Posted by Brad @ 5:41 pm on November 20th 2013

The Fiating of Laws, Redux

A little blog post encapsulates a lot of what we’ve been talking about, wherein politicians decide they are empowered to just make up what’s legal or not as they go, and nobody much cares to stop them.

This in regards to the filibuster change (which, btw, I am not quite sure is a breach but that’s besides the point):

Im on record as saying that a mid-session change in the filibuster rule made by simple majority vote is a breach of the Senate rules. So be it. Extraordinary abuses demand extraordinary remedies. A asymmetric political process, where one side respects convention and the other systematically abuses whatever power it has, is not sustainable.

Solution: nobody respect convention and everybody make up their own rules and laws when they’re in a position to do so because those other guys are a-holes who are just standing in the way of things.

Posted by Brad @ 12:46 pm on November 18th 2013

Supreme Court on NSA Eavesdropping:

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Posted by Rojas @ 10:59 pm on November 14th 2013

Here is where we are now.

Congress has declared that it is illegal for the insurance industry to provide specific types of policies to policyholders. The executive branch has issued an administrative ruling that these policies are not only LEGAL but that their continuation is MANDATORY if they existed prior to the passage of the law.

Which is to say that health insurers may now be punished by the government either for engaging in a specific form of behavior, or for not engaging in the same behavior.

This is insanity and I am ashamed I was ever on the fence about it.

Posted by Rojas @ 5:27 pm on November 14th 2013

The Internet approaches Peak Gwar

I don’t know if the omnipresence of my favorite mutants is a new phenomenon or whether I’m just noticing it for the first time. Anyway, this is apparently happening now.

Posted by Rojas @ 2:22 pm on November 14th 2013

“Obamacare is settled law…”

…except for the employer mandate, which can apparently be rescinded by the executive despite the fact that it’s a specified element of the legislation that Congress passed and the President signed. And also, except for the timetable for the creation of exchanges, which was also specified in the legislation, but which administrators can alter at a whim. And now, except ALSO for the provisions concerning which health plans are compliant with the law, which is ALSO apparently something that the executive can alter through what the Speaker of the House, ironclad opponent of any Republican tinkering with Obamacare, is calling an “administrative fix.”

I suppose that I support each of these reforms individually, but I cannot for the life of me figure out why each of them is not wildly, insanely illegal. These are not questions of implementation, they are EXPLICIT PROVISIONS OF THE LEGISLATION CONGRESS PASSED.

One thing is certain: the Democratic talking point that the debate over Obamacare was settled at the time the law passed is now kaput. If the legislation is open to random amendment by the executive, there can be no justification for excluding the rest of the people’s elected representatives from the process.

I did not see any of this coming. I thought we’d created a new entitlement that would outlive me and would gain currency as more and more people became clients. It’s not working out that way, is it?

Posted by Rojas @ 9:06 pm on November 11th 2013

The ugly questions of Libertarianism

Immunity to disease is best fostered by collective vaccination–by some estimates, 95% vaccination is necessary to confer meaningful protection from disease among non-immunized members of a population, or among those whose immunization has worn off.

Immunizations for many diseases are now down to the 90% range due to the anti-immunization rantings of the likes of Jenny McCarthy. Under ordinary circumstances one would support the right of individuals to run their own risks by not being immunized. This journalist who has contracted whooping cough isn’t fond of that idea.

What do you think? Do the public health issues raised by a lack of immunization make a compelling case for making the process compulsory? Or are outliers of this sort no big whoop?

Posted by Brad @ 3:00 pm on November 4th 2013

A Disturbing Cross Current on the NSA Stuff

As mentioned, Keith Alexander and David Cameron have both expressed their equation of journalism which reveals the scope of our surveillance state with terrorism or something like it. That can get silly, as with the NSA taking action against a parody coffee mug maker, or it can begin to get dead serious, as with the British government’s legal assertion today that what David Miranda was doing – presumably ferrying some copies of Snowden-leaked documents between the Guardian and Glenn Greenwald – was, in their words, “terrorism“.

Now, that might sound like courtroom defensive bluster – and of course it is – but let’s not kid ourselves either. The government – the UK in this case and certainly the US – have already proven that when they call something “terrorism”, it means that said thing is no longer subject to the judicial process. Words, in this case, matter a helluva lot, because by merely INTERNALLY APPENDING the word or concept to a sort of action, that suddenly means the government can treat it essentially however it wants – merely internally considering someone a terrorist or involved in terroristic activity means you go from having to be prosecuted to giving the government the carte blanche right to murder you without charge or trial, for instance. That’s not alaramist – that is the mere fact of the legal paradigm the governments now operate in. Once something is defined into the “terrorist” camp, the government essentially believes that no legal protections apply any longer and whatever actions can or can’t be taken against the subject or activity is from then on a matter purely of internal discretion. In this case, the government is signaling – whether they intend to be or not – that merely applying the normal detention and judicial review process at all in Miranda’s case is a courtesy – not an obligation on their part and certainly not a right on Miranda’s. And, if they get any judge to agree with them, that will be absolutely true and solidified in legal opinion (and even then, if a judge rules against them it remains to be seen how binding they view the decision).

Think of all the things that are true of a subjects rights or lack of them when the “terrorism” word cloud comes into play. Think of the free reign that the mere presence of that word cloud gives our surveillance and national security states in casting offing the yoke of legal process or review or transparency. Now imagine that coming into play in cases of reporting on the surveillance and national security states. Imagine the power of a government agency that not only has total free reign over its mandate, powers and authority, but that same reign over what the outside world is allowed to know about its mandate, powers, authority, and activities. That is what the UK and US have long believed should be true as it pertains to our national security state. And they are increasingly and unashamedly taking steps towards making it so – relatively light steps right now, but ones that can become iron-booted very quickly (as was the progression in its terrorism powers, which went from dodgy internal test cases to enterprise-wide institutionalization and new standard operating paradigm in the span of less than a decade).

And bear in mind that Snowden, Greenwald and the Guardian already represent the fringes of journalism at this point in relation to these stories. For the most part, the media is as “in the bag” as lawmakers and judges in terms of rubber-stamp “trust them because terrorism!” when it comes to national security. And even they, along with Wikileaks and Anonymous and a random grab-bag of weirdos and un-well-behaved men and women, represent the only meaningful pushback left. Oh we’ll get some kind of reform from Congress – but, of course, be careful what you wish for there. But the truth of it is the sky has already fallen, as it were. And while things like the UK government deeming Miranda’s activity to be terrorism may seem like a far overreach or a frightening but self-contained outlier, they are in fact quite the opposite. These are not pushes towards some new paradigm – rather, they are the final cinching-offs of the old one.

It is not

Posted by Brad @ 5:46 pm on November 1st 2013

The NSA and the Clear Picture We Have of Motives and Intent

Im gonna talk, from the heart, so that you know what were talking about here, from an NSA perspective, is what the nation needs to know and hear, he said. How did we end up here? 9/11. Two-thousand nine-hundred and ninety-six people were killed on 9/11. We all distinctly remember that. What I remember most is those firemen running up the stairs to save people, and then lose their lives.

Keith Alexander testifying

He suggested the outrage and surprise expressed by representatives of allies in recent days was naive or disingenuous and reminded him of a line from the movie “Casablanca.”

“‘My God, there’s gambling going on here?’ It’s the same kind of thing,” he said.

Jack Clapper testifying

A lot of stuff has been leaking or being straight up said out loud about the NSA’s surveillance enterprise in the last two weeks. From the straight up admission that we feel no compunction about tapping Angela Merkel’s cell phone to back-and-forths about whether Obama even knows about that kind of stuff or whether the NSA even feels an obligation to tell him, to reports hotly denied that we as a matter of course surveil any foreign communication we feel like at any time for any cause (hotly denied but with an added “but you know even if we did F you”) to continued leaks about the sheer scope and scale of domestic surveillance which is, apparently, total, as the latest leak today notes that the NSA has essentially hacked Google and Yahoo and directed all their data straight to For Meade, and even, finally, continued assertions from guys like Keith Alexander to David Cameron that the only real problem here is journalism, which really probably ought to be outlawed as it relates to the NSA or the international surveillance state.

One can quibble with any number of discrete issues raised about the NSA since Snowden – one can make waving hand gestures about diplomatic espionage being par for the course (although what the hell you’d hope to learn from Angela Merkel’s texts, I have no idea), about the bigger debate about security vs. privacy, about the efficacy of data collection in the digital age, whatever. But here is the thing that strikes me.

Keith Alexander, in one breath, says that we need all these efforts because 911 – and in general, proponents of them argue about their necessity in the fight against terrorism.

And in the other breath, when it comes to using those same powers and that same agency to tap the German chancellor’s cell phone, or to divert entire email accounts to a data collection agency, the answer is “whatever man – why the fuck not?” or “smiley face“.

The truth of the matter, I think, is that the NSA doesn’t particularly know or care why it’s doing any of this stuff – or at least insofar as it does it does so in some Alexander-esque unspecific abstract way (“Because, 911”) rather than any – ANY – specific evaluation of threat, resources, legality, and efficacy. The truth of the matter is that our surveillance state is, at this point, self-justifying. It does these things simply because it can, and grandfathers in justification (when it even cares or bothers to) only to shut up external parties. And its overseers, in so far as there are any – from the President to Congress – are merely dogs to throw bones to, or guys to write blank checks for. They are not in meaningful control, even if they wanted to be – which they don’t, particularly.

The goal is total information awareness. And it’s not just that they don’t take privacy seriously – I believe they don’t even consider privacy at all. It’s a moot point, if it was a point at all. This is not a legal or values debate to the people setting or executing against goals. This is an engineering problem to be solved. I honestly believe that the question of “should” we do this or that probably doesn’t even come up, except as a question of resources (and even then, is more a question of “how”). It’s all “can”. And frankly I’m not even sure if terrorism is really anything more than a side benefit at this point.

In other words, it is starting to seem for all the world like our surveillance state has nearly ceased being driven by specific motives or even cost-benefit analysis at all, and has simply become. It exists for its own inertia. And grows…and grows…