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Monday, January 30, 2006
Justice | Alito

The Alito hearings have drawn to a close. The preliminaries in advance of confirmation wrangle their way to an inevitable outcome  Two Nominee Strategies. One Worked. - New York Times. Some Democrats feel there needs to be a filibuster. No, there doesn't. It's pointless in general to force nomination votes to a super-majority, and in this case not necessary. The nation will deal with this court and make do. At the same time I would like to see a largely party line vote, at least from the democrats. I don't want this man on the court and I would be puzzled if any democrat, as I understand what the party stands for, did. All of this underscores the importance of the presidential elections. Ask yourself: 'what is this vote about?' before you pull that lever. Consider all the manifold ramifications, and how long you will be living with them.

There were a couple of arguments that were unlimbered in the course of the hearings. One that I had some sympathy for but couldn't really take seriously was the notion the president should have picked someone 'like Sandra Day O'Connor' for the purpose of maintaining the balance. This like-for-like argument has some good pragmatism, but the President is under no obligations towards it. Mr. Bush seems to have other obligations besides. Then there is whether being a good lawyer, having a keen intellect , is a more important consideration than certain ideologue tendencies. I've read that Alito was middling within the top ranks of viable Supreme Court candidates, leading to the view that his political quotient was the deciding factor in his selection. Cass Sunstein over on his Web log supports due deference to the president's choice The University of Chicago Law School Faculty Blog: Confirming Justice Alito?. Ideological rigidity needs to be an order of magnitude removed from the mainstream before it can trump good lawyering and the profession (at least) of an open mind.

What ideological cast some see in him is a predisposition towards the few (and corporate) versus the many (and individual)? What is the court for? Where would Judge Alito have it locate the good? Where is the level point for the playing field in environmental law, regarding property, in contract law? How conservative is too conservative? It depends on what the mainstream is read as. In an post earlier this year I pointed to a paper (Jurocracy and Mistrust) by law professor Mike Gerhardt where he claimed nomination battles partially serve the function of locating a set of ideas as the mainstream. This court will work quickly towards validating the ideas of the Federalist Society, Mountain States Legal Foundation, constitution in exile crowd, and adherents of Originalism (The University of Chicago Law School Faculty Blog: Originalism and the Federalist Society). Whether or not these idea are accepted,  well understood or known at all by the American people. They will work towards enacting them as the settled law of the land. Dahlia Lithwick observes: "They simply don't accept the proposition that the courts exist to elevate the interests of the little guy above everyone else." Please Don't Feed the Federalists - A Democrat's field guide to the conservative jurist. By Dahlia Lithwick . This little guy, the individual, exists atomized and alienated from the resources vested interests have recourse to. This court is in danger of presiding over a cascade of foregone conclusions.

What seems to have concerned observers most The University of Chicago Law School Faculty Blog: Why the Senate Should Not Confirm Samuel Alito : Geoffrey Stone was Alito's apparent views on what has been called Unitary Theory of the Executive, particularly as it relates to domestic national security operations Kiss and Make It Up - What happens when there is no law constraining Alito. By Dahlia Lithwick. The notion that the Presidents power is maximal. That the Executive Branch has an infinite freedom of action granted by express or implied authorization of, by an abdicating Congress, that the President is at liberty to infer as given. All by the late de-facto transfer of war powers. It is almost anti-climatic to tack onto the end of this, the near certainty that this court will attempt to overturn Roe v. Wade. Some say this won't happen, the ruling has been so hollowed that it isn't necessary. This I think underestimates the rights' need to hoist this symbolic victory aloft.

The ascendency of the hidden/withheld information nomination process is one of the most troubling aspects of this political season. It doesn't change what people know or what they think. All this silent debate and closeted vetting does is limit what can be said out loud. For democrats the future lies in reminding people a conflict over values does exist. Attempting to sublimate it with stage managed nomination hearings merely means with every case the court takes on, it will continue anew. With the biases and opinions of the Justices examined at every turn of phrase, and every sentence end.

- - -
tempus fugit etc. :  Alito Is Confirmed for Supreme Court in 58-42 Vote - New York Times.
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Wednesday, January 25, 2006

Getting back to my opaque post from a week ago Things that go bump in the night. Being back in my place now, I have retrieved my camera's USB cable, and gotten the pictures I took out of it and into my ibook. There was fire in my apartment. It didn't really cause any damage, what damage there was the fire department occasioned as they hunted for it, and soaked the place down. I'm far more comfortable with fire as metaphor than as un-contained actuality. I can think of three or four basics types of fire. Categories not specifically corresponding to the types I learned about many years ago in aircraft team firefighting school at NAS Jacksonville (paper/wood, electrical, accelerant-liquid fueled I think). There is fire in a fireplace. Nothing symbolizes civilization so much as fire on the hearth stone, yet it is fire and in revery it stands for all the rest. Against this domestic fire are wild fires. Fires often assuming the form of a quick moving line of power and destruction, renewal passing through or over the forest or grassland. There is conflagration: fire assaulting the built environment. Attacking the home, the urban core, potentially culminating in ekpyrosis. A picture named fire_engines.jpgA picture named deluge.jpg What I had was another type: hidden fire. At 3:30 lightning appeared to strike the building, and started an electrical fire in the wall. I never saw this fire never heard it. By 4:00 am; though, I could smell it. By 5:00 I could see smoke. So I called the fire department. Fire departments on a rainy nights are not inclined to find things that do not wish to be found. They told me nothing was wrong and left. At 6:00 am when my kitchen filled with smoke again and the smell of fire pervaded the apartment, I began to look for fire. That's when I pulled my refrigerator out from the wall and saw the melted floor tiles. I called them back. they arrived trooped back in and looked sympathetically at what I showed them. They got out their infrared viewer and looked through it a bit, before deciding my refrigerator's compressor had burnt out and this was the source of the heat. They told me to leave it unplugged; then they left again. The smell of smoke came back and the floor continued to get hotter. Around 11:00 am  my apartment complex people came by with a new refrigerator (I had been to see them earlier). I was bowled over by the speed they got around to that on a Saturday morning, but I told them: "remember that part right after the dead frig part when I said I thought the building might be on fire? Feel the floor here in the kitchen, see how water boils off the floor." That's when the fire department got called out again. This time they found the fire, in the crawl space under the building. There is something unsettling, insidious about a hidden fire, especially when you know it's there, but is offering no proof of itself. Those last few hours it was like a quiet malignant companion, an actual and draining presence.

In the days following the only odd thing that kept coming up is how many other people recalled hearing a loud bang in their neighborhoods that same night. People who live near me, but not that close. I had attributed the crash that woke me to lightning hitting my building. It was that loud and I awoke with the impression it shook the room. I was so startled I went outside in the rain to look around before trying to get back to sleep. Looking over last week's post I can see that I was always unsure at what caused the bang. Talking to other people reminded me that for a few seconds after the crash I thought it had been a sonic boom. It was only when I heard rain and far off rumbles of thunder I switched to the idea of lightning.

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Saturday, January 21, 2006
Chris D, or Los Alamos geiger land is in my blood.

A new book came into the library the other day and passed through my desk to be matched to its bibliographic record. I see a lot of interesting books but rarely have the time or opportunity to look at them long enough to have anything to say about them here. The book was called Outlaw Masters of Japanese Film. A title that sets you to thumbing through pages. It appeared to be a well documented closely and lovingly written history of post war Japanese gangster films. Who writes a book like this? Chris D. the title page said. There used to be a guy called himself Chris D. led a band from Los Angeles back in the late 70's early 80's called the Flesheaters. That Chris D. was Chris Dejardins, looking through the front matter I see the author dedicates the book to his father: Paul Dejardins. Diane on WFMU had played some Flesheaters  "Tomorrow never comes",  just the day before.

The Flesheaters posed such musical questions in songs as: "What do you do with white trash?" Answering, "Burn it all up till it's white ash." That's from an album that featured a band made up of people from X and the Blasters. That album ended with a nine minute song with only the repeating lyric "divine horseman." I always loved that song.

I saw the Gun Club who were contemporaries to the Flesheaters play once at the old 9:30 club, a one-of-a-kind event. I always regreted not seeing the Flesheaters play when they came through DC. around the same time. Chris D. was a writer on the early California punk scene for the 'zine Slash, and had gone to film school. The Flesheaters, were, for all their apparent surface reference to the Cramps, a quintessential LA band. A minute to pray, a second to die, the title of their second record and a song on the third record Forever came Today is also the name of a lesser known Italian western from 1968 , which I have seen on TV once. Chris D. I see also seems to have directed a movie, I Pass for Human last year.

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Sunday, January 15, 2006
Things that go bump in the night

The things that go bumb in the night. Can sometimes be direct lightning strikes on your building, possibly small natural gas explosions under your building .  My advice  is even at  3:30 am its worth getting up and checking some of the more loud and resounding bangs out. Also no matter what the fire department tells you the ballast from a flourescent light fixture will not fill your kitchen with smoke (first call 5 am). Nor will a shorted out refrigorator compressor melt your kitchen tiles singe the wooden beams of the building  and leave large portions of your apartment floor to hot to touch (2nd call and the hours between the 2nd and 3rd call). It is a fire which does these things.  Fires next to gas mains cause fire departments to become anxious and poke holes in walls. But at least by 11am everyone is awake.

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Wednesday, January 11, 2006
Beached at Old Navy

Twice over the holiday shopping season I found myself in the Old Navy store up on Rockville pike. It happens and besides this same mall has a Barnes and Noble, a Hudson trail outfitter, plus the guitar store where I buy strings is right behind it.

This Old Navy has a mid-store display which is an old pick-up truck they have jammed full of hoody pullovers and various oddly colored cloth merchandise. It was the truck that caught my eye, which must be thought to have some iconic use, some cachet, that translates into something useful for them. A pick-up truck doesn't strike me as seeming all that campy, perhaps old pick-ups are and I missed that happening. Possibly it simply exists in steel counter-point to all the flannel present.

I found myself trying to explain all this to my niece the second time I was there, again walking around the truck.A picture named sensoryedge_1879_9456896.jpg "So why is it here", she asked. I didn't really know. As a guess I figured it must be a significant model of truck rising to the ranks of Americana. The Chevy 3100 (the half ton truck) is from the Advanced Design Chevy truck series Jeff Nelson's Advance Design Chevy Truck Page. This line of trucks came out in 1947 when the Detroit factories retooled and put in production the first new lines in six years. The ADC's were bigger wider higher, had one-piece welded cabins Deve's Antique Chevy Truck Restorations | History of Advance Design Trucks. This truck had a divided windscreen (two pieces of flat glass joined by a chromed strip in the center), and a multi-ribbed grill. The ADC 3100 changed to one-piece wraparound front windscreen in 1954. They were the top sellers in their category every year they were in production. At the outset of the ascendant half of the American century, this was the pick-up to have. My friend George's grandfather had a pickup much like this in the 1970's. We all admired it.

Maybe this isn't so different from the vague diffuse and arbitrary decorations that hang off the walls of your average theme restaurant, but it is certainly bigger and there was only one of them. So I carelessly decided it must have meaning. A meaning I attribute to the nostalgic uses of postwar optimism. Problem is my niece, now an actual teenager and reasonably close to the prime Old Navy demographic, has no concept of post war optimism. Isn't even absolutely sure she knows what war this 'optimism' might be associated with. I pointed out the choke on the dashboard. Then I had to explain what a choke was and what it did - partly close the air-valve in the carburetor so a cold engine would get a fuel rich mixture to the pistons to start up with. My father, her grandfather, was a firm believer in chokes. I tried to describe to her how temperamental cars used to be on cold days. How my dad in the winter would start the car up before breakfast, throw a blanket over the hood, go back in drink a cup of coffee, and then go back out and try to coax it down the road to work. Those were the tan and green Fords we had, they were not new cars.

As with many things in life, a large part of it, when you come down to it, is knowing when to push the choke back in.

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Monday, January 9, 2006
Day J. Edgar Hoover died

I remember the day J. Edgar Hoover died. I was young at the time - I had no catagories or experience to fit it into. Only fragmented memories of the day not adding up to what it meant to the adult world. I recall arriving at the school to find many of the teachers outside waitng for the buses. The school's flag was already at half mast. One teacher was visibly crying, running around trying to reassure us kids that 'things were probably going to be ok.' It would be touch and go for America for a while. We had lost our hero, our bulwark against unnamable communism, but possibly America had reserve resilience and would come through these days alright. He didn't seem at all sure of this. We knew who Hoover was. We knew the story of the FBI as well as anyone, you couldn't help knowing it. It was written down to our grade level. But I come to bury Caesar not to praise him. If in latter years it seem to be revealed that the Bureau of Investigation dwelt unduly in the realm of things and people Hoover felt needed to be investigated - files on which and who needed to be kept. If it turns out that presidents, senators even his own subordinates mistrusted and were afraid of him. It was no surprise to any of us.

There are limits to the threats we face as a nation in this world. The cold war of ten thousand hydrogen bombs, half of them ours, forms a suitable reference point. There are limits to what ought to be done about the threats we face. There are limits as to what kind of leaders a democracy can suffer, and still be a democracy. The instincts of those who speak always of security: of law and order tend always more to the latter and less to the former. Hoover is an example of someone who was entirely capable of pulling down American democracy. The nation was saved from this only by his lack of genuine charisma. His ability to be only a bureaucratic power figure and not a full national political figure. A personality that was not only opposite of the populist gangsters he made his reputation arresting and killing, but ant-ethical to diverse American figures like Huey Long and later Martin L. King limited his role.

As Molly Ivins AlterNet: Big Brother Bush and others Imperial Assumptions have pointed out in their approaches to the 11 September attacks Cheney, Rumsfeld, and their group, have unpacked their legacy of a priviledged executive power Behind Power, One Principle as Bush Pushes Prerogatives - New York Times; a belief stemming from their beginnings in the Nixon administration. From Nixon's travails and fate a belief that the president should be stronger than mere politics. With no notion or sense of irony that the presidents policies - as opposed to his responsibilities - are never more in the end than mere politics themselves. The president of a democracy is not a man alone. The health and welfare of the nation never exists so separately from the opinions and joint effort of the people, Citizens and officials both. They brought with them as well the desire to restructure the military. In light of the bitterness of Vietnam a desire for leadership regimes that would never depart from a set course. In light of the end of the Cold War and the New World order a military capable of inserting itself into any part of the world and breaking any country's military. Now they have an enemy even if they don't seem to know exactly what they have: they have many wars they perfer to view as fronts in one big war. On al Qaeda. On the Taliban (Afghanistan) On Saddam Hussain (Iraq). For all this do they have a war on terror, or a war on Islam? For onlookers outside US media's reach it was never seen as against something (a baseless stateless enemy of the west) so much as for something (Oil).

It's time to distinguish between real threats and Arabian stalking horses. The current administration seems to have settled on the NSA to bring about a new Cointelpro (wikipedia). A regime of telephone and email intercept that does involve U S citizens Bush Secretly Lifted Some Limits on Spying in U.S. After 9/11, Officials Say - New York Times, and exists in a cloaked grey area beyond authorizing mechinisms Bush Says He Ordered Domestic Spying - New York Times -- Bush Says U.S. Spy Program Is Legal and Essential - New York Time. In ambition and scale comprehensive and global Spy Agency Mined Vast Data Trove, Officials Report - New York Times. We are asked to accept an urgency of threat, often presented in stylized and melodramatic terms. 'There is a ticking time bomb, the man in front of you knows where it is (because we tapped his phone and heard him say Troublefunk was going to drop the bomb) if you attach the electrodes and flip the voltometer up and flip the switch, he will give a perfect and true answer. all things will become known and a billion lives will be saved.' This nonsense trivializes the idea of the potential threat. In significant ways what is pushing this mass surveillance initiative is new technology The new technology at the root of the NSA wiretap scandal for which new justifications are issued. What we are seeing also contains a measure of the overreaction of incompetence, the self-concious hollow awareness of which pushes other concerns aside and reaches for panacea NSA wiretap followup: Why computer-automated mass surveillance is a bad idea.

You have to account for need to keep on top of small grained threats. A major attack against the United States no longer requires armies mobilized or navies sent to sea, neither does it appear out of nowhere. It requires a large group of people, a population, with a sustained ideology, materials of mass destruction, technology, funding, travel, communication and coordination across borders. And it requires a considerable degree of acquired and accumulated paramilitary expertise. If ever it seems less, it's only because a new sprig has erupted off a older branch. The point is that the right professional application of national intellegence can often disrupt and prevent the activities of groups like al qaeda and can force whatever movement politics it feeds off of into other forms and channels. It is worth doing and ought to be done. Then; however, it is neccesary to account for precisely what is being done. The particular technical collection methods and proceses. Forth Amendment considerations must be read against specific acts and occurences. There is the possibility that the debate may get sidelined into technocratic discussions of efficiency and capability - ways and means The NSA's Overt Problem, ignoring the privacy even the validity of the individual Revolt of the Professionals.

What is called sigint or comint cannot be done to US citizens without a warrant. Without an agreed upon process like the FISA board, involving some presentation of need, a judge and review, it can't happen. No politician can say he or she has the authority or that someone else gave it to them. Not without re-writing the constitution. Fundamental law involving basic rights does not bow before adversity. Long distance international telephony apparently has gradually been organized to travel through US switches. This gives us technical and physical access to the data stream. Foreign originating to foreign receiving. Calls involving foreign nationals wherever originating. Calls involving US citizens on either end whether originating in the US or not. Rolling surveillence of portions the entire telephony circuit nominally under US control under a regime of comprehensive collection and data mining seems to be what is occurring. A louder echo of previous programs Tinker, Tailor, Miner, Spy - Why the NSA's snooping is unprecedented in scale and scope. By Shane Harris and Tim Naftali. This approach would probably require advanced pattern matching techniques voice recognition (voice print matching) even speech recognition allowing it to flag on keywords. Email surveillance would be more straightforward text string matching. Some sources talking about this name a distinction betwen content (what) and noncontent (who, when) regarding what is looked at and shared NSA Gave Other U.S. Agencies Information From Surveillance.

Still for the legal questions must be accounted for Report Questions Legal Basis for Bush's Spying Program - New York Times. Is the executive branch mining data collected on set of vetted standards in techinical compliance with law or even shadows emanating from the law. Or Data Mining, looking for out-of-boundary behavior by adhoc tasking, along less well defined lines of inquiry AlterNet: The Scoop from 'State of War'. It has been suggested that data mining initially used a high ranking captured terrorist's PC as a template for contacts and usage Bush Says Domestic Surveillance 'Limited' - Yahoo! News. How long before someone decides to normalize and refine that template, to come up with lists of items and names to be secretly added to it and watched F.B.I. Watched Activist Groups, New Files Show - New York Times for unsuitable behavior? Are we using the same standards and justifications, for trading security for liberty, we always have Spy Controversy, Redux (Ruth Marcus points to the history here - particularly the Church Committee hearings that walked this tendency back the last time it got out of line. The Wikipedia link above on cointelpro has links to the Church committee final report). If we are trading on new standards, what reasons lie behind this. Even the Fisa Court judges have registerd concerns that requests coming to them in compliance of established law and procedure may be contaminated by non-legal collection. A way of proceeding which renders them entirely moot Judges and Justice Dept. Meet Over Eavesdropping Program - New York Times. The Justice department itself may have felt it was being rolled through due process too abrubtly as it prepared requests for the FISA court leading certain people to regard all legality as simply in the way Justice Deputy Resisted Parts of Spy Program - New York Times.

There is a moral question attendant to this that has to be accounted for too. First a war posited on the terms this one is - the war on terror or the war on the "non-integrated gap" - being a thin cover for the war on resurgent islam that most of those who favor this war see themselves as fighting. Such a war runs the risk of becoming an all purpose endless war in distinctly Orwellian terms. It can't be hard to find those who look upon it approvingly in just such terms already. This 'forever war' also becomes a war on the open society. Yet for all the resources and manpower the administration has thrown at the war the struggle is not a central concern of most Americans . So much so that John Yoo would ask Samuel Alito if he thinks we are at war: Thirty Questions for Alito: Is America at War? John Yoo - New York Times. The U S has been fighting wars or police actions for virtually all its history, the U S has always had enemies. Now we are asked to accept a rhetoric of peril that begins the end of the American experiment - the nation conceived in liberty. We are told now it is a dangerous world and we must become the type of nation that views security in proper light and allows strong men to take decisive, quick, necessarily secret action for the best.' This is what Cheney is really saying in his defense of such programs Cheney Cites Justifications For Domestic Eavesdropping. The bullying tactic - He will state there will probabaly be another conus attack. "No one can guarantee that we won't be hit again, but neither should anyone say that the relative safety of the last four years came as an accident," Cheney said. "America has been protected not by luck but by sensible policy decisions." Implicitly he allows this may happen even if they are given everything they want for security, yet if the opposition tries to balance liberty with security, Cheney is letting it be known any future attack will be laid against whatever is not allowed.

There are ademocratic impulses in our culture; on the right as well as left. They are threaded from the extremes well into the mainstream. These impulses run strongly in our vice president. Consider the energy bill situation. Closed meeting sessions with the Vice President - by the energy and extraction industry but not environmental or conservation concerns. I recall reading portions of the text in the final bill appearing to be included directly from energy industry documents. My sister tells me that this is not particularly uncommon, but when a Supreme court decision blankets the whole affair to keep it all non disclosed, something is radically wrong. Capping it all off there was congressional testimony from assorted energy ceo's obsuring their role in Cheney's task force, this is eventually shown to be misleading. Their retort: they weren't under oath (this attracted little attention at the time, but see this Huffington report piece).

If you fight imperial wars what you gain is the Imperial return - a government that can only rule imperially because it becomes too dangerous to do otherwise. This is the rule of fear not the rule of law -- nations are either ruled by law or by men. No American politician should understand his or her job as a paternalistic trading off of the U S way of life: liberty and self-rule, for the US's way of life, a regime of wealth and material well-being jealously guarded Time to Ask: Who Are We?. What United States do we have and who benefits most? History would advise us to be cautious - but no one believes in history anymore.

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Wednesday, January 4, 2006
My Excuses

The holidays are over and it's back to work. U. Maryland has a long intersession between the fall and spring semester during which the campus shuttle bus does not run, and I push myself back and forth between work and apartment on my bike. A few days of this (and I have a month of it to look forward to) and I become too tired to write much. It will be a thin month for the web log. I've been trying to write something on the NSA Elint thing. The overload of articles to wade through has been overwhelming, and it keeps coming - new information and articles every day. I'm not getting the feeling even after three weeks that I understand what this is about. What writting I 've put together reflects this. It occurs to me that most of the links will be offline - withdrawn to subscription archives by the time I finish it.

What I wanted to say here; though, is that with this week at work it has finally hit me that my friend Rob Bratton has really left. He actually left in the middle of last month to take a cataloging job over at GW law school's library The George Washington University Law School - Library Information & Services. Now when I hear some internet streaming radio station play the Wiper's "Youth of America" who do I have to share this with? Or when the afternoon show on WFMU unnaccountably plays Crippled Pilgrims' song "Out of hand" Playlist for Diane's Kamikaze Fun Machine - October 27, 2005 , who else would appreciate that it was my old friend Derrick Hsu's  and Alex S. Fountain of Youth Records that first put that album out. Who now will try to tell me why libraries (and librarians) need to exist when we have Wiki's, and Google. Some people possibly like their work and where they work. Where I work is a perfect Potemkin villiage of idiots, and I find more difficult with each passing day to care about subfield delimiters. The dangling shiny object that is tuition remission for university wage workers is only one of the cruel jokes that exists in this cold callous world. However; before he left for fairer fields Rob did have one final statement: "Pod Six was Jerks." Well. Alright then.

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