Steve Reads

Whatever happened in the latest Firefox upgrades, it now bugs me several times for any website that features any SSL component (I think that’s the common thread) to ask me what to do with the website’s certificates. If I’m connecting to an SSL-enabled site, and it happens to load in advertising from doubleclick.com, Firefox will ask me to approve DoubleClick’s certificate. There’s an option for “Don’t trust this site’s content and don’t connect to the site,” but it doesn’t persist, and often it will ask me several times about the same certificate if I reject it.

No one validates certificates. No one would know how to validate a certificate. So this increased security — which is probably an anti-phishing measure — is in fact totally counterproductive. And if they really intend to add security, they’ll make certificate rejections persistent.

 . . . and signed with the Yankees. Such treachery does not go unpaid in Boston. The fans are going to be merciless when he comes to town.

Miguel de Icaza has been writing a lot about his progress through Robert Fisk’s book on the history of Iraq, entitled The Great War for Civilization, and his descriptions have really made me want to read it. Everything I’ve heard about what I take to be Fisk’s major work, namely Pity The Nation: The Abduction of Lebanon, has been full of praise.

One of the FISA court judges has resigned in protest. Now, the FISA court has basically been a rubber stamp for the executive branch for years; as many others have already noted, the executive branch doesn’t even need to get FISA approval before wiretapping — they can get permission within 72 hours. So if they’re such a rubber stamp, what was the executive branch doing that forced it to skip around FISA?

The esteemed judge Richard Posner chimes in with his views on the recent FISA violations, and Marty Lederman smacks him down.

P.S.: Of the many on-point takedowns, probably Crooked Timber’s is best.

 . . . ask Josh Marshall and Kevin Drum: if the president defines a terrorist in whatever way suits him, and thereby defines the war on terror to begin and end when he says it begins and ends, then how long will this war last? And how long will these violations of the Constitution last?

It’s funny — actually, not funny at all — that Democrats aren’t charging ahead and asking the very obvious next question: Mr. President, how far do you claim that your rights extend? And when does this war end? And do you see any limit at all to your powers?

I don’t see why they can’t haul the President before a Congressional panel and question the hell out of him, under oath, on national TV. Other than the very practical matter that Republicans control Congress, that is.

 . . . said President Bush in 2004. “Nothing has changed.”

I am hopeful that we’re seeing the beginning of Nixon 2K5, but really: if this president’s actions, and his clear desire to usurp Congress’s power, didn’t destroy his administration 2 years ago, why will now be any different? Maybe with Delay out of the way  . . .  and maybe with Rove out  . . .  who knows.

As always, Bruce Schneier is a lucid and insightful synthesizer.

I’m glad that Jay Rockefeller is now coming forward to make clear that White House surveillance had no Congressional oversight worth the name. However, the question I have for him and the New York Times is: what took you guys a year? What has been happening for the past year that suddenly everyone can open the floodgates? And what did one year’s silence do to our Constitution? How much sooner could this Administration’s paranoia and mendacity have been exposed and curtailed had Rockefeller and the Times come out sooner? The Administration’s torture and jailing of suspected terrorists, and its secretive approach to the war, are all of a piece with its domestic surveillance; now that the truth is coming out, I hope the whole sordid house of cards tumbles. But how many people could have been saved from torture had men of conscience stepped forward sooner?

I’m in the middle of watching the third of Krzysztof Kieślowski’s Trois Couleurs series (apparently the one that I should have watched first), starring the astonishing and pristine Juliette Binoche.

I don’t understand how David Thomson could find Kieślowski’s films unapproachably austere. Bleu alone gives the lie to that idea. Just watching Binoche eat the lollipop that her daughter had left uneaten in Binoche’s handbag, with a horrifying desire to destroy it, is proof at least of Binoche’s gifts as an actress and Kieślowski’s skills at casting.

I’ll need to buy these three.

P.S.: Another thing that strikes me about Kieślowski is that he’s letting film do the job that film is supposed to do, namely tell a story through images. Binoche is starting her life over, but Kieślowski respects us too much to have a narrator tell us, “Julie de Courcy was starting her life over, so she went back to her maiden name.” There is no high-speed sequence where we see Binoche over the course of months, getting her hair redone, meeting a new man, crying but still proud. There is no soundtrack to remind us how we’re supposed to feel. There is only a sequence of beautifully composed scenes, put together with great deliberation. And yet we still feel what Binoche is feeling, and we puzzle over what’s happening inside of her head — is she in fact rebuilding her life, or is there something more complicated going on?

P.P.S.: I could do without the commentators in the DVD’s “Reflections on Kieślowski” section.

The White House’s defense of its recent scandals gets more and more ridiculous as the day goes by. Someone — I forget who now, but guessing Balkin’s blog probably isn’t far off the mark — pointed out the incoherence in the following assertions:

1. It is essential to the war on terror that the Patriot Act be renewed.
2. The president, in his role as commander-in-chief, is in many ways above the law when he’s fighting the war on terror. He’s allowed to violate FISA to wiretap American citizens; he’s allowed to label foreigners enemy combatants to get around the Geneva Conventions; and he can allow his soldiers to engage in behavior that “shocks the conscience.” All of this is justified because he’s fighting the war on terror. Such, at least, is what the torture memos say. See also the memos wherein the Attorney General asserted that the new world we live in “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”.

If the president can do pretty much whatever he wants in the war on terror, then why does he need the Patriot Act? If I were a congressperson, my first question for the president would be: “Mr. President, if we don’t re-authorize the Patriot Act, won’t you just get what you want illegally anyway?”

But this seems to be the line of incoherent argument that they’re dutifully chasing down. See the attorney general today:

“This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past — certain members of Congress — as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.”

Did you catch that? It’s a two-part answer: (1) Congress has authorized the circumvention of FISA (in the AUMF); and (ii) We didn’t ask Congress for an amendment to FISA because we were informed they would have denied it.

I hope Congress investigates what is obviously a serious attack on its own legitimacy.

You heard it straight from the president:

Secondly, an open debate about law would say to the enemy, here is what we’re going to do. And this is an enemy which adjusts. We monitor this program carefully. We have consulted with members of the Congress over a dozen times. We are constantly reviewing the program. Those of us who review the program have a duty to uphold the laws of the United States, and we take that duty very seriously.

An open debate about law would tell the enemy our plans. Um  . . .  wow. When the president himself admits that he won’t support the legislative process, how could anyone still support him?

(Full transcript below the fold, just in case the White House ever decides to edit it so that Eurasia has always been at war with Oceania.)

(more…)

Is there new porn legislation coming out? Because the New York Times is running the obligatory porn-scare story. Or rather, it’s a generalized Internet Is Scary story, but they all basically amount to Pervs On The Net stories.

I don’t intend to see Memoirs of a Geisha, because the book was my single least favorite book ever (of all the books I’ve completed, that is — I stopped reading Cryptonomicon halfway through, which may be proof that I liked it less than Geisha). If anyone sees it and it turns out to be good, let me know. It’s possible that it will make a fine movie; Anthony Lane hated the book version of The Bridges of Madison County, but went to see the movie anyway with something like masochistic glee. He was shocked to find that the movie was actually good, because the screenwriters apparently hacked the book to shreds. So maybe Geisha will pleasantly surprise me.

Brilliant.

Great point:

This Sunday on Meet the Press Secretary Rice explained that President Bush needed to wiretap American citizens in the United States without a warrant and without going through the procedures required by the Foreign Intelligence Surveillance Act (FISA) because it is important to prevent the “use of American territory as a safe haven for communications between terrorist operating here or people with terrorist links operating here and people operating outside of the country.”

The “safe haven” of which Secretary Rice speaks is the constitutional protections afforded by the Fourth Amendment, which apply to American citizens on American soil. What Secretary Rice is saying, in effect, is that the President wants the same freedom from constitutional limitations within the United States that he enjoys on the battlefield or overseas.

What a shame that the Constitution seems to be getting in the way of the President doing whatever he wants. And he has the gall to talk about “strict construction.” When it comes to his own prerogatives, this President clearly wants as loose a construction as possible.

It’s fairly common for people to pronounce “ask” as though it were spelled “ax”. I’m curious: does this pronunciation extend to related words? Do the same people pronounce “bask” as though it were “bax”? How about “task” versus “tax”? Or is “ask” something of a one-off?

Joni Mitchell’s Blue is the closest thing to perfection that we have in a music album.

That is all.

Hilzoy, who’s guest blogging in place of Kevin Drum for a few days, has a good post today that tries to explain to Republicans why they should oppose President Bush’s violation of the separation of powers. It’s a good post; I don’t delude myself into thinking that it will convince the unconvinceable, but it’s worthwhile reading. It’s got a lot of good citations to the Federalist Papers and suchlike.

I’m reminded of a couple things. First, during now-Justice Roberts’ Senate confirmation hearings, he was asked why he backed certain Reagan Administration policies that he now opposes. He replied, quite fairly, that when he’s working for any client, he’s going to give them as zealous a defense as he possibly can; that’s what lawyers do. If he had been working for the Congress, he said, he would have argued against the Reagan Administration’s case and for Congressional prerogatives. This is slightly disingenuous, because presumably he chose to work for those with whom he agreed. So the question is why he chose to go to work for the Reagan Administration, and defend their policies, if he didn’t agree with them. The White House is no ordinary law firm; presumably people choose to work there only if they agree with the Administration’s policies. I don’t see many Clinton staffpeople working for Bush.

But he does raise a very valid point, which gets at the heart of the separation of powers. The separation of powers is fundamentally a realization that everyone within the three branches is working at cross purposes. If the Executive Branch had its way, it would have all the power all the time; likewise for the legislature. The process has to be set up in such a way that every power from one branch cancels out another power from one of the others.

At the same time, there’s something spectacularly weird about this structure. It allows people to defend positions that they know to be unethical or flawed, just because their client demands it. See, for instance, the Administration’s insistence that its powers in the War on Terror are virtually limitless. They are expected to make claims like this, which every legal scholar whom I respect has denounced. In fact nearly everyone I’ve read has said that the Administration would be laughed out of court with these claims.

Now, if a lawyer were to advise his client to do something that the lawyer knew was indefensible, wouldn’t the lawyer suffer for it? If the lawyer’s advice were egregious enough, wouldn’t he be disbarred?

So what institutional checks are there on lawyers for the Executive Branch? Are they still subject to disbarment? And how egregious must their violations be before they suffer for it?

But disbarment alone doesn’t seem like an effective check. We need something built into the separation of powers itself, such that the executive branch and the legislature feel less inclined to take giant legal leaps (e.g., the torture memos). As it stands, it seems that the only check against them is fairly weak: the Executive Branch enacts a policy based on faulty legal reasoning, and some years down the line — after many have been tortured and many others jailed without trial — the Supreme Court strikes down that policy. That hardly seems like an effective check.

The Federalist Papers spend a long time arguing against their opponents’ claim that the Constitution creates a kingdom by another name. At least at present, it strikes me that the anti-Federalists were right. At the very least, the Federalists downplayed the likelihood that strong political parties would arise; they viewed “factions” as a great danger in a democracy. Factions seem to be precisely the problem today: the Executive Branch and legislature don’t check one another; rather, Democrats and Republicans do. When all three branches are dominated by one party, we can’t expect the Constitution’s idea of checks and balances to work properly.

One change that would do a world of good is a modification in Senate rules. These rules get no coverage in the Constitution — or rather, the Constitution explicitly leaves those rules up to the houses themselves:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

At present, the majority party gets to decide committee chairmanships. As we saw when Delay was Majority Leader, the majority party uses this to silence the minority party. A simple change to the rules, whereby chairmanships belong to the most senior member, would do a world of good. It would probably create its own difficulties, but it would at least reduce the tyranny of the majority within the legislature. I’m sure there’s a list of other rules that benefit the majority.

Of course, trying to change these rules will be difficult: the majority never wants to cede its power to the minority. I imagine that if Democrats retake Congress, they will want to make up for years of abuse by exacting the same abuse on Republicans. The only way to avoid this is for Democrats to realize that some day they will once again be the minority party; when that happens, chairmanships based on seniority will benefit them. This is the same reason why intelligent Republicans should vote against the “nuclear option” of forbidding judicial filibusters: one day, they will be the minority, and that filibuster will serve them just as much as it serves Democrats today. Of course, I’m convinced that Republicans are trying to make themselves the majority-party-for-life, and if they’re successful they have every reason to vote against the filibuster.

The Constitution is not sacrosanct: if we need to modify it to weaken one branch and strengthen another, that’s exactly what we should do. If we need to leave Congressional rules up to a vote of the people, we should do that.

I spent a fair bit of money this weekend. Not enough that most people would consider it “a fair bit,” and it was all very humdrum stuff: panniers and other such truck for my bike, a gift for a friend, a week’s groceries at Whole Foods, and drinks for the table at the Brickskeller [] for which I got cash back.

[] — Note that the Brickskeller has an eye-bleedingly bad website that probably couldn’t be any worse if they tried []. I refuse to link to it.

[] — Which they may have.