Tremendous read here:

At the end of March, Harold Koh, top lawyer at the State Department, used his keynote address at the annual confab of the American Society for International Law to make an announcement: the use of Unmanned Aerial Vehicles to kill suspected terrorists is legal. The drone strikes in Pakistan and Afghanistan are lawful because, Koh delineated, they are done only in national self-defense, their proportionality is always precisely calibrated, and they carefully discriminate civilians from combatants.

There’s both more and less to it than that, but the legal argument itself is of minor importance. What matters is that Koh said it. Harold Hongju Koh: renowned human rights advocate; leading theorist of international law (which, the ASIL conventioneers would happily have told you, is much more civilized than mere national law); until last year dean of Yale Law School and therefore unofficial pope of the American legal system, and former director of the school’s Orville H. Schell Jr. Center for International Human Rights; Obama appointee accused by Glenn Beck and likeminded screamers of wanting to smuggle Sharia law into U.S. courts. All of which is to say, if a liberal lion like Harold Koh says drone strikes are lawful, what more do you need to know?

Koh’s lecture—warmly applauded by the conventioneers—demonstrates once again the amazing elasticity of international law when it comes to the prerogatives of great powers. Koh’s lecture also demonstrates the accommodating suppleness of several international lawyers who, once strong critics of George W. Bush’s anti-terror policies, now see things differently from inside the Obama administration.

* * *

There are in fact alternatives to the drone strikes, the main one being to end them. Not two years ago, John McCain was blasting Obama’s pledge to launch attacks into Pakistan as foolhardy nonsense. (Where Republican hawks once feared to tread, humanitarian angels now rush in.) Though most hawks have quickly grown to love the drone strikes, it is still not at all difficult to find prominent military intellectuals who favor the alternative of halting the policy full stop. David Kilcullen and Andrew Exum, respectively a former adviser to General Petraeus and a former Army captain who served in Iraq and Afghanistan, are both leading theorists of counterinsurgency warfare at the Center for a New American Security. They have testified before Congress that drone strikes are perceived to be wildly inaccurate—killing, they say, 700 people in attacks on 14 targets—and are undermining the “hearts and minds” offensive that is central to the campaign. They recommend scrapping drone attacks. And then there is the American Ambassador to Afghanistan Karl Eikenberry, who happens to be a retired Army general. In leaked cables to the president, Eikenberry severely questioned the wisdom of the counterinsurgency campaign and the escalation in a long telegram commonly compared to the Pentagon Papers leaked by Daniel Ellsberg. Is anyone listening to these well-informed skeptics?

Don’t wait for the international legal profession to prick up its collective ears. Leaked videos of bantering gunship crews fatally strafing civilians may trouble the mind, but drone strikes have been absolved by the great humanitarian authority Harold Koh. His keynote address got a few not-buying-it questions from a couple of academics—long may you live, Benjamin Davis and Mary Ellen O’Connell—but this dissonance was washed away by the warm roar of applause at session’s end. A Russian corporate lawyer chum of mine was taken aback by this mellow response to a legal justification for Bush-Cheney policies. “And they say we Russians are brainwashed by our media! No, I did not clap.”

As they say, read the whole thing.

Ilya Somin at Volokh commenting on a recent article by Matt Yglesias, which complained that there should be less elected positions in State government and more appointed positions because it’s impossible to be an informed voter these days. In his words:

No real people are paying attention to what these different offices are, what the incumbents are doing, how they interact, who’s doing a good job, etc. Special interests who are able to hire professionals to monitor elected officials for them, by contrast, are able to make out like bandits.

I principally disagree for two reasons. First, the Internet makes it easier than ever before in world history to be an informed voter. I don’t buy the argument that it’s impossible to be an informed voter. To the extent a voter cares to be reasonably informed he/she can certainly inform him/herself as to the candidates and broad issues. With respect to Yglesias’ point that “[n]o real people are paying attention . . .” he may be correct. It does seem that the majority of citizens don’t pay enough attention, or simply don’t care, preferring to whine about the results of their apathy rather than cure it by taking an active interest in the institutions and people that govern them. Yglesias appears to prefer, as a matter of practicality, relieving the electorate of the political burden (voting) they clearly shirk by giving fewer elected candidates more authority to appoint more bureaucrats. My second objection is that if our collective apathy towards voting results in ineffective, corrupt, and grossly inefficient government then tough shit for us. Democracy (and civil liberty) is not without consequence. We suffer for our apathy. We should willingly bear those consequences, especially when we have at our fingertips the means to improve our democracy.

Ilya Somin makes a couple of different points:

I completely agree with Yglesias that most voters know little or nothing about these offices, and that this creates an opening for interest group influence. I have made similar arguments myself. The problem is exacerbated by the reality that for most voters, it is actually rational to devote little or no time to acquiring political information. It’s also rational for them to do a poor job of analyzing the political information they do know.

At the same time, I am skeptical of the solution that Yglesias implicitly seems to advocate: making these positions nonelected offices. If the Commissioner of the General Land Office becomes a bureaucratic position appointed by the governor, that doesn’t eliminate the problem of voter ignorance. It merely shifts it to a different election. Now, the question of who the governor is likely to choose as the next Commissioner is added to the long list of issues at stake in the gubernatorial election.

Next, Know Your Rights.  If you don’t think that’s important, I invite you to sit in on a criminal procedure class at my law school sometime and witness how federal courts have emasculated the Fourth Amendment.

[UPDATED 3/5/2010 @ 10:50 pm].  More here from Reason on the current administration’s frightening defenestration of civil liberty via the obliteration of the Fourth Amendment.

Re-read that last sentence again, and it doesn’t take an Einstein to figure out that any protestations on the Obama administration’s part that they have any respect for the 4th Amendment or privacy is utter bilge. I wrote on the government’s growing snooping powers in ye Moderne Age at theAmerican Conservative back in February.

Here’s a dated, but good read re: Paul Krugman.

Time after time, Krugman leaves me wide-eyed with wonder at how much economics he has to forget to write those [NY Times] columns.

Interview with an Austrian-school, Soviet economist who defected to the United States.

Yuri N. Maltsev received his MA in history and social sciences at Moscow State University and his PhD in economics at the Institute for Labor Research in Moscow. Some of his major achievements include consulting on Central and Eastern European economic, trade and political issues, as well as appearing on national television and radio programs. He currently is a professor of economics at Carthage College in Kenosha, Wisconsin.

What convinced you of the merits of the Austrian School of Economics over other schools of thought?
The Austrian School of Economics is economics of freedom, economics for free people, economics of human action, not of government design. It is the only school which accurately predicted the fate of the socialist experiment, which cost over 150 million lives last century. Ludwig von Mises showed with precise and irrefutable logic why socialism could never work.

Related: The confluence of classic liberalism and Austrian economics.

Classical liberalism — which we shall call here simply liberalism — is based on the conception of civil society as, by and large, self-regulating when its members are free to act within very wide bounds of their individual rights. Among these the right to private property, including freedom of contract and free disposition of one’s own labor, is given a very high priority. Historically, liberalism has manifested a hostility to state action, which, it insists, should be reduced to a minimum (Raico 1992, 1994).

Austrian economics is the name given to the school, or strand, of economic theory that began with Carl Menger (Kirzner 1987; Hayek 1968), and it has often been linked — both by adherents and opponents — to the liberal doctrine. The purpose of this paper is to examine some of the connections that exist, or have been held to exist, between Austrian economics and liberalism.

Change Status Quo: KSM trial probably occurring in Gitmo. I guess that means the White House thinks terror is more akin to war than crime, Terrorists are more akin to war-actors than criminals, and military tribunals are a more appropriate forum than civil courts in which to try them. Where’d they get that idea? I wonder what Neal Katyal, current Deputy Solicitor General, thinks about it, having made his name by arguing (successfully) Hamdan v. Rumsfeld, which held that the Bush administration’s first iteration of military commissions to try detainees at Guantanamo Bay violate both the UCMJ and the four Geneva Conventions. I’m interested to hear Katyal explain what substantive changes the Obama administration has made to the Tribunals and why those changes now satisfy the arguments Kaytal ably posed against the prior version of military tribunals. More here.

Interesting read here by Timothy Garton Ash, whom I linked to in On Armenia and Genocide, about the challenges facing the EU’s monetary policies. Excerpt below is the end of Ash’s article:

Behind the monetary lurks the fiscal; behind the fiscal, the economic; behind the economic, the political; and behind the political, the historical. The deepest reality underlying this crisis is that the personal experiences and memories that have pushed European integration ahead for 65 years, since 1945, are losing their force. The personal memory of war, occupation, humiliation, European barbarism; fear of Germany, including Germany’s fear of itself; the Soviet threat, the cold war, the “return to Europe” as a guarantee of hard-won freedom; the hope of restored European greatness.

These were massive biographical motivators, which drove people like Mitterrand and Kohl even unto the euro. Can Europeans go on building Europe without such profound motivators? Are there new ones in sight?

Yesterday’s Pentagon attacker was a left-wing truther. Here’s some reasons why non-left wing, non-truthers shouldn’t try to make political hay out of it.

So, instead of playing the blame game so unapologetically employed by the Left when they feel they can spin things to their political advantage, I’m not going to say that Bedell’s actions at the Pentagon epitomize the leftist worldview. Rather, he was just crazy, as clearly indicated by his belief in the craziest of modern crazy conspiracy theories, 9/11 Truthism.

Are most Truthers leftists? Yes. But that doesn’t mean that all left-leaning Americans are thereby just as crazy as the most extreme among them; it simply indicates that when a leftist goes crazy in the post-9/11 era, he often gloms onto Truthism as his paranoia of choice.

Put it this way: Leftism fails as a coherent philosophy on its own terms. We shouldn’t try to wring significance from the delusional outburst of someone who just happened to be leftist. There are plenty of ways to logically disembowel Marxism and its numerous noxious contemporary offspring without having to resort to an unnecessary round of political “gotcha!”

Did you know that Willie Nelson smoked weed on the roof of the white house? Plus this on Nelson, from Reason’s 35 Heroes of Freedom.

One of the great crossover artists in popular music, the Texas legend pulled off a Martin Luther King Jr.-like achievement by uniting hippies and rednecks in a single audience.

The most plausible Republican fix to the fiscal mess . . . I’m still in the tank for Gary Johnson.

Finally, Reason’s Peter Suderman on the ‘jobs created or saved’ canard:

In selling the American Recovery and Reinvestment Act—otherwise known as the economic stimulus—to the American public last year, the Obama administration promised that the massive spending package would serve as a sort of Keynesian Red Bull, allowing the tired economy to keep partying hard by pumping up GDP and trapping unemployment in single digits. Or, as the administration put it in January 2009, the bill was to create or save three to four million jobs over the next two years, with over 90 percent of those jobs in the private sector.

Instead, the economy reacted like it just downed a glass of whiskey and warm milk: Private sector output fell sharply, and last fall, the unemployment rate hit 10.2 percent. * * *

That still leaves us with a question: How many jobs did the stimulus actually create? The best answer to that question is not 1 million or 2.1 million or any of the other figures that have been batted around in recent months by the administration and its defenders. It’s not even a figure at all; instead it’s another question: Who knows?

But don’t take my word for it; take the CBO’s. Unlike the administration, the CBO is a nonpartisan entity without a particular interest in strengthening its claims further than they should. All the numbers it produces are estimates, and the agency devotes plenty of ink to explaining its methodology and the uncertainties it entails. Last month’s report cautioned that “considerable uncertainty exists about many of these economic relationships that are important in the modeling,” which is why many of its estimates come in rather wide ranges. And its December report noted that “it is impossible to determine how many of the reported jobs would have existed in the absence of the stimulus package.”

In other words, don’t blame the CBO, which is merely doing its lawful duty to produce compliant estimates (a fact which it dryly makes clear in the introduction). Instead, blame the administration, the government-spending enthusiasts, the liberal pundits, and anyone else who treats these pre-cooked estimates as settled fact.

If I were the President of the United States I would appoint Eugene Volokh to the Supreme Court, notwithstanding my that my views towards the legal academy are, ahem, jaded (see here for my thoughts, in short I’d prefer a free market in legal education). Volokh’s blog, Volokh Conspiracy, is a daily read for me, and in my opinion provides the broadest, insightful, legal commentary available on the Internet.

By the way, if you’re into takings issues, Inversecondemnation is a must read.

The next time the GOP decides to articulate its core values, as it recently did in the Mount Vernon Statement, or ask Glenn Beck to be the keynote speaker at CPAC, perhaps they could be so kind as to read this gem by Mickey Andrews. The GOP sorely needs a reminder of what conservatism is, what Constitutionalism is, and why principles matter. Frankly, after reading Andrews’ piece, I realized I needed a reminder as well.

I was asked yesterday whether I would be going to CPAC, the annual Conservative Political Action Conference, which is currently being held a half-hour’s walk from my office in D.C. It was a logical question, not only since the meetings are so close at hand but also because for five years I chaired CPAC.

* * *

But the answer to yesterday’s question was “no.” No, I’m not going to CPAC. And, truth be told, most of the folks there wouldn’t want me there. They wouldn’t think I’m a conservative; many wouldn’t think Barry Goldwater was a conservative; many, had this been three decades ago, might have been seeking a “true” conservative to run against Ronald Reagan. I don’t begrudge these activists their views and they are entitled to use the term “conservative” to describe themselves if they so choose. But the views many of them profess have little in common with the distinctly American kind of conservatism that gave birth to CPAC and the modern American conservative movement. Instead, what many of today’s self-proclaimed “conservatives” proclaim is an ideology borrowed from what Donald Rumsfeld famously dismissed as “old Europe.” Winston Churchill, one of Europe’s better-known conservatives, was half-American and his incredible strength of character helped Great Britain survive World War II, but when asked to define conservatism, Churchill responded that conservatism was about reverence for king and church. But America has no king and has no national church. That distinction is crucial and one in which today’s so-called conservatives have switched sides; crossed the ocean, if you will.

What distinguished modern American conservatism was that it had its roots not in the British kings, but in John Locke and Adam Smith and other champions of individual liberties and individual empowerment. European conservatism–the kind that has now become the rage for the American Right–was top-down and centered on state power. The rise of modern American conservatism, on the other hand, had a distinctly Madisonian flair, embracing the fundamentals of American constitutional limits on central authority. European conservatism found its voice in magisterial decree, religious edict, and acts of parliaments in which members may or may not have ever visited the communities they were presumed to “represent.” American conservatism found its voice in a Constitution that placed every major power in the hands of the people, through their representatives, and ensured that those representatives would actually be residents of the communities that elected them. American conservatism embraced a Constitution that separated and constrained powers, that specified –highlighted–a few of the protected liberties of the people coupled with clear assertions that all undelegated powers–all other unsurrendered liberties–remained with the people rather than the government. A Constitution that placed unambiguous limitations, including direct prohibitions, on the attempted exercise of governmental authority.

Today there are few things that set a “conservatives’” teeth on edge more than a defense of “civil liberties;” yet that is what American conservatism was all about–protecting the liberties of the people. It was a system designed to protect the people from an over-reaching government, not to protect the government from the people.

Gem alert. Brace yourselves.

American constitutionalism was a historical high-point in recognizing individual worth.

Here, have it again. “American Constitutionalism was a historical high-point in recognizing individual worth. Let it soak right in.

Stop at CPAC today and you will find rooms full of ardent, zealous, fervent young men and women who believe the government should be allowed to torture (we condemned people at Nuremberg for doing that), who believe the government should be able to lock people up without charges and hold them indefinitely (something Henry VIII agreed was a proper exercise of government authority). Who believe the government should be able to read a citizen’s mail and listen in on a citizen’s phone calls, all without a warrant (the Constitution of course prohibits searches without a warrant, but nobody cares less about the Constitution than some of today’s ersatz conservatives).

I’m not at CPAC because I believe in America. I believe in liberty. I believe that governments should be held in check. I believe people matter. I believe in the flag not because of its shape or color but because of the principles it stands for–the principles in the Constitution, the principles repeated and underlined and highlighted and boldfaced and italicized in the Bill of Rights. The George W. whose presidency and precedents I admire was the first president, not the 43d. It is James Madison I admire, not John Yoo. Thomas Paine, not Glenn Beck. Jefferson, not Limbaugh.

Ronald Reagan would not have been welcome at today’s CPAC or a tea party rally, but he would not have wanted to be there, either. Neither do I.

Well, this is not good.

On Friday, the first federal appeals court to consider the topic will hear oral arguments [] in a case that could establish new standards for locating wireless devices.

In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no “reasonable expectation of privacy” in their–or at least their cell phones’–whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

“This is a critical question for privacy in the 21st century,” says Kevin Bankston, an attorney at the Electronic Frontier Foundation who will be arguing on Friday. “If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment.”

Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department’s request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans’ privacy deserves more protection and judicial oversight than what the administration has proposed.

Bold emphasis mine.  Unfortunately as a matter of precedent the DOJ probably has a legal leg to stand on by analogizing a cell phone’s whereabouts to “Pen Registers,” a la Smith v. Maryland. In Smith v. Maryland, the government installed a “Pen Register,” at a telephone company’s headquarters. Pen registers create switchboard records of a particular phone line (who you called, when) but don’t record conversations.  The Supreme Court held that the warrantless installation of pen registers (and the introduction of pen register records as evidence) do not violate the Fourth Amendment. The Court reasoned that telephone users don’t have an objectively reasonable expectation of privacy because pen registers don’t intrude on the conversation itself, and the phone user voluntarily turns over the information (who he called and when) to the phone company.  As such, the government can access pen register records without a warrant.

The DOJ is probably arguing that cell phone whereabouts are analogous to pen register record. Put another way, spot the difference between warrantlessly tracking a cell phone’s whereabouts and warrantlessly accessing calling records. Like land-line telephone users, cell phone users are aware phone’s can be tracked, have the option of turning off the phone, and the government is not intruding on actual conversations. You can extend that argument quite a ways, too.

For instance, what’s the difference between tracking cell phone whereabouts and a cop following a vehicle all day long? If it’s OK for a cop to warrantlessly follow a vehicle to track its whereabouts, what would be wrong with electronically tracking the car’s whereabouts via its GPS, or its occupant’s cell phone? What would be wrong with the government creating a database / system to warrantlessly monitor every person’s whereabouts, activities, and associations 24-7 via their GPS, cell phone, or other electronic device? No one has a reasonable expectation of privacy insofar as their electronic devices are concerned, get it? How about mandating that everyone carry a trackable device? Why not expand the database to warrantlessly track: (a) who you email and when; (b) websites you visit; (c) channels you watch; and (d) movies you netflicks?

I condemn the DOJ for taking the position that the government can electronically track or monitor citizens without a warrant. Warrantless electronic tracking is Orwellian. Widespread, warrantless electronic monitoring will have a chilling effect on freedom of assembly and speech. If the government has sufficient reason to electronically track an individual’s whereabouts the government should be able to prove it has probable cause sufficent to justify a magistrate issuing a warrant.

Just imagine what will happen if the thought police find out that David Brooks regularly reads Steve Sailer’s politically incorrect blog. Off with his head!

Original link via Drudgereport.

Update:

Frankly, it’s comforting when someone with more legal and blogging credibility than me reaches the same conclusion as me. Jim Harper at the Cato Institute expounds on the ‘chilling’ point I made yesterday regarding the DOJ’s argument that warrantless electronic surveillance is A-OK with the Fourth Amendment:

If you have a mobile phone, that’s the upshot of an argument being put forward by the government in a case being argued before the Third Circuit Court of Appeals tomorrow. The case is called In the Matter of the Application of the United States of America For An Order Directing A Provider of Electronic Communication Service To Disclose Records to the Government.

Declan McCullagh reports:

In that case, the Obama administration has argued that Americans enjoy no “reasonable expectation of privacy” in their—or at least their cell phones’—whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

The government can maintain this position because of the retrograde “third party doctrine.” That doctrine arose from a pair of cases in the early 1970s in which the Supreme Court found no Fourth Amendment problems when the government required service providers to maintain records about their customers, and later required those service providers to hand the records over to the government.

I wrote about these cases, and the courts’ misunderstanding of privacy since 1967’s Katz decision, in an American University Law Review article titled “Reforming Fourth Amendment Privacy Doctrine“:

These holdings were never right, but they grow more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The totality of these records are very, very revealing of people’s lives. They are a window onto each individual’s spiritual nature, feelings, and intellect. They reflect each American’s beliefs, thoughts, emotions, and sensations. They ought to be protected, as they are the modern iteration of our “papers and effects.”

This is a case to watch, as it will help determine whether or not your digital life is an open book to government investigators.

UPDATE II:

Excellent legal discussion here on the merits of the government’s case. I liked this comment the best though.

Once again, the government is in the position of killing its parents and asking for mercy as an orphan. Once again, the government is citing as a common business practice an activity that it mandated so as to get around the Bill of Rights.

And once again, here is an activity wherein lawyers have twisted plain English to mean something special, contrary to what the man in the street thinks the words mean, and then act huffy (see many comments above) when questioned.

I have talked to many people about this case. There is not one of them that does not feel that the government is violating privacy, is fundamentally cheating, on this one. Many, though, shrug and feel that the government and the growing police state will get away with it.

What fundamental constitutional busy-bodiness requires that 911 calls always identify exactly where the caller is? I have trouble squeezing this one even into the much abused Commerce clause. Still, the nanny state mandated tracking this information. Then, with this law, the state takes a second pass, and asserts that, because this information is routinely tracked (because they mandated it), then there can be no possible concern in the police state tracking it now, and in the past, with no limits on man-power or vehicles, to them tracking it for everyone at all times.

The founders were literate, and they would have read Milton, who in Paradise Lost wrote

And with necessity,
The tyrant’s, plea, excus’d his devilish deeds.

Or as C.S. Lewis updated the formulation,

“‘Useful,’ and ‘necessity’ was always ‘the tyrant’s plea’.”

This last election cycle saw state employees abusing their authority to harass and discredit private citizens who questioned their favored candidate. Those on the left have claimed that the previous administration can and would do anything, abuse any right to have its way. Those on the right were horrified at rank intimidation of political discourse found in the current administration collecting emails of dissenters. How can those on either side honestly accept the 4th amendment suffering a death of a thousand cuts.

Only a lawyer, enamored with some ill-argued, ill-thought out precedent, could misunderstand that the blind acceptance of any and all intrusions of technology would soon eliminate the 4th amendment entirely. The complete loss of privacy *is* the complete negation of the 4th amendment.

Lawyers can often lose sight of the Constitutional forest for their trees of legal fiction.

From Rodney Balko, an interesting read:

So the success of the ordeals relied on the guilty believing that God wouldn’t intervene to save them, the innocent fully believing that God would intervene, and a surrounding community willing to accept a high clearance rate for those who allowed themselves to be tested.

As Leeson explains, when doubt entered the system, the delicate balance was thrown askew. But while they lasted—up until the Church of England withdrew its support for the notion in the 13th century—ordeals were a more efficient, likely even more accurate, way of determining guilt than expensive fact-gathering and inquisitions (which were likely subject to their own forms of manipulation).

It’s doubtful there are many lessons we can glean from ordeals today. We aren’t about to return to a society so reliant on divine intervention. But Leeson’s paper is a fascinating look into a system that, though driven by objectively false beliefs, not only produced surprisingly accurate results, but produced results that only became more accurate the more fervently the community believed.