A Stitch in Haste

(Click to enlarge.)

Happy New Year!
And don't forget to set your clocks back.

Dear Major Airline:

Thank you for offering web-based check-in for your domestic flights. I'm a huge fan of the concept and use it whenever possible.

However, it is, for lack of a better term, moronic for you to program your website to create the boarding pass via a pop-up (which most people set their computers to automatically block) and then deny the user a chance to reload the page after he disables the pop-up blocker. This makes it impossible for any unsuspecting traveler with a pop-up blocker to use web check-in. This is frustrating to say the least.

Would it be too much to ask to insert a warning page into the check-in sequence reminding people to disable their pop-up blockers before proceeding?

Maybe your automated kiosks at the airport will be able to accommodate me even though I am now a "web check-in failure." But somehow I doubt it.

Long story short: I expect that I am now going to have to stand on line at the airport, on a Sunday and major holiday when I'm sure you will be understaffed, just to get a single, boring, domestic, paid-in-full, pre-assigned seat, no checked bags, no children-flying-alone boarding pass.

Brilliant.

And for what it's worth, things like this do impact my choice of airline, just as price and schedule do.

As the saying goes: The customer — and his computer settings — are always right.

Love,

KipEsquire

P.S. Please don't mention this to the TSA. I don't want to get on any "troublemaker lists." Thanks

EPILOGUE: Well, I must admit they (sorta kinda) redeemed themselves -- they had a self-serve kiosk right when you step off the AirTrain, and it accommodated me, no sweat. On the other hand, how a major airline's domestic terminal at JFK can have no food court, no fast food, and not much non-fast food, is another matter altogether.

"I sense much gaming in you..."

Dog owners should immediately take a moment to ensure that they have no "Country Value," "Professional" or "Diamond" (no relation) brand dog food in the house, as it is killing dogs across the country.

I could easily imagine a scenario where I saw "Diamond" brand dog food and thought to myself "How cute -- Diamond Dog Food for my Diamond Dog. I'll buy that brand."

Such is the stuff of nightmares. Diamond and I extend our condolences to those who lost their dogs.

Some pop law:

--The manufacturer is strictly liable for all damages proximately caused by the tainted food. There is no need to show malice or even negligence. See generally, Restatement (Third) of Torts.

--Under older theories of product liability law, the retailer, wholesaler and anyone else in the "distributive chain" would also be strictly liable. Moreover, the cumulative liability of the distributive chain is "joint and several," which means that if, for example, the manufacturer went bankrupt, then the plaintiff could sue the local pet store owner for the full amount of damages. Some states have deemed this "joint and several liability" provision too draconian and unfair, and now absolve the retailer if it is selling sealed containers that provide no reasonable way to determine a defect. That would certainly apply here.

--The overwhelming majority of states deem pets to be, as a matter of law, "mere" property. Therefore, the liability of the manufacturer or the distributive chain is limited to the fair market value of the dog and incidental damages such as vet bills. My understanding is that a handful states have changed the law (or are considering changes) to allow for "emotional distress" or "loss of companionship" damages for the wrongful death of a pet.

"The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic."
--Justice Hugo Black, New York Times v. United States, 1971

The Justice Department has initiated an investigation into the leak to the New York Times of the administration's constitutionally suspect warrantless wiretapping of domestic communications.

While they're at it, perhaps they'd like to open an investigation of the President's repeated lying to the American people on the subject.

Meanwhile, it's important to remember that the law making it a crime to leak sensitive information to the media applies to the government source, and not to the New York Times, which is protected by the First Amendment generally and the so-called "Pentagon Papers" case specifically.

New York Times v. U.S., 403 U.S. 713 (1971), made it clear that there is a strong presumption that freedom of the press trumps vague, open-ended warnings about "national security" and that, if the government wants to censor, it must show, at the absolute least, that there would be "direct, immediate, and irreparable damage" to our vital interests. Of course, to this "security at all costs" White House and its apologists, one can expect a fast and loose definition of "direct," "immediate" and "irreparable."

On the other hand, the Pentagon Papers case was only about prior restraint (i.e., censorship). It did not block criminal prosecutions after the information was published. Nor did it say anything about punishing leaks by government employees.

In this I wonder whether New York Times v. U.S. goes far enough. It seems to me that there should be at least some modest form of "whistleblower" protection for government employees (a/k/a "public servants") who leak information about illegal or constitutionally suspect activities.

We are not talking here about disloyal subversives who disclose classified information to aid the enemy (e.g., outing an undercover agent) or for mere financial reward (e.g., selling secrets to foreign powers). This leaker was, as far as we know, a patriotic American trying to expose, for our own sakes, a dubious government program.

Such a person is not a traitor — and probably should not be deemed a criminal either.

More thoughts at Concurring Opinions, Moderate Voice, Running Scared, De Novo.

For Christmas Santa gave Diamond the local dog run all to herself for the morning:



It was a very foggy Christmas morning in New York City...

"Queensborough Bridge to Nowhere"


"A Boy and His Dog and Her Ball..."


"Best in Show..."

Afterward, Diamond also got a chocolate-flavored Nylabone:


As for me, well, Diamond is my year-round Christmas present!

Happy New Year everyone!

(Carnivalized at Modulator's Friday Ark and Mickey's Musings Carnival of the Dogs.)

Imagine if the police showed up in your neighborhood, for no legitimate reason, began wandering onto every private driveway and started sniffing for marijuana.

Then, when asked whether they had warrants for these sweeping incursions onto private property, they informed you that, since driveways are deemed "public access," they in fact do not need a warrant.

Would you commend them for their "constitutional" behavior, or would you be upset and indignant?

Now you know how certain law-abiding people might feel:

Faced with angry complaints, U.S. officials defended an anti-terrorism program yesterday that secretly tested radiation levels around the country — including at more than 100 Muslim sites in the Washington area — and insisted that no one was targeted because of his or her faith.
...
"We have not violated the law; we have not violated the Constitution; we have not gone on private property," [a senior FBI official] said. He said that he could provide few details because the program remains classified but added that the monitoring devices involved were "passive," roughly akin to holding a thermometer out the window of a moving car to measure the temperature.
...
Most of the testing was apparently done from nearby streets. But, according to U.S. News & World Report, in as much as 15 percent of the cases, officials had to go onto private property, such as mosque parking lots and private driveways, to get accurate readings.

Officials involved with the program said no warrants were needed because they were in public access areas.

I of course disagree, for reasons that I explain in this post.

If the government has credible evidence to seek out radioactivity at a particular site, then they should indeed be allowed to test and probe as much as they need to. On the other hand, "credible evidence" is just another term for "probable cause." Go figure.

If one thing is obvious, it's that the answers to these questions about the new disregard for warrants in the War on Terror are not so obvious. Yet at every turn, with every new revelation, there is an increasingly unapologetic smugness in the responses by government officials, who seem more interested in explaining (or simply declaring without explanation) why these actions are (supposedly) constitutional instead of explaining why they're either useful or necessary.

I guess it's simply a new twist on the old quip about lawyering: If the law is on your side, then argue the law. If the facts are on your side, then argue the facts. If neither the law nor the facts are on your side, then play the "War on Terror card" and call those who disagree with you "unpatriotic" or "naive" or "privacy absolutists" or some other gobbledygook.

That's the real "ticking time bomb" in this country.

In America, when newspapers anger political leaders, there's little that those leaders can do except hold press conferences and complain from the Bully Pulpit.

China's Communist dictators, on the other hand, have a different definition of "bullying":

The authorities in China have dismissed the top editor of the Beijing News, one of the country's most popular and daring newspapers. Editor-in-chief Yang Bin was removed along with two other senior editors.

No official reason was given, but a lawyer who often represents journalists said Communist officials had accused the paper of multiple errors.

The Beijing News has a reputation for forthright reporting and commentary, despite strict control over the press. It exposed a bloody crackdown ordered by officials against protesting farmers in the northern province of Dingzhou in June, in which six farmers were killed.

The sad part is that there are warrantless wiretap apologists here in the U.S. who would gladly give the President the authority to fire the editors of the New York Times -- or maybe even imprison them. Certainly censorship of "sensitive" stories would be no big deal to such War-on-Terror absolutists (anyone remember the Pentagon Papers)? All in the name of defending the "American way of life."

Whatever that means anymore.

The City of Vienna will now require all dog owners to carry liability insurance:

Policies must have minimum coverage of euro725,000 (US$864,000.) They are meant to pay for legal, hospital or other costs arising from damage or injury caused by the animals.

Those caught without insurance could be forced to pay fines up to euro3,500 — more than US$4,000.

I'm not sure what motivated such a draconian law (e.g., any particular incidents of dog maulings). But the program is clearly overkill and, more importantly, economically inefficient.

Consider another, less noteworthy case of mandatory insurance: automobiles. As far as I know, (almost) every state in America requires some form of liability coverage, either standard or no-fault, and driving without such coverage can be a criminal offense.

Of course, there's a reason why mandatory auto insurance is a smart idea: the significant likelihood of a catastrophic accident. There are two components to the potential for high damages. First, the significant probability of having an accident. Second, the conditional probability that, given that an accident occurs, it will result in significant damage or injury. "Significant times significant" still equals significant. Therefore, the potential for huge losses that even an otherwise willing payer cannot afford is substantial enough to justify, economically, mandatory auto insurance. Stated differently, the risk of facing an insolvent defendant in an accident lawsuit is high enough to make it cost efficient to require insurance for all.

But is this true for dogs? Not only is the probability of a dog causing damage or injury small, but the conditional probability that, given an incident, the monetary amount at issue will be large enough to require insurance coverage rather than an out-of-pocket payment is also small. "Small times small" equals microscopic. And that which is microscopic does not require universal insurance.

Look at it this way: how many dog bite incidents wind up in major litigation, and how many wind up on Judge Judy? How many never wind up in court at all?

Meanwhile, every dog owner in Vienna will soon have to pay insurance premiums — a direct utility loss. Some may unfortunately choose to forgo even having a dog — just as real a utility loss.

What a sad turn of events for such a wonderful city.

For Discussion #1: Does this analytical framework also apply to mandatory rabies vaccinations for dogs? Does it suggest a different policy outcome than the unwise mandatory dog insurance program?

For Discussion #2: Does this analytical framework also apply to a state choosing whether to adopt standard liability or no-fault auto insurance? Is one system always preferable to the other from an economic efficiency perspective? If not, what other factors play a role in preferring, economically, one system over the other?

The New York Times is reporting that cities are increasingly unable to hire police officers:

In a generation's time, the job of an American police officer, previously among the most sought-after by people with little college background, has become one that in many communities now goes begging. Experts find that the life has little appeal among young people, and those who might be attracted to it are frequently lured instead by aggressive counteroffers from the military. The problem is compounded by better pay at entry-level jobs in the private sector, where employment opportunities have recently brightened.
...
The pay in most departments remains competitive with that in other jobs that do not necessarily require a college degree.

Now wait just a minute: Aren't those last two sentences mutually exclusive? Either the pay is better or it isn't -- it can't be both.

And in any case, if two jobs offer the same pay and people flock to one employer but not the other, then by definition the shut-out employer is not being "competitive." Being a "competitive" employer means that you're actually filling your openings. If people don't want to work for you, then by definition you're not being "competitive."

Another observation, one I've made in the context of courts. No matter where you lie on the political spectrum, you certainly believe that cities and towns should have police. You might not always like what they're doing, but even the Randroids acknowledge that a traditional crime-fighting, order-maintaining police force is one of the few undeniably legitimate functions of government.

So why not just shut up and pay for it?

What peculiar form of obnoxiousness asserts that a city can find the money for cash entitlements -- not to mention taxpayer-subsidized health care and day care and college and law school and art galleries and senior centers and wireless Internet access and whatever else generates warm fuzzy feelings among the politicians, bureaucrats and "community activists" -- but when it comes time to coughing up the money to hire qualified police officers, somehow there's a funding shortfall?

The same rule applies to the military -- if you need more soldiers then the answer isn't a draft, it's a higher salary. Even in time of war: if you pay it, they will come.

Our leaders have it exactly backwards -- you don't start with the money and then decide how to find the recruits. You start with the openings you need to fill and then decide how to pay for it.

The New York Times would have you believe that the transit workers were the victors:

When [union leader Roger] Toussaint appeared before television cameras at 11 p.m. on Tuesday to announce the settlement, he commented little except to read an impressive list of new worker-friendly provisions: raises averaging 3.5 percent a year, the creation of paid maternity leave, a far better health plan for retirees, a much-improved disability plan, the adoption of Martin Luther King's Birthday as a paid holiday, and increased "assault pay" for bus drivers and train operators who are attacked by passengers.

This is, of course, utter nonsense.

Remember, what matters isn't what the transit workers got, but what they got as a result of the strike (i.e., the marginal benefit of striking compared to the marginal cost).

Although we cannot know exactly what would have happened had the workers not gone on an illegal strike, we know from the negotiations before the strike that the MTA was offering somewhere in the neighborhood of a 6-7% salary increase over three years. The workers got 10%.

That's about it -- 4 percentage points more at most.

The rest of the gobbledygook -- MLK Day and "assault pay" and such -- was all on the table before the strike; nothing on that "impressive list" was in any way a dealbreaker for the MTA. It is entirely illegitimate to assert that they were obtained as a direct result of the strike. The pension tug-of-war was a draw (sorta kinda -- see below).

Meanwhile, here's the strike's marginal cost to the workers:

--Six days lost pay. As I blogged previously, even assuming the high-end 4% incremental figure, that means that striking workers will have to work 150 days before they catch up.

--Potential court fines on individual striking workers on top of the two-for-one Taylor Law strike penalty.

--The union was fined $3 million, almost its entire net worth. Its leaders still face possible imprisonment.

--Transit workers must now pay health insurance premiums.

--The MTA won a critical concession: a 37-month contract, which means that the union will never again be able to hold the Christmas shopping season hostage.

--An inestimable amount of lost goodwill among ordinary New Yorkers.

It seems obvious to me that the MTA was the overall victor here.

---

Except for this:

[The MTA agreed] to special payments of up to $10,000 for more than half the Transport Workers Union's members...
...
The union claimed its members were owed refunds because many subway and bus workers had years ago paid 5.3 percent of their salaries into the pension system.

But the system was later changed, allowing newer employees to pay only 2 percent of their income and still receive the same retirement benefits as the older workers.

So if I go to the supermarket today and buy a quart of milk for $1.25 and you buy it tomorrow for $1.00, that means I'm entitled to my $0.25 back? Ridiculous. The contract was what it was. The fact that subsequent hires faced a different contract falls under the category of "too bad so sad." There was no error, there was no fraud, there was no inequity.

But bleed the pension dry anyway. That's sure to help transit workers in the future.

The Legislature (which must approve the kickback) should, of course, reject this ludicrous giveaway. But they won't. Organized labor owns essentially all New York's hack politicians, including Republicans. They will ratify the payoff and tax-and-spend Republican governor George Pataki will sign it into law.

---

A brief denouement:

Meanwhile, the TWU is reportedly considering fining those members who crossed the picket line during the strike. Union officials are trying to determine who continued to work during the work stoppage.

Members who crossed the picket line could be fined the amount of money they made during those three days. They could also be stripped of their union representation.

I had originally intended to write a major post on this topic alone, going into the various legal doctrines -- such as unconscionability, the "illegal contract" doctrine, unclean hands, in pari delicto, etc. -- that would render any such fines null and void.

Suffice it to say that this merely illustrates how ignoble and immoral these despicable union leaders have been during this whole sordid affair. Workers forced, against their will, to join a union and to pay dues, who when told to go on an illegal strike, decide instead to obey the law, feed their families and not hurt innocent transit riders. And for that, the lawbreakers who run the union want to fine them.

Incredible.

---

More thoughts at Half Sigma.

Tennessee is considering revoking the tax-exempt status of the YMCA:

The YMCA has been involved in a nine-year battle with a group of private health clubs who say the YMCA's state tax exemption gives the organization an unfair advantage in competing for members.

Of course, the most insolent abuser of tax-exempt status is the AARP, which sells -- just about everything. And as a tax-exempt behemoth, its inappropriate competition with taxpaying businesses has a significant impact throughout the private sector.

Let's say I decide to retire and open a gay bar in my neighborhood. Not to make money, but to expand the gay presence in my locale, or to "give back to the community," or whatever. I make a conscious choice to operate my bar for zero profit. I overpay my bartenders and undercharge my customers -- all carefully calculated to just break even.

If that happens -- if I have no profit -- then I will pay no tax. I am, essentially, a tax-exempt institution. Which is fine if that's what I choose to do. But would anyone seriously entertain the notion that I should be granted, upfront, tax-exempt status? Of course not. My bar is not a charitable, educational, cultural or otherwise "civic" institution. It's a business, albeit one that I choose to operate in an unconventional manner.

How is the YMCA, or the AARP, any different? If the YMCA wants to run a gym, or if the AARP wants to offer dirt-cheap life insurance or run any other business for the benefit of seniors rather than for themselves, then they can go right ahead -- but without a discriminatory tax advantage. Just like me and my breakeven gay bar.

It's quite simple really: tax-exempt is (or should be) as tax-exempt does. It should be the activity, not the bottom line, that determines tax-exempt status. Run a health club? That's a business, not a charity -- pay the tax.

Sell life insurance? That's a business, not a charity -- pay the tax. Sell mutual funds? That's a business, not a charity -- pay the tax.

And so on.

If the YMCA wants to make gyms available to the poor and disadvantaged, then let them create a charitable endowment to fund gym vouchers for low-income families. But don't undercut, via discriminatory tax policy, honest entrepreneurs trying to make an honest profit by providing an honest service -- and paying taxes in the process.

Perhaps there will be some gray areas -- why is a museum tax-exempt but an art gallery not? But wherever that gray area might be, it is not at the gym.

Hat tip to Tax Policy Blog.

"Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition."
--Moore v. East Cleveland

Another activist legislature is flagrantly ignoring a clear Supreme Court precedent:

[A] zoning ordinance adopted this month by the city of Manassas [Virginia] redefines family, essentially restricting households to immediate relatives, even when the total is below the occupancy limit.

The rule, which has alarmed civil libertarians and housing activists, is among a series of attempts by municipalities across the nation to use zoning powers to deal with problems they associate with immigrants, often illegal, who have settled in suburbs, typically in shared housing to help with the rent or mortgage.
...
Kent Willis, executive director of the American Civil Liberties Union of Virginia, said the new rule is "constitutionally questionable" and pointed to a 1977 Supreme Court ruling that struck down a similar law defining family passed by the city of East Cleveland, Ohio.

The 1977 case is Moore v. East Cleveland, 431 U.S. 494 (1977). The facts were, as far as I can tell, identical to the Manassas ordinance: a city passed an ordinance, nominally to curb overcrowding, limiting the size of households. The ordinance exempted large families, however, and then promptly set about defining what "family" meant.

The Supreme Court struck down the East Cleveland law, holding that even if "curbing overcrowding" is a legitimate government interest, it was not legitimate enough to justify discrimination based on family status. The Court's dictate is unambiguous: Either limit how many people can live in the house or not. (That libertarians would reflexively say "not" is a whole other blogpost.) As Justice Brennan noted in his concurrence:

"[T]he zoning power is not a license for local communities to enact senseless and arbitrary restrictions which cut deeply into private areas of protected family life."

No libertarian could have said it any better.

But I guess legislative memories fade after almost 30 years. In the new insolence expressed toward precedent and the worship of unbridled majoritarianism (i.e., mob rule), binding precedent ceases to be binding and that which ignores "the will of the majority" is summarily ignored as invalid.

In any case, isn't it amazing how the activists who seek to "defend marriage" and "protect the traditional family" are often the same activists who will try to keep such traditional families out of their neighborhood when they get too big (or just happen to be immigrants or Hispanics or some form of "others")?

Hat tip to Hit & Run. Here's a Manassas blogger's take on the ordinance.

In Part One I discussed an warrantless wiretapping apologist's op-ed in the Wall Street Journal.

The New York Times had a comparable piece. Most of it is the same talking points and obfuscation as the other apologist arguments (e.g., falsely asserting that only "known terrorists" are being monitored, insisting that even secret and retroactive FISA warrants are too much of a hassle, etc.).

But this part caught my eye:

The purpose here is not to detect crime, or to build criminal prosecutions -- areas where the Fourth Amendment's warrant requirements are applicable -- but to identify and prevent armed attacks on American interests at home and abroad.

This is, of course, utter nonsense.

The words "criminal" and "prosecution" appear nowhere in the Fourth Amendment. The conduct of trials (i.e, "prosecutions") is covered by other Amendments. The Fourth Amendment is about investigation and makes no distinction between "mere" crime or terrorism or any other form of government intrusion upon privacy.

Also, while I don't claim to be a expert on the history of the drafting of the Constitution or the Bill of Rights, it seems to me that the Framers were essentially deemed "terrorists" by the Crown during the Revolution, and they were hunted down, spied upon -- and in some cases hanged -- not for being "mere criminals," but rather for being subversives intent upon overthrowing the "rightful" government and the "colonial way of life."

And it also seems to me that, when the Bill of Rights was being drafted and ratified, it was about the loss of privacy in the name of "defending the government" that the Framers were thinking about, regardless of context.

To claim that the Fourth Amendment applies exclusively to criminal prosecutions and not other excessive intrusions by government is either willfully dishonest or mind-bogglingly ignorant. Argue about the meaning of "excessive" if you want, but don't twist the meaning or context of the Fourth Amendment itself.

I say again: the apologists doth protest too much.

More thoughts at De Novo, California Yankee.

A commentator at the Wall Street Journal ($):

Ultimately, as the courts have noted, the test is whether the legitimate government interest involved -- in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives -- outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.

Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.

Of course, these two paragraphs are mutually exclusive. If the Constitution is "the supreme law," then that includes the Fourth Amendment (which, as an amendment, clearly trumps the original Articles), therefore someone who invokes the supremacy of the Constitution cannot simultaneously argue that there is a "balancing test" between security and privacy.

So which is it -- is the Constitution -- including the Fourth Amendment -- "supreme" or isn't it?

Actually, the choice is a false one. It is the Constitution itself, via the Fourth Amendment, that already provides the "balancing test" for intruding upon privacy -- the test of probable cause. The Administration's apologists, like this one, keep insisting that the warrantless wiretapping is targeting "known terrorists." Notice how he invoked not your privacy interests or mine, but "the privacy interests of individuals who are communicating with al Qaeda terrorists." Well, if they're so known, then why not just get a warrant, especially given FISA's 72-hour retroactive warrant provision? If a particular threat is so clear, then it will be clear to the FISA court and they will issue a warrant.

Or is the problem that the threat is not so clear as the apologists would have us believe? Recent reports would suggest so.

Also, we now know that the warrantless wiretap scandal is not about "those of us who communicate (knowingly or otherwise) with foreign terrorists." It's about anyone domestically who communicates with anyone overseas. There's a difference.

So the "known threat" is not necessarily the person on the U.S. end of the phone or even on the overseas end of the phone. But listen anyway. Such is the apologists' definition of "known threat."

The apologists for warrantless wiretapping are engaging in an intentional bait-and-switch. They are decrying the somehow "anti-Constitutional" protestations of "privacy rights absolutists." I have yet to meet such an "absolutist." No one is seriously demanding "no wiretapping," but only no warrantless wiretapping (and its ultimate expression, data mining).

A jurisprudence of "the Constitution for me but not for thee" is neither honest nor persuasive. No credible, non-circular argument has been put forth to defend the need for plenary authority of the Executive Branch to wiretap without probable cause and therefore a warrant, at least retroactively.

The government doth protest -- and wiretap -- too much.

Sorry about the extended downtime. Powerblogs had server hardware problems. And they only charge $10/month for it. What a bargain.

I'll try to get yesterday's posts up this morning.

A heads-up that I will be in San Francisco from January 1st through the 4th for my regular pilgrimage to see how the other half lives (i.e., the other half of uppity urban gays).

If anyone in the Bay Area would like to meet up, let me know. First drink's on me, preferably here.

JT of Jujitsui Generis is "scaling back" on his blogging for very positive career-related reasons. I congratulate him. Of course, his blog must come off the Elite Eleven. His gain is our loss.

Now is not a good time to pick a replacement, with so many bloggers, myself included, taking well-deserved breaks for the winter holidays.

I will announce a replacement as soon as is practical.

What is the Elite Eleven?

My Blogrolling Policy

Reason Magazine has a brief report of the revival of roadside dinosaur parks.

But of course, "revival" can also have a religious connotation:

[C]reationists have been buying roadside dinosaur parks around the country and turning them into anti-evolution museums. Visit the Cabazon Dinosaurs today, and you can pick up Darwin-bashing literature at the gift shop; at similar attractions you'll see the evidence, such as it is, that dinosaurs lived in the Garden of Eden and were transformed from vegetarians to carnivores by man's original sin.

To which my response is: Who needs creationist dinosaur parks when you have the Grand Canyon? As I blogged previously, the Bush Administration has explicitly approved the sale of creationist propaganda in bookstores affiliated with National Park Service. The creationist drivel "explains" how the Grand Canyon was in fact the result of Noah's Flood.

We should leave the dinosaur parks to the cretinists creationists and worry more about the adulteration of our national landmarks.

(Via Hit & Run.)

Among the more peaceful aspects of the Religion of Peace is the practice of "honor killing" -- in which a family member kills a woman who has "shamed" the family, usually for some sexual or marital misconduct.

And of course, sexual misconduct is a communicable disease, so sometimes an "inoculation program" is necessary:

A father, angry that his eldest daughter had married against his wishes, slit her throat as she slept and then killed three of his other daughters in a remote village in eastern Pakistan, police said Saturday.

Nazir Ahmad, a laborer in his 40s, feared the younger girls, aged 4, 8, and 12, would follow in their sister's footsteps, police officer Shahzad Gul said.
...
Gul said the man's 25-year-old daughter, Muqadas Bibi, had married the man of her choice against her father's wishes some weeks ago.
...
Hundreds of women are killed in Pakistan every year, many by male relatives, after they are accused of staining their families' honor by having affairs or marrying for love without family consent.

And for what it's worth, you might notice that the words "Islam" and "Muslim" do not appear anywhere in the Associated Press report. Go figure.

Then again, why should they? The fact that honor killings are, for the most part, an exclusively Islamic tradition doesn't mean anything, right? How could it -- after all, Islam is a "Religion of Peace."

New York City's philosopher-king, Michael Bloomberg, is claiming that New York City businesses "lost" a billion dollars during the illegal transit strike:

"This morning, thousands of hardworking New Yorkers dearly miss the wages and tips they lost during what would normally have been a busy pre-Christmas week," Bloomberg said in his weekly radio address.

The day the strike ended, several economists said the city's estimate of $400 million a day in lost revenue appeared too high and failed to account for offsets, such as employees working from home. Bloomberg did not explain how he reached the $1 billion figure.

Simple -- he made it up. Who needs "accurate" when "simple" will suffice?

Regardless of what the correct number is, what does it even mean? "Lost revenue" is of course not the same as "lost income" or "lost profit." The industry worst hit by the strike would likely have been retailing. Yet the important metric in retail is not revenue, but gross margin, which in retail is puny, usually far less than 10%. So "a billion" (already an inflated number) suddenly becomes "tens of millions."

I heard that not a single Broadway show went dark during the strike. If so, then the theaters were impacted only negligibly, since tickets are non-refundable and for the most part are sold well in advance. Tourist restaurants as a group, meanwhile, were not likely affected: the tourists were already here and had to eat, no?

And of course, locals had the opportunity to stockpile in advance of the strike, or catch up after it was over. Does anyone think supermarkets were significantly affected by the strike? Subtract that out from the "billion dollar" figure. And if workers stayed home, then the unpaid labor costs are another offset.

My point is not to say that the strike had no economic effect or to minimize the despicable and illegal acts by transit workers and their grandstanding union leaders. Had the strike persisted, the economic impact would have escalated rapidly. My point is merely that Bloomberg should cease the histrionics of random inflated numbers. If for no other reason, we should keep in mind that no contract has yet been reached in the labor dispute.

And if Bloomberg really gave any kind of a damn about city businesses losing revenue, then perhaps he should start with his own administration and the unconscionable 5% city sales tax (which he raised practically the moment he walked through the door of City Hall). That has cost city businesses far more than a three-day transit strike ever could.

(Click to enlarge.)

I've blogged about public support of the arts previously. The simple truth is that the reason there are so many "starving artists" is because most artists suck.

I know at least four present or former co-workers on Wall Street who had rock bands in their youth. They sucked. They broke up. They moved on. They did not apply for grants from the National Endowment for Garage Bands.

The so-called "fine arts" should be no different.

Here's a summary of the Supreme Court's jurisprudence (or lack thereof) on warrantless wiretapping.

But remember:

1. We already have a secret court to issue secret warrants to do secret wiretapping.

2. The government can, in "urgent" matters of national security, wiretap first and seek a warrant later -- as much as 72 hours later.

It seems to me that the burden of persuasion is on the White House to explain why even that's "not enough" and that warrantless wiretapping is so desperately necessary.

And I'm not feeling very persuaded so far...

Not to gloat or anything, but I was, to the best of my knowledge, the first to raise, in the context of the warrantless wiretapping scandal, the specter of Kyllo v. U.S., 533 U.S. 27 (2001), in which the Supreme Court held that law enforcement may not, without a warrant, use thermal imaging technology to "peer inside" homes (i.e., to detect special heat lamps used to grow marijuana indoors).

I explicitly noted that although Kyllo was not specifically on point in "snoopgate," the analytical framework (i.e., that the government may not claim that "mere" technology is somehow "exempt" from the Fourth Amendment) was nevertheless apropos.

Well, scratch the "not specifically on point" part:

Clandestine FBI and Energy Department teams have monitored private property in the United States for signs of radiation without warrants, U.S. officials said yesterday.

Officials said the monitoring, which intensified after the Sept. 11, 2001, attacks, did not require warrants or court orders because it took place from publicly accessible areas or from parking lots or driveways leading to private facilities, which the FBI believes do not carry privacy protections.

Wrong. Not just wrong, but "flunk the final" wrong. No one could possibly read Kyllo and think this was permissible. Not even close.

I can think of only three possible partial defenses to this practice:

1. Kyllo specifically referred to homes. It was fundamental to the Court's analysis. It is therefore possible that searches of non-residential areas might — might — not be covered by Kyllo. I leave to others the question of "What reasonable expectation of privacy does a house of worship enjoy under the Fourth Amendment?" (My response, for what it's worth, would be "a lot.")

2. Kyllo concerned the War on Drugs. "Geigergate" concerns the War on Terror. Is Kyllo therefore totally distinguishable? Which brings us right back to the warrantless wiretap scandal: "What is the nature of Article II power, especially the Commander-in-Chief Clause, in time of war against a nebulous entity that is not a nation-state?"

3. "Radiation" is not the same as "heat." If I were a Bush Justice Department lawyer, this would be my plea for mercy.

This story has legs. Stay tuned...

More thoughts at PoliBlog.

---

Strictly as a footnote, Edward Lazarus, a former federal prosecutor, has an outstanding commentary on the warrantless wiretap scandal. Suitable for non-lawyers and therefore a must-read. I concur unequivocally with his analysis.

To review: Judge Richard Posner of the Seventh Circuit Court of Appeals, generally a darling of libertarians, has sparked a wide and deep backlash to his defense of unlimited government data mining (i.e., the ubiquitous gathering of data, without individualized suspicion, through which government computers go on "fishing expeditions") to identify useful information in the War on Terror.

I rebutted Posner here. I presumed in that blogpost that the Big Brother scenario Posner contemplated was strictly a thought experiment that did not really exist.

I was wrong. Twice.

First, as a warm-up, we have the announcement that the U.K. government is developing the ability to track, just for the heck of it, every vehicle movement in that country.

The Automatic Number Plate Recognition (ANPR) cameras will run alongside the CCTV system already in place throughout the country. The aim is to provide round-the-clock coverage of as much of the road network as possible.

Police sources last night claimed that it would not lead to every car on every road being tracked. But it is likely that cameras will be found on most major roads, in cities, at ports and thousands of petrol stations.

The information gathered will be collated by a central database running alongside the Police National Computer in Hendon, north London.

Law-abiding people driving lawfully from lawful places to other lawful places to do lawful things.

But track them anyway. Just for the heck of it.

It seems to me that this is exactly the kind of data gathering that Posner would embrace. The process is strictly automatic, via robot cameras. The information is retained for "only" two years. No law enforcement official's or bureaucrat's eyes will see the information without a valid reason. Or so we're told.

I think it's safe to say that if you feel comfortable with such a program because it might — might — someday help in some way in some aspect of the War on Terror (or the War or Drugs or the War on Crime or the War on Drunk Driving or the War on Smog or the War on Whatever), then you are not a libertarian.

And Posner would, it seems obvious, be comfortable with it. Go figure (or perhaps "go data mine" would be more appropriate).

---

And in case you mollified your concerns by focusing on the fact that this was in Britain and not the U.S.:

The National Security Agency, in carrying out President Bush's order to intercept the international phone calls and e-mails of Americans suspected of links to Al Qaeda, has probably been using computers to monitor all other Americans' international communications as well, according to specialists familiar with the workings of the NSA.
...
"They have a capacity to listen to every overseas phone call," said Tom Blanton, director of the National Security Archive at George Washington University, which has obtained documents about the NSA using Freedom of Information Act requests.
...
"The collection of this data by automated means creates new privacy risks," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, a watchdog group that has studied computer-filtered surveillance technology through Freedom of Information Act lawsuits.
...
The closest comparisons, legal specialists said, are cases challenging the use of dogs and infrared detectors to look for drugs without a warrant.

Exactly what I said previously. Kyllo v. U.S., 533 U.S. 27 (2001), which struck down the use of infra-red sensors without a warrant, may not be precisely analogous to omnipresent eavesdropping-based data mining on international communications. But it's close — too close not to consider.

I don't know whether this story was a direct response to the Posner op-ed, but it's exactly what he was hypothesizing and defending — every single international call by every single American being "sifted" (what an obnoxiously inert euphemism). Of course, "sifted" really means intercepted, noted, possibly monitored and perhaps even recorded. Without a warrant, without probable cause, without a "ticking time bomb" that might justify circumventing the warrant requirement. All for no other reason than because it might — might — someday somehow help us somewhere in the War on Terror.

(Via How Appealing. The New York Times has more details.) More thoughts at Moderate Voice.

---

In an online chat after his piece ran, Posner said the following:

Why are you more concerned with your privacy than with your safety? Maybe you don't think the nation is at serious risk of further terrorist attacks. I disagree.

Although he later tried to backpedal on that statement, it reveals his underlying rationale for embracing omnipresent data mining. In Posner's worldview: Any marginal increase in national security, no matter how small, is worth any marginal decrease in privacy, no matter how large. In economic terminology, safety should be "lexicographically preferred" to privacy (i.e., the marginal rate of substitution is infinite).

Well, that might be a perfectly rational preference for Posner or anyone else to have, but it is not the only rational preference that a law-abiding citizen could have. And it is wholly inappropriate to assert that, because some segment of the populace thinks as Posner does, they can then impose such a high privacy-for-safety ratio on the rest of us. It is not irrational to prefer some risk in exchange for basic privacy rights. In fact, it is not irrational to demand it.

As I said before: Posner should know better.

As promised, here are some quick shots of midtown Manhattan near my job (click any picture to enlarge):


Cartier...


The (new) McGraw-Hill Building (I'm still hoping that someday they'll knock down the old one)...


1271 Avenue of the Americas (a/k/a those clowns over at Fidelity)...


Radio City Music Hall (every so often the cannon "fires" and the soldiers all fall down -- a scene from one of the Rockettes' skits in the Christmas Spectacular)...


The Nutcrackers of my greedy Swiss bank employer. Fans of "Will & Grace" might recognize the building. Yes, at least one gay lawyer really does work there...

I want to thank everyone who participated in the Great Blogger Christmas Card Exchange. Now my table doesn't look quite so pathetic.

Merry Christmas everyone!

(Click to enlarge.)

I hear Calvin got docked two day's allowance for each day the snowmen were picketing.

Illinois' activist attorney general is engaging in outright extortion over the so-called Hurricane Katrina "price gouging" faux scandal:

The Illinois attorney general is notifying several gas stations that they can donate $1,000 to the American Red Cross or risk being sued for price gouging in the wake of Hurricane Katrina.

The office of state Attorney General Lisa Madigan detailed the options in letters that began arriving at the 18 stations this week. Officials said gas prices at some Illinois stations rose as high as $3.63 a gallon after Katrina hit the Gulf Coast.

"When we're in an emergency situation, such as we were, retailers have the obligation not to increase their prices to the general public over what wholesalers are charging them," said Deborah Hagan, chief of the attorney general's consumer protection division.

You don't need to have taken a microeconomics class (although it would help) to understand that if a retailer is forbidden to earn a gross margin (i.e., is forced to sell his inventory at the wholesale price), then he is, by definition, being forced to lose money (specifically, his fixed costs).

And what the heck does the American Red Cross have to do with this? Assume (falsely) that there can even be such a thing as "price gouging." Why should those, in Illinois, who are "guilty" of such "gouging" be forced to subsidize people outside Illinois through Red Cross donations?

There's a word for an offer to buy your way out of being harassed:

Shakedown.

And there's a word for those who, like Attorney General Madigan, engage in such practices:

Mafioso. (Or is it Mafiosa when it's a woman?)

Maybe we should just stick with "thug."

As I expected and advocated, a federal judge has ruled that Pope Benedict XVI is legally a "head of state" and is therefore immune from service of process, and civil liability, over the Catholic Church's child molestation scandal.

That does not mean, however, that the Church itself is immune or that its assets can't be seized to pay judgments for the victims of pervert priests -- or the monsignors, bishops, archbishops and cardinals who conspired and covered for them.

Render unto the plaintiffs...

Two more tales of thought suppression from Europe (and a Europe wannabe):

ITEM: File this under "calls for outrage" --

An Austrian man who used an oath of loyalty to Adolf Hitler for his cell phone voice mail has been sentenced to two months in prison.

Police accidentally came across the message on the 20-year-old's phone in 2004 when they called to question him about a burglary.

Prosecutors say he downloaded the message from the Internet. It includes the repeating of the phrase "Sieg Heil!"

The defendant says that the download was a "spontaneous act" and that he did not fully embrace the meaning of the oath.

He was sentenced to a year in prison for theft and fencing stolen goods, but the court decided to tack on two extra months for using the oath.

There is a law in Austria that makes Nazi propaganda a crime.

MY TAKE: So a ringtone is "Nazi propaganda"? I wonder whether "The Producers" would be banned in Austria.

I still say that, eventually if not now, there should be a sunset clause for zero-tolerance of all-things-Nazi in Germany and Austria. Then again, I think the First Amendment is a neat idea that Europe might want to replicate. Go figure.

(Via Fark.)

---

ITEM: Speaking of the Holocaust, some have suggested that it has resulted in a "crowding out effect" in that people now pay less attention to the other infamous genocides of history. At the top of many people's lists is the Armenian Massacre of 1915-1923 in the Ottoman Empire (i.e., present-day Turkey). The entire ethnic Armenian population was either murdered or dispossessed and evicted — roughly one million people.

Turkey doesn't like to be reminded of that:

A writer has been fined 3,000 lira (£1,300) under a much-criticised law against insulting Turkish identity.

Zulkuf Kisanak was first given five months in jail, but an Istanbul court then reduced the sentence to a fine.
...
He is among more than 60 writers and publishers, including novelist Orhan Pamuk, to face charges under the law.

Mr Pamuk is on trial for telling a newspaper: "One million Armenians and 30,000 Kurds were killed in these lands and nobody but me dares talk about it."
...
The European Union, which has agreed to start formal membership talks with Ankara, has described the Pamuk case as a litmus test of Turkey's eligibility to join.

MY TAKE: This is of course far more obnoxious than the "all things Nazi" ban in Germany and Austria — those bans forbid embracing past atrocities rather than the exposing them. Still, there's a wide middle ground between these two extremes, which invites far too much suppression of free speech. than the exposure of past atrocities. (UPDATE: Turkey is now reportedly considering repealing the law in question.)

President Bush has signed the Gulf Opportunity Zone Act of 2005 into law:

The tax breaks for business investment are aimed at luring companies into the region and keeping those that are already there. Companies can use a tax credit to defray salaries if they kept employees on the payroll even while shut down due to storm damage.
...
[T]he Gulf Opportunity Zone Act will help small businesses in the affected area by doubling the expensing for investments in new equipment from $100,000 to $200,000. The bill also provides a 50 percent bonus depreciation, which Bush said means tax relief for small businesses and businesses that purchase new equipment and build new structures.

Here's my question: How is giving $8.7 billion in special tax breaks to Gulf State businesses and individuals any different conceptually from levying $8.7 billion in special tax surcharges on everyone else?

I'm all for lower taxes, but special tax breaks aren't really "lower taxes." They're merely redistributed taxes to a politically favored group from politically non-favored groups.

The net impact on the federal budget is irrelevant (i.e., it doesn't matter whether these "tax breaks for some" translate, nominally, into higher taxes for others, lower government spending elsewhere or higher federal budget deficits). The Politics of Pull and the Politics of the Warm Fuzzy Feeling are no less nefarious when they take the form of lower taxes for some at the expense of others than when they result in "Bridges to Nowhere."

"Lower taxes" only deserve libertarian praise when they are ubiquitous and non-discriminatory (and, hopefully, offset by lower government spending). Otherwise they amount to little more than another Keynesian boondoggle.

Here's the latest chapter in the ongoing harassment of Microsoft by the European Union:

The European Union on Thursday threatened to fine Microsoft Corp. up to 2 million euros ($2.37 million) a day for failing to obey its 2004 antitrust ruling, accusing the company of intransigence in sharing information with competitors.
...
The threat of new sanctions against Microsoft aims to force it to provide more detailed information so competitors' products can be made more compatible with Microsoft's Windows server operating system.
...
Brad Smith, Microsoft's top lawyer, accused the EU Commission of threatening the fine before it had even reviewed highly technical documentation he said Microsoft sent to European officials on Wednesday.
...
"Every time we do absolutely everything we've been asked to do, we're told that there's something else we need to do," Smith said in an interview with The Associated Press.

When a government orders a company, upon pain of multi-million dollar fines, to allow its competitors to become "more compatible" with that company's products, then they cease to be "competitors" and become moochers.

The last time the E.U. bullied Microsoft around, the result was a product that no one bought. How does this "improve the competitive landscape"? How are European consumers (not businesses, but consumers) made better off by forcing Microsoft to flush CD-ROMs, man-hours and money down the w.c.?

But of course antitrust harassment of successful companies is never about consumers, regardless of any grandstanding to the contrary by politicians or bureaucrats. Antitrust protects not competition but competitors. And the only way to protect competitors is at the expense of consumers.

After a century of failed experiments in antitrust central planning, the United States has for the most part wizened up; antitrust review by agencies such as the Federal Trade Commission is minimal these days, and the most obnoxious manifestations of antitrust command-and-control — the Interstate Commerce Commission and the Civil Aeronautics Board — have been relegated to the Delete Key of History.

Hopefully Europe won't stay too unenlightened for too long. Too much is at stake for too many European consumers.

More thoughts at The Phalanx.

No new pictures of Diamond this week, and since it's the Friday before Christmas, I'd thought I'd introduce you instead to my only Christmas decoration: Phallic Santa.



Phallic Santa was a gift from my mother, who I suspect did not interpret it as such.

Since my parents retired out west two years ago, we mutually decided that I would fly out for Thanksgiving but not Christmas. And since it's just me and Diamond, I don't decorate or get a tree or anything. But as a memento of past family Christmases, I bring out Phallic Santa. What better way to remember one's mother at Christmas?

I took some pictures of Christmas in Midtown during the transit strike -- I'll post them over the weekend.

You've probably already seen this quote from the federal district court judge in the Dover, Pennsylvania, "intelligent design" case, Kitzmiller v. Dover:

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy.

This is much the same as I have argued in the same-sex marriage debate. It is the politicians, the anti-gay bigot advocacy groups and, in some cases, the voters who are being "activist."

It is patently absurd to argue that a judge, applying longstanding legal principles to laws and state constitutional amendments that are both un-American and constitutionally suspect, is somehow "abusing" his office. All the way back to Marbury v. Madison and even before that: This is what judges do. This is what judges have always done. This is what the Framers wanted judges to do. This is what you are forcing judges to do. You have no one to blame but yourselves.

Just as it is both wrong and dangerous to assert that the President has "plenary authority" (i.e., is a dictator) in time of war, so too is it both wrong and dangerous to assert that voters have "plenary authority" (i.e., are entitled to mob rule) in time of culture war.

It's quite simple really: If you don't want "activist judges" striking down your laws, then don't enact those laws in the first place. If you don't want those who oppose you suing, then don't leave them with no avenue besides the one leading straight to the courthouse.

In short: The judges will stop being activist when you stop being activist.

Deal?

It appears that the New York City transit strike is being terminated.

Which means that the strike lasted three days, and that the striking workers will therefore forfeit 6 days pay for their illegal acts, give or take.

Here are some hypotheticals: If the workers receive a 5% raise, then it will take 120 workdays for them to make up the forfeited pay.

A 6% raise would mean breakeven after 100 workdays. A 4% raise would require 150 workdays to recoup their forfeited pay.

And this of course would assume raises above and beyond whatever the transit workers would have gotten anyway had they never struck.

Taking that into consideration, perhaps increments of 1% (600 workdays to break even) or 2% (300 workdays to break even) would be better estimates.

Morons.

More thoughts at Cake or Death.

MasterCard is having a "Win a Home for the Holidays" sweepstakes.

But when you look at the fine print, it says that the prize is simply: "$350,000 one time payment that may be used towards a house..."

Why not just advertise the sweepstakes as a cash contest? Why the "Win a Home" bells and whistles? And does it matter to the winner whether the prize is "cash" or "house"?

Assume the prize really were a house. Those who remember (have nightmares about?) their Introductory Economics classes might recall how payments in kind, such as houses (or food stamps) can be suboptimal subsidies relative to just giving cash. Anyone remember "kinked budget lines" from Econ. 101? More "house" might give you more utility, but more cash will always give you the highest possible extra utility, especially if you already have lots of "house." The "kink" in the budget line (which here is meant not to matter) might matter. Go figure.

Ditto of course for food stamps. Making it a payment-in-kind rather than cash welfare creates a "kink" in the recipient's budget constraint that could result is obstructing utility-maximizing spending. Yet we continue the food stamp program (now a food card program) because, supposedly, we want the poor buying more food and not more cigarettes or lottery tickets or other "improper" items.

The irony, of course, is that food stamp recipients can simply substitute away the cash that they would have spent on food to the non-food items that the government doesn’t want to subsidize. The food stamps / food card might as well be cash. The "kink" in the budget line (which here is supposed to matter) might not matter (i.e., the opposite outcome as in the house giveaway). Go figure.

Bottom line: Cash is king. Treat it as such.

POST SCRIPT: I know it would help if I had some graphs of "kinked" budget lines and properly shaped indifference curves to illustrate my point, but a blog isn't a blackboard and I'm no good with the fancy graphics. Perhaps some of my loyal economics professor readers can help me with some links.

Anyone remember Hiibel v. Nevada, 542 U.S. 177 (2004). It wasn't that long ago.

Here are some people who definitely forgot Hiibel:

The Ohio Patriot Act has made it to [Governor Bob] Taft's desk, and with the stroke of a pen, it would most likely become the toughest terrorism bill in the country. The lengthy piece of legislation would let police arrest people in public places who will not give their names, address and birth dates, even if they are not doing anything wrong.

In Hiibel, the Supreme Court ruled that an individual who, as part of a lawful stop by police given probable cause (or the lower standard of "reasonable suspicion") must disclose his identity -- not "provide identification," but simply disclose (truthfully of course) his identity.

The Court made it very clear that Hiibel presumed a lawful police stop, and explicitly reaffirmed an earlier case, Brown v. Texas, 443 U.S. 47 (1979), holding that police may not "just stop someone" and demand that they identify themselves "because they looked suspicious."

And the proposed Ohio Patriot Act doesn't even require the "they looked suspicious" part.

Anyone, anywhere, for any reason, or for no reason whatsoever: "Identify yourself!"

Next step: "Papers please!"

Patently unconstitutional under Brown v. Texas. No question. Not even close.

But pass it anyway, Ohio Legislature. Sign it anyway, Governor Taft.

Those "activist judges" will be there waiting for it.

Hat tip to P2TP. More thoughts at Hammer of Truth.

Jeanine Pirro is being expelled from has dropped out of the 2006 New York Senate race against Hillary Clinton.

Anyone else sense that history is repeating itself?

Whatever. Clinton will of course win regardless of who opposes her.

My only observation is that, once again, New York Governor George Pataki has screwed his own state Republican Party by prematurely racing to endorse Pirro's candidacy, thereby blocking-and-tackling any other potential candidates. Not wise.

As for Clinton herself, I repeat my challenge from this thread: Is she willing to state, before the 2006 election, that she unequivocally is or is not running for president in 2008? New Yorkers have a right to know.

On the other hand, New Yorkers also have a responsibility to demand that yes-or-no answer from her. Otherwise, they have no one but to blame if she ends her carpetbagger tenure prematurely.

More thoughts at California Yankee.

Here's some constitutional wisdom from the Vice President:

I served in the Congress for 10 years. I've got enormous regard for the other body, Title I of the Constitution...

Ah yes, "Title I" of the Constitution. That's the part that comes right after the Prefumble.

I thought it was President Bush who had plenary Article Title II authority in times of war to make mistakes like this in the name of national security. Go figure.

Richard Posner has a piece in today's Washington Post that is likely to befuddle many of his acolytes:

The ... National Security Agency has been conducting, outside the framework of the Foreign Intelligence Surveillance Act, electronic surveillance of U.S. citizens within the United States.

These programs are criticized as grave threats to civil liberties. They are not.

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy.

Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.

I find this assertion astounding.

If I understand Posner correctly, he is invoking a data mining analogy to the infamous "guns don't kill people, people kill people" snark. "Computers don’t invade privacy, government invades privacy"?!?

But of course they're government computers, programmed by government employees to reveal information to the government. All without a warrant and all summarily defended as part of "national security."

Sorry, that's not good enough.

We're fighting a War on Terror, supposedly to protect American lives and the American way of life. But we're also fighting a War on Drugs, again (supposedly) to protect American lives and the American way of life. So why not, using Posner's paradigm, employ data mining to gather, for example, utility records of every American household? (Unusually high consumption of electricity, although perfectly legal, is an indicium of the presence of heat lamps used to grow marijuana indoors.) Would Posner believe that such "data mining" (i.e., of utility bills) constitutes no affront to civil liberties, so long as it's done by computer?

Or better yet, why not just use our spy satellites on American soil to "data mine" infra-red heat signatures to root out the high-powered lamps? Again, as long as it's done by satellite and not by human beings, apparently Posner would have no problem with it.

Here's why not: Kyllo v. U.S., 533 U.S. 27 (2001), which struck down warrantless thermal imaging of homes. Regarding the use of technology in prying into the lives of American citizens, the court said:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

Data mining computers are certainly "a device that is not in general use" that "explore details that would previously have been unknowable."

I'm not suggesting that Kyllo is controlling when it comes to warrantless wiretapping of international communications in the name of national security. But I am saying that Kyllo is one example that, contrary to Posner, "mere" technology is still subject to basic Fourth Amendment scrutiny (and, by corollary the limitation of Article II powers).

He should know better.

More thoughts from Concurring Opinions, Balkanization.

The White House, and a parade of conservative shills, are insisting that the warrantless wiretapping scandal is not a scandal at all.

A key embarrassment that requires extra-special (and extra dubious) talking points is the "ticking time bomb" defense (I prefer the term "Jack Bauer defense"). This is a particularly difficult sell for the simple reason that the Foreign Intelligence Surveillance Act specifically allows intelligence agencies to "wiretap first and get a warrant later" -- as much as 72 hours later. The secret court that issues secret wiretap warrants is therefore not a dangerous obstacle to preventing imminent threats.

Which isn't stopping the apologists from insisting that even a secret, post hoc court is sometimes "just too much to ask."

Someone in the know disagrees:

A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

Every unbiased, objective analysis of the warrantless wiretapping scandal insists that, one way or the other, the practice is questionab