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December 10, 2006

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Vice

Let the lawyers among us be thankful that we are lawyers who have the extreme privilege of practicing and writing about and debating law in the United States.

Here is government secrecy:

Did you hear about the Chinese lawyer who was recently tried by the Chinese government for what was essentially "petitioning the goverment for redress of grievances" and/or "peaceful assembly"?

It was supposed to be an open trial, but nobody was allowed in. He was expressly denied the right to use a defense lawyer of choice. He paid the lawyer but was forced to use a state-sanctioned "public defender." He was expressly denied access to the documents and other evidence against him. There was no right of cross examination. He was compelled to be a witness against himself.

That's the rule of men, not law. And a 14th century version of the rule of men, at that.

How sad would it be to be a Chinese person who loves the law and wants nothing other than freedom and the ability to be a lawyer, only to have the misfortune of being born in a country ruled by [pathetic] men, not law?

The United States is not perfect, but we are trying very hard.

golddog

The United States of America: Hey, at least we're better than Communist China.

Roach

Golddog I don't really disagree with you. I'm not saying that it's legitimate or completely fair to look at someone's name when there are other relevant data. I'm saying it's not unreasonable, nor is it a sign of racism. And that a time reveals important information about upbringing that may translate into relevant performance indicators.

I also think that race can and should be used as a piece of information when other superior forms of information are not available. For instance, race is a useful indicator of criminal propensity, especially when combined with sex. So, even if most people are not violent in all races, we know that black males commit 10X more violence than white males, and that white males commit 10X violence in comparison to white females. So, if I'm deciding to know whether I should remain on a subway platform, I can't easily look at the guy's 1040s, or Myers Briggs profile, or rap sheet, I only have race. It's a crude heuristic, but it's a meaningful one too. And just as it's reasonable to be more worried about white males than white females, it's equally legitimate to be more worried about black males than white males, especially when things like age, demeanor, clothing, hair style, and other factors are taken into account in making this kind of split second decision.

At the same time, in an employment setting or academic admissions setting I have lots of other useful information, most especially standardized testing, pedigree of education, references, achievments, etc. The person's name is one small part of the information set. And, frankly, the notion of pure Weberian bureaucratic meritocracy is hard to achieve in the business world. Businesses have peculiar standards that don't always match up with what one might think of as merit; I saw this with my own eyes at a large law firm where candidates I thought were stellar on paper were passed over for Texas Tech graduates because of "fit" issues. It was a stuffy, WASPy, white shoe Texas law firm. Things like height and good looks seemed to matter quite a bit too. There were numerous ways whites were discriminated against as against other whites for being too yankeeish or intellectual or otherwise not fitting in. So it's definitely an imperfect thing. That said, the market as a whole includes numerous players, and no one employer can derail a worthy candidate forever, even if individual employers forego solid candidates for their own private firm culture reasons.

In a world of voluntary associations this is likely wealth maximizing both for the firms and for the individuals involved. If I prefer to be around other people like myself and am willing to forego a profit to do so, there is no reason that economics says I can't value that psychic benefit over the next marginal dollar. At the same time, if I do so to an extreme degree I'll find that I must adapt to the new order. I think one useful illusration of this was the impact of Jewish and Catholic law firms in NY on the old WASP establishment white-shoe operations. The longer hours, focus on sterling academic credentials, and "fire in the belly" of the newcomers created a market-wide change that the old WASP firms ultimately had to adapt to.

Erasmussimo

There's so much to respond to, I doubt that I'll be able to properly address the many significant points. Mr. BAC, you argue that purposive killing is more dangerous that random killing (or perhaps more destructive). You argue that purposive killing can target people who are more important to society. Yes, that's plausible -- but not likely. The 'grand slam' that you propose (a dirty bomb strike against the Capital) is a highly contrived and unlikely scenario, because high value targets are better protected. A terrorist organization with the golden opportunity provided by such a weapon will not waste it on a risky target when they could easily kill more people using it on an unprotected target. The whole point of terrorism is its randomness, which is meant to strike terror into everybody's heart (which it obviously has in your case and that of Mr. Hamilton).

Moreover, you're also talking about a hypothetical case, an imaginary scenario, whereas the death toll from cars, guns, electricity, people falling down stairs, and so forth is real. You're comparing apples and fantasy apples.

Next, you chide me "Before you condemn the Bush administration for being too secretive, you should get your facts straight about what it did and did not do." But the secretiveness of the Bush Administration is not at question here, nor have you challenged any of my statements as to the secretiveness of the actions of the Bush Administration. You are welcome to ding me for writing that the Administration secretly detained thousands of citizens when in fact it secretly detained thousands of people, some of whom were not citizens. But my error concerned WHOM was detained, not the fact of detention nor the secrecy with which it was carried out.

Mr. Hamilton, you write, "There really is no reason to debate the issue of secrecy in dealing with the terrorist, jihadists, 9/11, Iraq War, Afghan War et al because all of you deny the fact of war, deny the seriousness of the jihadists world threat, blame Bush for the terrorists behavior and basically have your heads buried deep in the sand. So whats the point of even discussing the issues with you as they are simply the same as auto deaths, fire deaths, drunkeness, etc?"

Good question. I discuss issues with those with whom I disagree in order to understand the issues better. I believe that those who disagree with me are in a good position to perceive ideas that had not occurred to me. And if they are unable to come up with convincing arguments, I feel greater confidence in my own opinions. But most of all, my interest is, I suppose, sociological. I am trying to understand what it is about conservative Americans that is so dangerous to this country, why these people are taking us on such a horribly self-destructive course. I am sure that by now even you will admit that the invasion of Iraq was a horrible mistake. Yet the majority of Americans enthusiastically supported this grand disaster at its outset. How is it that people can get themselves into such screwups? How can their thinking be so utterly botched? I'm still trying to fathom that -- and that's why I discuss issues with people like you. I'm trying to figure out what makes you so dangerous.

You write, "Secrecy is needed. Any reasoned rational American citizen knows that." Indeed so. But where we differ is that you give the Bush Administration a blank check to keep everything secret, while I prefer to allocate secrecy rights on an as-needed basis.

A good example of the kind of thinking I am interested in understanding is your statement, "For you denial mavens your positions wouldn't last a nanosecond in the vast majority of American's view of the issues of Iraq, jihadists, terrorists, Israel, Iran, Syria, Afghanistan et al." I have always wondered about the thinking behind this. The thrust of it seems to be that, since America allows more freedoms than these other states, Americans should not exercise those freedoms, or perhaps that the existence of those freedoms makes criticism of America immoral. Odd, that; it really is a non sequitur.

curtisstrong

Well...

We´re all back. There were a couple of things above that seemed to have been dropped a bit. First off, the whole idea of "war as a metaphor." I think that the way people understand this word "war" has some serious consecuences on what we´re willing to allow our government to do.

The "war on terror" is not a war that has been declared by Congress. It is a war that seems to have been sort of allowed by Congress. This is an odd situation, talking constitutionally, because it´s such a (to borrow a word) "weird," way of doing things. The constitution envisions Congress announcing war, and the President executing that war. But in this case, the President announced war, and almost everyone (including congress) went along with it.

So, how far can the president go in "allowed" wars? Does he have the same discretion as in "declared" wars?

How far do we go in "allowing" the President´s war? Could the president plausibly declare another "war on drugs" (or is that a war that was won after 10 or 20 years?)? Could he declare war on crime? Given Eras´ and Cynic´s observations that crime is much more likely to affect us than terrorism, wouldn´t that be a safer war anyway?

What I´m pointing to is Frederick and Roach´s unstated optimism that no one who isn´t guilty is going to have problems. But that´s the entire problem with secrecy. Without SOME sort of way to open up, to get at what the government is doing, there is no way to know whether or not the government is behaving itself (that goes for everyone in power, right, left, or center).

As for the race thing. I´m really intrigued about the notion of choosing a minority who has overcome obstacles, and therefore has a better chance to succeed. I think that in some cases that may not be what´s actually going on behind the scenes, and yet, there may be some times where that is what´s happening. I´d also like to find out about these minorities´ children, and how well they do in school and so forth.

And, finally, is it possible that minorities, although their scores may not necessarily show it, add something to the legal education offered by elite schools that can´t be found in higher scores or higher marks? Could that also be true for legal practice? I would think so.

But, again, if some minorities don´t do as well on standardized exams, why do we think that is?

Frederick Hamilton

Curtis,
Congress didn't just "go along with it" re: war. Congress voted twice to go to war. First with the AUMF against the terrorists (the war on terror) and secondly with the vote to approve the Iraq War. Two war votes. Everyone knows the legality of that. The Supremes ackowledged the AUMF in the Hamdan decision. Justice O'Connor in Hamdan spoke of the presidents powers incident to war. No the wars have both been approved by Congress. They are not metaphors. They are real wars with real fighting. Real deaths. Real bombings. Real prosecutions of the principals (Sheik Khalid for example) in Military (War) Tribunals approved by Congress. No amount of denial will succeed in claiming we are not at war. If memory serves me correct the president is reading an ISG report about the WAR. NSC, DOD, Department of State are preparing reports on the WAR.

If you can't accept the Congressional vote of AUMF against the terrorists or the Congressional vote for the Iraq War, fine. But they are real. So get real.

And yes, when you are the commander in cheif during Congressionally approved wars you have them there things called war powers as detailed in the Constitution and no matter how much Congress or the Courts would like to play commander in cheif, they can't. Not constitutionally allowed. The wars are real. They aren't metaphors. People are dying. This band of denial brothers is getting a bit much.

BAC

Okey dokey, Eras, no more "fantasy" apples,

Roughly 6,000 people died in automobile accidents in Spain in 2004. 191 Spaniards died in the March 11 Madrid train bombings.

I doubt the 6,000 automobile accidents affected the Spanish elections, but as for the Madrid train bombings . . .

Will you now at last agree that simply counting up casualties is not a very accurate or helpful way to evaluate how dangerous something is?

As for the secrecy point -- I think the Bush administration made a big mistake by keeping secret the people detained at Guantanamo Bay, primarily because it allowed people like you to make outrageous claims about what actually occurred.

Essentially, your position is that you are sure that "thousands" were detained (by the way, 1,200 is not "thousands"), but it is hard to get specific because, of course, it was all done in secret.

We now know the names of everyone that was held at Guantanamo Bay. I think if this list had been published when the prison opened, it would have taken a lot of the wind out of the sails of those whining about wrongful detentions.

Frederick Hamilton

Sorry, mispelled chief (oops fingers to fast)

Cynic

"Suppose now that in one year the terrorists kill 1/10th that ammount, or 4,000. But the deaths occur when all of the Representatives, Senators, Supreme Court Justices, and their staff are killed by a dirty bomb dropped on Capitol Hill. This scenario will have a negative effect on our society that is orders of magnitude greater than the 40,000 random automobile deaths."

I honestly have no words.

I for one do not think for a SECOND that a single congressperson or powerful politician is one SMIDGEN more important than a random drunken invalid on the street corner. If we are all equal, then we are ALL equal, including those of us who haven't managed to buy our way into office.

To think otherwise is unChristian (or unJewish or unMuslim or unBuddhist, etc.) and unAmerican.

Quite truly, I'm so aghast that you have stripped me of any words to express my outrage and horror at the vile you just spewed. So congratulations for actually managing to shock me.

Cynic

lack, I don't have time to search through every single link on that page to find these two tables that supposedly support your point.

Are these tables meant to be interpreted by someone with special training, or by a layperson? If the latter, then why the hyperbole about whether I've taken crime statistics? If the tables are done properly, it shouldn't be necessary.

Cynic

Roach, the things you said smack of heterosexual male WASP privilege. Your blood must be blue, the way you look down on others who don't come from the "right" families, through no fault of their own. Perhaps in your world we ought to encourage Madonnas and other folks to adopt children so they don't have to grow up with the shame of knowing who their biological parents are.

You honestly and truly believe that if a person with a name like "Jamal" or "Latisha" (by the by, growing up I knew a white girl named Latisha...) manages to overcome what CLEARLY MUST be poor genetic stock and faulty upbringing, that nonetheless he or she is STILL more likely than someone named "Tom" or "Mary" to, what, crack under pressure? I mean, what is it, are you just waiting for the other shoe to drop? How much does a person have to succeed before you're willing to overlook his or her (assumed) past?

If Keisha Knight Pulliam graduates from Harvard Law School (clearly Chicago would have too much sense to let in someone with a crazy name like Keisha!), order of the coif, served as editor in chief of law review, and clerked for Judge Kozinski, you honestly believe it would be rational to hire in her stead Marshall Mathers, who graduated order of the coif from Chicago, served as editor in chief of the law review, and clerked for Judge Wood, for no other reason than that his name is more "normal"??? On what plane of reasoning is this rational? When will Keisha have done ENOUGH to convince you that she's not a loser?

And why on earth would you hire an angry punk rapper over a Cosby kid?

Erasmussimo

Mr. Hamilton, you continue to insist that we are at war and that "This band of denial brothers is getting a bit much." Very well, let's talk about denial. Do you deny that Article I, Section 8 of the Constitution states that Congress shall have to the power... To declare War..."?

Do you deny that the Congress was given the opportunity to declare war and chose not to do so? I have put this question to you repeatedly and you have never responded to it. Instead, you weasel-word past it. Why are you so evasive on such a simple matter?

Mr. BAC, you insinuate that the Madrid bombings affected the Spanish elections but the deaths of 6,000 Spaniards were insignificant. I reject the insinuation that those 6,000 deaths were of no significance. They affected Spanish society in many ways that don't make headlines. The real question here is, would the Spanish people have been better off spending, say, $100 million to reduce the number of traffic deaths or to reduce the chance of a terrorist strike? Your answer seems to be that stopping the terrorists is the only goal worthy of consideration. My answer is that it all depends on the cost per life saved. If $100 million will prevent 1,000 traffic deaths or prevent 196 deaths by terrorists, then they're better off spending the money on traffic safety. This is calm, rational policymaking, not frantic hysteria.

So no, I will not agree that "simply counting up casualties is not a very accurate or helpful way to evaluate how dangerous something is?" Consider the meaning of the word "danger". It refers to the risk of injury or loss to persons. Count up the total injury or loss to persons, and the probability that the factor in question could create that much injury or loss, and you have an excellent measure of the danger imposed by that factor.

I'll fill in something that you left out: the secondary implications of events. For example, let's stipulate that the Madrid bombings not only affected the Spanish elections, but they changed the outcome. So what? You need to show that this outcome was injurious to the Spanish people if you want to support your claim that the bombings had larger negative effects. But how do you know that the outcome was injurious to the Spanish people? It induced them to pull their troops out of Iraq -- from where we stand now, that looks like a prudent decision. It may well be that the changed outcome of the elections produced a salutary effect on the Spanish population. When you take into account additional secondary effects, such as those on social policy, economic policy, and so forth, it becomes impossible to support a claim that those bombings produced either good or evil for the Spanish people.

You chide me with the sentence, "Essentially, your position is that you are sure that "thousands" were detained (by the way, 1,200 is not "thousands"), but it is hard to get specific because, of course, it was all done in secret." Indeed so, it is difficult to provide proof because of the secrecy. But let me remind you that absence of proof is not proof of absence -- especially when the proof is deliberately concealed!

Erasmussimo

Cynic, I realize that it's difficult to hold your tongue in the presence of Mr. Roach's ravings, but I suggest you consider my approach: ignore him. It's generally a good policy to engage those with whom we disagree, but there are some whose thinking is so far beyond the pale that rational discourse is impossible. I consider Mr. Roach to be such a person. After all, he would reject without further consideration anybody with such a weird name as "Barak", confident that anybody with such a name is certainly a street punk.

BAC

"I'm so aghast that you have stripped me of any words to express my outrage and horror at the vile you just spewed."

Funny, Eras seemed to agree with it (at least in theory). You are pretty thin skinned for a "cynic."

Cynic, I think you are special just like everyone else, but are you really arguing that a terrorist attack that would kill everyone on Capital Hill in one deadly swoop would have no greater effect on this country than the random traffic fatalities occurring over the course of a year?

Erasmussimo

Mr. BAC, do not presume my agreement. I chose to address your position from a direction that did not require a personal judgement as whether different lives are of different value. The fact that I chose a route less vulnerable to your values-based rejection does not mean that I agree with your values.

The scenario you postulate is absurdly contrived. If you were in a sinking boat with your wife and your mother, and you could only save one, which one would you save?

BAC

Definitely would save my wife. (Sorry mom.)

Cynic

lol, BAC, if presuming a baseline of respect for human dignity, no matter who the human, makes me "thin-skinned," then so be it.

Implicit in your discussion of the greater "effect" of killing all the politicians is that this effect translates into greater value for those lives, as compared to other lives. From an institutional perspective, this is just plain wrong. The government cannot presume that the death of 400 Congresspersons is "worse" than the death of 400 unknown persons in Kentucky. The instant our government does this, is the instant we cave to tyranny. Arguably, this has already happened.

Thus, I reject your notation that it would have a greater "effect" if the murdered persons in question were Members of Congress. 400 deaths is a tragedy, period. If it can be prevented, it should be -- though not at absolutely any cost, of course. When we border on talk that values the lives of powerful, rich politicians over the average citizen... I do not see how a decent person can be anything other than horrified.

Eras, your advice is sound. Alas, I have a hard time allowing horrifically unsound and inflammatory rhetoric to go unchallenged. Perhaps this is a moral weakness on my part, in which case I can only hope that it does not reflect on my discussion of more worthwhile arguments.

Nonetheless, I'll take your advice to heart. I will TRY to ignore him.

Frederick Hamilton

Eras,
I do not deny that the Constitution gives Congress the power to declare war.

I am not aware that Congress was "given the opportunity to declare war and chose not to do so". I guess on that one I am ignorant and if you will cite what you mean and when and what vote of Congress acknowledged their opportunity to declare war and their choosing not to do so. I would appreciate the cites.

Eras, I do know for certainty the following:

Public Law 107-40 [S. J. RES. 23] 107th CONGRESS September 18, 2001:

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the `Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

And Eras, I also know the following as fact:

The Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public law 107-243, 116 Stat. 1497-1502) was a law passed by the United States Congress authorizing the Iraq War. The authorization was sought by President George W. Bush. Introduced as H.J.Res. 114, it passed the House on October 10 by a vote of 296-133, and by the Senate on October 11 by a vote of 77-23. It was signed into law by President Bush on October 16, 2002.

Eras, I also know as fact the following:

The United States Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006), enacting Chapter 47A of title 10 of the United States Code, is an Act of Congress (Senate Bill 3930) signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v. Rumsfeld, the Act's stated purpose is to facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes.

Eras, those are law. Laws passed by Congress. Signed by the President.

Now as to your band of denial brothers, WE ARE AT WAR. A legal war.

BAC

"Implicit in your discussion of the greater "effect" of killing all the politicians is that this effect translates into greater value for those lives, as compared to other lives."

Wrong. Maybe some math will help. Suppose you have some measure of danger "D." Danger is a function of certain variables and you could call this D=f(x).

Eras and Cynic have made the equation very simple, they have said that the only variable affecting D is the number of lives lost call this variable "k." So D=f(k).

I say something more. I say that it is not only the lives lost, but there should also be some measure of societal disruption, call this variable "s." So, for me D=f(k,s).

For the danger of car accidents, the "s" variable is almost zero because car accidents generally don't disrupt society (i.e., the stock markets stay open, we play NFL games, we go to work, despite all the car accidents). For terrorists, the societal disruption factor is very high -- the whole point of terrorism in the first place is to disrupt society.

The point is that this does not require me to put a value on lives any more than it requires Eras and Cynic to do so. I am just measuring how "dangerous" something is as a function of the potential lives lost and the societal disruption potentially caused by that something.

Erasmussimo

Mr. Hamilton, do you not note that the word "war" is used only once, and that in reference to another law? The operative phrase here is "force", not "war":

"...the President is authorized to use all necessary and appropriate FORCE..."

"The Authorization for Use of Military FORCE Against Iraq Resolution"

You take these references to the use of FORCE and suddenly transform them into references to the use of WAR. That's a non-sequitur. "Force" is not identical to "war".

Yes, Congress did explicitly reject the opportunity to declare war. In both cases that you cite, the possibility that Congress declare war was considered and rejected. Indeed, the idea was dismissed so quickly that it never even made it into the original language of the bill or any amendments; the possibility, as I recall, was raised in cloakroom discussions and never had any official status. But we don't need to rely on the word of those CongressCritters who reported it -- legally speaking, the mere fact that Congress did NOT explicitly declare war is construed as meaning that they did not intend to declare war. That's the law. The laws that were passed are most certainly NOT declarations of war. Just read them.

Roach

There is a kind of nihilism at work that looks at the intentional killing of Americans in spectacular terrorist attacks designed to affect our foreign policy and our national morale as morally and politically indistinguishable from background death risks that happen every day at a particular rate, such as the accidental death rate from car accidents, which every day is going down to increased investments in safety and medical technology and public awareness of the dangers of drunk driving.

Why not just say, "Oh well, our country was attacked. Those people would have died in 80 years or so anywhere."

There should be some moral outrage at these terrorists who've attacked us, shouldn't there? What's wrong with you people? Are you so devoid of ordinary feelings that 9/11 just causes a shrug of the shoulders.

As for me being so inflammatory as being unworthy of debate, on these racial issues, in which the facts are easily looked up, it appears I've made the mistake of speaking the truth.

Roach

The 20 Whitest Girl Names

1. Molly
2. Amy
3. Claire
4. Emily
5. Katie
6. Madeline
7. Katelyn
8. Emma
9. Abigail
10. Carly
11. Jenna
12. Heather
13. Katherine
14. Caitlin
15. Kaitlin
16. Holly
17. Allison
18. Kaitlyn
19. Hannah
20. Kathryn

The 20 Blackest Girl Names

1. Imani
2. Ebony
3. Shanice
4. Aaliyah
5. Precious
6. Nia
7. Deja
8. Diamond
9. Asia
10. Aliyah
11. Jada
12. Tierra
13. Tiara
14. Kiara
15. Jazmine
16. Jasmin
17. Jazmin
18. Jasmine
19. Alexus
20. Raven

The 20 Whitest Boy Names

1. Jake
2. Connor
3. Tanner
4. Wyatt
5. Cody
6. Dustin
7. Luke
8. Jack
9. Scott
10. Logan
11. Cole
12. Lucas
13. Bradley
14. Jacob
15. Garrett
16. Dylan
17. Maxwell
18. Hunter
19. Brett
20. Colin

The 20 Blackest Boy Names

1. DeShawn
2. DeAndre
3. Marquis
4. Darnell
5. Terrell
6. Malik
7. Trevon
8. Tyrone
9. Willie
10. Dominique
11. Demetrius
12. Reginald
13. Jamal
14. Maurice
15. Jalen
16. Darius
17. Xavier
18. Terrance
19. Andre
20. Darryl

Cynic

Roach, it's precisely this sort of silly list, as though it's supposed to mean anything whatsoever, that discredits you. Not any twisted notion of "truth." Racism is not truth, it is ugly and is a continuing blight on our society.

Dammit, Eras, I tried.

BAC and Roach: this is getting to the point of ridiculous. We're getting unduly bogged down in the details of what "causes" certain things to be more dangerous, or whether our standard of "danger" can include social upheaval resulting from the death of people who are... um... well, supposedly not more "important" but I guess somehow have more of an effect on society? Still not seeing how this isn't a value judgment, but whatever.

Here is the very basic point I was trying to get at (and possibly Eras as well, but I don't want to put words in your mouth, Eras): the availability heuristic causing mass panic at the notion of terrorist attacks is the result of irrational, unclear thinking. The statistical risk of a deadly terrorist attack for each individual is far lower than the risk of a deadly car accident. From the standpoint of risk calculation, blowing up the terrorist threat as much as we have is irrational. Thus, brushing off concerns about government secrecy because "terrorist attacks present a huge danger" is similarly irrational. Even if we grant (which I am by no means doing) that some sliding scale exists by which we determine that the government can be more secretive once a situation becomes more dangerous, the threat of terrorism doesn't take us far enough along that scale. If we're not willing to, say, let the government secretly torture bar patrons to find out who are the worst offenders when it comes to serving clearly intoxicated persons, then we shouldn't be willing to allow the government to secretly torture people to find out who the terrorists are. Terrorism quite simply poses less danger to the average individual than drunk driving.

Frederick Hamilton

Eras,
You are delusional. I cite you the war powers laws. The use of military force. The law allowing military tribunals (read war) and you cling to an insane notion that we are not at war. OK. Fine. Your position is just like those nuts that claim the income tax is illegal and unconstitutional. Your claim is the "wars" are unconstitutional and illegal (no constitutional declaration of war). Eras, I don't know if you are smoking any funny weed, if not you are nuts.

You exhibit the ultimate denial of the band of denial brothers. Not just that to listen in on war time enemies is not within the war powers of the commander in chief (which it is by the way), but that we aren't even at war.

Why in the hell even try to debate and discuss this Eras? Heck, we aren't at war. I get it. Alice in Wonderland. There is no Chesire cat. Cool. You win and everything the executive is doing to prosecute the "wars" is wrong and illegal because we are not at war.

Any law professors at the Univ of Chicago even read these blogs? Legal eagles, are we at war or not?

Erasmussimo

Mr. Hamilton, you might want to read the Wikipedia entry on this question; it's fairly simple and clear.

http://en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States

Now, this article presents a controversy quite different from what you and I are arguing. It addresses the question of whether the invasion of Iraq is unconstitutional because Congress did not declare war. I do not challenge the legality of the use of military force against Iraq; that military force was authorized by Congress. Nor do I mind if you wish to use the word "war" in the non-legal sense of violent conflict. Where I am drawing the line is at your sloppy use of this term to justify actions NOT permitted in law, claiming that your imaginary "state of war" justifies violations of the law. I do not accept this claim. I maintain that the law must be followed at all times UNLESS there is a declaration of war. Once war has been declared, I accept certain limitations on Constitutional protections. And in fact Attorney General Gonzales agrees with my distinction between a state of war and an authorization to use military force, as you can see from his testimony as cited in the above reference:

"GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force. I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force."

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