Once Again Sammy Alito’s Speculative Chain of Possibilities Proves True

Back when SCOTUS Justice Sam Alito wrote the opinion booting the ACLU-argued challenge to Section 702, he said the plaintiffs’ worries — that the US government was collecting their international communications under Section 702 — were too speculative to give them standing to challenge the constitutionality of the statute.

In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to §1881a.

The named plaintiff in that suit — the NGO wildly speculating that the US government was reading its international communication with human rights victims and others — was Amnesty International.

Today, UK’s Investigatory Powers Tribunal informed Amnesty International that unnamed UK government agencies have been intercepting their communications.

In a shocking revelation, the UK’s Investigatory Powers Tribunal (IPT) today notified Amnesty International that UK government agencies had spied on the organization by intercepting, accessing and storing its communications.

[snip]

“After 18 months of litigation and all the denials and subterfuge that entailed, we now have confirmation that we were in fact subjected to UK government mass surveillance. It’s outrageous that what has been often presented as being the domain of despotic rulers has been occurring on British soil, by the British government,” said Salil Shetty, Amnesty International’s Secretary General.

Admittedly, this doesn’t confirm that Amnesty has been swept up in 702 collection, but given the likelihood that one of the agencies, plural, that has intercepted Amnesty’s communications is GCHQ, and given the broad sharing between it and its Five Eyes partner NSA, it is almost certain NSA has those communications as well (if they didn’t actually collect some of them).

Amnesty is trying to gain clarity from the US on whether it, too, has spied on the NGO.

But, predictably, Amnesty had a better idea of what a threat the government posed for its work than Sammy Alito did.

 

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In Reauthorizing the Dragnet, FISC Makes a Mockery of the Amicus Provision

Between a ruling by Dennis Saylor issued on June 17, while I was away, and a ruling by Michael Mosman issued and released today, the FISA Court has done the predictable: ruled both that the lapse of the PATRIOT Act on June 1 did not mean the law reverted to its pre-PATRIOT status (meaning that it permitted collection of records beyond hotel and rental car records), and ruled that the dragnet can continue for 6 more months.

In other words, the government is back in the business of conducting a domestic dragnet of phone records. Huzzah!

As I said, the FISC’s ultimate rulings — that it will treat USA F-ReDux as if it passed before the lapse (a fair but contestable opinion) and that it will permit the dragnet to resume for 6 months — are unsurprising. It’s how they get there, and how they deal with the passage of USA F-ReDux and the rebuke from the 2nd Circuit finding the dragnet unlawful, that I find interesting.

Reading both together, in my opinion, shows how increasingly illegitimate the FISC is making itself. It did so in two ways, which I’ll address in two posts. In this one, I’ll treat the FISC’s differing approaches to the amicus provision.

USA F-ReDux was a deeply flawed bill (and some of my predictions about its weaknesses are already being fulfilled). But it was also intended as a somewhat flaccid critique of the FISC, particularly with its weak requirement for an amicus and its stated intent, if not an effective implementation, to rein in bulk collection.

Congress at least claimed to be telling the FISC it had overstepped both its general role by authorizing programmatic collection orders and its specific interpretation of Section 215. One of its solutions was a demand that FISC stop winging it.

The Court’s response to that was rather surly.

A timeline may help to show why.

June 1: Section 215 lapses

June 2: USA F-ReDux passes and government applies to restart the dragnet

June 5: Ken Cuccinelli and FreedomWorks challenge the dragnet but not resumption of post-PATRIOT Section 215 (Section 109)

June 5: Michael Mosman orders government response by June 12, a supplemental brief from FreedomWorks on Section 109 by June 12, immediate release of government’s June 2 memorandum of law

June 12: Government submits its response and FreedomWorks submits its Section 109 briefing, followed by short response to government submission

June 17: In response to two non-bulk applications, Dennis Saylor rules he doesn’t need amicus briefing to decide Section 109 question then rules in favor of restoration of post-PATRIOT Section 215

June 29: Michael Mosman decides to waive the 7-day application rule, decides to treat FreedomWorks as the amicus in this case while denying all other request for relief, and issues order restarting dragnet for until November 29 (the longest dragnet order ever)

After having been told by Congress FISC needs to start consulting with an amicus on novel issues, two judges dealt with that instruction differently.

In part, what happened here (as has happened in the past, notably when Colleen Kollar-Kotelly was reviewing the first Protect America Act certifications while Reggie Walton was presiding over Yahoo’s challenge to their orders) is that one FISC judge, Saylor, was ruling whether two new orders (BR 15-77 and 15-78) could be approved giving the lapse in Section 215 (which became a ruling on how to interpret Section 109) while another FISC judge, Mosman, was reviewing what to do with the FreedomWorks challenge. That meant both judges were reviewing what to do with Section 109 at the same time. On June 5, Mosman ordered up the briefing that would make FreedomWorks an amicus without telling them they were serving as such until today. FreedomWorks did offer up this possibility when they said they were “amenable to [designation as an amicus curiae] by this Court, as an alternative to proceeding under this Motion in Opposition,” but they also repeatedly requested an oral hearing, most recently a full 17 days ago.

The Court now turns to the Movants’ alternative request to participate as amici curiae. Congress, through the enactment of the USA FREEDOM Act, has expressed a clear preference for greater amicus curiae involvement in certain types of FISC proceedings.

[Mosman reviews of the amicus language of the law]

The Court finds that the government’s application “presents a novel or significant interpretation of the law” within the meaning of section 103(i)(2)(A). Because, understandably, no one has yet been designated as eligible to be appointed as an amicus curiae under section 103(i)(2)(A), appointment under that provision is not appropriate. Instead, the Court has chosen to appoint the Movants as amici curiae under section 103(i)(2)(B) for the limited purpose of presenting their legal arguments as stated in the Motion in Opposition and subsequent submissions to date.7

7 [footnote talking about courts’ broad discretion on how they use amicus]

That is, on June 29, Mosman found this circumstance requires an amicus under the law, and relied on briefing ordered way back on June 5 and delivered on June 12, while denying any hearing in the interim.

Meanwhile, in a June 17 ruling addressing what I consider the more controversial of the two questions Mosman treated — whether the lapse reverted Section 215 to its pre-PATRIOT status — Saylor used this logic to decide he didn’t need to use an amicus.

[3 paragraphs laying out how 103(i)(2)(A) requires an amicus unless the court finds it is not appropriate, while section 103(i)(2)(B) permits the appointment of an amicus]

The question presented here is a legal question: in essence, whether the “business records” provision of FISA has reverted to the form it took before the adoption of the USA PATRIOT Act in October 2001. That question is solely a matter of statutory interpretation; it presents no issues of fact, or application of facts to law, and requires no particular knowledge or expertise in technological or scientific issues to resolve. The issue is thus whether an amicus curiae should be appointed to assist the court in resolving that specific legal issue.

The legal question here is undoubtedly “significant” within the meaning of Section 1803(i)(2)(A). If Section 501 no longer provides that the government can apply for or obtain orders requiring the production of a broad range of business records and other tangible things under the statute, that will have a substantial effect on the intelligence-gathering capabilities of the government. It is likely “novel,” as well, as the issue has not been addressed by any court (indeed, the USA FREEDOM Act, is only two weeks old). The appointment of an amicus curiae would therefore appear to be presumptively required, unless the court specifically finds that such an appointment is “not appropriate.”

Because the the statute is new, the court is faced for the first time with the question of when it is “not appropriate” to appoint an amicus curiae. There is no obvious precedent on which to draw. Moreover, the court as a whole has not had an opportunity to consider or adopt any rules addressing the designation of amicus curiae.

The statute provides some limited guidance, in that it clearly contemplates that there will be circumstances where an amicus curiae is unnecessary (that is, “not appropriate”) even though an application presents a “novel or significant interpretation of the law.” At a minimum, it seems likely that those circumstances would include situations where the court concludes that it does not need the assistance or advice of amicus curiae because the legal question is relatively simple, or is capable of only a single reasonable or rational outcome. In other words, Congress must have intended the court need not appoint amicus curiae to point out obvious legal issues or obvious legal conclusions, even if the issue presented was “novel or significant.” Accordingly, the court believes that if the appropriate outcome is sufficiently clear, such that no reasonable jurist would reach a different decision, the appointment of an amicus curiae is not required under the statute.

This is such an instance. Although the statutory framework is somewhat tangled, the choice before the court is actually clear and stark: as described below, it can apply well established principles of statutory construction and interpret the USA FREEDOM Act in a manner that gives meaning to all its provisions, or it can ignore those principles and conclude that Congress passed an irrational statute with multiple superfluous parts.

That is, 5 days after FreedomWorks submitted briefing on the particular issue in question — Section 109 — Saylor decided he did not need an amicus even though this was obviously a novel issue. While FreedomWorks only addressed one of its responses to the question of the lapse, it did argue that, “Congress was fully aware ofthe problems associated with passing the expiration date and they chose to do nothing to fix those problems.”

And Saylor did not do what Mosman did, recognize that even though there wasn’t an amicus position set up, the court could easily find one, even if it asked the amicus to brief under 103(i)(2)(B). Indeed, by June 17, former SSCI Counsel Michael Davidson — literally the expert on FISA sunset provisions — had written a JustSecurity post describing the lapse as a “huge problem.” So by the time Saylor had suggested that “no reasonable jurist” could disagree with him, the author of the sunset provision in question had already disagreed with him. Why not invite Davidson to submit a brief?

It seems Mosman either disagrees with Saylor’s conclusion about the seriousness of Congress’ “preference for greater amicus curiae involvement” (though, having read Saylor’s opinion, he does say appointment under 103(i)(2)(A) “is not appropriate,” though without adopting his logic for that language in the least), or has been swayed by the criticism of people like Liza Goitein and Steve Vladeck responding to Saylor’s earlier opinion.

All that said, having found a way to incorporate an amicus — even one not knowingly acting as such during briefing — Mosman than goes on to completely ignore what the government and JudicialWatch said about the lapse — instead just declaring that “the government has the better end of the dispute” — and to justify that judgment, simply quoting from Saylor.

On June 1, 2015, the language of section 501 reverted to how it read on October 25, 2001. See page 2 supra. The government contends that the USA FREEDOM Act, enacted on June 2, 2015, restored the version of section 501 that had been in effect immediately before the June 1 reversion, subject to amendments made by that Act. Response at 4. Movants contend that the USA FREEDOM Act had no such effect. Supplemental Brief at 1-2. The Court concludes that the government has the better of this dispute.

Another judge of this Court recently held that the USA FREEDOM Act effectively restored the version of section 501 that had been in effect immediately before the June 1 sunset. See In reApplication of the FBI for Orders Requiring the Production ofTangible Things, Docket Nos. BR 15-77, 15-78, Mem. Op. (June 17, 2015). In reaching that conclusion, the Court noted that, after June 1, Congress had the power to reinstate the lapsed language and could exercise that power “by enacting any form of words” making clear “its intention to do so.” Id. at 9 (internal quotation marks omitted). The Court found that Congress indicated such an intention through section 705(a) of the USA FREEDOM Act, which amended the pertinent sunset clause8 by striking the date “June 1, 2015,” and replacing it with “December 15, 2019.” Id. at 7-9. Applying fundamental canons of statutory interpretation, the Court determined that understanding section 705(a) to have reinstated the recently-lapsed language of section 501 of FISA was necessary to give effect to the language of the amended sunset clause, as well as to amendments to section 501 of FISA made by sections 101 through 107 of the USA FREEDOM Act, and to fit the affected provisions into a coherent and harmonious whole. Id. at 10-12. The Court adopts the same reasoning and reaches the same result in this case.

JudicialWatch’s argument was the mirror image of Saylor’s — that “Congress was fully aware of the problems associated with passing the expiration date and they chose to do nothing to fix those problems” — and yet Mosman doesn’t deal with it in the least. His colleague had ruled, and so the government must have the better side of the argument.

That’s basically the logic Mosman uses on the underlying question, which I hope to return to. Even in making a symbolic nod to the amicus, Mosman is still engaging in the legally suspect navel gazing that has become the signature of the FISC.

Mind you, I’m not surprised by all this. That was very clearly what was going to happen to the amicus, and one reason why I said it’d be likely a 9-year process until we had an advocate that would make the FISC a legitimate court.

But this little exhibition of navel gazing has only reinforced my belief that we should not wait that long. There is no reason to have a FISC anymore, not now that virtually every District court has the ability to conduct the kind of classified reviews that FISC judges do. And as we’re about to see (Jameel Jaffer promised he’s going to ask the 2nd Circuit for an injunction today), the competing jurisdictions that in this case let District Court judges dismiss Appellate judges as less preferable than the government are going to create legal confusion for the foreseeable future (though one the government and FISC are likely going to negate by using the new fast track review process I warned about).

The FISC is beyond saving. We should stop trying.

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In Course Pitch, Scooter and Wolfie Admit Iraq War Failures, But Make No Mention of Iraqi Casualties

While I was gone, the NeoCon Hertog Foundation announced an “advanced institute” featuring Scooter Libby and Paul Wolfowitz describing the “unexpected events, rivalries, counter-moves, mistakes, and imperfect understandings” behind the Iraq War, which also appears to offer some second-guessing about how the Iraq War still made sense even in light of the catastrophe it wrought.

It seems Judy Miller is not the only Iraq Hawk trying to relitigate her Iraq failures (the timing may not be unrelated, as Roger Hertog, has funded all three Iraq Hawks, among others).

I’m particularly interested in this paragraph, seemingly admitting the failures of Iraq while weighing it against what is portrayed as the failure of the first Gulf War.

Twice in the last quarter century America has gone to war with Iraq, and the two were in a state of low-level conflict during the interim. Both times America went to war with Congressional authorization, at the head of an international coalition, and in support of U.N. Resolutions. The 1990–1 Persian Gulf War ended quickly with minimal U.S. casualties, but left a brutal dictator in place and American interests at risk. The U.S. invasion of Iraq in 2003 quickly removed the regime that had repeatedly defied America and gave Iraqis a chance to devise their own future. However, the war soon devolved into a messy combination of insurgency and sectarian fighting that brought thousands of U.S. casualties, sapped American will and credibility, and worked to the benefit of America’s other regional nemesis, Iran. These events occurred not in isolation, but against the backdrop of broader international developments, particularly the ending of the Cold War, the attacks of 9/11/2001, and the on-going U.S. confrontation with radical Islam.

Iraq War 2.0 removed the defiant Saddam, who purportedly threatened American interests — Scooter and Wolfie judge — but it helped out “America’s other regional nemesis,” Iran.

At least the Iraq War architects are willing to admit their blunders made Iran stronger.

But the assessment of the impact on Iraq is the signature here: America generously gifted Iraqis with “a chance to devise their own future” — Scooter and Wolfie judge, making no mention of America’s past role in Saddam’s rise and success against Iraq — but it brought a “messy combination of insurgency and sectarian fighting … and thousands of U.S. casualties [that] sapped American will and credibility,” as if American will and credibility should have any role in the matter of giving Iraqis a chance to devise their own future, which was only granted, according to this description, because America’s formerly favored dictator threatened its interests.

Not only does the passage make no sense, but it obscures the other horrible thing about Scooter and Wolfie’s legacy: half a million Iraqi dead, or more.

Twelve years after these policy makers brought us to war on a pack of lies, their conception of failures doesn’t even account for the hundreds of thousands of purportedly liberated Iraqis they killed.

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Floating Security

Screen Shot 2015-06-29 at 11.25.57 AMGreetings! I’m back, just in time to refill the liquor cabinet. Thanks to Rayne, Jim, bmaz, and Ed for their fascinating posts while I was gone (and if you haven’t read it, I especially recommend Ed’s series on paradigms in economics).

As I mentioned before I left, I just took a vacation with my mom, who turned 75 during our trip. Because seeing Russia and Scandinavia were on her bucket list but she has mobility limitations, we decided to go on a Baltic cruise for the trip (it was my first cruise). Which meant, among other things, we we sailing from Germany past Poland and Kaliningrad to Lithuania on the last days of a NATO war game involving the Baltics, and we were docked in St. Petersburg for 3 days.

While I don’t know whether it was related to the war games, on the night of June 17-18, the ship took what a long-time sailor told us the next day seemed like an evasive maneuver at 2 AM that woke everyone I spoke to up. The following day, at around 6 (almost no one was awake because it was our one sailing day), the crew noted a ship tracking us on our starboard side that seemed very unusual to them. It pulled up ahead of the cruise ship far enough I couldn’t get a good picture or binocular check (it had a mostly red flag) when I returned, but was there for about 6 hours. I suck ass at military ship identification but it might have been a frigate. In any case, the New Cold War™ has not yet heated up sufficiently to turn our cruise ship into the Lusitania, so you’re all stuck with me.

I was just as interested in the security procedures for the ship. There are obvious measures (as those of you who have taken cruises surely know): a card check as you get on and off the boat every time, with metal detectors every time you get back on the boat. What I found interesting, though, were the less obvious measures, something you’d need to have for something that would otherwise be such an easy target but for which you wouldn’t want passengers to realize it. For example, there were undercarriage checks (the kind that are meant to be obvious in places like Brazil) that were not obviously visible. There were deck guards (one of whom got sheepish when I got into a conversation about the sunset he was taking a picture of), which are probably intended to minimize teenage pregnancies as much as anything else, but which keep a low profile on outer decks late at night. You couldn’t see security cameras anywhere, but I’m sure they were omnipresent. I’m really interested in the security checks employees undergo, as there can be up to 1,000 tip-dependent employees from developing nations on board. In any case, I imagine the cruise ship tracks everyone’s movement on board through use of key cards.

I was also interested in how cruise ship security intersected with Russian security (Russia has a 3-day exception to its visa requirement for cruise ship passengers who use a tour guide in Russia and return to their ship every night, but it requires going through customs every time you leave the ship and there is fine print that got a few people in trouble). Every time you left the ship, you’d first be scanned off the ship, then interact with a surly Russian border guard (I tried to little avail to butter them up with my very rudimentary Russian). On return, you’d go through a Russian metal detector to get into the port facility — but the guards only made you put bags through their x-ray machine, not all metal, and they pretty much ignored when you set off the metal detector. In other words, while Russia made a show of preventing weapons or bombs from entering the cruise ship terminal, it was pretty ineffective (there was a toll entry to get to the port itself by car, bus, or truck, though, which may limit what kinds of people could even get to the port). Then, you’d be checked out of Russia by the same surly border guards. Next you’d be checked into the boat and put through another metal detector upon entering the ship (though there were a few weak points to this process that I won’t mention). Though admittedly, the ship security was probably also designed as much to find booze and food that passengers were taking onto the ship, both of which had ostensible security purposes, but also served the cruise’s business model of ensuring captive consumption of booze on board.

In any case, the cruise ship obviously didn’t trust Russia’s security measures, but the latter probably rely much more on their own intelligence and policing.

All of which is to say the cruise ship is an exercise in a mix between security theater (the not entirely perfect metal detector on board) and more obscure but presumably more effective measures. Given the volume of passengers that have to be processed in quick order, it would seem to be proof that such an approach is possible in other areas (including aviation), but we choose not to use it. Or maybe cruise ships are 1) better able to do a cost-benefit analysis and 2) subject to fewer US laws. I’m now interested in more about how cruise ships carry out their security, though expect much of it is secret.

One final observation. I found Lithuania (Klaipeda, right on the border with Kaliningrad) to be the most fascinating stop, in part because it has been a cruise destination for a shorter period of time than, say, Tallinn, and so has not been transformed as much. Mom and I took a ferry to the Curonian Spit, then took a taxi down the spit and then back to Klaipeda; our taxi drivers were a son and then his father in succession. That’s where my (as I noted, very rudimentary) Russian was most interesting. At the ferry, I was told clearly not to use it at all by a maybe 55-year old woman. The son, who had excellent Hollywood English, was more measured. His father, who reminded that he had had to use Russia all through school and military service, was very happy to have a quasi conversation in Russian with me (we occasionally resorted to Polish and Czech at times, as better mutually comprehensible languages). I found the mixed feelings about Russian, in a place with a very audible Russian minority, to be fascinating. But then, Lithuania is ground zero for the New Cold War™ and I can understand how rising tensions exacerbate underlying divisions.

Anyway, that’s the sum of my impressions from being unable to entirely turn off the security side of my brain.

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Amid Even More Training Failures, US Frames Syrian Effort as Just Starting. Again.

Alert readers here who have kept their scorecards up to date know that the “secret” US effort to train rebels in Syria actually began as early as November of 2012, more than two and a half years ago, even though Obama did his best to obscure that date once it became expedient to nudge the date of entry for the first graduates of that program. The US later decided to go above-board with the training effort for Syria (after spectacular failures of identifying “moderates”), and last fall approved $500 million to a program to train and arm those elusive “moderates” once again. Despite the huge expenditure authorized for the program, it turns out that the US appears to have overlooked a key detail: the “moderate” rebels whom they seek to now fight only ISIS and not Assad simply don’t exist. We can only presume that those who wish to fight Assad are funneled to the covert program, which appears to have been put into place to topple Assad from power.

Robert Burns of AP has a story today describing how the US program has failed to produce the thousands of trainees that were planned:

Fewer than 100 Syrian rebels are currently being trained by the U.S. military to fight the Islamic State group, a tiny total for a sputtering program with a stated goal of producing 5,400 fighters a year.

The training effort is moving so slowly that critics question whether it can produce enough capable fighters quickly enough to make a difference. Military officials said last week that they still hope for 3,000 by year’s end. Privately, they acknowledge the trend is moving in the wrong direction.

/snip/

The main problem thus far has been finding enough Syrian recruits untainted by extremist affiliations or disqualified by physical or other flaws. Of approximately 6,000 volunteers, about 1,500 have passed muster and await movement to training camps in other countries. Citing security concerns, the Pentagon will not say exactly how many are in training. Officials said that as of Friday, the number was under 100 and that none has completed the program.

“We have set the bar very high on vetting,” said Col. Steve Warren, a Pentagon spokesman.

Maj. Gen. Michael Nagata, the Central Command special operations commander who is heading the program, wants volunteers with more than a will to fight.

“We are trying to recruit and identify people who … can be counted on … to fight, to have the right mindset and ideology,” and at the same time be willing to make combating IS their first priority, Defense Secretary Ash Carter told the House Armed Services Committee on June 17.

“It turns out to be very hard to identify people who meet both of those criteria,” Carter said.

Many Syrian rebel volunteers prefer to use their training to fight the government of President Bashar Assad, the original target of their revolution. While IS has been a brutal occupant of much of their country, the rebels see the extremists as fighting a parallel war.

Ah, but fear not, dear US war mongers! Burns reports that when Tammy Duckworth recently asked Joint Chiefs Chair Dempsey if this training effort was worth continuing, he had this ringing endorsement of the the program: “It’s a little too soon to give up on it.”

So, we’ve had the covert training going on for 32 months. We approved $500 million for open training nine months ago, but have under a hundred trainees in the program now, with zero graduates. And yet, if you ask the military, training in Syria is just getting started and it’s too soon to give up on it. Recognizing failure is just not possible in the US military.

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Kuhn and Economics: A Summary

In a series of posts which you can find here, I have been trying to formulate an answer to the question why has neoliberal economics not been tossed out in the wake of its total failure as demonstrated by the Great Crash. I’ve used as a lens Thomas Kuhn’s seminal essay: The Structure of Scientific Revolutions. I am totally dissatisfied with the usual progressive explanations of bad faith, whether in the form of the ubiquitous quote from Upton Sinclair: “It is difficult to get a man to understand something, when his salary depends on his not understanding it;” or direct or indirect accusations of intellectual dishonesty or corruption. The world is more complex, and we need to think more deeply, especially if we want to change things. Here is a list of the most important things I think I learned from the exercise.

1. Kuhn argues that science cannot proceed without a paradigm. That seems true in the hard sciences, but it seems inadequate as a description of the social sciences. Even so, there it remains an important insight. This series offered insights because I used the paradigm paradigm to examine a specific problem.

2. Following Mark Blyth, it seems that there are a number of schools of economics. These include neoliberals, post-Keynesians, Austrians, rational expectations theorists, and real business cycle theorists; to which we can add Modern Money Theorists, Marxians, and perhaps Piketty and his colleagues. Each of these has a paradigm through which it tries to organize the vast amount of data and theory we have accumulated over the centuries. Each has its own incommensurate ideas about what counts as data and about how to interpret the data. In other words, they each have a definition of truth, and their truth claims cannot be settled inside their paradigms, as Kuhn tells us is true about the hard sciences.

That means that the decisions about which, if any, of these schools dominates at any point in time has nothing to do with some transcendent truth, but rather with a struggle over politics.

3. This view was reinforced by a reading of Keynes’ delightful essay The Death of Laissez-Faire, which actually didn’t die despite Keynes best efforts, but lives on in the grifter stylings of Grover Norquist and the rest of the zombie right wing. If Keynes caouldn’t kill it, it is permanent.

4. It is further reinforced by Bronfenbrenner’s suggestion that paradigms in the social sciences are not replaced outright as Kuhn argues, but are met by an antithesis, and eventually fall into a new synthesis. I suggest that Paul Samuelson follows this approach in his textbook, based on the back inside cover. In a Hegelian or Marxian world, this is supposed to represent progress, but I’ve always thought of it a just something different that might or might not be useful in a specific social situation.

5. I laid out the seeds of a paradigm for neoliberal economics in this post. In passing I pointed out that Mankiw’s principles are couched in bland language, but they can easily be interpreted to carry out the neoliberal program. See 8. below. Again in passing, I note that tweaking them, and setting up a slightly different paradigm can produce a better solution to the problems our economy faces. That is an exercise for another day.

6. One crucial problem that arises from the existence of many schools of economics is that each can claim that there are no tests that disprove it. As Kuhn and others point out, that’s because the meaning of facts and truth is determined by the paradigm, and neither facts nor truths are commensurate across paradigms. That’s why the likes of Gary Becker and N. Gregory Mankiw can claim that the Great Crash was not a problem for neoliberal economics. What looks like a failure to a person who got hammered looks like the normal course of events to an ideologue married to a paradigm.

7. The neoliberals recognized the importance of politics in economics long before the liberals. They wrote their views into textbooks, which have a thin veneer of science and a thick veneer of authority, and used them to indoctrinate generations of college grads who only took one or two economics classes. They also arranged to have the basic tenets taught in high school classes mandated in many states on the wonders of capitalism. As Kuhn explains, the textbook is the authoritative teaching tool for creating new scientists and presumably new followers of the dominant school of economics. The tenets of neoliberal economics are taught as if they were the only way to understand capitalism, and any other set of ideas are communist or socialist, by which we are to understand they are evil.

8. One factor Blyth doesn’t discuss is why neoliberal economics has such a hold on the populace. Certainly a big part of that is the domination of authoritative discourse through the textbook process in point 7. Another crucial point is that without quite saying so, Mankiw’s principles of economics play directly to the prejudices of the a large segment of the voting public. Take the first one as an example: People face trade-offs. Some people face the trade-off between summering in the Hamptons or on Martha’s Vineyard. Others face trade-offs between rent and food. These are the same thing to neoliberals, who sneak in a bunch of outmoded Benthamite utility. And these are also the same for a huge number of conservatives. Suck it up and pick. It’s your fault for not being rich.

The rich people who dominate elections and the public discourse in general can rely on those principles in anodyne form to pacify the liberals while dog-whistling to their base of conservatives.

9. As a result, the voices of authority on economic matters don’t have to listen to anyone who disagrees with them. They have a base of voters who think it’s great to screw the poor and don’t even necessarily want to accept anything that comes from the government.

10. We need to focus attention on the political nature of economic paradigms. Neoliberal economics failed. We need to hammer home the failure, to undermine the authority of neoliberals on economic matters.

UPDATE
Here are links to the posts in this series with a note about each.

1. The Two Prongs of the Neoliberal Project. This is a justification of the inclusion of economics at this blog. It is also a general introduction to neoliberal economic theory.

2. Paradigms in Economics. This is an introduction to Kuhn’s theory of scientific revolutions and an introduction to a theory of paradigms in economics.

4. Paradigm Change in Science and Economics. This is a discussion of Kuhn’s explanation for paradigm change in science, and begins the discussion of the comparable problem in economics.

5. A Possible Paradigm for Neoliberal Economics. N. Gregory Mankiw’s textbook lists 10 principles of economics. This post takes those and a simple methodology as a possible paradigm for neoliberal economics. In passing, I discuss an actual paradigm change that seems to meet the requirements of Kuhn’s analysis.

6. Pragmatic Aspects of Paradigm Change According to Kuhn. This addresses Kuhn’s argument that even in the hard sciences, paradigm change requires persuasion, because the superiority of an alternative paradigm cannot be tested inside a different paradigm. This idea is applied to economics, and specifically to textbooks.

7. Keynes on Paradigm Change. John Maynard Keynes calls for the death of laissez-faire, especially in its virulent form of demanding that government do nothing. Economic ideas don’t die.

8. Paradigm Change Through Authority and Arguments about Truth. This is a discussion of a more sophisticated approach to changes in economics paradigms through a paper by Mark Blyth. Blyth offers a grounded approach to the problem of change as a result of authority and persuasion.

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Criminal Sexual Assault: No Means NO Burden Shifting

CryingJusticeLate last night here, early this morning where many of you are, I saw an article pop up on the New York Times website by Judith Shulevitz on “Regulating Sex”. The title seemed benign enough, but thanks to my friend Scott Greenfield, and his blog Simple Justice, Ms. Shulevitz has been on my radar for a while. So I sent the article (which is worth a read) to Scott knowing he would likely pounce on it when he got up.

And Scott did just that, in a post called “With Friends Like These”, while I was still comfortably tucked in:

A lot of people sent me a link to Judith Shulevitz’s New York Times op-ed, Regulating Sex. As any regular SJ reader knows, there is nothing in there that hasn’t been discussed here, sometimes long ago, at far greater depth. But Shulevitz is against the affirmative consent trend, which she calls a “doctrine,” so it’s all good, right?

What Shulevitz accomplishes is a very well written, easily digestible, version of the problem that serves to alert the general public, those unaware of law, the issues of gender and sexual politics, the litany of excuses that have framed the debate and the seriousness of its implications, to the existence of this deeply problematic trend. She notes that one of its primary ALI proponents, NYU lawprof Stephen J. Schulhofer, calls the case for affirmative consent “compelling.” She neglects to note this is a meaningless word in the discussion. Still, it’s in there.

On the one hand, I think Scott is right that there is really nothing all that new here in the bigger picture, and, really he is right that Ms. Shulevitz is far from a goat, even if a little nebulous and wishy washy.

No, what struck me like a hammer was the ease with which academics like Georgetown’s Abbe Smith and NYU professor Stephen J. Schulhofer, not to mention the truly formidable American Law Institute (ALI) are propagating the idea of alteration of criminal sexual assault law. In short, are willing to put lip gloss on the pig of shifting the burden of proof on a major felony crime of moral turpitude.

And it is an outrageous and destructive concession. This is not a slippery slope, it is a black ice downhill. You might as well be rewriting the American ethos to say “Well, no, all men and women are not created equal”. In criminal law, that is the kind of foundation being attacked here.

Scott did not really hit on this in his main post, but in a reply comment to some poor soul that weighed in with the old trope of “gee, it really is not too much to give” kind of naive rhetoric, Mr. Greenfield hit the true mark:

The reason I (and, I guess, others) haven’t spent a lot of time and energy providing concrete examples is because it’s so obvious. Apparently, not to everyone. So here’s the shift:

Accuser alleges rape because of lack of consent, saying: “He touched me without my consent.” That’s it. Case proven. Nothing more is required and, in the absence of a viable defense, the accused loses.

Now, it’s up to the accused student to prove, by a preponderance of the evidence (which means more than 50%) that there was consent. There was consent at every point in time. There was clear and unambiguous consent. And most importantly, that the accused’s assertion of consent somehow is proven to be more credible than the accuser’s assertion of lack of consent.

Let’s assume the accuser says “I did not consent,” and the accused says, “you did consent.” The two allegations are equally credible. The accused loses, because the accuser’s assertion is sufficient to establish the offense, and the burden then shifts to the accused, whose defense fails to suffice as being more credible than the accusation.

Mind you, under American jurisprudence, this shifting compels the accused to prove innocence, which is something our jurisprudence would not otherwise require, merely upon the fact of an accusation, or be peremptorily “convicted.”

Is that sufficiently concrete for you?

Yeah, and do you want that star chamber logic in not just public university settings, but embedded with a solid foothold in common criminal law? Because those are the stakes. Constitutional law, criminal law, and criminal procedure are not vehicles for feel good patina on general social ills and outrages de jour, in fact they are instead designed, and must be, a bulwark against exactly those people who would claim the former mantle.

First they came for the Fourth and Fifth Amendments, and you poo poohed the cries from criminal defense lawyers, going back to at least the mid-80’s, about the dangerous slippery slope that was being germinated. Whether the results have touched you, or your greater “family”, yet or not, it is pretty hard to objectively look at today’s posture and not admit the “slippery slope” criers thirty years ago were right. Of course they were.

People operating from wholly, or mostly, within the criminal justice system, whether as lawyer or client/family, just have a different, and more immediate, perspective. A position rarely understood without having tangible skin in the game.

Maybe listen this time. The battle over racial and sexual equality is far from over, but it is well underway intellectually, and headed in a better direction. It gets better. So, make it better in criminal justice too, do not let it be the destructive war pit morality betterment in the US falls in to.

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Sony Pictures Postmortem Reveals Death by Stupid

FORTUNE_SonyHack-GovtAV_25JUN2015We already knew Sony Pictures Entertainment’s (SPE) hack was bad. We knew that the parent, Sony Group, had been exposed to cyber attacks of all kinds for years across its subsidiaries, and slow to effect real changes to prevent future attacks.

And we knew both Sony Group and SPE shot themselves in the feet, literally asking for trouble by way of bad decisions. Sony Electronics’ 2005 copy protection rootkit scandal and SPE’s utter lack of disregard for geopolitics opened the businesses to risk.

But FORTUNE magazine’s expose about the hacking of SPE — of which only two of three parts have yet been published — reveals a floundering conglomerate unable to do anything but flail ineffectively.

It’s impossible to imagine any Fortune 500 corporation willing to tolerate working with 1990s technology for any length of time, let alone one which had no fail-over redundancies or backup strategies, no emergency business continuity plan to which they could revert in the event of a catastrophe. But FORTUNE reports SPE had been reduced to using fax machines to distribute information, in large part because many of its computers had been completely wiped by malware used in the attack.

Pause here and imagine what you would do (or perhaps, have done) if your computer was completely wiped, taking even the BIOS. What would you do to get back in business? You’ve given more thought about this continuity challenge than it appears most of SPE’s management invested prior to last November’s hack, based on reporting to date.

A mind-boggling part of FORTUNE’s expose is the U.S. government’s reaction to SPE’s hack. The graphic above offers the biggest guffaw, a quote by the FBI’s then-assistant director of its cyber division. Knowing what we know now about the Office of Personnel Management hack, the U.S. government is a less-than-credible expert on hacking prevention. While the U.S. government maintains North Korea was responsible, it’s hard to take them seriously when they’ve failed so egregiously to protect their own turf. Continue reading

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Beautiful Equality Comes To Marriages In America

Screen Shot 2015-06-26 at 8.10.49 AMLove will find a way, and it finally has. There are many, many friends I am thinking of right now, and they all know exactly who they are. Congratulations, and it was far too long coming. Here is the opinion.

EQUALITY

There is so much to say, that it is hard to know what to actually say. There are many quotes like this one, but it is indicative of the decision:

“laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

What I don’t find in the majority decision, as wonderful as it is, is discussion of heightened scrutiny, strict scrutiny, or other clear cut, across the board protection for the status of sexual identity. And that is disappointing. Also why I cried bit when SCOTUS, two years ago to this very day, callously refused to take the incredibly wonderful tee shot that Vaughn Walker gave them in the Proposition 8 case previously.

I guess the handwriting was on the wall when even the old liberal lion Steve Reinhardt, a man I have met, and a judge I truly love and revere, pulled up short and did not have the balls to take the root concept of sexual identity “equality” where it naturally flowed when he had the pen in his wise hand. But he didn’t then, and his old friend Tony Kennedy has not today.

So, while there is so much to cheer right this moment, we, and this country, are still far from where we need to be with regard to inclusion of all our citizens in the concept of equality. It is more than black and white, it is straight, gay and trans too. We are all on this patch of earth together, and we all are equal, and that needs to be admitted legally by the highest court in the land and understood by all the people it serves.

So, there are still miles to be traveled. Let the four, count them four, spittle laced, bigoted, backwards, and disgusting dissents in the Obergefell decision speak for themselves. Honestly, they make me want to puke. For all that were celebrating the enlightened liberal thought of Chief Justice John G. Roberts yesterday, today is a rough reminder of who and what he really is. And you really have to read Scalia and Alito to understand the fucked up pathology of the dissenters. Wow.

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I Am Ted Williams’ Head

sport_art_10-15_t658Okay, long story short, a couple of months ago my wife set me up with her dermatologist for a head to toe skin exam to insure against skin melanoma. A perfectly reasonable thing, though, to be honest, would not have otherwise been on my pretty much lunkheaded list of things to do.

Okay, so, today was that appointment. A rather attractive woman doctor searched me from head to toe (no, not “there” you perverts) and found, after five decades of life in the desert sun, that I had zero issues. But then she asked if I had any “concerns”, and a friend had, a couple of months ago, pointed out some splotches on by bald ass head.

So, I mentioned that and the pretty doctor explored my cranium and, among randomly assholey and curmudgeonly thoughts, found several “surface areas of concern” on my scalp. She promptly took out a Batman Mr. Freeze like can of torture and nuked my crown with some freaking liquid hell. Cool at first, but then quickly like a blowtorch cutting into your skull. Ow!

Oh well, once over, stung a little, but no big deal. Except I looked at me skull in teh mirror and it looks like a lunar landscape. Jeebus.

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Emptywheel Twitterverse

emptywheel @electrospaces so you now agree they do collect in bulk, even if your theory is that selection of that bulk is not bulk? changed your mind?
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bmaz RT @Ali_Gharib: Don't tell me 'Netanyahu's not a warmonger' when he puts out bullshit war propaganda videos like this: http://t.co/MNIylSM9
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bmaz On the Cusp of an Iran Deal, Israel Facilely Beats the War Drums | The Nation https://t.co/3OSwIZac85 Unconscionable perfidy by Netanyahu
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JimWhiteGNV RT @TampaBayTK: That's three straight games and four out of seven without a baserunner thru 5 innings for the #Rays.
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bmaz @joshgerstein Yep. But I think a DC jury pool would have been good for Sherrod. Whatta ya gonna do?
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bmaz @craighdurham @espinsegall Nope, me either. But the argument Eric made is stronger than I thought it would be.
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bmaz @joshgerstein Search me, no clue. And w/o govt being sued, he is just a collateral witness. I got nothing.
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bmaz @joshgerstein I can understand why they are talking settlement, but the trial would have been fun.
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bmaz Why Justice Scalia Should Seriously Consider Retirement http://t.co/pxGFVLhjZM Strong argument by @espinsegall
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bmaz @nickmartin @nickconfessore @MelissaClark From out here where we have real Mexican food, I am looking very side eye at this bunk.
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bmaz @lilsarg @GenePeyroux ...and grew up next door to an older girl who was one of last wave of polio victims. Can't fathom not vaccinating.
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bmaz @lilsarg @GenePeyroux Wow, did not see that back when you first posted it, but thanks for writing it. I had chicken pox and measles as a kid
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