignation to righteous use.

Gary Fields and John Emshwiller, the article's authors, quote an America Bar Association report that asserts

"the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades."

Among the federal laws are injunctions that mandate that

"Unauthorized use of the Smokey Bear image could land an offender in prison. So can unauthorized use of the slogan "Give a Hoot, Don't Pollute."

Who does the federal government think it is?  Even Disney doesn't go that far.

On a far more serious note, federal laws ignore long accepted safeguards.

Some of these new federal statutes don't require prosecutors to prove criminal intent, eroding a bedrock principle in English and American law. The absence of this provision, known as mens rea, makes prosecution easier, critics argue.

A study last year by the Heritage Foundation and the National Association of Criminal Defense Lawyers analyzed scores of proposed and enacted new laws for nonviolent crimes in the 109th Congress of 2005 and 2006. It found of the 36 new crimes created, a quarter had no mens rea requirement and nearly 40% more had only a "weak" one.

One of the results is an alarming rise in the federal prison population.

With the growing number of federal crimes, the number of people sentenced to federal prison has risen nearly threefold over the past 30 years to 83,000 annually. The U.S. population grew only about 36% in that period. The total federal prison population, over 200,000, grew more than eightfold—twice the growth rate of the state prison population, now at 2 million, according the federal Bureau of Justice Statistics.

Tougher federal drug laws account for about 30% of people sentenced, a decline from over 40% two decades ago. The proportion of people sentenced for most other crimes, such as firearms possession, fraud and other non-violent offenses, has doubled in the past 20 years.

Maintaining prisons is far from cheap. 

In 2006, $68,747,203,000 was spent on corrections. "The average annual operating cost per state inmate in 2001 was $22,650, or $62.05 per day; among facilities operated by the Federal Bureau of Prisons, it was $22,632 per inmate, or $62.01 per day."

Housing the approximately 500,000 people in jail awaiting trial who cannot afford bail costs $9 billion a year. Most jail inmates are petty, nonviolent offenders. Twenty years ago most nonviolent defendants were released on their own recognizance (trusted to show up at trial). Now most are given bail, and most pay a bail bondsman to afford it. 62% of local jail inmates are awaiting trial.

I realize that changing some of these federal laws will not have a major effect on the deficit, but there should be some savings.  Something tells me that the Tea Party won't do much about protecting  citizens from this form of government overreach.  I guess I'll stick to drinking Diet Dew.

Of Big Government and Big Corporations

Neil M. Barofsky, former special inspector general of the TARP bailout program, penned a rather disturbing op-ed in yesterday's New York Times.

Barofsky's assertion that the provisions of the bailout designed to help Main Street "have been a colossal failure" should surprise no one.  In fact, it's surprising, if not shocking, that a former government official has admitted that failure.  Nor should one be surprised that the "Treasury [Department] apparently has chosen to ignore rather than support real efforts at reform."  I seldom expect Washington to make things better; I foolishly continue to hope that they will do no harm.

The disturbing element of the editorial is "[t]hese banks now enjoy record profits and the seemingly permanent competitive advantage that accompanies being deemed “'too big to fail.'"  More frighteningly,

The biggest banks are 20 percent larger than they were before the crisis and control a larger part of our economy than ever. They reasonably assume that the government will rescue them again, if necessary. Indeed, credit rating agencies incorporate future government bailouts into their assessments of the largest banks, exaggerating market distortions that provide them with an unfair advantage over smaller institutions, which continue to struggle.

 If one parses that last quotation a bit, the true failure of TARP and the true hubris of corporate America becomes clear.  The institutions that caused the financial collapse expect to be bailed out again.  Further, they are bigger than they were when they were to big to fail.  Logically, that means that when they bring America to the brink of collapse again the economic devastation will be greater.  Finally, smaller institutions will not be able to catch up.  If that's the case, individuals have little or no chance of getting ahead.

A Reason For My Political Displacement

I've never been willing to be a Republican because most Republicans I know seem to believe that corporations can do no wrong and common laborers are all well paid and have it easy so they should just shut up.  Democrats give lip service to the plight of the common man, but they've always seemed to have equal amounts of guilt and noblesse oblige.  The combination is a bit off putting, so I watch politics as a spectator in the same way I watch football or baseball.  I try to avoid Beck's and Limbaugh's pro wrestling histrionics.

Today, I'm moving from seeing politics as a sports fan and beginning to view the situation in a more Shakespearean light:  to paraphrase Mercutio, a pox on both your houses.

The Cato Institute may not be part of the pro wrestling contingent of my analogies, but they may well be MMA.  I'm not a fan of Cato or MMA.  One must appreciate skill, however, and this Glen Greenwald essay expertly illustrates that corporate and government power is dangerously limiting Americans' liberty.

Greenwald begins by saying something that I've long believed.  Both political parties have used 9/11 to increase surveillance power.

It is unsurprising that the 9/11 attack fostered a massive expansion of America’s already sprawling Surveillance State. But what is surprising, or at least far less understandable, is that this growth shows no signs of abating even as we approach almost a full decade of emotional and temporal distance from that event. The spate of knee-jerk legislative expansions in the immediate aftermath of the 9/11 trauma — the USA-PATRIOT Act — has actually been exceeded by the expansions of the last several years — first secretly and lawlessly by the Bush administration, and then legislatively and out in the open once Democrats took over control of the Congress in 2006. Simply put, there is no surveillance power too intrusive or unaccountable for our political class provided the word “terrorism” is invoked to “justify” those powers.

The situation seems to be getting worse.  Greenwald points out,

And yet, the more surveillance abuse and even lawbreaking is revealed, the more emphatic is Executive Branch opposition to additional safeguards and oversights, let alone to scaling back some of those powers.

Thus, even when our National Security State gets caught red-handed breaking the law or blatantly abusing its powers, the reaction is to legalize their behavior and thus further increase their domestic spying authority. Apparently, eight years of the Bush assault on basic liberties was insufficient; there are still many remaining rights in need of severe abridgment in the name of terrorism. It never moves in the other direction: toward a reeling in of those post 9/11 surveillance authorities or at least the imposition of greater checks and transparency. The Surveillance State not only grows inexorably, but so does the secrecy and unaccountability behind which it functions.

Presidents have always jealously guarded  their power.  So have the courts and the Congress, although Congress seems to be ceding much of it constitutional authority to the executive.  My bigger concern is the mix of corporate and government power.  Greenwald writes,

Perhaps the most disturbing aspect of our mammoth Surveillance State is that the bulk of its actions are carried out not by shadowy government agencies, but by large private corporations which are beyond the reach of democratic accountability. At this point, perhaps it’s more accurate to view the U.S. Government and these huge industry interests as one gigantic, amalgamated, inseparable entity — with a public division and a private one. In every way that matters, the separation between government and corporations is nonexistent, especially (though not only) when it comes to the Surveillance State.

 I had always naively believed that government could check corporate overstretch and citizens could use the ballot to check government excess,  In this situation, it seems that average citizens are being assaulted by two behemoths.   Given that disturbing fact, I must share Greenwald's conclusion,

And as we acquiesce to more and more sacrifices of our privacy to the omnipotent Surveillance State, it builds the wall of secrecy behind which it operates higher and more impenetrable, which means it constantly knows more about the actions of citizens, while citizens constantly know less about it. We chirp endlessly about the Congress, the White House, the Supreme Court, the Democrats and Republicans, but this is the Real U.S. Government: a massive Surveillance State functioning in darkness, beyond elections and parties, so secret, vast and powerful that it evades the control or knowledge of any one person or even any organization.

 It's been easy being displaced; I could always head back to the plains and have a bit of safety and anonymity.  Now, I'm not sure the plains are big enough to hide in.  That fact both disconcerts and angers.

Iron Man, James Madison, Prometheus, and Us

I recently picked up a copy of Iron Man and Philosophy.  One of the articles "Did Iron Man Kill Captain America" by Mark D. White recounts Iron Man's efforts to implement the Superhuman Registration Act, build a prison in the Negative Zone to house superheroes who refuse to register, and institute a Fifty State Initiative to give each state its own team of superheroes.  (I have no idea which heroes would be assigned to South Dakota.) In short, Iron Man was expanding the role of government, but he was doing it to provide for public safety.  Given that he built a prison in some alternate dimension, Iron Man's actions can be seen to be similar to building a supermax prison or instituting a national ID card.

Tony Stark, Iron Man's alter ego, may be a scientific genius, but he apparently forgot James Madison's injunction from The Federalist 51: 

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

 Perhaps some members of the superhero community need to be controlled; they have caused damage and civilian deaths.  Stark did set up a government to control the governed; he did not, however, oblige his creation to control itself.  Stark eventually lost his position to Norman Osborn, the Green Goblin, a member of Spider-Man's rogues gallery.  It's difficult to see how the Americans of Stark's world are better off than they were before his foray into prison building and registration.

Stark claims to be a futurist.  He seemingly is like Prometheus, the Titan who gave humans fire.  Prometheus could see the future and warn Zeus that Thetis, a minor goddess Zeus wanted to bed, was destined to bear a son greater than his father.  The Titan, however, could not that giving humanity fire would result in his being chained to a mountain and having an eagle devour his liver.

In my mind, the superhero, mythological deity, and American founder are all making me wonder about many of the loud voices who fear the new health care but who support enhanced surveillance to protect citizens from terrorism or who want to build a fence to keep out illegal aliens. 

The national health care bill may turn out to be a disaster because it will mushroom out of control like the opponents fear.  If, as these prognosticators fear, this mushrooming is a natural result of government, what's to keep the government from turning the surveillance against innocent citizens or using the fence to keep citizens in instead of keeping illegal immigrants out? 

The fear about government seems to be selective and incoherently applied.  The same people who say bank reform will destroy the country often claim building more prisons and increasing the number of crimes that can be called terrorist acts will make citizens safer.  Six banks now have assets equal to 63% of GDP.  Shouldn't that fact scare one as much as a threat posed by a car bomb in Times Square?

Mythological deities and superheroes are imperfect futurists, and we mere mortals are not angels.  Everyone, therefore, should listen to Madison.  Iron Man and Prometheus show what can happen if we don't.