Tag Archives: Supreme Court

Legal, but not constitutional: how the government is weasel wording the public about Edward Snowden and the NSA

Homeland Security PrecrimeThe Edward Snowden/NSA/PRISM uproar continues, and in the argument over whether or not he’s a Real American Patriot or your basic criminal vigilante the whole fucking point is getting lost. In fact, that argument is precisely the one that the Obama administration and the GOP’s security-state architects want us waging because it distracts us from the actual issue we need to be discussing.

You may have noticed, in reading the various statements from government officials, the recurrence of a theme: the program that Snowden exposed is legal. Keep track of how many times you hear that word. It’s. All. LEGAL.

Yes it is. And the effectiveness of the government’s rhetoric right now is unfortunately due, in part, to the language employed by the left over the past decade, which has lambasted the Bush administration’s illegal domestic spying program. Illegal. Legal. Therein lies the problem. (I have to admit that I have been culpable in this – somehow I didn’t quite grok how that framing was inadvertently legitimizing the Patriot Act and FISA.)

The problem isn’t legality, it’s constitutionality, and there’s a huge difference. The programs that Snowden dropped the dime on are legal because they’re defined by laws passed by Congress. Period. If Congress passes a law, it is by definition legal until such time as it is either overturned by either the Supreme Court or subsequent legislative action. It sounds, from what I can gather, like the NSA program is functioning as designed (it’s hard to be certain since everything about it classified, but let’s play along for the moment). The law passed both houses of Congress, was signed into law by the president, is administered by a court and has not been turfed by SCotUS. Done and done.

The thing is, the process I just described means that if Congress passed legislation explicitly banning free speech, or establishing Catholicism as the official state religion, or banning blacks and women from voting, or granting police the right to enter your home anytime they like without a warrant, or eliminating habeas corpus, and if the president signed the law, and if the Supreme Court found nothing wrong with it, then that law would be legal in the same way that current domestic surveillance programs are legal.

So when an Obama mouthpiece or a Capitol Hill Republican screeches that the program is legal, understand that for what it is. A law can be immoral, unconstitutional, racist, sexist and oppressive in a hundred different ways while being perfectly legal.

And when you get the corrupt leaders of two parties in agreement over the need for and value of a security state, and they’re able to install five or more like-minded individuals on the nation’s highest court, they have assumed the ability to ignore the Constitution whenever they feel like it.

The NSA spying program is legal, but it is unconstitutional. I suppose you could, in the spirit of tedious technical accuracy, say that it’s constitutional if the Supreme Court says it is. But Edward Snowden, like a lot of us, believes that the Bill of Rights means what it says. A lot of people believe that when a government uses its legislative and judicial apparatus to pretend that words don’t mean what they clearly say that it has forfeited its legitimacy.

How many people believe this and what are they prepared to do about it? This is the tipping point upon which we are balanced, and only time will tell whether the citizenry will demand that its government stop hiding behind a corruption of the word legal and begin behaving in accordance with the principles unambiguously codified in the Constitution.

In the meantime, whenever you hear the words “legal” and “illegal” being used to damn Edward Snowden, understand: you are being manipulated and lied to.

Prediction: Supreme Court will strike down gay marriage bans, and it won’t be close

CATEGORY: LGBTGay marriage will finally get its day before the Supreme Court. The issues are legally and culturally complex and the outcome uncertain in the eyes of many observers. I’m no Constitutional scholar, but I think I know what might happen here.

I expect that the Court’s left-leaning justices will vote to strike down gay marriage bans (the Defense of Marriage Act, Prop 8, etc.) for obvious reasons: these measures represent an unwarranted denial of civil rights to large swaths of the population, which is anathema to the progressive mind.

I also expect these justices to be joined by Roberts and Alito, at the least. These men were marked out as servants of the nation’s corporate will when they were nominated and they have done little since taking the bench to change anyone’s mind. So, if I might be cynical for a moment, the question becomes “what outcome in this case best serves corporate America?”

I wrote back in February that the gay marriage war is all but over. A string of prominent Republicans have now endorsed marriage equality and a list of 278 employers, organizations and municipalities filed a friend of the court brief with the SCotUS opposing DOMA. That list of businesses includes some serious heavyweights, like:

  • Adobe Systems Inc.
  • Aetna Inc.
  • Alaska Airlines
  • Alcoa Inc.
  • Amazon.com, Inc.
  • American International Group, Inc. (AIG)
  • Apple Inc.
  • Bain & Company, Inc.
  • The Bank of New York Mellon Corporation (BNY Mellon)
  • Bankers Trust Co.
  • Biogen Idec, Inc.
  • BlackRock, Inc.
  • Blue Cross Blue Shield of Massachusetts, Inc.
  • Boston Scientific Corporation
  • Broadcom Corporation
  • Car Toys, Inc.
  • CBS Corporation
  • Cisco Systems, Inc.
  • Citigroup Inc.
  • Credit Suisse Securities (USA) LLC
  • Deutsche Bank AG
  • eBay Inc.
  • Electronic Arts Inc.
  • EMC Corporation
  • Ernst & Young LLP
  • Facebook, Inc.
  • The Goldman Sachs Group, Inc.
  • Google Inc.
  • Intel Corporation
  • Intuit Inc.
  • Johnson & Johnson
  • Levi Strauss & Co.
  • Liberty Mutual Group Inc.
  • Marriott International, Inc.
  • Mars, Incorporated
  • The McGraw-Hill Companies, Inc.
  • Microsoft Corporation
  • Moody’s Corporation
  • Morgan Stanley
  • New York Life Insurance Company
  • NIKE, Inc.
  • Orbitz Worldwide
  • Partners HealthCare System, Inc.
  • Pfizer Inc.
  • Qualcomm Incorporated
  • Salesforce.com, Inc.
  • Starbucks Corporation
  • Sun Life Financial (U.S.) Services Company, Inc.
  • Thomson Reuters
  • Twitter, Inc.
  • UBS AG
  • Viacom Inc.
  • Walt Disney Company
  • Xerox Corporation

It’s certain that not all American businesses think gay marriage is a good idea, but this list would seem to represent a pretty impressive cross-section of the corporate landscape. In other words, the consensus of the US business community is that marriage equality is, well, good for business. This means that corporate HR groups must have strong reason to believe that treating everyone the same benefits things like worker morale and productivity, factors which serve the bottom line.

Who the hell knows how the “strict constructionist” Scalia and the hateful, unreconstructed asshole Thomas will vote. In the end, I doubt it will matter. I’m betting on a 7-2 vote to strike down Prop 8 and DOMA.

Time will tell.

It’s time for progressives to forget about winning the battle and start concentrating on winning the war

It was Sun Tzu, I believe, who first suggested that in order to win the war, you sometimes have to lose the battle. This precept has been on my mind quite a bit since the results of the recent election began rolling in. For instance…

Earlier today one of my political lists was discussing the aftermath of the elections and pondering the future of the progressive movement, such as it is. In response to a couple of thoughtful comments I posed the following question:

In terms of what’s best for the country in the long run, which would be better:

  • Obama gets re-elected in 2012? Or,
  • Obama gets beaten in 2012, allowing Dems to realign and get started gearing up for 2016 assault on Mt. Mitt?

This is a cynical question, but it is not an insincere one.

The always level-headed Guy Saperstein made an important point: Read more

When Jesus Attacks! Why don’t we care that the Catholic Church is officially whipping Congress?

Part 2 of 2. (Read part 1…)

It’s Time to Separate Church and State, Once and for All

If you recall, anti-Catholic prejudice was once a problem for Catholic politicians in the US. John F. Kennedy went so far as to address the issue head-on in his 1960 campaign – probably because he didn’t feel he had much choice. Here’s what he told the Greater Houston Ministerial Association on September 12 of that year:

I am not the Catholic candidate for President. I am the Democratic Party’s candidate for President who also happens to be a Catholic. I do not speak for my Church on public matters — and the Church does not speak for me.

He went on to assert his respect for the separation of church and state and vowed that Catholic officials would not dictate policy to him. As noted in part 1, the times, they have a-changed. Read more

Corporation files to run for Congress: important marketing strategy questions remain unanswered

The Supreme Court has decreed that corporations are persons and money is speech, so it was only a matter of time before a company decided to exercise its Constitutional right to run for Congress.

Following the recent Supreme Court ruling in Citizens United v. Federal Election Commission to allow unlimited corporate funding of federal campaigns, Murray Hill Inc. today announced it is filing to run for U.S. Congress. “Until now,” Murray Hill Inc. said in a statement, “corporate interests had to rely on campaign contributions and influence-peddling to achieve their goals in Washington. But thanks to an enlightened Supreme Court, now we can eliminate the middle-man and run for office ourselves.” Murray Hill Inc. is believed to be the first “corporate person” to exercise its constitutional right to run for office. Read more

Constitution 2.0: Money Talks and Bullshit Walks

Bad attitude and strange bedfellows at the dawn of the Reich, and What Would Hunter Do, anyway?

Ever since five members of the Supreme Court declared the Constitution unconstitutional yesterday morning I’ve been in something of a snit. Along the way, I’ve said a variety of things that struck me as insightful, pithy, even witty. Others, however – bitter, lonely misanthropic types simmering in their own humorless bile – seem to be finding me mostly snarky and cynical.

So here are a few samples. You be the judge. Assuming you’re a corporation with enough spare cash that your opinion matters, that is.

  • Early on, my S&R colleague Brian Angliss lamented that this is how democracy dies, or something to that effect. My reply: “From where I sit democracy has been dead for some time. This is more like vandals pulling over the headstone.” See? Wasn’t that clever? Read more

Democracy & Elitism 4: equality, opportunity and leveling up the playing field

Pulitzer- and Emmy-winner William Henry‘s famous polemic, In Defense of Elitism (1994), argues that societies can be ranked along a spectrum with “egalitarianism” on one end and “elitism” on the other. He concludes that America, to its detriment, has slid too far in the direction of egalitarianism, and in the process that it has abandoned the elitist impulse that made it great (and that is necessary for any great culture). While Henry’s analysis is flawed in spots (and, thanks to the excesses of the Bush years, there are some other places that could use updating), he brilliantly succeeds in his ultimate goal: crank-starting a much-needed debate about the proper place of elitism in a “democratic” society.

Along the way he spends a good deal of time defining what he means by “egalitarianism” and “elitism.” Read more

Biz: SCOTUS to hear Sarbanes-Oxley challenge

Several years ago, in the wake of Enron and several similar debacles, it was rightfully agreed that we needed to assure more responsible behavior on the part of American corporations. The result was Sarbanes-Oxley, a law that has since been at the center of any number of debates over the difference between “we should do something” and “DO SOMETHING!!!” I’m not an expert on compliance issues, but I’ve heard enough mind-numbing horror stories from enough people in enough places to suspect that a review of the law, as it has been implemented, might be in order.

Now this news, courtesy of John Carney at BusinessInsider.com: the Supreme Court will hear a challenge to SarbOx. As Carney notes, this particular decision by the Court is a little unusual: Read more

A progressive for our times

Let’s say this guy was running for president on a third-party ticket:

  • proven track record for getting country out of wars
  • strong foreign policy diplomat who forged stronger relationships with powerful developing (and enemy) nations
  • implemented the first significant federal affirmative action program
  • dramatically increased spending on federal employee salaries
  • organized a daily press event and daily message for the media
  • oversaw first large-scale integration of public schools in the South
  • advocated comprehensive national health insurance for all Americans Read more