Constitutional Issues

If Only People Opposed The PATRIOT Act Like SOPA; The Power Of LOLCats

All the Interwebs are buzzing about de-railing the Stop Online Piracy Act (SOPA) and its Senate counterpart, Protect IP Act (PIPA). Those kidz at Reddit started a campaign against a company (GoDaddy) so dull (it registers Internet domains and sells email) it gets marginal mindshare deploying quasi-strip tease acts for ads designed to be blocked at the Super Bowl. Technology companies flirting with the IP crowd are now backing away.

SOPA is kitchen table talk now. Perhaps everyone wants to at least feel like they’re ‘in’. Like Tina Fey-kinda-in. It’s a simple talking point, too. Why, allowing Hollywood lawyers to tell backbone companies to block websites the lawyers deem carrying pirated material? That would “break the Internet.” Angry Birds would die. Mafia Wars end. And so on.

We won’t rehearse all the original machinations of the Motion Picture Association of America, the Business Software Alliance (MSFT eta al.). You’ve seen it elsewhere. And of course, watching MSFT and others at BSA cave to pressure and retreat is not un-fun. But it’s the same old story of IP holders’ greed and fear from the DMCA days. Turned up a notch. Except now there’s social media – like Reddit. And it bit them in the backside but fierce.

Still, it’s a bread and circuses thing. We’re just puzzled why Amerikhuns care more about access to online porn, Pirate Bay wannabees and LOLCats than, say, oh, their personal freedom. Nobody lifted a finger to slow PATRIOT down then. Except Dick Armey and a few who demanded and got sunset provisions. OK, it was right after 9/11. Feelings were raw.

Feelings weren’t that raw when Democrats and Republicans voted to blow past the original sunsets. How raw could feelings be with the Boy King in office? To get *expansions* to the PATRIOT Act, notwithstanding its classified offshoots. Chirp. Chirp. You’d think this would be something custom made for social media, ala Cairo, etc. But alas, people can’t conceive of losing something that’s not tangible, like a shiny new iPad suddenly no longer showing a favorite website.

So if you go to one of those usual suspect aggregators news sites proclaiming this ‘dramatic’ SOPA victory to ‘preserve the Internet’, just remember, sure, Amerikhuns may get LOLCats unimpeded. And the torrents running free in Sweden.

High fives all around. Because, like, saving the “integrity of the Internet” is so much more important than a constitutional republic. You know we’re right.

Obama’s Soggy, Expedient Mush

We didn’t expect much. He lived up to that.

Fugal Fatigue

Pre-empting ‘Jeopardy’ tonight, Obama served up the same vague, content-less platitudes that intoxicated his enablers in 2008. He spoke almost Bach-like, leaving the audience to deliver the counter-fugue. “We are not a nation that stands by when tragedy happens.” Except when we do. Clinging to the humanitarian theme, Obama underscored regime change is *not* an American objective. Yet it is; he’s demanded Khaddafi go several times already, etc.

Obama spent most of his energies justifying why he unilaterally declared war on Libya. (Even Dick Cheney for God’s sake went through the motions to observe form. Bush secured two Authorizations to Use Military Force (2001 and 2002)). We can only offer a sad smile to the chuckleheads running around 2007-2008 declaring Obama ‘a constitutional scholar’ (We know personally something about who is entitled to that honorific). It doesn’t matter. His intentions are pure and prudent.

His fugal theme of intentions and prudence tried to cover a strategic vacuity. He developed no harmonic themes defining success, concrete objectives or why he believes he can choose sides in a civil war without cost. His chordal progressions avoided any program or agenda. Just pure, prudent intentions.

Thus, his critics must be mute; his intentions, after all, are noble.

The Clouseau School Of Pretending You Intended To Do That

Obama claimed his one-man war on Libya is born of unique circumstances:

(a) the UN agrees (meaning China and Russia abstained);
(b) the Arab League gave a fig leaf;
(c) Sarkozy is about to be crushed in French elections and cut off by his wife – he’s desperate;
(d) Cameron in London is unusually dunder-headed and clueless;
(e) other than the Germans and Turks fussing about, NATO was signed, sealed, delivered;
(f) Americans watching Japan are already on ferrin neyooz overload; and
(g) best of all, because no one really knows what the hell is going on over there, Americans generally will be down with bombing brown people provided some smile on CNN. (Americans love people who thank the U.S. for dropping bombs on their country).

Most (all?) of the above is, of course, ex-post facto rationalization. The truth is far uglier. You, Dear Reader, know that Obama simply pulled . . . an Obama.

It’s all of a piece. Libya is no different than his collusion and subsequent 9 month abdication on health care reform. Same with his absence from securing meaningful FinReg. The BP episode? Escalating in Afghanistan while promising to leave? Letting banks walk on foreclosure fraud? His embrace of Addington’s Unitary Executive? Silent disengagement from the Movement 2009-11 at State and Federal levels? Yup, yup, yup, yup. . . yup. And so on.

The Arab League is delighted to divert American frustration to Libya. Bomb him, go to town, do your thing. And shut up about protestors shot in the streets. London and Paris need a foreign diversion. Need to roll out freedom again? By all means. Having some trouble with your virility? Take 112 Tomahawks and call in the morning. There can be no Obama Doctrine because expediency is one word.

Pure intentions are always used to cajole Americans. War to end all wars. War to make Democracy safe. No more Munichs in the Mekong blah blah blah. Works every time initially. Sentiment, however, blinds all to the opportunity costs. People have only so much bandwidth. A burn and churn maw in Libya will divert focus from matters of genuine strategic import. There’s a reason Beijing abstained. For the record history will note Libya worse than a crime, a mistake.

When a man stands for nothing he can always cobble together a narrative to justify where the wind blew him. But like tonight’s speech that narrative can’t tell us where he wants to go and how he intends to get there.

More than that, it’s obvious to anyone Obama isn’t a fighter. He’s never drawn a line personally, taken bloody, pulverizing punches. He’s never been rocked back, fallen down, stood up and retaken ground. (2008 isn’t a valid comparison. His first major challenge was the self-destructing HRC campaign. His second was riding Bush, global economic catastrophe and oh, John McCain to the finish line). Every capital in the world has this PDF file by now.

As we wrote before, to paraphrase Forrest Gump, “Half-assed is as half-assed does.” And like Gump, Obama may saunter to an objectively undeserved second term. Who here thinks Newt, Barbour, Tpaw, Romney et. al will force Obama to at least shuffle, if not dance, floating like a butterfly? Thought so.

Illegal FBI Domestic Surveillance With No Consequences, Move Along

The FBI improperly investigated some left-leaning U.S. advocacy groups after the Sept. 11, 2001, attacks, the Justice Department said Monday. DoJ cited cases in which agents surveilled and put activists on terrorist watch lists even though they were planning and conducted nonviolent civil disobedience.

And what are the consequences?

“After more than four years of investigation and an exhaustive review of hundreds of investigative decisions the FBI made after the September 11 attacks,” said FBI spokesman Michael P. Kortan, the report “did not uncover even a single instance where the FBI targeted any group or any individual based on the exercise of a First Amendment right.”

He added that although Fine had “disagreed with a handful of the FBI’s investigative determinations over the course of six years,” the inspector general “has not recommended any significant modifications to the FBI’s authority to investigate criminal conduct or national security threats.”

As we noted earlier, thank goodness Fredo, Ashcroft et al. can’t whitewash the whole thing. Imagine the cynicism.

3 Obama Successes You Probably Haven’t Heard About

Obama apologists say we don’t recognize and publicize the Administration’s successes. Herewith three of their recent wins.

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Getting Away From It All

Here’s a hope that everyone enjoys the weekend. That you, Dear Reader, can tune out the media led fixation on the ankle biters downtown.

It’s an unholy brew. A rootless media seeks any form of self-generating narrative for lazy producing, story selection, Nielsens and click throughs. And the Movement? It follows centuries of Counter Enlightenment impulsive tradition using public theater to create false narratives and communal identity. All fodder for the 15 minute news cycle and shallow tweets.

We chose to visit Annapolis to start off the weekend. Sure, it’s long been a tourist trap. And like nearby D.C. it’s self-satisfied, bloated and keenly aware of its wealth. Still, it’s not far up Route 50. The Severn River retains echoes of boating memories many decades ago. Plus, traffic to the overcrowded (and even more overbuilt) Delaware beaches too daunting. One notable thing – young men in their twenties lounging around the Naval Academy entrance wearing the old ‘Blackwater’ paw t-shirts and Oakleys. Without irony, too.

Where were we? Oh right. The high school play downtown.

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The Declaration Of Independence Written With Today’s Mentality

When in the course of human events it becomes necessary to execute this END-USER LICENSE AGREEMENT WITH {subjects, citizens *customers*} for the decent respect of Delaware Chancery Court precedent:

We hold these truths to be self evident and IMPORTANT. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CONTINUING WITH THIS DECLARATION OF INDEPENDENCE (“The DECLARATION”). The Continental Congress’ End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and the Continental Congress.

Use of the Continental Congress’ DECLARATION incorporates by reference any associated product(s) including written components, media, pamphlets and pictographic or printed materials, or other information encoded in binary form for copying, storage and distribution by any other means, physical or otherwise from or to Chinese devices. By reading, copying, or otherwise using the DECLARATION, you agree to be bound by the terms of this EULA.

This EULA represents the entire agreement concerning the ‘revolution’ product and related marketing materials between you and the Continental Congress (also referred to as “Licensor”). The EULA supersedes any prior proposal, representation, or understanding between the parties. If you do not agree to the terms of this EULA, do not read, copy or talk about the DECLARATION.


The DECLARATION is protected by all applicable copyright and intellectual property laws and international copyright and intellectual property treaties. The DECLARATION is licensed, not sold.

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If It’s Tuesday It Must Be Obama

Tuesday offers ominous signs and portents for Obama’s agenda of Lukewarm Dishwater. No, it’s not that his personal endorsement means squat. Rather, Obama actually would benefit from a Rightist takeover of at least one chamber of Congress. For his legacy and re-election. Tuesday’s results offer a chance that Democrats might muddle through with less carnage. Good for them, possibly bad for Obama and even worse for all of us.

Clinton surely benefitted from Newt after 1994. Clinton, more so than Obama, was a tactical political genius and counter-puncher. So what if the divided government meant a Clinton presidency offered almost no historic liberal achievement. Can you say ‘school uniforms’? In the eyes of many, Clinton remains the best Republican president since Reagan.

Obama’s case is different. He’s no Clintonian boxer. Nor is he the same voracious, natural political animal (in all senses). He’s obviously bright – didn’t Medvedev look into his eyes and see Obama’s IQ? But if Obama has any actionable convictions, they’re more classified than presidential Blackberry txt messages.

He’s not helped by the soggy Cherrios that is the (undeserved) Democratic majority on the Hill. Obama desperately could use *something*, *anything* to give him definition — and a plausible excuse for the inaction, watering down and plain fumbling. The Obama Administration is the Newsweek of American politics.

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Why Does Obama Hate Privacy?

Facebook’s much publicized user privacy meltdown is just the lastest example of massive social web services disregarding users’ privacy. Google similarly decided on its own all its users’ private information should by default be visible to any one. Despite the CW that ‘no one expects privacy’ anymore, anti-Facebook sentiment runs white hot. The query ‘how do I remove my Facebook account’ is now among the most popular searches on the web. Expectations of privacy are not quite dead.

Now imagine what happens in other less closely watched situations with all of our information. When it’s more than exposing private messages explaining how one’s spouse is a jerk. You know, involving little things like the 4th Amendment, FISA, etc. Yup, the Feds. (And if the Feds walk all over your privacy, do you really think something like HIPPA stops an insurance company?)

So what gives with Obama’s intransigent disregard of a 2007 law requiring him to appoint members to a privacy panel? The panel’s origins lie back in the dim recess of time when intelligence reform was given at least nominal jaw-jaw. Alas, if the panel was actually set up? McConnell might write an angry letter. And November is coming up. It’s not like intelligence reform, oversight, the 4th Amendment and privacy are important. Just ask Kagan – she has no opinion on them.

Who knew ‘hope and change’ had a sell by date of February 2009?

This Is The Best He Can Do? (Slightly Revised)

It’s a given that Peter Beinart’s flatulence that Kagan should apologize for banning U.S. military campus visits for their policies violating school non-discrimination policies is more of his soft-minded weakness. Like his rah rah for the Bush Administration in the Middle East well into 2005. Not a serious mind for serious (or unserious) people. What about principled Obama supporters distancing themselves from Kagan?

We confess to know almost nothing about Kagan. Not only because she has no substantial body of legal writings. She came of age after the Stitung’s work with and for some of the Nation’s foremost legal minds (including but definitely not limited to Kagan’s colleague, Liz Warren). We know nothing about how her mind works. A deanship or Supreme Court Clerkship? Ticket punches only. How she succeeds in quelling Harvard prima donnas as Lunch Room Monitor irrelevant and delusional – as if Alito, Roberts, Scalia or Thomas will somehow be hypmotized [sic]. Yet her ‘legal mind’ and Harvard faculty Jedi mind tricks are the crux of Obama’s confidence in her.

We can’t speak for you, Dear Reader. We no longer accept ‘Trust Me’ IOUs from this crowd. We look forward to the confirmation hearings (see comment below).

‘The Left’ [sic], Tennis Courts And Why They Deserve To Lose — Part 32

Sandy Levinson continues to pine for a Constitutional Convention to fix our ‘broken system.’ He notes he’s just affirming his long standing position, one we’ve discussed at length here as well. It’s unfortunate he cuddles up to David Brook’s hush puppy bleat to join him on the Tennis Courts.

Levinson, whom we’ve respected for 20 plus years, is in some ways another, much smarter, Larry Wilkerson – both consumed with process. Recall Wilkerson’s pathetic arguments after his firing in 2005 (not before, mind you) that amending the 1947 National Security Act would halt future Cheneys/Addingtons/Scooters/Rumsfelds/Feiths/etc. from by-passing the orderly flow of paper work and inter-departmental consultation. Who knew Addington would have been halted in his tracks with just one more statute to ignore?

Utter idiotic claptrap and nonsense, of course. We here together for years understood the essence of the Warlord’s regime: *the law didn’t matter*. Even adding 1,000 more pages to the U.S. Code? Meaningless. Note that our disdain for Wilkerson is not limited to this website. We’ve said this to his face and exposed his ignorance at fora. He continues to shine at his full 15 watt potential.

Similarly, the much brighter Levinson, so-so Larry Sabato and now Brooks claim process will fix an obviously broken government. Once again, Levinson adopted the external political science approach rather than an internal legal one.

Summon Les Estates-General

Levinson acknowledges concern about calling the Estates-General in today’s polarized political environment. But not enough. Like Wilkerson, Levinson fails to understand true political radical reality (we say this with kindness, he is an accomplished professor, not political operative). If Levinson ever worked on the Hill for a period of time and participated in electoral processes, he would see that the U.S. government is not paralyzed *because* of a flawed Constitution but in *spite* of it. More clever drafting of Constitution 2.0 (with a Bill of Tweets? Lord help us) will not address our underlying problem – the societal collapse of ‘virtue’ (per Douglas Adair), belief in republican liberal democracy or even ward room Dahl-esque pluralistic politics.

Assume one could re-write the Constitution along the lines Levinson suggests. Assume again Christian Socialist Authoritarian efforts to hijack the country’s DNA are rebuffed. Still, only deck chairs are moved. No piece of paper can mandate responsible outcomes. The fragmented Movement merely will game the new framework. 10 years? 5? 20? Eventually we will be back here. Efforts to seek better outcomes merely by changing the Constitution are akin to a substance abuser who moves to a new city thinking everything will be different.

Mrs. Powell: Mr. Majority Leader, What Have We Got, Obama-Care Or A Birth Certificate?
Mr. Armey: Tax Cuts, If You Can Keep Them!

A liberal democratic republic will exist only when its people and representatives subscribe to those underlying ideals and notions. The Left [sic], progressives and decimated moderate Republicans allowed them to die largely undefended. Even in 2010 they collectively still don’t really understand what they are up against. Our government fails because its institutions have lost self-identity, something we predicted would happen under the Counter Enlightenment ideological government of 2001-2008. They can operate – even with people like Shelby and the filibuster problem – if collective institutional memory and will exist. Both don’t. More importantly, the American people must step up. A Constitution 2.0 will be meaningless without that fundamental change at the societal level. Changing the rules merely shifts how the Movement’s nihilist game plays out. The same conditions that would enable Constitution 2.0 to function also render it moot.

That’s the hard truth the ‘Left [sic]‘ is only now recognizing. (We here have all been discussing this for 6 years now). A substantial portion of the American people don’t believe in or want liberal democracy. They will play along to gain power but reject investment in the system should they lose. Once the Movement tasted unfetted power 2001-2008 it refuses to go back on a Ken Duberstein-esque leash. No Constitution 2.0 can accommodate that. It’s the anti-Bruce Ackerman ‘High Constitutional Moment.’ No liberal democracy can function so without descending to Weimar feebleness, contempt and vulnerability to a Man on a White Horse.

Levinson perhaps can visit CPAC. He can watch Tea Partiers on cable. Superficial tourism – like suggesting someone can conduct a real federal trial based on watching CSI. Until he, Sabato et al. are immersed in the Movement at the actual granular level, none of them can understand how irresponsible it is to urge everyone onto the Tennis Court. The question is who plays Danton.

Republics are finite. History tells us that. We are way past America’s ‘Machiavellian Moment’ – Pocock’s examination of how a Republic confronts a crisis of ideals and self-awareness. Sandy, before you open up the Constitution on the Tennis Court, think twice about stepping through that dark doorway. None of us have any idea what will emerge.

A precondition to any successful Constitutional Convention? Advocates of Constitution 2.0 first must make every concerted effort to remind the American people of their inheritance. What is it to be a liberal democratic republic? Do people want a republic as much if not more than those determined to tear it down? A republic is not $19.95 DVD players from Shanghai, tax cuts or sectarian/authoritarian cults. Franky, we don’t think the Academy and others are up to the job. If they were, we wouldn’t be in this mess in the first place.