If life were a courtroom, Obama the lawyer would not get a pass on his 180 turnabout on surveillance

judges-gavelIn the wake of almost daily revelations about the scope of domestic spying during Obama’s watch, his apologists are scrambling to explain away an unavoidable truth about the difference between Obama, the successful presidential candidate, and Obama, the president of the United States who has been spying in just about every way, shape, and form on the people who elected him to office.

The official White House press office . . . oh, sorry, I read that wrong . . . the New York Times has come up with answer:  Obama was right to oppose spying when he was a Senator, because that’s what Senators do; and he’s correct to authorize spying when he’s a president, because that’s what Obamas who are presidents need to do.  No.  Really.  That’s exactly what the Times said:

As a young lawmaker defining himself as a presidential candidate, Barack Obama visited a center for scholars in August 2007 to give a speech on terrorism. He described a surveillance state run amok and vowed to rein it in. “That means no more illegal wiretapping of American citizens,” he declared. “No more national security letters to spy on citizens who are not suspected of a crime.”

More than six years later, the onetime constitutional lawyer is now the commander in chief presiding over a surveillance state that some of his own advisers think has once again gotten out of control.


The journey between those two speeches reflects the transition from the backbench of the United States Senate to the chair behind the Resolute Desk in the Oval Office. Like other presidents before him, the idealistic candidate skeptical of government power found that the tricky trade-offs of national security issues look different to the person charged with using that power to ensure public safety.

Putting aside the Times implicit acknowledgment that Obama either was a stupid Senator, incapable of understanding national security, or that he’s an evil President, who’s working to gather intelligence so that he can later use it against people he deems, in future, to be his enemies, there’s something else that bothers me about the Times‘ argument.  It’s the political equivalent of the judicial estoppel doctrine.

Judicial estoppel means that, in the context of a lawsuit, if you put an argument before the court and lose on it, you are allowed later to come up with an entirely different argument, including one that completely discredits your earlier failed effort.  However, if you put an argument before the court and win on it, meaning that your argument affects the outcome of the judicial process, you may not later disavow that argument.  You’re stuck with it or, in legal terms, you’re judicially estopped from changing your position:

In accordance with the purpose of judicial estoppel, we conclude that the doctrine should apply when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183 [70 Cal.Rptr.2d 96, 103] (emphasis mine).

Candidate/Senator Barack Obama ran on a platform that vigorously opposed, in his own words, “national security letters to spy on citizens who are not suspected of a crime.”  This stand was not incidental to his candidacy.  It was, instead, one of the central tenets of his promise to be the un-Bush.  It was part of how Obama won the presidency.

Having secured his victory, Obama is now advancing an entirely inconsistent position.  In court, that’s a no-no.  In the political world, at least without an explanation for the change, it should be a no-no too.  Moreover, Obama’s pretending that he knew nothing about the spying that took place on his watch (which the New York Times has implicitly conceded was yet another Obama lie) cannot be sufficient to invalidate a perfect example of a situation in which the doctrine of judicial estoppel should apply.

Once again, Obama and the MSM, working together, play judge and jury when it comes to Obama’s conduct.  There’s never a need for an executioner, of course, since Obama and the MSM always reach an acquittal.

This reminds me of an old joke:

Two men are standing together, watching a third man walk by.  The third man is infamous for his arrogance, narcissism, and hypocrisy, prompting one of the men watching to turn to the other to say, “There but for the grace of God, goes God.”

Obama and the MSM may think Obama is the Messiah, although a rather tattered and tarnished one now, but we’re still lucky:  Thanks to the grace of God, he’s not God.

A little gadget to confuse government spies

SpyingA long time ago, I became friends with a man who worked as an electrical engineer in the aerospace defense industry.  Beginning in the 1980s, he told me that the government was spying on us — and he knew, he said, because he worked on the technology that made it possible.  I assumed that he was (a) paranoid and (b) boasting about a skill set I wasn’t sure even existed back in the day.  Over the years, he continued to tell me that the government was monitoring my land line and my cell phone.  I scoffed.  My attitude changed after 9/11, when it became a reasonable certainty that the DHS was indeed monitoring people’s calls.  With revelations about NSA spying, I’ve finally come full circle and believe everything this guy was telling me thirty years ago.

Let me say here that I don’t think governments should never spy.  If our government thinks that bad actors are planning to do bad things against America, it should be all over the situation, like white on rice.  What I find disturbing is the completely indiscriminate net that the NSA has spread.  It’s spying on everyone.  Since there’s no way it can monitor all that information in real time, the likelihood of the government using this data to stop a terrorist attack is small.

Look at England, for example.  The prevalence of CCTV’s means that England is the most heavily monitored First World country in the world — and yet its crime rates climb higher and higher.  The cameras do nothing to prevent crime.  Their utility, which is limited, is to try to catch criminals after the fact.  They don’t always catch the criminals and, when they do, their multiculturalist, PC values are so warped, they can’t adequately punish them anyway.  The result is that criminals don’t care that they’re being watched, while people of good will are afraid that anything innocent they do today can be used against them tomorrow.

In any event, my understanding is that the best way to stop terrorism is still the old-fashioned way, beginning with human intelligence and common sense.  To the extent our government is indiscriminately collecting everyone’s data, it is doing so not to prevent future crimes, but to prosecute past crimes — including words and activities that weren’t actually criminal at the time people acted or spoke.

This knowledge is why I’m intrigued about something that’s being voted on at Quirky.  If you watch Jay Leno, you know what Quirky is.  People submit ideas for inventions and the public gets to vote on whether they think it’s a good idea or not.  Some of the ideas are brilliant and some are goofy.  If enough people like an idea, Quirky will work with the inventor to bring it into being, from the patent process to the manufacturing to marketing.  Quirky naturally takes a cut, but the Quirky people claim that some people have become millionaires.

The idea at Quirky that intrigues me is one that my friend’s acquaintance came up with.  The Yosemite Box is a device that, when you turn it on, instructs your cell phone to say that your GPS coordinates are in Yosemite:

The Problem

Many governments are spying on peoples’ cellphone metadata, and this makes many people feel that their rights to privacy have been invaded. They object to having their movements and location recorded by the government, 24 hours a day (perhaps from a lovers house?). This device makes their spying incapable of tracking peoples movements through their GPS location on their cellphone – a service which cannot be turned off. If all cellphones sent the same constant address, then no one could be tracked. If you do need the GPS service, turn off the Yosemite Box.

The Solution

The Yosemite Box emits a GPS signal that gives the GPS coordinates of Yosemite National Park, maybe at the top of Half Dome. You simply keep the device near your cell phone when you do not wish to be tracked. If all cellphone metadata had the same address it would make the collection effort worthless. It would be low power so as to get under FCC regulations. Yosemite of course is just a random choice but a nice place for people to think you are visiting and besides you can say that you climbed Half Dome.

What an elegant solution to a 1984-ish government.  If you think it’s a good idea, head on over to Quirky and vote for it.  When it receives 200 votes in this preliminary round, it will go up to the next round.

The ACLU predicted the NSA programs in 2009

A friend sent me this link to a 2009 ACLU video that has more resonance today than it did when it was first created:

Bizarrely, I feel as if the ACLU, which had lapsed into being an arm of purely Left wing politics, might be coming into its own again. I don’t have problems with the US spying on other countries (all countries have always spied on each other), but I’m very disturbed by the integrated network of data the U.S. government is amassing on all of us.

People worry that rather than catching bad guys, the Obama administration will use the info it gathers to create bad guys

One of the things that characterizes the rule of law is that it applies equally to all citizens.  The rich man’s son who vandalizes a shop is prosecuted as vigorously as the poor man’s son who does the same.  That the rich man’s son can afford a good lawyer is the random luck of life.  America can provide equality of opportunity, but nothing, not even socialism, can guarantee equality of outcome.  The important thing for purposes of the rule of law is that the law doesn’t give the rich man’s son a pass.

The rule of law also has to be grounded in common sense and reality.  That’s why Anatole France was being nonsensical when he famously said “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.” The reality is that a rich man, unless crazy, does none of those things — but it doesn’t necessarily mean that the law is unfair if societal good demands that we value property or try to keep streets safe for all citizens. The law is what it is. In the case of theft, vagrancy, and begging, it isn’t the law that should change but, perhaps, the availability of opportunities and, as needed, charity.

Common sense has long-dictated, at least since 9/11, that the best way to stop terrorism directed at Americans is to keep a close eye on people, especially men, who practice a strict form of Islam and on disaffected young men who take psychotropic drugs.  These two categories of people have been responsible for almost all, or maybe all, of the mass killings against Americans over the last decade and more.

When it comes to the mentally ill, we keep talking about monitoring them, but we don’t do it.  Lack of political will, lack of political and social organization, civil rights issues, and the fact that it’s more fun to rail against guns than against insane people (poor things) means that this won’t change any time soon.

Even worse, our government has made the “politically correct” decision to refuse to monitor with extra focus those young men who embrace radical Islam (e.g., the Tsarnaevs or Nidal Hassan).  It’s not fair, we’re told.  Profiling will make law-abiding Muslims (and the vast majority of Muslims in America are law-abiding) uncomfortable.  It’s racist and mean to assume that, because someone is Arab-looking, and sweating, and smelling of rose water, and murmuring “Allahu Akbar” under his breath to think that he’s up to a bit of no good — never mind that, when the bomb goes off or the plane falls from the sky, any Muslims in the area will be just as dead as their non-Muslim compatriots.

Heck, we’ve allowed minority groups to prey on each other for decades for fear of causing offense.  The number one target of violent, young, black and Hispanic males is . . . violent, young, black and Hispanic males, followed closely by all the hapless black and Hispanic children, old people, mothers, and fathers who have to share communities with these monsters of violence.  Because it looks bad for white police to go after these monsters, their communities must suffer.  The Gods of Political Correctness delight in human sacrifices, and the younger, more innocent, and more tender the better.

Americans therefore fully understand that our government, for “diversity,” or “multicultural,” or “politically correct” reasons (all of those terms speak to the same end), absolutely refuses to look first at the obvious suspects (young, radical Muslim men) before casting its net wide to sweep in people who are trying to avoid capture by looking less obvious.  It’s not likely that the Minnesota granny has a bomb in her brassiere, but it’s possible.  A good national security system doesn’t assume that anyone is innocent, but it does concentrate its resources where they make they most sense.

So here’s the deal with the NSA spying:  We know with some certainty that, for Leftist political reasons, the NSA is not making an effort to scrutinize the population most likely to go all “Allahu Akbar” on us.  Instead, for politically correct reasons, it’s spying on everyone.  In essence, it’s creating a haystack of information, with extra paddings of politically correct, multiculturalist hay wrapped around any spot where a needle might hide.

If politics means that the system won’t look for the obvious bad guys, what is it looking for then?  Well, I suspect that what’s going to happen is that the system will be used to look for easy targets.  Things that are neither criminal nor suspicious, but that pop up nevertheless, will suddenly be scrutinized because they’re there.  It will be the surveillance equivalent of “If the mountain won’t come to Mohamed, then Mohamed must come to the mountain.”  Since the NSA can’t focus its efforts on finding real criminals, it will engage in some flexible thinking and criminalize whatever activity it sees.  And — voila! — it will therefore justify its bureaucratic existence and purpose.  That the country will lose its identity and the people their freedom is a small price to pay for bureaucratic immortality.

Is Edward Snowden a hero or a stinker?

I’ve commented often enough here that why someone fights is as important as the fact that he fights at all. I’ve always made this point in connection with the Left’s habit of likening the “insurgents” in Iraq to the Minute Men in America.  Yes, both were fighting against the power structure, but the insurgents were and are fighting to enslave their country men and, eventually, have world domination, while the Minute Men were fighting to advance individual liberties.  It is the thought that counts.

And so we come to Edward Snowden….

People on both the Left and the Right are lauding him as a hero — on the Right, because it allows them to say “We told you so” about the dangers of Big Brother government, and on the Left because it allows them to say “We told you so” about the dangers of being in a war against those poor misguided, root-caused-damaged Muslims.  The former group desperately wants to protect Americans from their government; the latter group desperately wants to protect the world from America.  Snowden falls into the latter group.

From the Glenn Greenwald interview with Edward Snowden, it’s clear that Snowden did not releases the information he did because he cared about Americans and their liberties.  Instead, Snowden was protecting the world from America.

I’m willing to sacrifice all of that because I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.


I don’t want to live in a world where there’s no privacy and therefore no room for intellectual exploration and creativity.

Snowden, in other words, is not a freedom fighter. He’s a garden variety pro-Obama Leftist who believes that America is a danger to the world.  I’m not saying that it’s a bad thing that, thanks to him, we know about the scope of government surveillance.  I’m just saying that Snowden is no hero because, in a world where motives matter, his motives are all wrong.


Slight change of subject here, but since it’s still about Snowden, I’m including it in the same post.  James Taranto relays an interesting point from a reader about the fact that the NSA should have let us know about this a long time ago because having people know about does not impair their program’s efficacy:

There is something to be said for the idea of selectively declassifying information about the NSA programs. The information revealed by the Guardian and the Post is general enough that it’s difficult to imagine how it could be of use to terrorists. Reader John Scott makes the point in a perceptive email:

The administration tells us that Prism and the collection of data on every call made by Americans were classified secrets because government did not want to give information about our operations to our enemies. This justification is flimsy because of the pervasive nature of the programs. These programs have remained secret in order to prevent public outrage, not to thwart terrorists. Here is why.

If the mayor puts an undercover cop on 2% of the street corners every day, it is important to keep the daily assignments secret. In addition, it may be important to hide the fact that only 2% of the street corners have a cop, since a potential criminal may realize that his odds are good. But if the mayor has an undercover cop on every street corner, the need for secrecy is virtually nonexistent.

If the government monitored all emails, but not phone systems, the terrorists would use phone systems, and vice versa. Similarly, if government monitored all calls made from Yemen, terrorists in Yemen could relay messages through their comrades in France. But the pervasive measures that are in place prevent terrorists from designing their communication systems to exploit holes. In fact, any holes in our systems could be more easily hidden than the entire systems could be hidden. Hence, the reason for keeping these programs secret from the public is to make us compliant, not to make us safer.

John Scott’s point is entirely correct. While it doesn’t address whether, in a free society, it’s okay for the government to have computer networks reading all of our communications, it does point to the fact that, at the very least, we should have been allowed to have had a debate about trading privacy and liberty for a somewhat greater degree of protection against terrorist attacks. I say “somewhat greater” because, while the government claims to have foiled some terrorist attacks with PRISM and the NSA’s phone dragnet, and I’m willing to accept that as true, the federal government dropped every single ball related to the Boston Bombers.

When it came to Boston, it wasn’t just that this vast, intrusive spying program didn’t capture the planned attack. That the system missed the actual terrorist attack makes sense because the actors were able to communicate the old-fashioned way, by talking to each other face-to-face. It was that the same government that feels entitled to spy on our every phone call and keystroke, completely missed the fact that Tamerlan Tsarnaev had massive terrorist connections. He was waving red flags everywhere and our government gave him welfare instead of the boot.

The NSA thinks that it can bring some scientific algorithm to bear on the problem.  Get the right algorithm and then capture enough data and then — voila! — perpetual security.  But that’s not how it works.  When a system places too much reliance on non-human factors, it effectively blinds itself to the randomness of humanity.  Add to that the fact that our government, in thrall to political correctness, deliberately refuses to look at known indicators for terrorism, and you have a system that’s definitely intrusive, that’s questionably effective, and that sucks resources away from the human intelligence and real-world (as opposed to politically-correct-world) knowledge that must drive all security programs.


Mark Steyn tackles the administration’s game of “I spy” on the American people

The one good thing about bad news is that it brings out the best in good writers.  You really must read Mark Steyn’s whole column about Obama’s East German spy state, but I can resist cherry-picking for the best of it:

So we know the IRS is corrupt. What happens then when an ambitious government understands it can yoke that corruption to its political needs? What’s striking as the revelations multiply and metastasize is that at no point does any IRS official appear to have raised objections. If any of them understood that what they were doing was wrong, they kept it to themselves. When Nixon tried to sic the IRS on a few powerful political enemies, the IRS told him to take a hike. When Obama’s courtiers tried to sic the IRS on thousands of ordinary American citizens, the agency went along, and very enthusiastically. This is a scale of depravity hitherto unknown to the tax authorities of the United States, and for that reason alone they should be disarmed and disbanded — and rebuilt from scratch with far more circumscribed powers.


Holder had another great contribution to the epitaph of the Republic this week. He went on TV to explain that he didn’t really regard Fox News’s James Rosen as a “co-conspirator” but had to pretend he did to the judge in order to get the judge to cough up the warrant. So rest easy, America! Your chief law officer was telling the truth when he said he hadn’t lied to Congress because in fact he’d been lying when he said he told the truth to the judge.


When the state has the power to know everything about everyone, the integrity of the civil service is the only bulwark against men like Holder. Instead, the ruling party and the non-partisan bureaucracy seem to be converging. In August 2010, President Obama began railing publicly against “groups with harmless-sounding names like Americans for Prosperity” (August 9th, a speech in Texas) and “shadowy groups with harmless-sounding names” (August 21st, radio address). And whaddayaknow, that self-same month the IRS obligingly issued its first BOLO (Be On the Look-Out) for groups with harmless-sounding names, like “tea party,” “patriot,” and “constitution.”

Read it all.  Post it on your blogs.  Email it to your friends.  Distribute it through social media.  Steyn is right about something fundamental here which is that, even if what the administration did is legal, it’s still profoundly wrong and the laws are badly drafted if they can allow government to listen in on the minutiae of every American’s life.