Sunday, January 29, 2012

Is civil disobedience constitutionally protected?

At least some members of the Occupy [Wall Street] movement seem to believe as a matter of principle that civil disobedience is constitutionally protected, when it is obvious that the constitution offers no such free pass for breaking laws even if the otherwise illegal conduct is cloaked in a claim of exercising free speech. I have seen some arguments on the Web in favor of why civil disobedience should be constitutionally protected, but the courts have not taken any such position.
In short, although free speech is constitutionally protected, the mere claim of exercising free speech while otherwise breaking the law is not constitutionally protected.
One of the most defective arguments in favor of constitutionally protecting civil disobedience is the suggestion that the civil rights movement could not have happened without civil disobedience. Yes, the civil rights movement did depend on civil disobedience, but the racist laws they were violating as being clearly unconstitutional (color segregation) actually had credible arguments for being held unconstitutional, but the laws the Occupy arrestees are accused of violating have no such credible constitutional  arguments and have been for the most part issues of non-discriminatory disorderly conduct.
Occupiers certainly have a disdain for the legal requirement for a permit for rallies and protests, but the legal basis for such permit requirements have been thoroughly constitutionally vetted, provided that the permit requirements remain non-discriminatory and have a legitimate purpose in protecting the public interest.
Part of the issue for the Occupiers is that quite a few of them are avowed anarchists or sympathizers whose core belief that the concept of "the state" is invalid and as a result they simply cannot tolerate restrictions on their perceived "natural rights" by "the state."
In the end, it is quite farcical that Occupiers would seek protection from "the state" when they insist that "the state" is not legitimate.

Tuesday, January 17, 2012

Misconceptions about NDAA

There has certainly been a lot of activist clamor about the latest National Defense Authorization Act for Fiscal Year 2012 (NDAA), suggesting that it some kind of gross new infringement on the rights of American citizens, but much of the criticism of NDAA is simply factually wrong. The single criticism that is true is that the FBI is now required to turn over terrorist suspects associated with al Qaeda to the military for detention. That's it. That's the only criticism that is new and true. All of the other recent criticism is either old or factually false. In particular, the NDAA as signed by President Obama does not authorize the military to engage in "domestic policing" or to "pick up" or even to "detain" American citizens.
Part of the confusion stems from the fact that the version of the bill passed by the House was in fact a little more draconian, but the bill differed in the Senate and was further modified in the conference committee, so that criticism of the original House bill is not necessarily application to the NDAA as signed into law by President Obama.
An easily way to tell if a critic is referring to the original House bill is if they refer to "section 1031." In the final bill from the conference committee that provision was renumbered to "1021." Most of the criticisms I have heard or read referred to 1031. In fact, I haven't heard or read a single criticism that referred to 1021.
Section 1021 has some rewording to respond to a request from President Obama, specifically to assure that the measure would not affect American citizens. Most notably, he had paragraph "(e)" added: "(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States,  or any other persons who are captured or arrested in the United States." Section 1031 of the Senate version of NDAA included that same language.
Technically, it has always been true that the President has the right to detain anybody anytime in the interests of national security, provided that he issue a "presidential finding" justifying such action, but that is not a new "authority" granted by NDAA this year.
So, paragraph (e) simply clarifies that no new authority is being granted for detention of terrorists. And the President clarified this as well in his signing statement.
Section 1021 is actually careful to limit itself to al Qaeda and the Taliban. It refers specifically only to "Covered Persons", including those involved with the 9/11 attacks, al Qaeda specifically, the Taliban specifically, and "associated forces" of those two specifically, but not to terrorist suspects overall. So, even if a person aided Hamas or Hezbollah or some other terrorist group or was a lone wolf terrorist or part of a home-grown domestic terrorist group, or a member of the Occupy movement or the Rotary Club, section 1021 does not apply to them.
Section 1022 of the final bill concerns the military custody issue. Nothing in the NDAA authorizes domestic policing by the military or authorizes the military to "pick up" American citizens. The whole "military detention" or "detain by the military" thing has been blown out of proportion. The relevant section is 1022 which is entitled "MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS" and the text makes clear that it only covers persons who are "a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda". Subparagraph (b)(1) specifically states that "The requirement to detain a person in military custody under this section does not extend to citizens of the United States." And, of course, the section title makes quite clear that the military custody applies only to "FOREIGN" terrorists, and only "AL-QAEDA" terrorists at that.
How much more clear could the language be that the military is not being authorized to detain American citizens?
Again, I suspect that part of the problem is that activists and critics read the original House bill and not the final signed bill.

Saturday, January 14, 2012

I support SOPA

Although there are some semi-legitimate concerns about the Stop Online Piracy Act (SOPA), my personal feeling is that SOPA is a good step in the right direction for protecting intellectual property in this age of the Internet and World Wide Web. A fair amount of the more virulent opposition to SOPA comes from the anti-globalism, anti-capitalism crowd, as epitomized by the Occupy movement (notably its Occupy Wall Street (OWS) subsidiary), and is based primarily on opposition to the very concept of intellectual property (IP). I simply don't support their efforts, on the whole, even if on occasion they do make a few good points. If they want to reform and refine the system, great, fine, have at it, but they seem obsessed with demonizing the system and committed to either subvert it if not completely overturn it.
The legitimate concern is that sometimes well-meaning people or businesses (or non-profits or even governmental institutions) will make mistakes and inadvertently infringe on somebody's alleged intellectual property rights and then have hell to pay for it. I'm sure that we will stumble onto occasional horror stories where best intentions go awry, but overall I really do think that most well-meaning people and firms will do the right things and things will work out. Just because the system may fail on occasion is not a reasonable argument against the system overall.
It appears to me that most of the opposition to SOPA by Internet service vendors is simply that enforcement of SOPA will be an added cost and a pain for them. I accept that SOPA may in fact increase their expenses, but nobody has provided any evidence that such costs would likely be prohibitive or even anything other than merely incidental. Intellectual property is a fact of life and any Internet service vendor should by now have a budget for assuring that they and their users do not maliciously or inadvertently fail to respect intellectual property rights. It is not that they don't believe in IP, but that IP is an inconvenient distraction.
As far as the argument that SOPA will result in censorship, I find that argument completely empty and without merit. The concept of censorship is based on the actual content of the message, not the form of the message. I think the issue here is that some people want to illegally re-use or re-purpose the content of others and consider efforts to thwart that desire as censorship, which is a completely nonsensical argument. Parody and fair use are still legal, so the censorship claim is empty. The censorship claim simply amounts to yet another smokescreen which is an appeal to emotion to cover up for the underlying disbelief in the very concept of intellectual property.
And if there are bugs in the legislation, I'm sure we will quickly find out and they can be fixed. But I simply do not buy the argument that since the legislation might have speculative negative side effects that it should not be enacted at all.
So, let people provide their input, Congress can then adjust the legislation as they, as representatives of the people, see fit, President Obama can sign it, and we can all move forward.
But this idea of the critics that SOPA will kill or cripple the Internet is just complete nonsense that is simply a smokescreen to cover for their true, anti-intellectual capital, anti-business, anti-capitalism intentions.

Monday, January 02, 2012

Prospects for the Occupy movement in 2012

I can't speak to the prospects of the Occupy movement in other countries since the United States is such a completely different case, but as we start the new year I would like to summarize my perception of where the movement is (in the U.S. only) and what prospects the movement has for the rest of this new year. Basically, the movement started and persists as a "protest" movement. They seek "change" if not "revolution" (whatever that means), but to date they have only managed a number of half-hearted protests of limited size. Sometimes they manage to stage larger rallies with the cooperation of (some) labor unions and students, but other than relatively minor disruptions, they continue to come up empty on the "change" and "revolution" fronts."
Although the movement grew dramatically in October, they seemed to taper off and stagnate in November and December. Who knows, maybe that was the weather, but if that is true then the movement is even less potent than they seem.
The big, open, make-or-break question for the whole Occupy movement (in the U.S., at least), is the degree of support and actual participation that will come from average Americans, who although they appear to offer some sympathy for the demands of the movement, seem determined to remain on the sidelines.
It appears to me that although the movement can easily attract the unemployed, the students without jobs and large student loans, and the otherwise disaffected of society, they stand little chance of actively engaging the vast majority of average Americans with jobs and families and otherwise busy with their daily jobs. Sure, plenty of those people will honk their horns in support or maybe even donate a few bucks or maybe one of their kids will join the movement, that's about as far as they themselves will go.
One of the reasons that the Occupy movement will not make deeper inroads into the American psyche is that the unity of the movement is only at the level of vague aims, like fairness, political corruption, and social justice, but when you drill down and listen to what individuals in the movement are actually saying and promoting, things like commitment only to direct democracy and opposition to representative democracy and opposition to capitalism itself, it is difficult to imagine that such specific goals are going to be very appealing to many average Americans. In other words, as the movement starts to clarify and detail its goals, their level of support among the general public will wither rather quickly.
I suggest that you evaluate the movement at three levels: 1) sympathy, 2) support, and 3) commitment. Yes, their has been and will continue to be a significant degree of sympathy for the movement in terms of the issues they raise. There will even be some degree of support, although financial donations have already dropped off dramatically. Commitment is the really tough nut to crack. Sure, the movement appears to have a diehard core that really is truly committed, but that base doesn't appear to be growing and shows little prospect for dramatic growth in the months ahead, and without such growth the movement has little prospect of achieving the degree of "change" and "revolution" they seek.
Another factor impacting the movement in the U.S. is that America is very diverse and geographically distributed. Egypt, Cairo, Tahrir Square, and the Egyptian people were all relatively synonymous. But in the U.S., New York and Wall Street are geographically separated from our political capital of Washington, D.C. And we have quite a number of major business centers all over the country. That means that Occupy has to try to be everywhere, which means that it has to divide itself, its people, its resources, and its attention, and not have the kind of central focus it had in any of the countries of the Middle East. Even with a more lax and permissive attitude, the D.C. occupation has been only very modest in size. Despite the difficulties caused by the financial crisis, recession, and weak recovery, Americans overall are still in much better shape and have a much brighter outlook on the future, and have a much more diverse range of life styles, aims, and interests than the average crowd outside the U.S. or in the Middle East specifically. Occupy Wall Street has been and remains the central focus of the movement in the U.S., but our social and political diversity and geographic distribution have been severe impediments to the movement.
In summary, yes, the Occupy movement will remain with us for the coming year, but only as a shadow of their grand vision of last summer and fall. Yes, we will see a number of protests, rallies, and popup disruptions and flash mobs, but overall the level of disruption will be no worse than your garden variety of urban traffic jams and the like. Crowds will number in the dozens and hundreds and only occasionally in the thousands, but not consistently grow into the tens or hundreds of thousands that an effective movement would need on a sustained and regular basis to succeed as a force of change. Yes, the police will remain a constant, vigilant presence, but their response will become more measured as the protests fall into more predictable patterns. Yes, there will be a few protests that get out of hand and become near or actual riots, but overall the protests will be more at the level of minor annoyance and mere street theater spectacle than true "revolution" ala the protests in the Middle East. To put it simply, the United States, for all of its problems, is simply not the Middle East. Besides, the results from Tahrir Square are not looking so appealing of late.