August 2007
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Day August 7, 2007

I’ve Been Quiet Lately

I haven’t written much in a couple of weeks, and it’s because I’m studying a lot in addition to making headway on my dissertation proposal.  This summer, in addition to the proposal, I’m trying very hard to erase some of my deficits in the mathematical arena.  Darwin wrote, in his autobiography:

I attempted mathematics, and even went during the summer of 1828 with a private tutor (a very dull man) to Barmouth, but I got on very slowly.  The work was repugnant to me, chiefly from my not being able to see any meaning in the early steps of algebra.  This impatience was very foolish, and in after years I have deeply regretted that I did not proceed far enough at least to understand something of the great leading principles of mathematics, for men thus endowed seem to have an extra sense.

 

Precisely.  Studying the evolution of culture and cultural behavior, from a modern Darwinian perspective, is inherently a mathematical business.  Change is modeled as shifts in the frequencies of behaviors or traits, rather than outright transformations.  And this means that calculus, linear algebra, differential equations, and stochastic processes are critical tools.  Just as you wouldn’t hire a carpenter that knew how to build a cabinet, but didn’t have the tools to do the work, it’s hard to be an active researcher in this field and not have the right tools. 

So I’m reviewing, practicing, and going further than my previous education in math, and I’m enjoying it thoroughly.  I find that I’m one of those people that needs a purpose and a reason to learn things like the more abstract bits of math, and once I have a good reason, it seems to go smoothly.  But it’s also time-consuming, and it keeps me from writing more.  I thought I’d explain in case y’all wondered why I’ve been quieter than usual.

Invertebrate Democrats and “Warrantless Wiretapping”

As the details of precisely what the "Protect America Act of 2007" contains start to be analyzed, it’s pretty clear that Congress ought to be ashamed of itself.  Moving beyond the Newspeak name of the bill itself, it’s pretty clear that this law violates the Fourth Amendment. 

Marty Lederman, writing at Balkinization, analyzes the key ambiguities in the Senate version of the bill:

The key provision of S.1927 is new section 105A of FISA (see page 2), which categorically excludes from FISA’s requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States."

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.;no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

There are many aspects of electronic surveillance which present serious constitutional "grey" areas, and as a society we haven’t even begun to discuss these issues seriously.  But one issue is not grey, and I highlighted it in bold in Lederman’s analysis.  The Fourth Amendment requires that people (by which we can read "citizen" or "legal resident" although it’s not clear whether the Founders wished that distinction to be made) be immune from search (which now includes electronic search or surveillance) without a due process requirement that demonstrates the "reasonableness" of the search, which hundreds of years of Anglo-American legal tradition, American constitutional law, Congressional and state statute, and Federal case law says means probable cause, judicial consideration and issuance of warrants

Congress, in its second most spineless act in quite awhile (the Military Commissions Act and restriction of habeas corpus was worse), has ratified the Administration’s previous warrantless wrongdoings and gutted the Fourth Amendment in a wide variety of situations.  So why did a Congress cut the Judicial Branch out of the loop and give the Executive Branch the power not only to legally conduct surveillance on U.S. citizens, but also to be the arbiter of when it was acceptable to conduct such surveillance?

My guess is that Congress has shown yet again that the "potential attack on American soil" trump card works every time:  no rational discussion of threats and potential courses of action is possible when the opposing side can shout you down with the simple mention of 9/11.  The major challenge we face in American politics today is getting beyond sloganeering so we can have a rational national discussion about how we are conducting the defense of the Republic against criminal and military threats we face.  Congress will not do this by itself:  right now the 16 Democrats in the Senate (and others in the House) that voted for this unconstitutional bill likely did so because they’re afraid for their re-election prospects if they don’t vote to give the President every power he asks for, should something happen.