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Saturday, May 13, 2006
Daughtry Never had a Chance:
There was lots of distress and amazement in the Idol-watching blogosphere after the audience voted Chris Daughtry off the show. Many folks, including Ann Althouse and some of the show’s judges, thought Daughtry was the favorite to win it all. I will admit, that after watching some of his performances with Redheadlaw7, I was impressed; that performance of Fuel’s Hemorrhage was hot.
Despite his stage presence and rock talent (and the fact that he’s a nice guy), I never thought Chris would win. My assumption is that those who vote on American Idol roughly represent those who listen to Top 40 radio (and drive the weekly Billboard chart). And I never thought an authentic rocker, like Chris, could ever win a majority of that audience. While the occasional rock ballad or party song may climb the singles chart, this sort of music is inevitably swamped by catchy (if not also syrupy) pop tunes.
Chris did well so long as his performances were strong, and there were enough remaining contestants to divide up the audience vote. As those left standing dwindled, it was only a matter of time before he was voted off.
Despite his loss, Daughtry will land on his feet. Rumor has it he is going to be the next lead singer of Fuel, because they were so impressed with his performances on the show. Whether or not this pans out, he has a promising rock career ahead of him.
When Will Iran Have the Bomb?--
The insightful (but sometimes unreliable) Debka.com, presumably relying on its sources in Israeli intelligence, has an interesting short post (dated May 13) suggesting that the US and Israel differ on estimates of when Iran will have the bomb. The US estimates 3-4 years, while Israel suggests 2 years:
Ten days before Ehud Olmert pays his first visit to Washington as Israeli prime minister, US intelligence is digging in its heels on its own timeline, which estimates that Tehran needs at least three to four years in stages to reach the point of being able to produce weapons-grade enriched uranium for a bomb and nuclear-capable ballistic missiles. The view there is that military action need not be considered before then.
This distancing from the Israeli estimate cut the ground in advance from the main theme Olmert proposed to raise in his talks with US leaders.
The message Washington delivered in advance of those talks was that Jerusalem would not be allowed to dictate American moves – diplomatic or military – on the Iranian crisis. The Olmert government would be best advised to line up behind Washington on this issue, as did the Sharon government in 2003 before the US invasion of Iraq. . . .
Olmert may be confronted in his talks with the president, vice president and secretaries of state and defense, with an American demand for a guarantee against any unilateral Israeli initiative on Iran without first touching base with Washington.
The Bush administration turned tough, according to DEBKAfile’s Washington sources, after receiving a briefing from two high-ranking US officials on secret talks they held with top Israeli government officials last week. The visitors, Stuart Levey, US Treasury Undersecretary for countering terrorist financing and a National Security Council Iran expert, found the Israeli government ill-informed and unfocused on the specifics of the Iranian nuclear program. They also reported that Israeli officials were not on top of the methods by which Iran finances its clandestine nuclear activities and feeds money to Tehran-sponsored terrorist, including the radical Hizballah and Palestinian Hamas.
I know Stuart Levey only slightly, but he strikes me as a serious and capable guy.
Failing to Learn the Lessons of United 93:
Prominent columnist Michael Kinsley writes:
So, what's the lesson [of United 93]? Is it to defy authority and follow your own instincts in an emergency? If so, we haven't learned it. For a while after 9/11 there was talk of changing the official policy regarding hijackings and to start encouraging the passengers to whack the hijackers with their pillows, and so on.... But today, airline passengers are still told at the start of every flight that in an emergency they should remain calm and follow instructions from anyone in a uniform....
Poking around the Web, I stumbled across the official "Hijacking Survival Guidelines" for employees of the U.S. Department of Agriculture. They say, "Stay calm and encourage others around you to do the same. Do not challenge the hijackers physically or verbally. Comply with their instructions. Do not struggle...."
So the U.S. government is kicking in millions of dollars for a memorial to the heroes of United 93. But meanwhile it is officially encouraging people not to do what these heroes did, should the occasion arise.
Should another hijacking occur, I think many passengers are likely to resist the terrorists regardless of what government bureaucrats might say. Flight 93 has entered the popular consciousness in a much more powerful way than any government-issued instructions could. Still, it is deeply troubling that the homeland security bureaucracy can't get this relatively simple issue right. If they can't even learn the most obvious lessons of the last major terrorist attack, I highly doubt that they can effectively prepare for the next one.
Larry Darby, Holocaust-Denying Atheist Alabama Attorney General Candidate,
is in the news again (thanks to InstaPundit for the pointer); for more on this fellow and his remarkable views about the Holocaust, our "Zionist-Occupied Government," and more, see here.
Falkenrath on the NSA Call Records Program:
In today's Washington Post, Richard Falkenrath defends the NSA call records program. He has this discussion of its legality: There are, of course, strict legal limits on the ability of federal agencies such as the NSA to compel the provision of domestic information or to collect it secretly. The USA Today story, however, alleges that three telecommunications companies — AT&T, Verizon and BellSouth — provided it voluntarily. How else could one company (Qwest) decline to provide the information? Since there is no prohibition against federal agencies receiving voluntarily provided business records relating to their responsibilities, it appears that the NSA's alleged receipt and retention of such information is perfectly legal.
The three companies reported to have supplied telephone records to the NSA also appear to be acting lawfully. The Telecommunications Act of 1934, as amended, generally prohibits the release of "individually identifiable customer proprietary network information" except under force of law or with the approval of the customer. But, according to USA Today, the telephone records voluntarily provided to the NSA had been anonymized. In addition, the Electronic Communications Privacy Act of 1986 explicitly permits telecommunications companies to provide customer records to the government if the government asks for them. So it would appear that the companies have been acting not just in the public interest, but also within the law and without encroaching on the privacy of any of their customers. Three quick thoughts in response, taking these points in turn: 1. I think it's right that the NSA did not act unlawfully by receiving and retaining the records. It may be a different picture if, as some stories have reported, the NSA was doing more than just receiving and retaining. But receiving and retaining alone doesn't violate the law. If that's all the NSA did, the issue is the liability of the phone companies, not the liability of the NSA. 2. I don't know much about the Communications Act of 1934, so I can't speak to this issue. Can others fill us in on whether this argument is correct? (Preferably with actual legal support rather than mere conclusions.) 3. Falkenrath is just wrong about ECPA. He states that "the Electronic Communications Privacy Act of 1986 explicitly permits telecommunications companies to provide customer records to the government if the government asks for them." No, it doesn't. There is no "government request" exception to the ban on disclosure. I gather the exception Falkenrath has in mind is 18 U.S.C. 2702(c)(1), which allows disclosure if the government has a valid court order or subpoena under 18 U.S.C. 2703. But that exception only applies when the government is compelling the disclosure with a valid court order or subpoena. (There is also a curious exception allowing the government to get the names and phone numbers of suspected telemarketers in telemarketing fraud cases, but that's obviously inapplicable here.) News reports indicate that the government did not have a court order or subpoena or other legal order. Given that, the exception does not apply.
Another Reason to Try VOIP:
If the low price were not enough, Mark Kleiman suggests VOIP as an alternative to traditional telephone service for those of who don't live in Qwest territory. (Of course, if the non-Qwest telcos can be held liable for their cooperation with the NSA — a posibility Orin explores here — that would be a reason to reconsider one's investment portfolio as well.
UPDATE: Based on early polling, it doesn't seem too many people will follow Kleiman's advice.
SECOND UPDATE: Then again, these poll numbers suggest something different.
Related Posts (on one page): - Another Reason to Try VOIP:
- I'm switching to Qwest:
Friday, May 12, 2006
Off to Argentina:
Fleeing from the hordes of rampaging federal judges angered by my suggestion that their salaries don't need to be raised, I am leaving for Argentina on Sunday. Blogging will be light (and possibly nonexistent) for the next 2 weeks.
However, for South American VC readers (perhaps there are at least a few!), I will be speaking at the Torcuato di Tella University law school in Buenos Aires on May 16 (5 PM) on judicial power and democracy and at the Latin American and Carribean Law and Economics Conference on May 19 (same location, 10:20 AM) on rational political ignorance. All are welcome to come! My presentations will be in English. The story of my academic career is that I only get invited to speak in those foreign countries where I don't know the local language.
Civil Liability and the NSA Call Records Program:
Some bloggers are trying to figure out the potential civil liability of the telephone companies if they violated the Stored Communications Act by disclosing call records to the NSA without a court order. I would guess that a lawsuit has been filed already, and if it hasn't a bunch are coming soon. If a court finds that the telephone companies violated the Stored Communications Act, will they face liability in the range of billions of dollars? I have two quick thoughts for those that want to look into this in more detail. First, be sure that you consider the good faith exception to liability under the statute, 18 U.S.C. 2707(e): A good faith reliance on—
(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization (including a request of a governmental entity under section 2703 (f) of this title);
(2) a request of an investigative or law enforcement officer under section 2518 (7) of this title; or
(3) a good faith determination that section 2511 (3) of this title permitted the conduct complained of;
is a complete defense to any civil or criminal action brought under this chapter or any other law. The language here is really unclear as a textual matter, but there are some cases on what it means in the analogous context of the Wiretap Act. When I looked into this when I was writing the DOJ manual, I found a big difference between how courts interpreted the exception in the context of government vs. civil action: The relatively few cases interpreting the good-faith defense are notably erratic. In general, however, the courts have permitted law enforcement officers to rely on the good-faith defense when they make honest mistakes in the course of their official duties. See, e.g., Kilgore v. Mitchell, 623 F.2d 631, 633 (9th Cir. 1980) ("Officials charged with violation of Title III may invoke the defense of good faith under § 2520 if they can demonstrate: (1) that they had a subjective good faith belief that they were acting in compliance with the statute; and (2) that this belief was itself reasonable."); Hallinan v. Mitchell, 418 F. Supp. 1056, 1057 (N.D. Cal. 1976) (good-faith exception protects Attorney General from civil suit after Supreme Court rejects Attorney General's interpretation of Title III). In contrast, the courts have not permitted private parties to rely on good-faith "mistake of law" defenses in civil wiretapping cases. See, e. g., Williams v. Poulos, 11 F.3d 271, 285 (1st Cir. 1993); Heggy v. Heggy, 944 F.2d 1537, 1541-42 (10th Cir. 1991). I'd need to re-read those cases to get better up to speed on this, but it's not obvious to me whether a court would see this as a government good-faith case or a civil good-faith case. It's kind of a mix. Second, from a practical perspective it's worth asking how far a suit would go given that the Administration would presumably try to stop the suit by invoking the military and state secrets doctrine (.pdf), as they did recently in a suit over telco involvement in the 1st NSA program. It's unclear how those claims will pan out -- either in the EFF case or in one filed against the telephone companies for this program -- but they are at least a significant roadblock to an attempt to recover damages against the telephone companies for the disclosure. (cross posted at OrinKerr.com)
Careful With That Inference:
Folks, I'm glad you like reading the blog, and find my posts worth closely scrutinizing -- but there really is no need to overread between the lines. A commenter on an earlier post writes:
What's with the literary quotes today? Employing the maxims of implicature, we can infer that Eugene is trying to convey some relevant message. The analogy seems to be that we Americans are too unwilling to defend ourselves today.
So, Professor: is the mssage "we should be cheering the latest illegal NSA program" or "we should invade Iran"?
The commenter, I'm afraid, is inferring what I am not implying. I started reading Rebecca West's chapter because I liked the "It was good to take up one's courage again" quote that someone had posted on another blog months ago; and it did seem linked to the posts about courage, which were in turn triggered by the Ayaan Hirsi Ali story. I blogged the first set of quotes because of the link to courage. I blogged the second quote because I ran across it in the same reading session, because it struck me as eloquent and moving, and because I am pretty interested in history. I had hoped that my readers would be moved by it as I was -- always a good reason, I think, to pass along quotes.
But if you absolutely must try to infer some deeper message -- and, I stress again, I'm flattered that you'd want to, but I don't see why you should -- consider the possibility that, contrary to the (often accurate) stereotype of Americans, not all of my messages are about Americans.
Perhaps the West quote is apt about certain aspects of European society today; we've all heard things said that suggest it might be. Or perhaps not. If you as a reader find that resonance, great. If not, you might just find the quote moving as a commentary on a trait that sometimes arises in human nature, for instance in the era or eras about which West was writing.
"The Idea of Self-Preservation Was as Jealously
Guarded from the Young as the Facts of Sex Had Been in Earlier Ages": One more quote from Rebecca West, writing about the English after World War I (Black Lamb and Grey Falcon (1941), Epilogue, p. 1122, paragraph breaks added):
The sense of guilt which is born in every man, and is willing to operate without reasonable cause, had here abundant food, and for long we had been sick with masochism.... [Many Englishmen] had lost all sense that it is sometimes necessary to fight for one's life; and many children born in the decade after the Great War can never have heard a word from their parents and teachers which suggested that their country had or could have been actuated by any motive except stuipd and credulous jingoism in taking up arms in 1914.
The idea of self-preservation was as jealously guarded from the young as the facts of sex had been in earlier ages. Thus England ... put itself in a position of insecurity unique in history by raising a generation of young men to whom the idea of defending their nation was repugnant not so much by reason of the danger involved (though indeed they were now often instructed in fear as in other times boys had been instructed in courage) as because they could not believe it would in any circumstances be necessary.
Since every day Germany and Italy were formulating in more definite and vehement terms that they meant to vanquish and annihilate England, it was amazing that it should have been possible to enclose them in the magic sphere of this illusion. It would, of course, be comprehensible had they been drugged by sensual indulgence or grown careless of honour; bet never had the mass of the people been more sober, and law-abiding, and restrained, never had they been so anxious for honourable dealings between class and class and between nation and nation.
The fault was not decadence but the desire for holiness, the belief in sacrifice, and a willingness to serve as the butchered victim acceptable to God.
Related Posts (on one page): - Careful With That Inference:
- "The Idea of Self-Preservation Was as Jealously
Judicial Pay Part II - The Non-Salary Benefits of Being a Federal Judge:
In my last post, I argued that the quality of the federal judiciary is not suffering from the fact that most judges could make far more money in the private sector. Why would outstanding lawyers be willing to become federal judges in spite of the lower pay? The answer is that being a judge has tremendous non-salary benefits relative to private practice. When these are taken into account, the total compensation of judges (salary + fringe benefits + nonpecuniary benefits) does not seem inferior to that of top private lawyers. Here are some of the relative benefits of being a judge:
I. Power and Prestige.
Federal judges have tremendous power and prestige. Whether or not the judiciary should have as much power as it does, there is little question that judges have considerable influence over law and public policy. Few if any private sector lawyers can even begin to compare.
Being a judge is also generally viewed as more prestigious than being a partner at a big law firm, even one who earns millions of dollars. Few doubt that John Roberts increased his level of prestige when he left his job as a partner Hogan & Hartson (one of the nation's best law firms) to become a judge on the D.C. Circuit.
II. Shorter Hours and Better Working Conditions.
As a general rule, judges work far fewer hours than private sector lawyers. This is not to say that judges are a bunch of lazy slackers. Far from it. But few work the 80 or 90 [update: 70 to 80 is probably more accurate] hour weeks that are routine at big law firms. Unlike private sector lawyers, judges also do not have to answer to clients and do not have to cancel vacations or make other painful, sudden changes in their schedules to accomodate client needs or those of senior partners in the firm.
III. More Interesting Work.
Obviously, this is in the eye of the beholder. However, it is fair to say that many federal judges often get to work on extremely interesting constitutional and statutory cases. Even the most highly paid private lawyers often have to spend a large proportion of their time working on relatively boring issues.
This is not to say that all lawyers would find judicial work more interesting than private practice. Tastes differ. But the key point is that a large number of top lawyers surely do find judicial work more stimulating and that is enough to ensure a high quality judiciary.
IV. Job Security.
It is perhaps an obvious point, but federal judges have virtually absolute job security for life. Even the best private law firms take the risk of going bankrupt or suffering a sudden decline in profitability that could lead to layoffs.
V. Extremely Generous Pension Plans.
As noted in my previous post, a federal judge who has reached the age of 65 and served at least 15 years can retire at full pay. Very few if any private sector law firms are equally generous.
I realize, of course, that many of these same points (except the one about power!) could be made about law professors. They help explain why our salaries are lower than those of law firm lawyers too. Fair enough. For what it's worth, I don't think that our pay is systematically inadequate either. But here at GMU, it is too low, dammit:)!
UPDATE: For the benefit of non-lawyers (and fearful law students!), I should make it clear that the 70-80 hour work weeks I referred to are prevalent only at big firms in several major markets. Lawyers in secondary markets or at smaller firms typically work fewer hours (though still quite a lot). On the other hand, these other types of lawyers typically earn lower salaries than federal judges do. According to the US Department of Labor, the median lawyers' salary (as of 2004) is just under $95,000. I am NOT arguing that judges should be paid the same salary as the median lawyer. But it is important to understand that those lawyers who earn far more than the median (and especially those who earn far more than federal judges) typically work far longer hours than judges do. Related Posts (on one page): - Judicial Pay Part II - The Non-Salary Benefits of Being a Federal Judge:
- Are Federal Judges' Salaries too Low?
"Let Nobody Belittle Them
By Pretending They Were Fearless": It was good to take up one's courage again, which had been laid aside so long, and feel how comfortably it fitted into the hand. So wrote Rebecca West, writing in the Epilogue to Black Lamb and Grey Falcon p. 1125 (1941), of the English right after the fall of France (thanks to Richard Aubrey for first pointing out this quote). Yet important too is what follows a few pages later (p. 1130) (paragraph break added):
Most [Londoners, after and during] the fall of France believed, and rightly, that they were presently to be subjected to a form of attack more horrible than had ever before been directed against the common man.
Let nobody belittle them by pretending they were fearless. Not being as the ox and the ass, they were horribly afraid. But their pale lips did not part to say the words that would have given them security and dishonour.
Hillary, in High Curmudgeon:
As quoted in the New York Post — "Kids, for whatever reason, think they're entitled to go right to the top with $50,000 or $75,000 jobs when they have not done anything to earn their way up .... A lot of kids don't know what work is. They think work is a four-letter word.... We've got to send a different message to our young people. America didn't happen by accident. A lot of people worked really hard. They've got to do their part, too."
Kids these days! Why, when I was a kid — walk to school — snow, six feet deep — both ways — shoveled manure for the pennies that I could find in it — grumble grumble grumble — o tempora, o mores . . . .
(By the way, I agree with the sentiment starting with "America didn't," and for all I know she's right about kids' attitudes these days — I just thought it was funny.)
UPDATE: Commenter Riskable writes: I'd just like to point out a simple fact that everyone else seems to have missed: One has only to point a finger at the preceding generation to find exactly who is to blame for "kids these days."
More Thoughts on the Legality of the NSA Call Records Program:
We now have a slightly better idea of the factual and legal issues surrounding the newly-disclosed NSA Call Records program, and I thought I would offer a second analysis that is more focused and more factually informed than the one I posted this morning. My still-very-tentative bottom line: The companies were probably violating the Stored Communications Act by disclosing the records to the NSA before the Patriot Act renewal in March 2006, although the new language in the Patriot Act renewal at least arguably made it more likely that the disclosure was legal under the emergency exception. First, let's update the facts. It now looks relatively clear that the NSA was not directing the telephone companies to conduct any particular monitoring on the NSA's behalf. Rather, NSA officials were persuading the telephone companies to voluntarily disclose their call records to the government. In other words, the government wasn't actually doing the monitoring, but instead was encouraging the telephone companies to disclose call records to them that the telephone companies already had collected. In light of those apparent facts, the key issue to me becomes whether the disclosures were permitted under the Stored Communications Act, and specificially 18 U.S.C. 2702. (For a "user's guide" to the Stored Communications Act, see here). Telephone companies are providers of "electronic communications service to the public" under the Act, and the Act regulates when providers can disclose non-content records of account information to the government. The ban is in Section 2702(a)(3): [A] provider of . . . electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications . . . ) to any governmental entity. Of the possible exceptions to the statute, three are most likely to be relevant. They permit disclosure under the circumstances listed in 18 U.S.C. 2702(c), as amended by the Patriot Act renewal of 2006: (2) with the lawful consent of the customer or subscriber;
(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency[.] (Note that the link to the Cornell site's text of 2702 does not have the latest version of the exceptions, as it was last updated in the fall of 2005 and the exceptions were amended in March 2006. I was unable to find the new version on a website, and ended up taking it from Westlaw.). Let's take each of these exceptions in turn. (1) The first exception permits disclosure if the subscriber consents. There are no cases interpreting eactly what consent means in 2702(c)(2), but like many of the exceptions in the SCA it is clearly a copy of an analogous exception in the close cousin of the SCA, the federal Wiretap Act, 18 U.S.C. 2510-22. We do have lots of cases on what consent means in the context of the Wiretap Act, so those cases presumably create the applicable standard here. The basic rule: Consent means that the user actually agreed to the action, either explicitly or implicitly based on the user's decision to proceed in light of actual notice. Here's what the First Circuit said on this in United States v. Lanoue, 71 F.3d 966, 981 (1st Cir. 1995): Keeping in mind that implied consent is not constructive consent but 'consent in fact,' consent might be implied in spite of deficient notice, but only in a rare case where the court can conclude with assurance from surrounding circumstances that the party knowingly agreed to the surveillance. We emphasize that consent should not casually be inferred, particularly in a case of deficient notice. The surrounding circumstances must convincingly show that the party knew about and consented to the interception in spite of the lack of formal notice or deficient formal notice. Did users consent to the disclosure under this standard? The Washington Post reports that government lawyers seemed to think so, based on small print in the Terms of Service of the telephone service customer agreements: One government lawyer who has participated in negotiations with telecommunications providers said the Bush administration has argued that a company can turn over its entire database of customer records — and even the stored content of calls and e-mails — because customers "have consented to that" when they establish accounts. The fine print of many telephone and Internet service contracts includes catchall provisions, the lawyer said, authorizing the company to disclose such records to protect public safety or national security, or in compliance with a lawful government request. . . . Verizon's customer agreement, for example, acknowledges the company's 'duty under federal law to protect the confidentiality of information about the quantity, technical configuration, type, destination, and amount of your use of our service,' but it provides for exceptions to 'protect the safety of customers, employees or property.' Verizon will disclose confidential records, it says, "as required by law, legal process, or exigent circumstances." This seems like a very unpersuasive argument in light of the cases construing consent under the Wiretap Act, of which the consent provision in the SCA is a mirror. It reminds me of the argument that a DOJ lawyer once tried to make that monitoring prison phones was allowed because language in the Code of Federal Regulations clearly notified prisoners that their phones would be monitored. According to the lawyer, the notice in the fine print of the CFR was sufficient to make the monitoring consensual. Judge Posner rejected the argument, calling it "the kind of argument that makes lawyers figures of fun to the lay community." United States v. Daniels, 902 F.2d 1238 (7th Cir. 1990). In light of these cases, I think the consent argument is weak. (Incidentally, if you look up Daniels, note that Posner incorrectly states later in the opinion that the Second Circuit accepted such a weak notice argument. If you read the Second Circuit case, it is clear that the CA2 did no such thing and that Posner was just being sloppy.) (2) The next possible exception is disclosure "as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service." This is known as the provider exception, and is also a copy of an analogous exception from the Wiretap Act, 18 U.S.C. 2511(2)(a)(i). You can read all about this exception here: basically, it gives providers rights to disclose information to the government to help the providers combat illegal service and unauthorized use of the network. It seems pretty clear that this doesn't apply: The cases make clear that the provider exception exists to further provider interests, not government interests. (3) The third and final exception is the emergency exception, which permits providers to disclose "if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency." At the outset, it's worth noticing something very interesting about this language: It is almost brand spanking new. The language that passed as part of the Patriot Act in 2001 allowed disclosure only when "the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information." This was the language in place from October 2001 until March 2006. Did the phone companies have such a belief under the 2001-06 language? I gather they had a reasonable belief of danger, but I don't know of a reason to think that they had a reasonable belief of "immediate" danger. If this was a program ongoing for several years, then it's hard to say that there was a continuing reasonable belief of immediate danger over that entire time. As noted above, though, the Patriot Act renewal passed in March 2006 changed this language. And it did so in a way with potentially important implications for the legality of the NSA call records program. The new exception states that disclosure is permitted "if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency." Few people were paying attention to this change at the time, but I would guess that it was very important to the telephone companies: The change expanded the exception to allow disclosure when there is a good faith belief instead of a reasonable belief, and when there was a danger instead of an "immediate" danger. I wouldn't be surprised if the telephone companies were pushing the change in part out of concern for civil liability for their participation in the NSA call records program. (Or perhaps not, come to think of it: Does the new language suggest that the information disclosed needs to relate to the emergency to be covered? What if the provider doesn't know what information relates to the emergency?) More tomorrow, I hope. (cross posted at OrinKerr.com)
Are Federal Judges' Salaries too Low?
One thing that federal judges across the political spectrum agree on is that they deserve a raise. According to Chief Justice John Roberts' 2005 Year End Report on the Federal Judiciary, low pay is a "threat to judicial independence" because "[i]f judges' salaries are too low, judges effectively serve for a term dictated by their financial position rather than for life." This debate will no doubt be rekindled by superstar Judge J. Michael Luttig's recent resignation to take a job as General Counsel at Boeing. Indeed, Judge Luttig cited the need to pay for his children's college tuition as one of several factors behind his decision.
I don't blame judges for wanting higher pay. But there is little evidence that the federal judiciary is losing good people because the pay is too low. Currently, federal judicial salaries are as follows:
Chief Justice of the Supreme Court: $212,000
Associate Justice: 203,000
Court of Appeals Judge: 175,100
District (trial) Judge: 165,200
Judges of specialized federal courts earn salaries comparable to those of appellate and district judges (see link above). At these pay levels, few federal judges are likely to be living from hand to mouth. Even so, it is certainly true that most of them could earn far more money in the private sector.
But it is not true that the federal judiciary is losing any significant number of good judges as a result. Although I do not have systematic data on this, anecdotal evidence and personal experience strongly suggest that there is no shortage of outstanding lawyers who would love to become federal judges, including many who would have to take a big pay cut as a result. Brett Kavanaugh (current D.C. Circuit nominee who was a partner at a major firm before entering government service) and C.J. Roberts himself (a partner at powerhouse D.C. law firm Hogan & Hartson before becoming a circuit judge) are two of many examples.
What about the danger of good judges leaving the federal judiciary prematurely in order to make money? Here, we do have some data. Chief Justice Roberts' report (link above) indicates that 92 federal judges left the bench between 1990 and 2005. Roberts claims that this is an alarmingly high number. However, there are currently some 678 federal district judges, 179 circuit judges, and 9 supreme court justices, for a total of 866. Justice Roberts' figures indicate that about 6 to 7 of them leave the bench each year. That is less than a 1% annual attrition rate (even if we factor in the fact that the judiciary was smaller in the 90s than today)! Very few, if any, other occupations have such low turnover. This suggests that being a federal judge is an extremely attractive job, notwithstanding any financial hardship.
Moreover, the above analysis assumes that all 92 judges resigned because of dissatisfaction with pay. As Roberts notes, however, 71 of them resigned only after reaching retirement age (he actually emphasizes the 21 who resigned early, but the other side of the equation is surely more significant). It is plausible to assume that many if not most of these resignations were due to illness, old age, or a desire to enjoy one's retirement years in peace. Federal judges who have reached the age of 65 and have served at least 15 years have the right to retire while still retaining their full salary. This creates a strong incentive to retire and cash in once the age of 65 is reached.
Roberts does note that 59 of the 92 judges who resigned went into private practice, which is a point in favor of his argument. However, even if all 59 left for financial reasons (an implausible assumption), this is still only a tiny fraction of the total number of judges (about 0.7% per year). Finally, it is worth noting that I have assumed that the Chief Justice was only counting Supreme Court, court of appeals, and district judges. If the figure also includes resignations by judges of specialized courts, then it would be a much smaller fraction of the total. Unfortunately, the report is unclear on this point.
Despite the Luttig resignation, there is little if any evidence that the quality of the federal judiciary is suffering because pay is too low. Nevertheless, there are two potential caveats to this conclusion. First, it is theoretically possible that a large pay increase would attract at least a few more superstar types comparable to Luttig. If so, it might be worth it, given the disproportionate impact a superstar can have on the quality of judicial precedent. However, I am somewhat skeptical that this conjecture is correct. Second, I think there is a good case for making judicial pay inflation-adjusted and for giving cost of living adjustments to judges located in particularly expensive areas such as New York or San Francisco.
Update: My original post missed a small pay increase for federal judges enacted in January of this year. The salary figures in the post have been edited to reflect the changes. Hat tip to Benjamin Shatz.
Thursday, May 11, 2006
Good Books About the Fall of the Soviet Empire:
I read and enjoyed David Remnick's Lenin's Tomb, but I was wondering if there were other good ones, especially ones that covered slightly different territory (such as what happened in Eastern Europe). If you have some recommendations, please post them in the comments. Thanks!
Gas prices are higher, and that's a good thing:
Judge Posner has a typically provocative view of the recent spike in gas prices. He even suggests that if the price doesn't stay high, gas should be taxed more to keep it high.
From the broad national standpoint, we should welcome high gasoline prices because it is in the national interest to reduce our consumption of gasoline, and high prices will do that, dramatically so in the long run when more substitution is possible. The burning of gasoline in vehicles creates pollution and emits carbon dioxide that contributes significantly to global warming; and curtailing driving in order to reduce the consumption of gasoline would alleviate traffic congestion. Furthermore, a large part of the world's oil supply comes from nations such as Venezuela, Nigeria, Iraq, Iran, Saudi Arabia, and Russia that are actually or potentially unstable, hostile to the United States, or both, and it would be prudent to reduce our dependence on such suppliers. And in fact output has fallen recently in the first four nations in the list, which has contributed to the price spike.
But the best way to keep gasoline prices high may be through heavy taxes, which might actually reduce the cost of oil and hence the incomes of the oil-exporting nations (which is in the U.S. national interest to the extent that those nations are indeed hostile, as Iran notably is). If, by increasing the price of gasoline, taxes reduce consumption, the price of oil will decline because the average cost of oil increases with the quantity produced. Just as an increase in demand will cause higher-cost oil to be produced--oil that would not have been economical to produce when the market price was lower--so a reduction in demand will cause that higher-cost oil to be withdrawn from the market and so the average price of oil will fall. In effect, income of the producing nations will be transferred to the consuming nations in the form of gasoline taxes imposed by those nations.
Judge Posner acknowledges in a follow-up post that high gas prices maintained through more taxation will disproportionately hurt people of moderate income. But, he suggests, that problem could be dealt with by phasing in the taxes and by making gas taxes revenue-neutral through tax relief targeted to those consumers.
Judge Posner's analysis highlights an irony in the current political atmosphere. On the one hand, the Bush administration has suffered relatively little in public opinion for a number of problems over which it has substantial control: indefinite detentions of American citizens without charge or trial, the abuse of prisoners, warrantless domestic surveillance, and the extraordinary growth in the federal deficit, to name a few. On the other hand, the Bush administration has suffered grievously in public opinion for rising gas prices, a trend it cannot and — if Judge Posner is right — should not reverse.
Judge Issues Temporary Restraining Order Barring the Operation of a Web Site:
According to the Danville Register & Bee,
Jerry and Melissa Guyles -- the parents of a recently expelled cadet -- [were using] their Web site, www.HargraveHasProblems.com ... to publicly question Hargrave president Wheeler Baker’s leadership and his handling of their son’s dismissal.
Hargrave sued for libel, and a federal judge issued a temporary restraining order, pending trial, enjoining the Guyleses (among other things) from:
a. continuing to operate the website HargraveHasProblems.com and/or from creating any other websites which disparage, defame, vilify, and/or contain false statements concerning Baker, Hargrave, and/or its administration, faculty, staff, and students;
b. continuing to solicit, contact or otherwise communicate with any parents or guardians of current, former, or prospective Hargrave students or any other persons or entities for the purpose of interfering or continuing to interfere with Hargrave's contractual relationships and/or expectancies; ...
Seems to me like a quintessential unconstitutional prior restraint -- a court order that's entered prior to a finding on the merits that the speech is constitutionally unprotected (in this case, consisting of false statements of fact). The government may indeed sometimes impose liability after a trial on the merits that finds that statements are false. In some situations, it may even be able to impose criminal liability after a trial on the merits that makes such a finding. But the prior restraint doctrine generally bars the court system from suppressing speech before any such finding, especially when the court order goes far beyond false statements -- for instance, statements that merely "disparage" the school, or that communicate opinions or true statements aimed at persuading people not to deal with Hargrave.
I can understand why the court would want to issue a temporary injunction pending a trial on the merits, in case the trial ultimately does find that the speech is unprotected. But as the Supreme Court held in Vance v. Universal Amusement Co. (1980), such temporary restraints on speech -- which may be entered based on a mere finding of likely success on the merits, following a highly truncated factfinding process -- are generally unconstitutional.
Many thanks to Becky Dale for the pointer to this case.
How The Latest NSA Surveillance Story Is Different From the Last One:
Some blogs are suggesting the latest NSA domestic surveillance story is old news, and that the MSM is just pretending that this is a new story. See, e.g., Newsbusters, which is dedicated to "exposing and combating liberal media bias." I think a bit of clarification might be helpful here. As I see it, this story is really new, and is pretty different from the earlier NSA domestic surveillance stories from December and January. The earlier stories involved governmental tapping of telephone calls and e-mails when one party was outside the United States. That is, they involved the NSA recording the telephone calls and e-mails of people inside the United States from switches inside the United States when the other participant was outside the United States. Further, it seems that the government sharply limited that monitoring to a few hundred or a few thousand people, and only tapped calls when it had something like probable cause. Today's story is different. As best I can tell, it involves telephone companies disclosing account records of how their domestic customers were using their phones. In other words, the phone companies were disclosing lists of numbers dialed for domestic telephone subscribers to the NSA, rather than letting the NSA install switches and listen in on international calls. Further, they were doing this on a much larger scale: the disclosures were not pursuant to probable cause or reasonable suspicion. We don't know all the facts yet, but this looks new to me: It's non-content instead of content, broad scale instead of narrow, stored instead of real-time, provider disclosure instead of government tapping, and domestic accounts instead of intercepting traffic with at least one party overseas.
Right-Wing P.C.:
Reason's Jesse Walker documents the growth of political correctness on the Right.
When I say "political correctness," I'm referring to an attitude, not an agenda. In some hands the term is a broad synonym for censorship and groupthink, qualities that have always been common across the political spectrum. Other times it devolves into a vague smear-term for anything left of center. I'm using it to describe a particular political posture: one that treats identity politics not just as an ideology but as a trump card, that maintains a rigid orthodoxy while regarding itself as subversive, that uses a series of contrived outrages to feed a bureaucratic machine. Each of those elements has infected parts of the right.
Write-On Competitions and the Bluebooking/Cite-Checking/Editing Test:
Some law review competitions involve both a writing assignment and a bluebooking/cite-checking/editing test. Others give you just a writing assignment, but give considerable weight to the bluebooking and proofreading of the paper. Generally the substance, the organization, and the writing style are given more weight than the more technical bluebooking, cite-checking, and proofreading. But the latter are often given a good deal of weight, too, and for good reason: Bluebooking, cite-checking, and proofreading will be a huge part of your job as a law review editor, and the law review is naturally looking for people who are good at that, and (more broadly) who are careful, meticulous, and hard-working.
But here's the twist: The substantive evaluation of your paper will inherently be subjective. You might have a great argument, but if the readers take a different view, they may not evaluate it as positively as they should. That's true for professors -- the grading of essay exams is often quite subjective (not by any means random, but subjective). And it's even more true for law review write-on grading, given that the essays are usually split among different teams of several readers, so that different essays are graded by different people.
On the other hand, what bluebooking, cite-checking, and proofreading errors you caught (or made) is more objective. If you do really well on this, then you can insulate yourself considerably from the vagaries of the more subjective grading of the substance.
So if you think you can be good at the technical stuff -- if you have a careful eye and a meticulous temperament, and can catch most errors if you have the time (and if you've familiarized yourself with the Bluebook) -- then invest some time into the technical part of the test.
Naturally, you should still not bomb the substantive part, so don't let your bluebooking completely distract you from your writing. But if you think you can be good at bluebooking, work hard at it. That way, even if the readers are for their own idiosyncratic reasons not wowed by your substance (brilliant substance, of course, but brilliance so often goes unappreciated!), they will be wowed by your objectively great performance on the technical portion.
Congrats to Dan Jordan:
My law school classmate Dan Jordan has just been nominated to serve on the United Staes District Court for the Southern District of Mississippi. Congratulations to Dan, a great guy and a great lawyer, and who will make a superb judge.
ACLU and the Conflict Between Antidiscrimination Laws and Civil Liberties:
That's the focus of Chapter 12 of You Can't Say That!, and I recently came across an interesting article discussing debate over the topic within the ACLU way back in 1972. (I'm supposed to be on a blogging break, but I'm packing and I'm afraid I'll lose this article in the shuffle.) It's from the June 14, 1972, Washington Post, and it's entitled "Top ACLU Lawyer Here Agrees with Club Ruling":
[D.C. chapter counsel] Ralph Temple said yesterday that he approves of Monday's Supreme Court ruling that a genuinely private social club may practice racial discrimination although it has accepted a state liquor license. He said there are sharp differences on the issue among civil libertarians "The right of a private group to not be punished because they enjoy their right of private association" must be upheld. ... Allison Brown [an attorney handling a case for the ACLU against a private community swimming pool that discriminated] added that he disagrees sharply with Temple's approval of Monday's Supreme Court decision.
Wallace and Luttig:
I am really quite surprised by the ABA's rating of Michael Wallace for the 5th Circuit. During my time teaching at Mississippi College School of Law I had the opportunity to gain some degree of acquaintance with Mike through various Federalist Society activities and he always impressed me as smart, even-tempered, and with a "judicial demeanor." His resume--Rehnquist, Phelps Dunbar, etc.--speaks for itself. In fact, it was almost 10 years ago that I taught in Mississippi, and during that time it was simply assumed that Wallace would inevitably ascend to the 5th Circuit when there was an opening and he was ready to do so. In my experience, even at that time he was widely regarded as one of Mississippi's leading attorneys. The whole imbroglio with Judge Pickering set him back a few years, but rarely have I encountered such an inevitable Court of Appeals nominee during my career.
On that basis, I am baffled by what the ABA could have found to rate him unqualified. Is there some public pronouncement that provides a rationale for their decision? Can anyone shed any light on what the ABA was thinking? I haven't been able to find anything that states the basis for the ABA's decision.
As for Luttig, I'm not as surprised by that news as others seem to be. Others, such as Orin, are and several of his commenters indicate that they don't really understand what is going on here. Judge Luttig too is an acquaintance/friend and one who I hold in the highest regard as a man and a judge. I haven't talked to him about his decision, though, so like other bloggers, I'm simply speculating. I suspect that disappointment over the Supreme Court certainly has something to do with it and does boredom, as others have speculated. I was once talking to a fellow law professor about the life of a judge and she said, "Could you imagine red brief-blue brief for the rest of your life?"
It has also been my impression that being a VP-GC of a major corporation would be an extremely interesting and exciting job. Less so after SOX, I suspect, but still quite interesting. Off the top of my head, I can't think of anyone who I know who has left a law partnership to become a GC of a major corporation and has gone back. In addition, I know that several of Judge Luttig's friends and contemporaries also have moved into GC positions and have prospered both financially and professionally in recent years. The range of business, legal, and management issues that such a job brings really seems like quite an interesting mix with substantial perks. In that sense, his decision is actually less puzzling to me than was Michael Chertoff's decision to leave the Third Circuit to go to DHS or even Ken Starr's decision long ago to leave the DC Circuit to become Solicitor General, both of which are/were temporary positions.
Luttig will be back "in the arena" of making business and legal decisions too, which is something that many people enjoy and find that they miss in a more cloistered atmosphere. One of my senior colleagues at Alston & Bird was one of the nation's leading bankruptcy attorneys and had been offered a teaching position both at the outset of his career and later at the end of his career (just around the time I left practice as a junior associate to enter teaching). At both stages of his career, he passed. So when I told him that I was leaving to teach he said to me, "As you know, I've thought about teaching. But I finally decided that I enjoy the courtroom and the boardroom too much to spend the rest of my career in the classroom." By which he meant that he preferred to tackle the day-to-day challenges and issues that arise in the real-life practice of law (at least at his very high level) to a more passive and routine sort of life.
So, it appears that the right situation seems to have come along at the right time. From that perspective, I'm not sure that there are any more general lessons to read into his decision regarding judicial pay or anything like that.
Gettysburg College Joins Antioch College:
The Foundation for Individual Rights in Education reports on the Gettysburg College Sexual Misconduct Policy, which says: Sexual Misconduct is defined as a threat of a sexual nature or deliberate physical contact of a sexual nature without the other person's consent. Examples of such behavior include, but are not limited to, 1) deliberate or reckless threat, actual or implied; 2) physical contact of a lewd type such as brushing, touching, grabbing, pinching, patting, hugging, and kissing; 3) physical contact of a sexual nature that results in reasonable apprehension of a sexual assault or
physical harm; and 4) coerced sexual activities, including rape.
All sexual interaction between any two people must be consensual. Each individual has a
responsibility to obtain consent before engaging in sexual interaction. Consent is defined as the act of willingly and verbally agreeing (for example, by stating "yes") to engage in specific sexual conduct.... So verbal agreement is required before any "sexual interaction," presumably including lovers (or spouses) of long standing. What's more, if "sexual interaction" refers back to "deliberate physical contact of a sexual nature" (as it seems to), then you'd need a verbal agreement before any "touching," "hugging," or "kissing" that is "of a lewd type."
The requirement of consent is of course completely proper -- but the requirement of verbal agreement strikes me as vastly overbroad, given the way perfectly decent and consenting adults routinely behave.
By the way, Antioch College still has its infamous policy, which says that "Consent is defined as the act of willingly and verbally agreeing to engage in specific sexual conduct.... Consent is required each and every time there is sexual activity." Do you verbally agree to have sex each time you have consensual sex with your spouse or lover?
By the way, the Antioch policy also says that The SOPP is violated whenever there is an incident of non-consensual sexual conduct on the Antioch College campus, during an Antioch College sanctioned event, or between two Antioch College students regardless of location. This may include but is not limited to:
* Sexually based gestures ...
* Sexually based forms of non-consensual communication, whether verbal, written, electronic, or telecommunication based ... So "non-consensual" "sexually based gestures" are prohibited. So are "sexually based forms of non-consensual communication," which leads to the question: How can you ask someone for permission to engage in sexual activity, before you've gotten their consent? Wouldn't the request, at least if it's express enough to yield an adequate consent to the activity (remember that "All parties must have a clear and accurate understanding of the sexual activity" for the consent to take place), itself be a "sexually based form[] of non-consensual communication"? Or do you need to ask first, "Do I have your consent to clearly and accurately describe to you the sexual activity to which I will then ask you to consent?"?
There's no doubt that nonconsensual sex is a serious problem. It's just that these codes aren't, it seems to me, a serious solution.
President Bush's Statement:
President Bush made a brief statement on the latest NSA surveillance story today. The New York Times has the transcript of the statement here.
What I Learned This Spring Vacation -- Doing Things More Than Once:
As I mentioned in the post on my odd vacation-time activities, I've now realized that a few of the suggestions I give in my Academic Legal Writing book aren't as sound as I thought they were. I'll naturally revise things accordingly in my third edition, but for now let me pass this along as a sort of online update.
In my book, I urge students to do certain things several times. I suggest that they read the Bluebook (and, if applicable, the writing style manual) several times before the competition. I tell them to reread all the sources that they're given, preferably several times but at least once, and update their draft with whatever they newly discover in those sources. I tell them to do the editing test (if there is one) several times — one example suggests that they do it four times — from scratch, on a blank copy, and then combine the results. I tell them to reread the instructions. I tell them to do several editing passes on their own article.
These are good ideas in principle; you notice things each time that you didn't notice the time before. But lots of students have told me that they just don't have the time to do this — and, doing the write-on myself, I realized that sometimes I didn't have the willpower to do it. Repeating something that you've already done is tough, especially when you're drained, when you're under time pressure, and when (let's face it) the thing is tedious enough in the first place. What's more, as some students pointed out, the admonitions to do things over and over again might be dispiriting to many students who feel they can't do it, even as they may be encouraging to other students who can't, say, do the editing test four times but are at least pushed to do it two or three.
So given this, here are my updated recommendations:
1. Reading the Bluebook, before the competition: This is definitely worth doing, if the competition involves a bluebooking test (I use "Bluebook" here as shorthand for whatever citation manual the competition requires) or evaluates your paper based on the quality of its internal bluebooking.
Try to read the Bluebook, or at least its key chapters, at least once. (Some student reactions, when I asked them which advice that I gave in my chapter was most useful: "The most helpful advice is on the Bluebook — reviewing the Bluebook BEFORE the competition begins and tabbing the book." "I found particularly helpful ... [your] advice about thoroughly reading the Bluebook. My familiarity with it by the time the competition started made the cite-checking MUCH easier for me.") If you can start preparing several weeks before the competition, then try to read it two or more times. But if you find that you don't have the time to read it even once, don't freak out: Most of your classmates probably haven't read it, either.
2. Doing multiple editing passes of your paper: Here, I have to stick by my recommendation — the key to quality writing is good editing, and plenty of it. Try to time yourself so that you get your first draft done at least a few days before the deadline, so that you have time for several editing passes. I've written over fifty law review articles; and yet I found that my write-on competition first draft had plenty of flab, grammatical glitches, poor organization, bad arguments, and other errors. In each of the several editing passes I did, I found and corrected more problems; you will, too, with your own paper.
Again, don't freak out if you have time for only one or two editing passes; do what you can with what time you have. But try as hard as you can to get a first draft, however rough, done quickly, so that you'll have as much time for editing as possible.
3. Doing multiple editing passes of the bluebooking test (or cite-checking or editing test, whatever your law review assigns you). Try to do them from scratch, if you can, on clean copies, and then merge the results. I did two passes on clean copies, and then did a third read-through on the merged copy — and each time I found errors that I had missed in previous passes, despite my fifteen years of bluebooking experience.
I think, on reflection, that my advice to do four or five passes is probably too ambitious for many people, if the bluebooking test is as error-rich as the one the UCLA people provided. (By the way, as someone who has written tests, I really admired their work — there were lots of cool multi-level mistakes, in which one error masked still others.) Even for me, the test was quite time-consuming. For most people, it would be time-consuming and also intellectually draining, and for some it would be so tedious that it would be extra painful to do many times. (I'm a geek, so I actually enjoyed it.)
Still, try to do it at least twice, if you can. And, as I suggest in my chapter, space your attacks on it — that way, you'll be able to give it a fresh look each time, and you'll find it less tedious than if you just did it a few hours ago. You might find that if you're too tired to read more sources or write more of your paper, you're not too tired to do the rather different work of bluebooking and proofreading (and vice versa).
4. Mark the sources as you read them and then go over the markings later: The one recommendation that I found impossible to follow myself is to read the sources more than once. The original read was so tedious that I just didn't have the willpower to do it again, and also more time-consuming than I'd expected. If you can reread the sources after you're done with the first draft, with the new perspective that writing has given you, that's great: I'm sure you'll find lots of valuable things you missed the first time. But I realize that this might be impractical.
So at least highlight important passages — and perhaps dog-ear the proper pages — and then, after you're done with the first draft, go over the highlighted material and see what you can do with it. Usually you can at least use it to fill in some citations; I, for instance, found myself writing things in my draft that I knew were supported by some source, but not recalling exactly what source that was. When I went over my highlighting, I found the proper support for each assertion. And of course you might also find that some things you highlight actually undermine some of your assertions; better catch that while you're writing your paper than having the law review editors catch it when they're reading your paper.
It might be better yet if you could copy down all the key quotes as you read, rather than just highlighting them; but I suspect that many of us don't have the time and energy to do that. Highlighting the sources and then going over the highlighted material when you're done with the draft is a good compromise.
So, in any case, here's the pocket part that I promised. I hope to have more to say about write-on competitions in the days to come.
Courage, Shame, and Practice:
On the Ayaan Hirsi Ali thread, one commentator asked me:
[W]here did the Volokh family just move to? If it's not a gated community, maybe you and your family could bear the risks and invite her to live next to ... you and yours.
We're always braver when it's someone else you want to share the risk with you, based on your own actions, not your neighbors or friends.
That's a fair question, it seems to me: What would I do if Ayaan Hirsi Ali -- or Salman Rushdie, or a Muslim who's gotten death threats from anti-Muslim bigots, or a black activist who's gotten death threats from Klansmen -- moved next to me?
Well, I hope I'd be ashamed to complain, much less try to demand that the neighbor be evicted. Would I realize that Ali's presence, for instance, creates some extra risk for me and my family? Sure. Would I feel some fear because of that? Sure.
But I'd hope that her presence would impress me with her courage, and would move me to at least try to feign equal courage, rather than trying to hound her from the neighborhood. I hope that I'd be embarrassed to say, to my neighbors and eventually to my sons, "Someone who was very brave, and brave in the service of trying to help our nation and help mankind, took tremendous risks. And to avoid taking far lesser risks, I turned against her."
Protecting one's family is a very great thing. Protecting oneself is generally good, too. But, no, protecting one's family and oneself against all risks can't be the highest goal, if our nation, the values we cherish, and ultimate we ourselves are to survive.
We praise the brave and we condemn those who -- however rationally -- conspicuously display absence of bravery precisely to reinforce this notion. We recognize that fear is human, and often rational. We recognize that each of us, if tested, might fail. But at least we should ask, I think, for a certain degree of chagrin about certain kinds of fears, for the decency to be embarrassed about them and to keep quiet about them rather than acting on them by trying to evict a courageous neighbor.
Finally, let's put things into a bit of perspective. The risk to the neighbors in the Ali case isn't zero, but it isn't a tremendous risk, either. It's not having to go to war against an invader. It's not joining the Resistance. It's not becoming a dissident against a tyrannical government. It's not being Gary Cooper in High Noon.
It's not rushing the cockpit of a hijacked plane (which, even if it might be rational on a personal cost-benefit analysis, requires more presence of mind and ability to overcome panic than I suspect most of us could muster). It's not even speaking out yourself against an oppressive and violent ideology. Look, I understand how appalling those risks are. I sympathize with those who silently try to avoid running them.
But dark days are here, and darker still are ahead. Each of us may one day indeed face a terrible test. If we don't perform the small acts of bravery, how will we ever be able to perform the large ones? If we don't try to make a habit of courage -- if we don't seize, in our mostly safe and comfortable lives, the opportunities to be brave -- how can we make sure that our courage will be there when we really need it?
I'm switching to Qwest:
More from the USA Today story on government domestic surveillance that Orin mentioned earlier today:
One major telecommunications company declined to participate in the program: Qwest.
According to sources familiar with the events, Qwest's CEO at the time, Joe Nacchio, was deeply troubled by the NSA's assertion that Qwest didn't need a court order — or approval under FISA — to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers' information and how that information might be used.
Financial implications were also a concern, the sources said. Carriers that illegally divulge calling information can be subjected to heavy fines. The NSA was asking Qwest to turn over millions of records. The fines, in the aggregate, could have been substantial.
The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as "product" in intelligence circles — with other intelligence groups. Even so, Qwest's lawyers were troubled by the expansiveness of the NSA request, the sources said.
The NSA, which needed Qwest's participation to completely cover the country, pushed back hard.
Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled.
In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.
Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.
The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.
In June 2002, Nacchio resigned amid allegations that he had misled investors about Qwest's financial health. But Qwest's legal questions about the NSA request remained.
Unable to reach agreement, Nacchio's successor, Richard Notebaert, finally pulled the plug on the NSA talks in late 2004, the sources said.
All I can say is, at least someone is apparently resisting the administration's seemingly bottomless claims of executive power. Qwest is now improbably at the vanguard of protecting civil liberties, ahead of the other two branches of the federal government. The administration may decide to punish Qwest, as the story suggests, but perhaps the market for telecommunications services can reward the company.
For the time being, I'll leave in Orin's very capable hands an analysis of whether this particular domestic surveillance program is legal. We have only sketchy allegations from unnamed sources at this point, so it it will be very hard to assess the legality of the program, if it exists at all. For reasons I hope to give in the not-too-distant future, I think the NSA program revealed last December is unconstitutional. I'm less certain about the legal/constitutional standing of this program, since it doesn't appear to involve warrantless eavesdropping on domestic calls.
I would not be surprised if the broad outlines of the USA Today story are true. Nor would I be surprised to learn that there are other such secret "programs" authorized by this administration, including some not even revealed on a confidential basis to members of Congress.
Legal or not, based on what we know now the program seems very hard to justify as a security measure in light of its actual and potential damage to Americans' privacy. Perhaps the administration can offer a defense of the program that makes sense, but so far it feels no need to explain itself to anybody. In the balance between civil liberties and security — which I fully agree has to be adjusted toward the latter in a post-9/11 world — the administration has continually opted for overkill. There is such a thing as security overkill, just as there is such a thing as preserving trivial liberties at the expense of protecting lives. If collecting data on every single call made by every single person in the U.S. every single day for a dubious enhancement of security does not count as overkill, well, the administration will soon show us what does. Related Posts (on one page): - Another Reason to Try VOIP:
- I'm switching to Qwest:
Thoughts on the Legality of the Latest NSA Program:
Assuming that the newly-disclosed NSA surveillance program was described accurately in the USA Today story, is this program legal? Here is a very preliminary run down of the issues. It's not as complete as I would like, and it's not something I have thought about as much as I would like before posting. But my grades are due very soon, and unfortunately I can't spend as much time on this as I would normally like to spend. I hope this post is at least a helpful start. The legality of the program touches on at least five laws: the Fourth Amendment, the Pen Register statute, the Stored Communications Act, FISA, and the Communications Act. 1) The Fourth Amendment issues are straightforward. It sounds like the program involves only non-content surveillance, which means that it presumably doesn't implicate the Fourth Amendment under Smith v. Maryland. 2) The legality of the program under FISA is somewhat similar to the legality of the NSA program we learned about a few months ago. The key question is, did the monitoring constitute "electronic surveillance" under FISA, and if so, does the Authorization to Use Military Force allow it? Note that FISA's definition of "electronic surveillance" goes beyond accessing only content information and extends to some non-content information. If the program did involve "electronic surveillance" under FISA, then we're right back to the same question that has been raised about the legality of the known NSA domestic surveillance program. If that's right, your views of the legality of the new NSA program will pretty much coincide with your views of the legality of the NSA program disclosed a few months ago. 3) The next question is, did the monitoring violate the Pen Register statute, and in particular the prohibition of 18 U.S.C. 3121? To boil down a complex area of law into a sentence, federal surveillance law calls any means of surveilling non-content telephone or Internet information a "pen register" or "trap and trace device." Section 3121 then bans using such a device unless the government has a court order (either through the criminal investigative authorities or national security law authorities) or an exception to the statute applies. The exceptions in the statute don't seem applicable here: They mostly involve monitoring to provide better service for the telephone company. The USA Today story suggests that Qwest wanted the government to obtain a court order for the monitoring, and that the government refused because they concluded that the FISA court might not grant the order. The court order they are referring to is probably the FISA pen register order. Under 50 U.S.C. 1842, the Attorney General or his designate needs to approve the request for such an order, and must certify "that the information likely to be obtained . . . is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution." The order would then need to be renewed every 90 days under 50 U.S.C. 1842(f). The legal threshold for a FISA pen register order is low: relevance to an ongoing investigation is a pretty easy standard to satisfy. At the same time, obtaining an order for this kind of monitoring would raise an issue that I have wondered about but I don't think I know how to answer: Does FISA's pen/trap authority in 50 U.S.C. 1842 permit the government to conduct massive-scale monitoring, or must monitoring be limited to a specific set of persons or accounts? When the USA Today story says that the government didn't think the order would be granted by the FISA court, I gather they are saying that the FISA court judges didn't think the FISA pen/trap authority permitted such massive scale monitoring. That sounds like a sensible conclusion: I would guess that the FISA judges wouldn't interpret the FSIA pen/trap authority as permitting such massive scale monitoring (in that it trumps the need for any individual orders, which would be odd). 4) The next possible statute is the Stored Communications Act (SCA), and in particular the prohibition on disclosing records relating to wire communications to a government entity found in 18 U.S.C. 2702(a)(3). It's not clear to me that the SCA applies: the SCA was designed to deal with one-time disclosure of stored communications and records, not real-time collection and repeated disclosure. At the same time, the statute doesn't have an explicit exception for real time collection, so it's at least plausible that it does apply. If it applies, disclosure is permitted only if an exception to the statute covers this. I don't think that any of the exceptions apply, though: the emergency exception of 18 U.S.C. 2702(c)(4) seens to be the closest, but this doesn't sound like there was an "immediate danger" here. This was an ongoing program, not a program responding to a sudden emergency. 5) A fifth possible statute, and one mentioned in the USA Today story, is the Communications Act of 1934, 47 U.S.C. 222. I have generally thought that the statutes discussed above trump this statute, but the USA Today story mentions it. In any event, I don't know much about this one, as it's a telecom statute and I don't normally play in that sandbox. So I'll punt on this one for now. To summarize, my very preliminary sense is that there are no Fourth Amendment issues here but a number of statutory problems under statutes such as FISA and the pen register statute. Of course, all of the statutory questions are subject to the possible argument that Article II trumps those statutes. As I have mentioned before, I don't see the support for the strong Article II argument in existing caselaw, but there is a good chance that the Administration's legal argument in support of the new law will rely on it. (cross posted at OrinKerr.com)
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