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Daniel J. Solove over at Concurrent Opinions ponders a response to the “Nothing to Hide” argument posited by supporters of unmitigated surveillance. He gets very close while considering the value of “not having to explain or justify oneself,” grasping at the same instinct the framers may have had when they wrote the Fifth Amendment. While often cited as the right to keep one’s mouths shut, the Fifth Amendment also guarantees due process when a person’s liberty is at stake (life, liberty and property).

There are numerous definitions of “liberty” but most sources define it as freedom from control, especially arbitrary or government control. If the reason liberty was included in the due process clause is to ensure freedom from arbitrary government control, we may find some context in examining the purpose and procedures of due process. As merely a conscientious citizen I don’t have the means to examine this issue to scholarly standards but it is not to big a stretch to suggest that the issue of what role warrants play in due process is a key question.

Under what criteria and to what extent can the executive branch engage in developing a criminal case without a check from the judiciary?  Another way to state this (and one that has been causing strife in our country for the past half century) is what level of privacy may not be violated by the executive (with or without judicial approval)?

Where Solove cuts short is where I suspect the legal argument may begin: what threat of invasion of privacy constitutes deprivation of liberty?  If the executive can, without judicial oversight, infringe on the privacy of its citizens in the course of developing a criminal case, at what point do we stop feeling free and by extensions stop being free?

As if you couldn’t tell that it’s an election year:

Senate committee OK’s ban against gay marriage

Senate Votes to Set English as National Language

Susan Pace Hamill is a professor of Law at the University Of Alabama School Of Law.  She has written copiously about tax policies in Alabama and given interviews with titles such as What Would Jesus Tax.  While I am not Christian nor particularly religious in the traditional sense, I whole heartedly agree with her claim that tax policies are rarely grounded in our moral beliefs.  Though she writes primarily about the tax policies of Alabama State, her message applies to all states and to the country as a whole.

I was inspired in particular by a recent article she wrote criticizing Alabamans for being lazy about their pro-life beliefs.  Having read the article it is not a far stretch to conclude that when Alabamans say they are pro-life, what they really mean is that they are anti-abortion.  If you listened to this past Easter Sunday’s Meet the Press you heard Sister Joan Chittister criticizing those who claim to be pro-life as being pro-birth.  If you consider the entirely of life, the left wing vegan nuts who break into alpaca farms, sit around in trees, marry their best friends and protest war and poverty are the real pro-lifers.  A truly pro-life country would have no death penalty, never launch a pre-emptive war, safe-guard the nation’s wild-life, and spend its riches on ensuring that every life had a fair chance at liberty and happiness.

It quickly becomes apparent that those who so often claim to be pro-life are really just anti-abortion and are using the word ‘life’ to frame the debate.  The opposite of pro-life is not pro-choice, but rather pro-death and pro-choice is not the same as pro-abortion.  Very few believe in abortions but unlike idealistic anti-abortionists who claim themselves pro-life, pro-choice groups live in the real world.  The way to reduce abortions (something we can all agree on) is to treat the causes of unwanted pregnancies and to realize that sometimes the most inhumane thing to do is force an unwanted pregnancy to completion.  The abortion debate needs to be split and reframed: there are those who believe in creating even the cruelest of lives at any cost and those who believe we should make the most of the lives we have.

To Susan Hamill’s point, we should be talking about how our policies (both taxes and otherwise) help us as a nation make the most of our 295 million lives and the world’s 6.5 billion lives.

As a budding Entrepreneur, reading Fred Wilson’s VC Cliche’s I can’t help but recognize everything I’ve heard while touring the VC circuit.  His latest cliche especially rings true: best way to raise money is to ask for advice and the best way to get advice is to ask for money.

I rarely agree with Investors Business Daily when it comes to policy, but there are those rare moments when they write a policy piece about finance and manage to raise an interesting point.  While ostensibly criticizingSenator  McCain’s push for lobbying reform, the anonymous editorialists at IBD point out that the root cause of legislative corruption is not the lobbyists per se but the unaccountable control we give our congress in the form of power of the purse.  Recently there has been much movement on term limits (more thoughts later) but that solution is not cut and dry.  While anti-Federalists might argue that this is what you get when you concentrate that much power in a central government - this argument runs into trouble when you weight the beneficial reforms that elected representatives can accomplish when they work together.  We should spend more time as a country - one decreasingly satisfied with our elected representatives - discussing how to reform our aging and tenured legislature.

William McGeveran at Info/Law thinks that Digital Rights Management should be called access control.  He makes a number of good points.  DRM sounds like it should describe a government process in which the digital rights of copyright holders are managed.  Access control (as McGeveran points out, mirroring language in the DMCA) is really what content creators are after: who can use my creation and how.  Of course renaming DRM does not address the issue that the rights that many governments are granting content creators are not aligned with the best interest of the people or the culture, but it reframes the debate in terms of what legal protections (above and beyond copyrights) we want to award content creators for asserting technological control of their content.

I can image Thomas Frank reading about conservative Christians criticizing the GOP evoking a classic Bart Simpson “Duh!”

There is a very good reason why Republicans have not made any real moves on the far right’s key issues: they’re oppressive.  Christian conservatives want less freedom because they believe it is immorale - less speach (obscenity), less love (gay marriage) and less choice (abortion).  Their platform is that everyone should live life based on what the religious right believes.  That is exactly the reason the majority of the Republican party, as happy as they are to milk their votes, does nothing about it.
Everyone else in the country disagrees with them.  If the GOP started legislating far right they would be out of office (and in court) next election.  The right wing may swing the vote but the line between having a left based party in control and a right based party is not that wide.  The GOP are just settling in to their second decade of power after being the minority for the previous four.  Now is not the time to start telling the voters that their America is no longer the land of the free.

AP quotes the first lady as saying she doesn’t believe the President’s poll numbers because when she travels around the country she sees many people who express their appreciation and who tell her to “stay the course.”

Of course this is the beauty of statistics.  Assuming the polls are accurate and representative, with around 300 million people in the United States it’s pretty easy to find some of the 90 million or so who are supportive - especially when the first lady is giving a speach or press conference.

“The NSA would like to remind everyone to call their mothers this Sunday. They need to calibrate their system.”

arstechnica writes about the follies of the TSA.  Can you see where this might be headed?  Tomorrow morning you get a fine in the mail for having participated in a suspicious phone call.  Please mail the government $235.  Thank you for your cooperation.  Have a nice day.

Defense Tech has a brief discussion about why the NSA’s massive collection of call records is a completely waste of time.

If you’re an elected representative of the people charged with legislating to ensure the common good of all citizens, what are your biggest concerns? Apparently House Speaker Dennis Hastert and Representative Mark Kirk are obsessed with Internet porn.

If you’ve never seen an interview or press conference with Donald Rumsfeld, I would encourage it - just be sure to keep a bottle of whiskey near by in which to drown your sorrows.  On par with a President who believes his hand is guided by God, is a Defense Secretary who is dismissively unimpressed that our elected representatives are very worried about who is running the CIA.  It’s one thing to try and spin accusations of masterminding a war at a press conference.  It is very disconcerting that Rumsfeld takes the same tone dismissing the concerns of the head of the Senate Intelligence Committee about the administration’s nominee for the head of the CIA.

The house approved a bill extending a number of Bush’s tax cuts along mostly party lines (guess who was for them). While the usual cries of tax cuts benefit the rich more than the poor permeated the media, it’s hard to imagine tax cuts for the poor that the rich couldn’t benefit from. It’s doesn’t take more than basic accounting to realize that if you have more money you have more flexibility in how you earn money. By contrast if you’re strapped for cash there’s only so much you can do. If you tax income, high wage earners will divert their earnings to perks or cap gains and it will hit the middle class; if you tax don’t tax income but tax cap gains; high wage earners will limit their wages to the tax effective and defer the rest (take a look at some CEO benefit packages for great examples of deferred income). If you tax dividends then companies spend more on stock buybacks.

It’s all well and good to decry Bush’s tax cuts as benefiting the rich, but what tax cuts do not?

It should come as no surprise that Americans are split. We are split when it comes to our political party of choice and all the policies that they support. We are split on whether people who are attracted to members of the same sex have the right to live out their lives the same way as those who are attracted to member of the opposite sex. We are split on what kinds of choices a pregnant woman should be able make. We are split on whether we should be fighting someone else’s war of independence. We are split on whether access to education and health care should be a privilege or a right. We are split on how it is that we welcome immigrants into our country.

I am proud to live in a city and a state that believes we should enjoy living here. I am proud to live in a place where sexual preference does not make you a second class citizen; where woman have the freedom to choose what they do with their body if they so require; where the majority of our citizens, though they serve their country with honor, believe we should not be invading someone else’s; where education is need blind and health care is available to everyone. I am proud that, despite how ludicrous it seems given the cost of living, I live in a city where everyone is welcome.

Members of Congress who object (whose constituents object - it is after all an election year) to the warrant-less wiretapping of American citizens should focus on a few key messages when Bush nominates General Michael V. Hayden:

“General Hayden and the Bush administration are spying on Americans without supervision.”

“The people of this country will not stand for being treated like terrorists.”

“America is a country based on laws and this administration must follow them.”

“In a government by the people and for the people there are checks and balances and this President must be checked.”

And if you’re looking for potshots, have an anonymous aide go on record with:

“We should be spying on terrorists, not American citizens. Frankly, after Iraq we don’t trust this administration can tell the difference and with Katrina we don’t trust them to do it well.”

Warrant-less surveillance is not about terrorism, though if you spy on and arrest enough people you might get lucky. The problem with spying without supervision is that we are sacrificing our rights and being treating them like terrorists. Before you write this off as paranoia, make sure you’re careful about what you read on your next flight.

Update:
We definitely have to do better than “the wrong man at the wrong place at the wrong time.”

The only thing worse than threatening a veto to rein in a Congress controlled by your own party is threatening a veto and then not using it. Six years in and zero vetoes down, I’m not sure anyone believes it anymore when the President cries wolf.