Open Mikes at Open Meetings?

February 12, 2014, 6:30 a.m.

Note: This blog essay was the source of the material in the following Iowa City Press-Citizen op ed column:

Public Comments About Public Comments Guidelines
Nicholas Johnson
Iowa City Press-Citizen
February 15, 2014
The Iowa City Community School Board, commendably, endeavors to govern through enunciated policies. But sparks flew at Tuesday’s meeting during the public’s comments about public comments guidelines from the board.

Let’s put the issues in context.

• 1: “Open Meetings” don’t require “open mikes.” The law requires the school board to permit the public to attend its meetings (subject to specific exceptions). It does not require the board to permit the public to speak at those meetings.

• 2: Board members are volunteers. They have limited time to tend to the board business the law requires they address in open board meetings. Doing that business is the meetings’ primary purpose.

• 3: The board needs stakeholder input. There are many reasons why. (a) It is of the essence of a self-governing democracy that students, parents, teachers and others be heard. (b) Elected officials are responsible to constituents. (c) Board members’ decisions should be informed (though not dictated) by public comments — especially when an agenda item has limited prior opportunity for public input.

• 4: We need “public citizens.” Journalists can’t do it all. The public would be better off if all school boards, city councils, county boards and legislative committees had a few people following their work like our school board does. You don’t have to approve all of their tactics to know that the board and public would be worse off without our public citizens’ research and tenacity. In fact, think about picking your own agency to track.

• 5: Alternative opportunities. Input’s not limited to meetings. Consider talking to board members, sending them email or letters. The board might have a website to display public comments and interactive listening sessions. If board members’ responses reflect occasional modifications of prior positions, these alternatives can reduce (though not eliminate) the need and desire for discussion during board meetings.

• 6: The guidelines. There were two categories of public objection to the guidelines: some involved specific language, others a “slippery slope” concern of greater restrictions to come.

• a: School boards, like legislative committees and judges, have the inherent right, and responsibility, to maintain decorum in their workplace. Judges don’t need detailed regulations; an ignored warning risks contempt of court. School boards can’t fine or jail for disruptive behavior, but they can apply common sense — and even remove individuals if necessary.

• b: Guidelines’ language should be sufficiently precise to be clear without excessive detail. Even Iowa’s first speed limits were simply “reasonable and proper.”

• c: Allowing public comment at the beginning, rather than the end of meetings, is just plain thoughtful. As for time, the board could declare that time for comments, in total and for each speaker, will vary depending on the number of people who want to speak, how often that speaker has spoken, the public interest in a topic, and the amount of board business.

• d: Having speakers “sign in,” speak one at a time, and from the podium, can promote order and improve television coverage.

• e: Avoid vague standards regarding the content of speakers’ statements. Saying comments must involve “matters of public concern,” expressed with “respect and decorum” is both too narrow and overly broad. The same can be said for the guidelines’ specificity regarding punishments for violations. Certainly speakers should not be prohibited from criticizing the board and administration, or for using occasionally colorful language. Some content-based restrictions could even run afoul of the First Amendment.

This challenge can be met. In the end, it is a matter of balance and common sense — something for which Iowans are noted. ._______________ Nicholas Johnson who served on the Iowa City school board, 1998-2001, maintains www.nicholasjohnson.org and the blog http://FromDC2Iowa.blogspot.com.

The original blog essay follows:

A Discussion About Discussion

As occasionally happens at Iowa City Community School District School Board meetings, all hell broke loose last night. Gregg Hennigan, "I.C. School Board Meeting Gets Heated; Proposed Public Comment Guidelines Draw Several Rebukes; No Vote Taken," The Gazette, Feb. 12, 2014, p. A11 ("Discussion got fiery last night as the Iowa City school board debated the first reading of new guidelines on public comment at meetings."); Holly Hines, "Speaking Policy Sparks ICCSB Debate," Iowas City Press-Citizen, Feb. 12, 2014, p. A1. [Photo: ICCSD School Board members in meeting. Not the current Board.]

In brief, the Board, which endeavors to govern through enunciated policies, struggled with how to handle public comments at its meetings and came up with proposed "guidelines" (set forth in full at the bottom of this blog essay). The guidelines got their "first reading" at last evening's meeting, whereupon the spontaneous public comments about the guidelines for public comments got a little raucous.

Here's how Hennigan described the Board's dilemma in balancing (1) the opportunity for public input at Board meetings, on the one hand, against (2) a felt need to maintain a tone of civility, a sense of order, and avoidance of a few dominating the discussion time:

[S]ome board members and school officials have indicated it's a couple of people in particular that they consider problems [naming them]. Both have run for but failed to get elected to school board, with [one] narrowly losing the last two elections. Both attend almost every board meeting and speak several times each on various agenda items. And both typically are harshly critical of board or administrative decisions and sometimes get personal with their comments. At a December meeting . . . one person submitted speaking forms for six items, and another, 11."

As dramatic as last evening's Board meeting apparently was, and as juicy as the news coverage it can provide may be, there are serious issues here that require a little context and reflection. This is a brief attempt. [Photo: public attending ICCSD Board hearing; not last evening.]

(1) "Open Meetings" don't require "Open Mikes." The law requires the school board permit the public to attend its meetings (subject to specific exceptions). It does not require that the board permit members of the public to speak at those meetings.

(2) The primary purpose of board meetings is board business. Because the board has work that it must do, as a board (both as a matter of law, and of good governance), and because board members are volunteers who have limited time to give to board business, the primary function of board meetings is to provide an opportunity for board members to be able to do board business.

(3) The board needs public input. There are many reasons why it is desirable for board members to hear from, and interact with, the school district’s stakeholders – students, parents, teachers, other employees, officials from other public bodies, and taxpayers. (a) It is of the essence of a self-governing democracy. (b) Elected officials have a responsibility to their constituents. (c) Board members’ positions and decisions should be informed (though not dictated) by public opinion. (d) Politically, listening to one’s constituents may be a necessary prerequisite to reelection. These considerations are especially weighty when the public comments relate to board agenda items for which there has been limited, or no, prior opportunity for significant public comment.

In fact, I believe we would all be better off if every school board, zoning board, city council, county board of supervisors, legislative committee, and other public body and agency had two people following their work like the two Hennigan mentions are following the ICCSD school board. Based on what I know, each takes this self-imposed duty seriously, devotes time, does research, speaks out, follows up with tenacity, and is often pursuing matters that almost anyone would agree need a little more attention. I would encourage anyone with the slightest interest in doing so to pick their own public body and agency and perform this role of "public citizen."

Obviously, this does not mean that I agree with every subject these two have prioritized and followed, or with all of the tactics they have apparently believed were constructive and effective in pursuing their view of "the public interest." But I do believe we would all be the worse off if the school board were to somehow remove them from the process entirely.

(4) Alternative opportunities for input. Of course, this interaction can take a variety of forms in addition to public comments at board meetings: personal conversations, email or letters, a Web page open to public comments, listening-interactive sessions held at convenient locations (such as schools around the district) solely for the purpose of dialogue with members of the public. Increasing such alternative opportunities for public input -- especially if board members' responses reflect their impact on changes in board members' positions -- can reduce both the need and desire, for board members and public alike, of lengthy public discussion during board meetings.

(5) The guidelines' standards. Some of the heat last evening was a response to the specific language in the guidelines (set forth below, in full). (Although some was also driven by a "slippery slope" concern that any restriction on public speech during board meetings might lead to shutting out the public entirely.)

(a) School boards, like legislative committees, executive branch agencies, and judges in their courtrooms, have the responsibility, as well as the right, to maintain decorum with regard to the public speech and behavior in their places of work (with some exceptions). A judge need not set forth detailed regulations regarding the specifics of the behavior that he or she will treat as deserving of punishment for "contempt." School boards should be similarly able to control public comments during their board meetings.

(b) It is probably desirable for the school board to announce in advance some guidelines. But it should not be necessary for them to specify in advance a detailed description of each and every act that it will, and will not, permit. Language should be sufficiently precise as to be clear, and yet not so detailed as to turn a matter of informal common sense into something more resembling the intricacies of the Internal Revenue Code. Recall that even Iowa's early highway speed limits were no more specific than "reasonable and proper."

(c) For example, allowing public comment at the beginning, rather than at the end, of meetings is simply thoughtful. That is a specific that could be stated as policy. On the other hand, the board might make clear that the amount of time devoted to comments, both in total and for each speaker, will reasonably vary from one meeting to another, depending upon the number of people who wish to speak, the number of times an individual has spoken, the intensity of public interest in a topic, and the amount of board business on the meeting agenda.

(d) It probably makes sense to have people “sign in” with name, address, phone, and email address, so as to have a record for the board minutes. And requiring speakers to speak one at a time, and from the podium, not only promotes order, and the possibility of being heard, but also better television coverage of the meetings.

(e) It is best to avoid vague standards regarding the content of attendees' speech -– if for no other reason than that the board is “Congress” for purposes of the First Amendment, and content-based restrictions on speech might very well be a constitutional violation. Certainly speakers should not be punished for criticism of the board or administration, or for using the occasionally colorful language that has been a part of America's ongoing political conversation for hundreds of years.

Requiring that comments must involve “matters of public concern” expressed with “respect and decorum” are both too narrow and overly broad. (They are too narrow because they omit many other considerations; they are too broad because they are vague.) Terms like this lie at the side of the road to civil discourse like IEDs in Afghanistan -– providing just one more subject about which arguments can flare. ("You're out of order. That's not 'a matter of public conern.'" "Oh yes it is." "No, it's not.") The same can be said for specifying the sanctions to be applied when “the rules” are violated.

In sum, it is probably better for a school board to exercise the discretion of a judge in getting on with the business at hand, and maintaining decorum, in his or her courtroom -– where the public also has a right to be present, but does not have a right to speak.

Full Text of Proposed Guidelines
ICCSD Public Comment Guidelines

The Iowa City Community School District Board of Directors is committed to maintaining an environment of dignity and respect in all district schools and buildings and at all District activities, events, and meetings. The Board of Directors has promulgated policies of the ICCSD, which mandate a safe and civil atmosphere at district events (Board Policy Code No. 104). Specifically, the Board is committed to a policy of Equal Educational Opportunity, and within this policy the right of all “students and staff to be treated with respect and to be protected from intimidation, discrimination, physical harm and harassment” (Code No. 102).

Beyond the Policies of the Board of Directors, the Superintendent and administration are also committed to maintaining environments free of harassment and discrimination. Superintendent Directive Positive Stakeholder Relations mandates that the Superintendent shall “ensure that conditions, procedures, or decisions are safe, dignified, and that provide appropriate confidentiality and privacy,” and that stakeholder interactions “[p]rohibit the use of abusive language and other behavior generally considered to be lacking in civility and respect for others” (POSITIVE STAKEHOLDER RELATIONS, Level 3a(5)). In addition, The Superintendent is charged with ensuring “conditions that are dignified and consistent with the mission of the public school system” for all staff (STAFF RELATIONS, Level 2b).

To promote a positive educational environment at Board Meetings and to ensure the respect and dignity due every stakeholder under District policy, the following guidelines are in place to guide public comment during ICCSD Board of Director meetings:

Once recognized to speak, speakers are limited to three (3) minutes of public comment

Speakers must submit a request form, which is available at the Board Meeting, to the recording secretary in order to be recognized to speak by the Board President

Comments should be related to matters of public concern

Speakers addressing the Board will conduct himself/herself with respect and decorum.

Comments or expressions that are abusive, harassing, bullying, discriminatory, or lewd shall be prohibited

Comments will only be made from the podium microphone after the community member is recognized by the Board President. Comments made from the audience shall be considered out of order and subject to sanction under this policy

Violations of this policy will result in the Board of Directors, through the Board President, sanctioning the member of the school community that violates these guidelines. Generally, sanctions will be imposed, in a progressive manner, as follows:

A verbal warning by the Board President that the policy has been violated

A written notification that the policy continues to be violated

A suspension from speaking at Board of Directors Meetings

These sanctions do not prohibit the Board President from moving directly to a suspension of speaking privileges for behaviors that are considered egregious. Members of the community that are disruptive to the meeting or refuse to abide by the guidelines may be immediately asked to leave the Board Meeting (or other District meetings where public comment is available). This policy does not prohibit the Board or Administration from enforcing other District Policies in concert with this policy.
# # #

Pete Seeger and An Antidote to Apathy

February 2, 2014, 1:10 p.m.
"We Shall Overcome"
Why bother? What's the point? What difference can I possibly make?

Ever felt that way? Many do.

Yet others keep at it, whatever the odds, staring down defeat. What sustains them? What keeps them going?

One of those people was Pete Seeger. His example, commitment, and endurance was an inspiration to me as a young man -- and to millions of others during the past sixty-plus years. He was an icon, larger than life, and lots more fun. I never dreamed in those days that I would someday be sharing a stage with him at rallies, enjoying a private, quiet dinner and evening's conversation with Pete, and his wife, Toshi, in their Beacon, New York, home overlooking the Hudson River he was fighting for, or that he would be providing support for the National Citizens Committee for Broadcasting, for which I was the chair. [Photo credit: Bennett Raglin/Getty Images; multiple sources.]

What a life he led! Past tense because, as all but cave dwellers are by now aware, he died last Monday, January 27, at the age of 94. Jon Parelesjan, "Pete Seeger, Champion of Folk Music and Social Change, Dies at 94," New York Times, Jan. 29, 2014, p. A20. His wife, Toshi, predeceased him last year, Elisabeth Blair, "Toshi Seeger, Wife Of Folk Singer Pete Seeger, Dies At 91," New York Times, July 11, 2013 -- just shy of their 70th anniversary.

His death marks the end of an era, an era of folk songs and banjo, his leading audiences of thousands in song, energizing, organizing and raising our hopes that change was possible.

Memories of Pete Seeger flooded back again a couple of days ago as I read an email from a young man I know. It was going to require a response, and it got me to thinking about why it is that some are able to keep going for 94 years, while others give up after years and years of frustration.

First, here are some excerpts from what that young man wrote me:

Over the years I've written numerous letters to the editor, attended several public meetings, joined local non-profit groups and gone to their meetings, written directly to government officials (both email and postal letters), spoken with sheriffs and police chiefs, tried to change things at work by talking with management and working with the union, written gobs of blog entries, forum posts and comments on online newspaper articles -- on and on -- and essentially none of it has mattered. All my effort has amounted to practically nothing.

After one disaster in which people were killed and injured, I got the impression that no one wanted to know the truth. Perhaps there were enough people who might potentially get burned that they all just got together and buried it. When I try to bring things like this to the attention of local reporters they either never respond to my calls and emails, or don't seem to care. There is just a collective shrug. Crickets chirping.

I'm pretty much done fighting. I really don't see the point.

That's not to say there haven't been some advances in society over the last 50-100 years. Of course there have been, most of them involving civil rights. But it doesn't do anyone much good to be able to vote, for example, if powerful special interests are determining the candidates and the ship is headed for the iceberg.

Regardless of whether one thinks we are headed for nirvana or total annihilation, it really seems to me that the speed and the course are beyond the control of most individuals and groups. Any of us can rant and rave about the politics, WalMart, overpopulation, over-development, abortion, stem cells, guns, church/state issues, the Middle East, nuclear weapons, environmental destruction, Rush Limbaugh, Bill Maher, public education, and taxes, and it just does not matter. We're almost always either preaching to the choir and/or pissing off a large number of people (some of whom may be mentally unstable). It's exceedingly unlikely that one of the Waltons, or a bishop protecting pedophile priests, or a KKK member, or a cement head conservative would read something -- written by anyone really, but especially little ol' me -- and say to themselves, "You know, this guy makes a lot of sense! I realize now that I've been wrong my entire life. Gosh darn it, I'm gonna turn over a new leaf and do the right thing!"

The deck is stacked. Just one example from emails I received today -- efforts to stop the XL pipeline. I think we all know how that's gonna go. I doesn't matter how many people are against it -- there's too much money at stake. Obama will approve it.

Even in years past, for every JFK, Martin Luther King, or Gandhi -- every person who ever made a difference -- there were scores of others who worked, sacrificed, and suffered in vain. Not to mention that all of the above were eventually assassinated.

_______________
There are good reasons for millions of Americans to share that sense of hopelessness. And frankly, I don't know what the best response would be to those who feel that way. I'm sure there are many who could do a better job than I in coming up with a response. In any event, here was my feeble effort:

There are many potential responses to what you wrote.

Sadly, yours may be the majority view. Look at the voting turnout in Iowa City – the world’s third-selected “City of Literature,” a city one with one of the nation’s highest percentages of college graduates, one seen as so progressive as to be characterized as “The People's Republic of Johnson County” by those in Western Iowa. We often get turnouts of 5% to 10% of the eligible voters for city council, school board, and bond elections. Apathy rules.

There is certainly a lot of evidence to support your position. How many “public interest” organizations have shut down because their initial mission was accomplished?

(1) Strategy and Tactics. Those engaged in promoting change would do well to give more thought to strategies and tactics. When Dick Remington and I were co-directors of the Institute for Health, Behavior and Environmental Policy, we did a benefit-cost/triage analysis of where we might best put our time and money. We decided, in turn, to focus on (a) control of tobacco use, as it was the number one cause of death, (b) emphasize preventing pre-teens from taking up smoking (as more cost-effective than trying to get nicotine addicts off their drug), and (c) raising the price of cigarettes as the most effective way of discouraging children from taking up smoking. What are the causes that both hold the greatest potential for human betterment, and chance of accomplishment through the efforts of individual citizens? Success, a sense of accomplishment, what community organizers call "the fixed fight," are among the best antidotes for discouragement.

Some causes really are hopeless -– at least at a given time. “Pick your battles,” as my wife advises me. LBJ asked his presidential appointees to provide him with proposals for policies that would best serve the national interest. He said we should not make judgments about what is, and is not, possible -– he would make those judgments. As a congressman’s daughter in law, returning with the family from the south after Christmas, once put it, “Nick, some of those people are just going to have to die” -– not meaning that they should be killed, but that it is seemingly impossible to reason with them. As Thomas Paine explained a couple centuries earlier, “To argue with a man who has renounced the use and authority of reason . . . is like administering medicine to the dead, or endeavoring to convert an atheist by scripture.” (From Thomas Paine, The American Crisis.)

(2) Words Matter. But Thomas Paine said something else that I often think of, that reflects his understanding of both what a long and hard road it is to bring about change, but also how important incremental efforts can be: “The words pile up and then men do things. But first the words.” (I can’t find the source of that right now.) His pamphlet, Common Sense,” played a major role in the American Revolution. As John Adams is credited with having said, “Without the pen of Paine, the sword of Washington would have been wielded in vain.”

(3) Of Butterflies and Politics. Do you know about what’s called “the butterfly effect” (a butterfly flapping its wings in China might potentially contribute to the formation of a hurricane in North America weeks later)? Everything you say, every email you write, every letter to the editor you get published, every comment you make to the host of a call-in radio program, is at least the political equivalent of those butterfly wings flapping. Your words do have some effect -- even if so slight as to be immeasurable. It will certainly rarely be enough, by itself, to produce action or change.

Each leaf that fluttered to the bottom of the pool millions of years ago seemed insignificant, but it ultimately became part of a billion barrels of oil. Your support of ZPG (Zero Population Growth), and writing about global population, is an example; you have been a part of a growing global awareness that has, in fact, slowed population growth in many parts of the world.

Think tanks and various task forces and commissions come out with reports full of proposals to make things better. When they do, some people complain, “Oh, just another report to go on the shelf and gather dust.” My thought is, yes, more reports do come along every decade or so on this subject. But ultimately the time is right, a public official's staff person reads through all those old reports, gets the ear of his or her employer, and action follows.

Change is slow in coming. Very slow. As Paine began Common Sense, “Perhaps the sentiments contained in the following pages, are not yet sufficiently fashionable to procure them general favor; a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defence of custom. But the tumult soon subsides. Time makes more converts than reason.”

Think of how long it took to convince Americans that slavery was not cool, or that perhaps it was worth taking the risk of letting women vote, or that it was not folly to create a national park system, or Social Security payments.

(4) A Swinging Pendulum Moves the Clock Forward. The pendulum swings. It’s not always “two steps forward and one step back.” Sometimes it’s “one step forward and two steps back.” Sometimes it’s no steps forward. But even a sailboat can sail into the wind by tacking; the reformer’s job is to figure out the equivalent of tacking when sailing into overwhelming opposition. Even the very best professional baseball players don't get a hit, let alone a home run, every time at bat. When I was doing door-to-door selling I read that it's normal to be turned down at least ten times for every sale. Politics, and reform of public policy is like that. A realistic sense of what's possible reduces frustration.

(5) The Personal Return from Making an Effort. Finally, there is the impact on the person engaged in trying to bring about change. There is actually some psychological data on this, I think.

Being engaged in the passions of one’s time is good for your physical, mental and emotional health. It often involves working with others you would not otherwise have come to know. It energizes you, gives you a reason to get out of bed in the morning. Discouragement? Sure. But as President Kennedy said at Rice University, Sept. 12, 1962, “We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win, and the others, too.”

Want a little advice? Take a measured, realistic view of what anyone can accomplish, the causes that are hopeless, those that are going to take decades and yet have a chance. Don’t take on too much. Don’t stress yourself out with lack of sleep and perpetual frustration. Maintain a sense of humor about it all. Find additional activities that are predominantly pleasant. But you’ll continue to benefit, even personally, not to mention for others, by not giving up entirely on trying to improve the status quo -– Latin for “the mess we’re in now.” Help clean it up. It's worth it.

# # #

On Love and Fear in Politics

January 18, 2013, 9:20 a.m. -- and see, "Governor Christie's 'Plausible Deniability; And Why Democrats Should Care," January 13, 2014.

From Machiavelli to Christie

[A] question arises: whether it be better to be loved than feared or feared than loved? It may be answered that one should wish to be both, but [it] . . . is much safer to be feared than loved . . .. [People] are ungrateful, fickle, false, cowardly, covetous, and as long as you succeed they are yours . . .. [The] prince who, relying entirely on their promises, has neglected other precautions, is ruined; because friendships . . . cannot be relied upon . . .. [L]love is preserved by the link of obligation which, owing to the baseness of men, is broken at every opportunity for their advantage; but fear preserves you by a dread of punishment which never fails.

-- Nicolo Machiavelli, The Prince (1532), Chapter 17, "Concerning Cruelty And Clemency, And Whether It Is Better To Be Loved Than Feared"

Machiavelli's The Prince was the Governing for Dummies of his day. First distributed in 1517 -- nearly 600 years ago -- as advice to 16th Century politicians and rulers, it was not actually printed until after his death in 1527. It has, since then, been the desk reference manual for public officials the world around, and a subject of much study by the political scientists in the academy. Its how-to observations and suggestions are the ultimate in pragmatism, as the quote, above, illustrates. It is what, in foreign relations, is characterized as realpolitik. [Portrait by Santi di Tito.]

So why is a blog that focuses on 20th and 21st Century issues offering book reviews of 600-year-old publications? Because The Prince seems relevant to the issues of our day -- namely, New Jersey Governor Chris Christie's current challenges that have earned him a "gate" from the media: "BridgeGate." See "Governor Christie's 'Plausible Deniability'; And Why Democrats Should Care," Jan. 13 (with its links to more background).

The end of that blog essay addresses the distinctions -- and the relative moral and political judgments by voters -- between the one-off instance of a deliberate creation of traffic jams on the George Washington bridge, and what may be a personality prone to anger, mean-spiritedness, petty revenge and retribution. [Photo credit: multiple sources.] Here are the excerpts used there from a New York Times's itemization of past paybacks:

Kate Zernike, “Stories Add Up as Bully Image Trails Christie,” New York Times, Dec. 25, 2013, p. A1:

• In 2011, Mr. Christie . . . accused State Senator [and former Governor] Richard J. Codey of being “combative and difficult” in blocking two nominees. . . . Three days later, . . . the state police superintendent inform[ed] him that he would no longer be afforded [a state] trooper . . .— a courtesy granted all former governors. [Codey’s] . . . cousin . . . [a state employee] was fired, as was [his] former deputy chief of staff [from another state position]. . . .

• [T]he governor . . . wanted [redistricting commission member, Rutgers political scientist, Alan] Rosenthal to vote for the [Republicans’ redistricting] map, . . . but [Rosenthal] chose the Democrats’ plan . . .. Soon after, Mr. Christie used his line-item veto to cut $169,000 [from Rosenthal’s Rutgers] institute . . ..

• Mr. Christie was smarting from [Republican State Senator Sean T. Kean’s] criticism that [Christie should have called] earlier for a state of emergency [following a] blizzard [that] paralyzed the state . . .. [Christie] . . . held [a] news conference in Mr. Kean’s . . . district. [A] member of the governor’s staff warned [Kean] not to show up. His seat was eliminated in redistricting the following year. . . .

• Republican, State Senator Christopher Bateman, [who] voted against the governor’s plan to reorganize . . . public medical education . . .. had been working with the governor to get a judge appointed . . .. Suddenly, after months when it looked as if it would happen, the nomination stalled.

When you start a discussion with lawyers about such matters they immediately want to leap to what is legally permissible and what is prohibited. That's understandable. Had I discussed the issues with engineers, they might have leaped to the engineering of bridge design.

As someone who teaches in a law school, I am not disinterested in the constitutional and legal rights and wrongs here. They are involved, and they are important. They're just not what I want to explore at the moment.

Neither is the focus here on Christie. He is simply the catalyst to this exploration. His political future is not insignificant, for some of the reasons explored in the Jan. 13 blog essay linked above. If the voters of New Jersey, and the rest of America, find him an unacceptable potential presidential candidate because of BridgeGate, that will impact what the Republican Party can and does become, who its ultimate 2016 candidate turns out to be, and therefore the chances of Hillary Clinton, or whomever else the Democrats may settle on for their candidate.

The focus is more general. It is, how can we as individuals, and a body politic, go about at least thinking about political executives (e.g., for the most part, presidents and governors, but actually any institution's chief executive) and the means they use to persuade or manipulate others into bending to their will. Addressing norms, rather than "the law," what behavior should we consider (a) perfectly acceptable, (b) unacceptable but forgivable, or (c) unacceptable, unforgivable, and grounds for ousting them from office?

While there will be some overlap, these are judgments that will vary significantly from one individual to another. They will be influenced by one's religious, moral and ethical values, and the standards of one's family and peers. They will likely also be influenced by one's ideological and political affiliations -- being more forgiving of transgressions by members of one's political party than those of "the opposition." See "Snopes, Popes, and Presidents; Believing is Seeing," Dec. 26.

Let's begin with a continuum.

At the far right end of our continuum, the most extreme and unforgivable means would include beheading and other forms of assassination -- seen in modern times from North Korea's young leader, terrorist organizations, as part of many of the ongoing wars around the world, the Mexican drug cartels and other criminal organizations. Only marginally better would be techniques of torture, or credible threats of physical harm to oneself or family members. Imprisoning "political prisoners" would be another example.

At the far left of the continuum would be techniques used not just by politicians, but by almost everyone in everyday life: establishing a social relationship out of repeated contacts ("three cups of tea"), doing favors and giving gifts (such as an elected official with above average fundraising leverage passing out money to fellow legislators). (The rule of thumb when I was in Washington was that you would do 10 favors for a House member before asking him or her for a favor.) Some techniques of negotiation, presentation and persuasion -- unassociated with any suggestion of reward or presentation -- are more effective than others (the "Johnson Treatment" of LBJ comes to mind). Good, basic social skills can go a long way.

Presumably, most people would find these minimal, positive techniques well within the "perfectly acceptable" category. Somewhat to the right would be shouting, berating or otherwise frightening an opponent -- especially in public. (In this case it might be hard to separate the negative reaction of others to this kind of (a) immature and boorish behavior by anyone, from (b) the inappropriateness of a public official using this technique of persuasion.) Further to the right would be news conference, speeches, or other public statements by the official in which someone's professional competence or integrity is disparaged.

What are some of the factors we might find relevant within these two extremes? Here are some that occur to me:

(1) "The Lord giveth, and the Lord taketh away." Would we make a distinction between (a) rewarding a legislator with something they otherwise would not have had for supporting the president or governor, and (b) punishing them by taking away something they already had for not supporting him or her? The reward might be a visit to their district for a fundraiser, selecting them for an overseas junket delegation, a ride on Air Force One, an invitation to a dinner at the White House (or governor's mansion). The punishment might be the opposite of all of the above (e.g., cancelling your participation at their fundraiser), working behind the scenes to have them denied a committee assignment they need, or influencing their major donors to switch their support to an opponent. (Each of the New York Times's examples of Christie's past behavior involve taking something away: the trooper traditionally given all prior governors, the appropriation for the professor's institute, the district formerly represented by the legislator, the judicial appointment formerly on track.) In both instances, whether reward or punishment, the executive is intervening in the process, introducing a factor unrelated to the merits of the matter at hand.

(2) Tradition. Is the executive's behavior out of the norm -- such as the denial of a trooper for an individual former governor? The fact that predecessors have done whatever it is doesn't make it right. But it is at least makes the executive's behavior not a novel extension of arbitrary, punitive power. We might ask, "Is it common for governors to line-veto appropriations for non-supporters?"

(3) Merits. Should we make a distinction between an executive's use of persuasive techniques (of whatever nature) to accomplish something that can plausibly be asserted to have a "public interest" component (such as President Lincoln's efforts on behalf of the Thirteenth Amendment), as distinguished from something more personal to the executive (such as a Democratic mayor's failure to endorse a Republican governor's re-election)?

(4) Motive and fear. What of Machiavelli's observations regarding the necessity of leading through fear? At what point do an official's motives in the use of recrimination techniques to engender fear, to make people think twice before crossing him or her, cross over the line into "unacceptable"?

What other factors should be considered?

Clearly, the Christie case is worthy of consideration in its own right. But it is also a gateway into this broader inquiry.

Any and all help with this, in the form of comments, suggestions, additional approaches would be appreciated.

# # #

Governor Christie's 'Plausible Deniability'

January 13, 2014, 5:30p.m. -- and see, "On Love and Fear in Politics; From Machiavelli to Christie," January 18, 2014.

And Why Democrats Should Care

Plausible deniability is a term coined by the CIA in the early 1960s . . .. The term most often refers to the capacity of senior officials in a formal or informal chain of command to deny knowledge of and/or responsibility for any damnable actions committed by the lower ranks because of a lack of evidence that can confirm their participation, even if they were personally involved or at least willfully ignorant of said actions.

-- "Plausible deniability", Wikipedia.org

New Jersey Republican Governor Chris Christie's "bridge-gate" deserves, and appears to be getting, more than a brief news cycle. Kate Zernike and Marc Santora, "‘Very Sad’ Chris Christie Extends Apology in Bridge Scandal," New York Times, Jan. 10, 2014, p. A1. [Photo credit: unknown.]

If you're unfamiliar with the story, on August 12th of last year, Bridget Anne Kelly, the Governor's Deputy Chief of Staff, sent an email to David Wildstein. Wildstein, who had known Christie since high school, worked at the Port Authority, the agency that manages the George Washington Bridge connecting Fort Lee, New Jersey, with New York City. According to the Times story, linked above, the email read in its entirety, "'Time for some traffic problems in Fort Lee' . . .. One month later, on Sept. 9, Mr. Wildstein ordered traffic lanes from Fort Lee closed, causing a traffic nightmare that added hours to the commutes of thousands of drivers." Ibid. (The story cited and linked is but one of hundreds, some with additional details. They can be easily found with a Google search. But this is enough for the purposes of this blog essay.)

Here are some of the questions I see in all this:

Why do Democrats who care about their country as well as their party have a stake in this?

Did Governor Christie order, participate in, or have knowledge of the lane closings?

Even if he did not, has Governor Christie created such "a culture of retribution" that it is the equivalent of his active participation?

Is it not only reasonable and probable, but even commendable, that employees endeavor to internalize and be guided by how they believe their supervisors might decide the issues that arise -- up until the point at which the best option is to resign?

Are there any possible, plausible motives for Kelly and Wildstein to have launched the lane closings other than their desire to anticipate and execute what they believed would be the Governor's wishes?

What is the evidence that the Governor might have, or did, desire retribution against Fort Lee Mayor Mark Sokolich?

What other explanation might there be for the Governor seeking retribution against Fort Lee?

More will undoubtedly be added to this blog essay over time. But for now, here are some summary responses.

Why do Democrats who care about their country as well as their party have a stake in this?

Am I a Democrat? Having run for a congressional seat in an Iowa Democratic Party primary, and received three presidential appointments from presidents who were Democrats, you'd probably have to say so. But it's also true that I am equally disgusted with both parties when it comes to the current system of campaign finance and its consequences -- the seeming inability of the legislative branch to represent the real interests of the 99%, putting members' prospects for re-election over everything else, gerrymandering the congressional districts, trying to score political points against each other, willingness to bring down the government and the nation's only president, throwing every possible roadblock in the way of third parties, refusing such remedies as "instant runoff," among other things.

Besides, every four years I try to identify the best Republican presidential candidate -- and not based on how easy it will be to defeat him or her. Given our two-party politics, the president will likely be either a Democrat or a Republican. Both parties almost always have a chance of having their candidate win. If it turns out to be the Republican, I'd far rather it be one we can all live with. (During the 2012 presidential election I ended up having to choose three Republican candidates, one after another, because the best ones kept dropping out, but ended up with this: "Why Mitt Romney? Better Than 'Least Worst' Republican," March 22, 2012; but see, "Abandoning Romney; Foreign Relations Disqualification, Now Domestic, Too," Sept. 22, 2012.)

Prior to "bridge-gate" I was already thinking about Governor Chris Christie as my probable Republican choice for 2016. And I haven't abandoned the idea. But it is on hold until bridge-gate gets fully investigated. Depending on the answers to the questions I raise here, he may still be the best we can find as a Republican candidate -- someone who does not hate either "government" or Democrats, and is willing to work with both. This is no time for Democrats to be trashing him, before looking around backstage to see if there are any qualified understudies to play the role. Democrats who believe Christie is "unacceptable" are obliged to answer the usual question, "Compared to what?"

Did Governor Christie order, participate in, or have knowledge of the lane closings?

As the following questions suggest, even if Christie had no actual knowledge of or participation in what his staff was doing, that is far from the end of this matter. In fact, focusing on that question -- as his Republican defenders have done -- is a bit of a diversion, whether intended or not.

Even if he did not know or participate, has Governor Christie created such "a culture of retribution" that it is the equivalent of his active participation?

If in fact what was done was retribution, done to punish an individual or group for something displeasing to Christie, is this the first and only incidence, or is it merely the latest (and perhaps most extreme) example of what has been a pattern of such behavior? If it is part of a pattern of behavior, that becomes significant for at least four reasons.
(1) While not proof, it is some support for the suspicion that retribution was the motive for bridge-gate.
(2) Even if he is totally innocent of any wrongdoing with regard to bridge-gate, most of us would not welcome the idea of putting in the White House a person whose political and personal personality involves a consistent pattern of retribution, bullying and pettiness.
(3) Such a pattern of behavior would explain why his employees might engage in such actions without his knowledge or participation.
(4) Indeed, if his employees knew that they were deliberately to use the tactics of plausible deniability as standard operating procedure, that would be further evidence of Christie's personal awareness that what was being done was wrong.

[Discovered after writing this: Kate Zernike, “Stories Add Up as Bully Image Trails Christie,” New York Times, Dec. 25, 2013, p. A1 (“Every organization takes its cues from the leadership as to what’s acceptable and what’s not, and this governor, in his public appearances, has made thuggery acceptable,” said Assemblyman John S. Wisniewski . . .. “For the governor to say, ‘I knew nothing about this’? He created the atmosphere in which this is acceptable.”] And see the addendum of prior examples at the bottom of this blog essay.

Is it not only reasonable and probable, but even commendable, that employees endeavor to internalize and be guided by how they believe their supervisors might decide the issues that arise -- up until the point at which the best option is to resign?

When President Lyndon Johnson appointed me U.S. Maritime Administrator, I undertook a study of my president, found out as much about him as I could, talked to White House staff and his longtime friends, subscribed to the "Weekly Compilation of Presidential Documents," and read every statement published there. Before long, I was pretty good at predicting what he would say and do. Relying on that, and the conversations I had with him, the job description I wrote for myself was to approach every decision with that background in mind. What would he want me to do? What would he do, if he were serving as Maritime Administrator?

In my experience, most aides to political figures approach their jobs in this way. Given the number of people who want, and are considered, for such jobs, they are also relatively bright and more than relatively politically sophisticated.

It is for those reasons that I do find it hard to believe that Kelly and Wildstein would have launched anything as serious and potentially explosive as bridge-gate without at least believing (whether well founded or not) that it was what Governor Christie would have wanted them to do.

Are there any possible and plausible motives for Kelly and Wildstein to have launched the lane closings other than their desire to anticipate and execute what they believed would be the Governor's wishes?

It is hard for me to imagine what personal motives Kelly and Wildstein might have had for causing bridge-gate, or how they would have benefited, or thought they might have personally benefited from doing so. This is not, so far as what's now revealed, a case of an employee embezzling money, turning over politically damaging material to the media or an opponent, using their position to obtain something of economic value, or a job, from someone doing business with the government. It doesn't appear that they would have a motive to do the Governor deliberate harm.

What is the evidence that the Governor might have, or did, desire retribution against Fort Lee Mayor Mark Sokolich?

There are two questions here in addition to those above.

One involves the extent to which there is evidence that, if Christie was inclined to seek retribution against anyone, people in Fort Lee might be targeted.

If the answer to that is "yes," then the second question is whether there is evidence that Fort Lee Mayor Mark Sokolich was the person who was the target and trigger for Christie's pique.

There is undoubtedly more to come, and it may make clear beyond a reasonable doubt that, whatever Governor Christie's pattern of retributive behavior may be, and regardless of whether he was aware of the bridge-gate plan, the Governor was inclined to go after Democratic Mayor Sokolich for his failure to endorse Republican Governor Christie's re-election. But that is yet to be proved.

Some Democratic mayors may have been punished for not endorsing the Governor. It also appears, however, that numerous Democratic New Jersey mayors were not punished by the Governor for their failure to endorse him. It would be useful to know by what rationale Sokolich would have been singled out for this treatment.

Governor Christie said on the Rachel Maddow Show January 9, "Mayor Sokolich was never on my radar screen. He was never mentioned to me as somebody whose endorsement we were pursuing. In fact, I think he said on CNN last night he doesn`t recall ever being asked for his endorsement. . . . I never saw this as political retribution because I didn`t think he did anything to us. Now, we pursued lots of endorsements during the campaign from Democrats and we didn`t receive most of them. We received about 60 at the end of the day. We pursued hundreds. . . . I don`t have any recollection of . . . anybody . . . asking me to meet with Mayor Sokolich . . . the typical course that was used when we were attempting to get an endorsement . . .. I don`t remember ever meeting Mayor Sokolich in that context." "'The Rachel Maddow Show' for Thursday, January 9, 2014," Jan. 9, 2014.

[After writing this, I find TalkingPointsMemo reports, "The one thing that seems clear is that fewer and fewer people think this was all about an campaign endorsement." Josh Marshall, "TPM Editor's Blog/BridgeGate: The Who and the Why," TalkingPointsMemo.com, Jan. 13, 2014.]

What other explanation might there be for the Governor seeking retribution against Fort Lee?

What has, so far, made the most sense to me is the theory -- and that's all it is -- that I heard Rachel Maddow suggest last Thursday [Jan. 9]. Maddow noted that the now-famous email ("Time for traffic problems in Fort Lee") was sent 7:34 the morning after the night before. And what happened the night before? Apparently, Christie's frustration with N.J. Senate Democrats took the form of an angry outburst. It seems the Governor broke with the previously unbroken N.J. tradition that judges are re-appointed, and refused to give a reappointment to a Democrat-appointed judge. In response, the N.J. State Senate Democrats have repeatedly refused to approve the Governor's replacement nominees. Ultimately, the Governor even pulled the name of a personal friend.

As Ms. Maddow put it, "The reason he said he did it in her case is . . . because he said Senate Democrats were animals . . . and he was not going to subject this judge who he respected . . . to the savagery of the Senate Democrats.

(BEGIN VIDEO CLIP)

"CHRISTIE: . . . I simply could not be party to the destruction of Helen Hoens` professional reputation . . .. I`m taking responsibility for not allowing this group of people to do to her what they did to [the other nominees]. . . . [W]hat the ramifications will be for that going forward, they should have thought about before they opened their mouths. . . .

(END VIDEO CLIP)

"MADDOW: That was an angry Chris Christie . . . furious with Senate Democrats at a hastily called press conference that took place late in the day on Tuesday, August 12th, 2013. . . . [A]nd it is the next morning at 7:34 . . . that his deputy chief of staff gives the go-ahead to the Port Authority. "Time for some traffic problems in Fort Lee." Go to the list of legislative districts . . .. Find . . . Fort Lee, New Jersey, [it's] legislative district 37. Who represents district 37? . . . [T]he leader of the Senate Democrats . . . represents Fort Lee [Senate Majority leader, Loretta Weinberg]. "'The Rachel Maddow Show' for Thursday, January 9, 2014," Jan. 9, 2014.

At this point in time nobody knows if Ms. Maddow's theory ultimately will prove to be the explanation for this or not. But right now, if I had to choose, it sounds a lot more credible than that bridge-gate occurred because the Governor was trying to punish a mayor for failing to endorse him. Of course, this that they were telling the truth when the Governor said he didn't realize that the Fort Lee Mayor was one of the mayors whose endorsement his campaign was trying to get, that he had never met with the mayor about that, and the mayor's declaration that he has no clear recollection that he was contacted by anyone else in the campaign.

For another possibility, see, Brian Murphy, "Is a Billion Dollar Development Project at the Heart of Bridgegate?" TalkingPointsMemo, Jan. 12, 2014 ("We now know that a major redevelopment project, one that depends on Port Authority assets and relationships, was put in jeopardy at a vulnerable financial moment, and in a way that put the viability of the entire project at risk. But we still don’t know why. This batch of subpoenaed documents isn’t going to tell us, and the people who know – who really know – either aren’t talking or haven’t yet been questioned.").
#
Addendum, Jan. 16. There are two sets of separate issues here with regard to Governor Christie's use of retribution against opponents. One involves bridge-gate: (a) did retribution figure as a motive for closing lanes? (b) if so, against whom was it directed? And, of course, (c) to what degree was Governor Christie informed or involved in the plan and its execution?

The second set of issues involves the extent to which Christie has a pattern of punishing his "enemies." If bridge-gate is the only instance in which Christie has ever engaged in retribution, it could, perhaps, be excused -- notwithstanding its substantive seriousness. We could look at it as a one-off aberration, albeit a dangerous and possibly illegal one. But it would not need to be viewed as a disqualifying element of his character; something that he would carry into the oval office.

If, on the other hand, it is consistent with a prior pattern of extreme, retributive actions against opponents or those who otherwise displease him, that pattern (as distinguished from this one instance) is a matter of much greater concern.

There is at least some significant evidence, alas, that retribution may be a fundamental part of his character and method of operation and governing.

Kate Zernike, “Stories Add Up as Bully Image Trails Christie,” New York Times, Dec. 25, 2013, p. A1:

• In 2011, Mr. Christie . . . accused State Senator [and former Governor] Richard J. Codey of being “combative and difficult” in blocking two nominees. . . . Three days later, . . . the state police superintendent inform[ed] him that he would no longer be afforded [a state] trooper . . .— a courtesy granted all former governors. [Codey’s] . . . cousin . . . [a state employee] was fired, as was [his] former deputy chief of staff [from another state position]. . . .

• [T]he governor . . . wanted [redistricting commission member, Rutgers political scientist, Alan] Rosenthal to vote for the [Republicans’ redistricting] map, . . . but [Rosenthal] chose the Democrats’ plan . . .. Soon after, Mr. Christie used his line-item veto to cut $169,000 [from Rosenthal’s Rutgers] institute . . ..

• Mr. Christie was smarting from [Republican State Senator Sean T. Kean’s] criticism that [Christie should have called] earlier for a state of emergency [following a] blizzard [that] paralyzed the state . . .. [Christie] . . . held [a] news conference in Mr. Kean’s . . . district. [A] member of the governor’s staff warned [Kean] not to show up. His seat was eliminated in redistricting the following year. . . .

• Republican, State Senator Christopher Bateman, [who] voted against the governor’s plan to reorganize . . . public medical education . . .. had been working with the governor to get a judge appointed . . .. Suddenly, after months when it looked as if it would happen, the nomination stalled.

Now some may look at these examples and say, "Yeah, and so? Many public officials, from police to presidents, are invested with considerable discretion. Apparently Christie finds sticks more effective than carrots. What's the big deal?" Stalled nominations have recently become routine in Washington. So what's so shocking about the fact they apparently happen in New Jersey, too?

But let us put Governor Christie aside for a moment, and look at this issue more generally. Are there neutral principles, reasonable standards generally agreed upon, regarding the outer limits of the norms restraining executive abuse of persuasive tactics? The 2012 movie, "Lincoln," for example, portrays what some might consider Lincoln's excessive use of persuasive techniques to get the House of Representatives to put forward the Thirteenth Amendment to the Constitution in 1865. There are many stories about "the Johnson treatment" that President Lyndon Johnson used on House and Senate members -- though I cannot immediately come up with examples of things done by either Lincoln or Johnson that come close to deliberately causing a traffic jam across a major bridge. President Nixon, of course, had his famous "enemies list." For an entire blog essay devoted to this inquiry, see "On Love and Fear in Politics; From Machiavelli to Christie," January 18, 2014.

Meanwhile: To deny a former governor the assistance of a state trooper apparently at least violates a New Jersey norm; firing state employees, who have done no wrong, to get back at a relative of theirs may actually be a violation of law. Eliminating a legislator's seat for a remark would seem similar. Denying an academic his state appropriated research grant because he supports a redistricting plan opposed by the Governor also looks like at least a violation of norms, if not of law -- unless the "commission" is, and is intended to be, a part of the governor's staff, and subject to executing his wishes.
#
Addendum, January 22, 2014. Hoboken. "In a television interview on Saturday, she [the mayor of Hoboken, N.J., Dawn Zimmer, a Democrat] said that two high-ranking aides to Mr. Christie had threatened to withhold money for Hurricane Sandy recovery to her hard-hit city if she did not support a real estate development that the governor wanted built in her jurisdiction. . . . Speaking on MSNBC, she produced journal entries that she said documented conversations in which Lt. Gov. Kim Guadagno and Richard E. Constable [Department of Community Affairs], told her that if she wanted the money, she had to approve the project." Michael Barbaro and Kate Zernike, "Mayor of Hoboken Says Hurricane Relief Was Threatened," New York Times, Jan. 19, 2014, p. A21.

For the response denying these assertions, see Patrick McGeehan, "Lieutenant Governor Calls Hoboken Mayor's Claims 'Illogical," New York Times, Jan. 21, 2014, p. A14 (“Any suggestion that Sandy funds were tied to the approval of any project in New Jersey is completely false.”).

There will be, no doubt, considerably more to come involving Chris Christie's past behavior in general, and the facts surrounding bridge-gate in particular.

# # #

Polar Vortex

January 7, 2013, 8:00 a.m.

God's 'Cold Shoulder' Revenge

I thought "polar vortex" was a patented new fabric for winter wear. When none of the Iowa City stores seemed to have any in stock, further research revealed it's just more scientist-speak (see below). [Photo credit: Nick Brancaccio, Windsor Star.]

Scientists want to have a scientific explanation for everything, whether they really understand it or not.

No wonder an ever-increasing number of Republicans -- now 57% -- are coming to reject even the theory of evolution. As a recent Pew Center poll revealed, even among

"those who express a belief in human evolution . . . roughly a quarter of adults (24%) say that 'a supreme being guided the evolution of living things for the purpose of creating humans and other life in the form it exists today.' . . .

White evangelical Protestants are particularly likely to believe that humans have existed in their present form since the beginning of time. Roughly two-thirds (64%) express this view . . ..

There also are sizable differences by party affiliation in beliefs about evolution, and the gap between Republicans and Democrats has grown. In 2009, 54% of Republicans and 64% of Democrats said humans have evolved over time, a difference of 10 percentage points. Today, 43% of Republicans and 67% of Democrats say humans have evolved, a 24-point gap."

"Public's Views on Human Evolution," Pew Research: Religion & Public Life Project, Pew Research Center, Dec. 30, 2013.

In other words, the current cold snap has a religious, rather than a scientific, explanation. It is just God -- or as the non-believers say, "Mother Nature" -- giving the climate change theorists her cold shoulder.

Makes sense to me.

The previous blog essay addressed this subject in a slightly different context: "Snopes, Popes, and Presidents; Believing is Seeing," Dec. 26, 2013. So does this article: Zach Beauchamp, "Why Republicans Don’t Believe In Evolution Anymore," ThinkProgress, Dec. 31, 2013 ("A wealth of research into political psychology shows that people’s partisan affiliations affect their beliefs on basic facts. Republicans are overwhelmingly more likely to think the economy is doing well when Republicans hold the Presidency, and ditto with Democrats when their guy holds the White House. A recent experiment found that even basic math is contaminated by politics; people are much more likely to correctly solve basic math problems when, in context, solving them correctly helps rather than hurts their party.").

Ever wonder why so many Americans believe in religious reality rather than theoretical "science"? Here's how scientists, rejecting God's/Mother Nature's "cold shoulder" reality, try to explain these frigid temperatures with a theory, and in a language, few true believers can even comprehend let alone accept:

"A polar vortex (also known as an Arctic cyclone, sub-polar cyclone, and a circumpolar whirl) is a persistent, large-scale cyclone located near either of a planet's geographical poles. On Earth, the polar vortices are located in the middle and upper troposphere and the stratosphere. They surround the polar highs and lie in the wake of the polar front. These cold-core low-pressure areas strengthen in the winter and weaken in the summer. They usually span . . . 620–1,240 miles in which the air is circulating in a counter-clockwise fashion (in the northern hemisphere). As with other cyclones, their rotation is caused by the Coriolis effect. Within the stratosphere, strategies such as the use of the 4 mb pressure surface, which correlates to the 1200K isentropic surface, located midway up the stratosphere, is used to create climatologies of the feature. Due to model data unreliability, other techniques use the 50 mb pressure surface. Polar cyclones are climatological features that hover near the poles year-round. They are weaker during summer and strongest during winter. Extratropical cyclones that occlude and migrate into higher latitudes create cold-core lows within the polar vortex. Volcanic eruptions in the tropics lead to a stronger polar vortex during the winter for as long as two years afterwards. The strength and position of the cyclone shapes the flow pattern across the hemisphere of its influence. An index which is used in the northern hemisphere to gauge its magnitude is the Arctic oscillation." "Polar vortex," Wikipedia.com.

Yeah, right.
# # #

Snopes, Popes, and Presidents

December 26, 2013 2:45 p.m.

Believing is Seeing
We can learn more from some recent reports of Pope Francis' activities than what appear to be this Pope's quite sincere concerns and commitments to improving the lot of the poor, and those adversely affected by the consequences of war. Consider the following:

"Pope Francis, celebrating his first Christmas as Roman Catholic leader, on Wednesday [Dec. 25] called on atheists to unite with believers of all religions and work for 'a homemade peace' that can spread across the world. . . . He said that people of other religions were also praying for peace, and - departing from his prepared text - he urged atheists to join forces with believers. 'I invite even non-believers to desire peace. (Join us) with your desire, a desire that widens the heart. Let us all unite, either with prayer or with desire, but everyone, for peace, he said, drawing sustained applause from the crowd.'"
__________
"Pope Francis washed and kissed the feet of a dozen inmates at a juvenile detention center in a Holy Thursday ritual that he celebrated for years as archbishop and is continuing now that he is pope. Two of the 12 were young women . . .."
__________
"Pope Francis announc[ed] that . . . 'the time has come to abandon all intolerance. . . . Even atheists acknowledge the divine. . . . The church no longer believes in a literal hell where people suffer. . . . All religions are true, because they are true in the hearts of all those who believe in them. . . . Our church is big enough for heterosexuals and homosexuals, for the pro-life and the pro-choice! For conservatives and liberals, even communists are welcome and have joined us. We all love and worship the same God. . . . [I]t is my hope that we will have a woman pope one day. . . . Racism today is the ultimate evil in the world. . . . [T]hose who would dare to turn immigrants away, be they legal or undocumented, turn their backs on Christ himself! . . . [B]ecause Muslims, Hindus and African Animists are also made in the very likeness and image of God, to . . . reject them to is to reject God and the Gospel of Christ.'"
__________
"Three homeless men [who] live on the street in the Rome neighborhood just outside the Vatican's walls . . . helped Pope Francis celebrate his 77th birthday Tuesday [Dec. 24] [when they] were invited . . . to attend the Mass, which Francis celebrates daily at the hotel where he lives on Vatican City grounds. [He] also invited his household help to join him in a 'family-like' atmosphere, and he spoke of them one by one during his homily."
__________
In an interview with uCatholic, Archbishop Konrad Krajewski, who serves as 'Almoner of His Holiness,' implied that Pope Francis may be sneaking out of the Vatican at night to personally give money and food to the homeless citizens of Rome. . . . [Krajewski commented} that Francis used to do exactly that as archbishop of Buenos Aires, before he was elected pope. . . . 'As archbishop of Buenos Aires, when he was known as Cardinal Jorge Mario Bergoglio, the future pontiff would go out at night ... to find people, talk with them, or buy them something to eat. He would sit with them and eat with them on the street.' . . . [A]n anonymous source in the church [said] that 'Swiss guards confirmed that the pope has ventured out at night, dressed as a regular priest, to meet with homeless men and women.'”
__________

A Pope, any Pope, is in many ways one of our few world leaders who is given -- or can simply seize -- an ability to speak his or her mind, not only, in Pope Francis' case, to his 1.2 billion followers, but to more billions beyond. When he chooses to use that opportunity to address problems of poverty, inequality and greed, war and peace, appealing to our better angels, he can provide a moral and ethical beacon for all of humankind. And because he communicates primarily, or at least as much, by his actions as by his words, he truly has our attention. (I will leave for another day Church positions he has neither addressed nor given any indication of a likelihood to change.) So, yeah, I'm a fan.

So what more can we learn from these stories beyond what they tell us regarding the character and style of this Pope?

They tell us something about the extent to which "believing is seeing;" that is, what we believe, or want to believe, can have a significant influence on what we perceive.

For Pope Francis fans, like myself, each of those quotations, above, all taken from published sources, has an air of plausibility about it. What he has done so far on behalf of the poor, peace, and opening up the Church has been so mind altering that nothing someone claims he has done seems impossible in that context.

But, alas, two of those five reports are false.

If you haven't already guessed which ones they are, they are repeated at the bottom of this blog essay with their sources and rebuttals.

Snopes.com is a wonderful online service for checking the truth of the "urban legends, folklore, myths, rumors, and misinformation" that circle the global Internet each day. It was particularly useful when the anti-President-Obama forces were circulating false accusations regarding his faith, American citizenship, and anything else they could come up with. See, "Snopes and 'What We Know That Ain't So,'" Aug. 2, 2012.

Our Republican friends (yes, we have some) would pass such charges along to their e-mailing lists, believing any bad news about Obama as readily as I believe any inspiring news about Pope Francis. We'd usually check them out with Snopes, and like as not find that they were totally false. Sometimes we'd refer the sending party to the Snopes report, and other times we'd decide it was hopeless.

But the point is not about Republican assaults on our President. The point is that we're all subject to such manipulation. There is some research and data on this. Even those trained and working in the sciences are significantly more likely to make accurate mathematical calculations when the data supports their hypotheses than when it does not.

What this Pope and Snopes have shown me is that the manipulation we experience from our religious, political and ideological beliefs and convictions is not limited to our disinclination to critically evaluate assertions regarding people and things that we hate. They can also manipulate our judgment when evaluating positive assertions about the people and things we love or admire.

Now here is what Paul Harvey would have called, "the rest of the story."

__________

"Pope Francis, celebrating his first Christmas as Roman Catholic leader, on Wednesday [Dec. 25] called on atheists to unite with believers of all religions and work for 'a homemade peace' that can spread across the world. . . . He said that people of other religions were also praying for peace, and - departing from his prepared text - he urged atheists to join forces with believers. 'I invite even non-believers to desire peace. (Join us) with your desire, a desire that widens the heart. Let us all unite, either with prayer or with desire, but everyone, for peace, he said, drawing sustained applause from the crowd.'"

-- Philip Pullella, "Atheists, work with us for peace, Pope says on Christmas," Reuters/The Gazette, Dec. 26, 2013, p. A4. There is some question as to what the Pope actually said, from the prepared text and during extemporaneous remarks, and even more question as to what he meant. But this is a relatively accurate story.
__________
"Pope Francis washed and kissed the feet of a dozen inmates at a juvenile detention center in a Holy Thursday ritual that he celebrated for years as archbishop and is continuing now that he is pope. Two of the 12 were young women . . .."

-- Nicole Winfield,"Pope Francis washes feet of young detainees in ritual," AP/USA Today, March 28, 2013. This story seems to be entirely true.
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"Pope Francis announc[ed] that . . . 'the time has come to abandon all intolerance. . . . Even atheists acknowledge the divine. . . . The church no longer believes in a literal hell where people suffer. . . . All religions are true, because they are true in the hearts of all those who believe in them. . . . Our church is big enough for heterosexuals and homosexuals, for the pro-life and the pro-choice! For conservatives and liberals, even communists are welcome and have joined us. We all love and worship the same God. . . . [I]t is my hope that we will have a woman pope one day. . . . Racism today is the ultimate evil in the world. . . . [T]hose who would dare to turn immigrants away, be they legal or undocumented, turn their backs on Christ himself! . . . [B]ecause Muslims, Hindus and African Animists are also made in the very likeness and image of God, to . . . reject them to is to reject God and the Gospel of Christ.'"

-- The quote is taken from, "Pope Francis Condemns Racism And Declares That 'All Religions Are True,'” Diversity Chronicle, Dec. 5, 2013. This story, which went viral around the Internet, is false. See, "Pope Francis Declares All Religions Are True," Snopes.com, Dec. 22, 2013.
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"Three homeless men [who] live on the street in the Rome neighborhood just outside the Vatican's walls . . . helped Pope Francis celebrate his 77th birthday Tuesday [Dec. 24] [when they] were invited . . . to attend the Mass, which Francis celebrates daily at the hotel where he lives on Vatican City grounds. [He] also invited his household help to join him in a 'family-like' atmosphere, and he spoke of them one by one during his homily."

-- Frances D'Emilio, "Pope shares his birthday breakfast with homeless," Associated Press, Dec. 17, 2013. This appears to be a true story, unless the three men in this photo who are not the Pope are just actors. [Photo credit: L'Osservatore Romano, The Vatican.]
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In an interview with uCatholic, Archbishop Konrad Krajewski, who serves as 'Almoner of His Holiness,' implied that Pope Francis may be sneaking out of the Vatican at night to personally give money and food to the homeless citizens of Rome. . . . [Krajewski commented} that Francis used to do exactly that as archbishop of Buenos Aires, before he was elected pope. . . . 'As archbishop of Buenos Aires, when he was known as Cardinal Jorge Mario Bergoglio, the future pontiff would go out at night ... to find people, talk with them, or buy them something to eat. He would sit with them and eat with them on the street.' . . . [A]n anonymous source in the church [said] that 'Swiss guards confirmed that the pope has ventured out at night, dressed as a regular priest, to meet with homeless men and women.'”

-- Eric Brown, "Is Pope Francis Sneaking Out Of The Vatican At Night To Give Money To The Homeless?," International Business Times," Dec. 3, 2013. It certainly sounds like it might be true. But see, David Gibson, "Pope Francis sneaks out of the Vatican? Maybe not, but he wouldn’t be the first," Religion News Service, Dec. 3, 2013 ("Vatican officials say reports that Pope Francis has been slipping out at night to visit the homeless in Rome are 'simply not true,' though that hasn’t stopped the stories from capturing the public imagination. That’s probably because such tales seem right in line with Francis’ unconventional and pastoral style.")

And that last line is the point of this blog essay.

# # #

Judge Leon: NSA Surveillance Unconstitutional

December 17, 2013, 3:00 p.m., with December 27, 2013, 5:00 p.m., update regarding ACLU v. Clapper

UPDATE: Today [Dec. 27] another U.S. District Court's decision (ACLU v. Clapper) is being described as contrary to the District Court decision that prompted this original blog essay (Klayman v. Obama). (See the bottom of this blog essay for citations and links.)

To characterize these two opinions as being opposite, or in conflict, with regard to the Fourth Amendment and the Supreme Court's decision in Smith v. Maryland, 442 U.S. 735 (1979)(discussed in the original blog essay, below), is in my opinion to fail to grasp the significance of the sub-head on that blog essay ("When Difference of Degree Becomes Difference of Kind"). (On the other hand, if their respective U.S. Court of Appeals both affirm, or both reverse, these lower court opinions, there will then be a sufficient "conflict in the circuits" to give the Supreme Court that justification for taking the cases, if it wishes, given the conflict in their ultimate outcomes.)

Both judges agree that what the NSA is doing implicates the Fourth Amendment. They agree on the wording of the Fourth Amendment. They both agree that they need to deal with the Smith case. They both agree regarding what the facts were in Smith. They both agree as to the "holding" of Smith. They both agree that it is the Supreme Court, not U.S. District Court judges, that should be deciding whether to overrule Supreme Court opinions or not (Judge Pauley expressly; Judge Leon we can assume). Where they disagree is whether the facts and holding of Smith control the outcome of the facts before those courts in Klayman (Judge Leon) and Clapper (Judge Pauley).

Judge Pauley's sketchy and conclusory Fourth Amendment discussion is primarily limited to portions of pp. 42-44 in his 54-page opinion. He argues, in effect, that "telephone meta data (1979)" is the same as "telephone meta data (2013)," 34 years and a technological and surveillance revolution later.

Judge Leon noted the Supreme Court's struggling with the impact of technology on Fourth Amendment rights. As I described Judge Leon's analysis, below, "[in] U.S. v. Jones (2012), . . . the Supreme Court distinguished the facts of that case (using a GPS device to trace Jones' movements for a month, which it found violated his "reasonable expectations of privacy") from U.S. v. Knotts (1983) (an earlier case in which the use of lesser technology, for a shorter time, was found acceptable)."

"Aha," Judge Pauley seems to have said to himself with regard to Jones, before writing in response to Judge Leon: "But the Supreme Court did not overrule Smith." To which he adds, quoting from another Supreme Court decision, "[T]he Court of Appeals should . . . leave[e] to th[e Supreme] Court the prerogative of overruling its own decisions."

Of course, both of these assertions are irrelevant if no court is engaged in "overruling" anything.

What Judge Pauley fails to note is (1) as I asked and then answered, below, "Has Judge Leon 'overruled' Smith? Not really. He has neither the power nor the need to do so. He is simply saying 'the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search . . ..,'" and (2) that the Supreme Court may have been using the same analysis in U.S. v. Jones as Judge Leon was using in Klayman. That is, the Court's failure to overrule Smith in Jones could mean either of two things: (a) it could have, as Judge Pauley believes, failed to overrule Smith because it believed it was both still good law and was controlling of facts such as those before the District Courts in Klayman and Clapper, or (b) it could have applied Judge Leon's reasoning, and failed to overrule Smith because there was no valid reason to apply Smith's 1979 "apples" to Jones's 2013 "oranges." The holding of Smith, limited as it must be to its facts, is simply irrelevant in addressing the vastly different facts before the courts in Klayman and Clapper. I believe that (b) is the far more likely explanation.

Much appellate court practice, and the writing of appellate court opinions, turns on "distinguishing" cases -- as first year law students soon discover. Both Smith and Knotts can remain good law -- in situations involving no more than the limited facts they presented -- without applying them to cases involving the very different facts in Klayman and Clapper. That does not mean that they have been "overruled." They have simply been limited to their facts; they have been "distinguished."

It may very well be that Judge Pauley also could have found Smith inapplicable to the facts in Clapper and still reached the same conclusion. But he did not.
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Here's what some others are saying:

Editorial, "This Week, Mass Surveillance Wins,"
New York Times, Dec. 28, 2013
(excerpted highlights)
"Has the . . . mass collection of . . . phone records [helped] prevent terrorist attacks?

No, according to . . . a panel of legal and intelligence experts . . ..

Judge William Pauley III . . . came to the opposite conclusion . . . in a deeply troubling decision . . ..

Judge Pauley . . . disregards the concerns central to the presidential panel’s report and [Judge Leon's] ruling . . ..

Judge Leon found the Smith decision . . . inapplicable to a daily, indiscriminate sweep of hundreds of millions of phone records. Judge Pauley . . . said its logic still applied.

Judge Pauley’s opinion is perplexing in its near-total acceptance of the claim by the government that it almost always acts in accordance with the law . . . that shows an alarming lack of skepticism . . . in light of the testimony of James Clapper Jr., . . . who falsely [said] the N.S.A. was not collecting any [data on] millions of Americans.

It is also incorrect to say, as Judge Pauley does, that there is “no evidence” that the government has used the phone data for anything other than terrorism investigations. An inspector general . . . revealed at least a dozen instances in which government employees used the databases for personal purposes."
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"[T]his decision . . . misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections."

-- Jameel Jaffer, an ACLU lawyer (quoted here).
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What follows, below, is what I wrote Dec. 17 regarding Judge Leon's Klayman decison:
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When Difference of Degree Becomes Difference of Kind

Wolfgang Schmidt, a one-time lieutenant colonel in the former East German secret police and security/spy agency has said of our NSA, "'You know, for us, this would have been a dream come true.' . . . [H]is department was limited to tapping 40 phones at a time, he recalled. . . . He finds breathtaking the idea that the U.S. government receives daily reports on the cellphone usage of millions of Americans and can monitor the Internet traffic of millions more. 'So much information, on so many people,' he said." Matthew Schofield, "Memories of Stasi color Germans’ view of U.S. surveillance programs," McClatchy Washington Bureau, June 26, 2013.

He makes an important point: "a difference to be a difference has to make a difference." A difference of degree may be a difference that makes no difference. A difference of kind does make a difference. . . .

When the Stasi's wiretapping ability went from one wiretap to 40, that was a difference. It made a difference. But not that much difference. You clandestinely listen in on one person's conversations, you listen in on 40. But when the NSA goes from a constitutional presumption of one search warrant at a time, for one person at a time, with probable cause, approved by a reviewing judge, to a general search warrant that entitles them to spy on every American simultaneously, just because they have the technology that makes it possible, that is a difference that makes an enormous difference.

-- "Surveillance: Differences of Degree and of Kind," July 3, 2013

Takeaway: Thirty-four years ago the Supreme Court said it was OK for law enforcement to get one person's phone records over a short time without using a search warrant (Smith v. Maryland); Federal Judge Leon rules that times and technology have changed enough that Smith no longer justifies NSA's sweeping, constant collection of all Americans' phone records.

At least one federal district judge has now declared the National Security Agency's (NSA's) surveillance of our cell phone usage ("metadata") to be a violation of our Constitutional, Fourth Amendment rights (Klayman v. Obama).

Since The Guardian broke the Snowden revelations earlier this year, there have been a number of essays in this blog regarding the issues. [For links to the opinion, related stories, and prior blog essays, see the bottom of this blog essay.]

Let's start withe the language of the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. It was a response, in part, to the British use of so-called "general search warrants."

[G]eneral search warrants authorized the British to search whomever they wished, wherever they wished, whenever they wished, for whatever they wished, with or without any reasonable basis for suspicion of wrongdoing. No specific search warrant. No identified person or place. No "oath or affirmation" of the "probable cause." . . .

[T]he NSA’s surveillance of the American people today is the electronic equivalent of one of the grievances that drove our founding fathers to the revolution we commemorate every July 4th -– those British “general search warrants.”

The NSA is engaged in the unreasonable search of all of us, without even a suspicion we have done anything wrong, let alone probable cause, without specifying where they will look or what they are looking for. And so it is that, 224 years later, an ever-increasing number of Americans -– now nearly 50% -- again believe that government surveillance has gone too far, notwithstanding the threats of terrorism.

"The Future of Surveillance and How to Stop It," August 4, 2013.

A prohibition on "unreasonable searches" requires not one, but two, findings: (1) that the search was unreasonable, but also (2) that there was, in fact, a "search." [Moreover, the person complaining must have had both (a) an "expectation of privacy," and (b) one that most people would consider to have been "reasonable."]

For example, . . . Most people would not expect that which they have left in plain sight from the street would be legally protected from being seen by passersby. And if they did have such an expectation, most people would not consider that expectation to have been reasonable.

So far, OK. But we're left with a couple of problems. (1) In a world of ubiquitous surveillance video cameras, mail covers, collection of all phone call meta-data, and comparable intrusions on privacy does a "reasonable expectation of privacy" provide us any protection? (2) The courts have said that when you give information to a third party, such as a bank, phone company, or Internet service provider, you thereby lose any expectation of privacy.

This is the legal argument of the businesses that are collecting information about our lives, and the government agencies that then retrieve the information from them (information that the government might not have been able to acquire constitutionally without their involvement).

It is my opinion that both problems (ubiquitous surveillance and third-party transactions) require rethinking in this high tech age. [1] If you hold information you consider to be private, and you turn it over to a newspaper reporter (who makes no promise of protecting your privacy), you can't really complain when it ends up in the local paper. [2] On the other hand, we do protect the privacy of information you hand over to your doctor, lawyer, or cleric. [3] [T]here needs to be a third category these days. The information you necessarily have to provide a credit card company, for example, may not be entitled to the protection accorded information you give your doctor. But neither, in my opinion, should it be accorded no more protection than what you hand over to a newspaper reporter, neighbor, or colleague. I believe there is, in fact, a reasonableness in demanding a level of trust in our relationships, business or otherwise, that are necessities in our economy -- such as banking and phones. We need these services. We are not gratuitously handing them private information; it is a necessity that we do so in order for them to provide the service. It is given to them for a specific and limited purpose.

"Surveillance: Differences of Degree and of Kind," July 3, 2013.

The Supreme Court needs to rethink the Fourth Amendment's protection of our privacy in a post-cyber world. The mere fact that today's technology means that no American can have a "reasonable expectation of privacy" anywhere, at any time, requires that standard -- and its deadly presumption regarding records shared with third parties -- be discarded.

"Law's Losing Race With Technology," June 7, 2013.

It's always reassuring to have one's instincts and intuition proved correct. As expose after expose hit the media earlier this year, it seemed to me that what the NSA was doing was a violation of both the letter and the spirit of the Fourth Amendment. It was troublesome that those charged with congressional oversight of the NSA, and those within the Obama Administration, of all people, thought -- or at least were saying -- that there was something wrong with the analysis that I, and others, had put forward.

Now there is at least one federal judge who thinks we got it right. There will be more federal judges -- and ultimately Supreme Court justices -- to express their own views on the issues. Undoubtedly, some will disagree with Judge Leon. But his analysis is a strong beginning.

His opinion runs 68 double-spaced pages with 71 substantive footnotes. Klayman v. Obama, ___ F.Supp.3d ___ (D.D.C. 2013), http://s3.documentcloud.org/documents/901810/klaymanvobama215.pdf [Judge Richard J. Leon, Dec. 16, 2013].

The plaintiffs sought a preliminary injunction prohibiting the NSA's collection of their phone metadata, relying on an Administrative Procedure Act (APA) remedy and the violation of their constitutional rights under the Fourth Amendment. The judge concludes they have the requisite "standing" to proceed as parties, that Congress has precluded his jurisdiction to address their APA claim, but that it has not precluded his jurisdiction to consider their constitutional claim, for which they have met the threshold requirements justifying a preliminary injunction, which he grants -- what non-lawyers would describe as in effect telling the NSA to "stop it." Judge Leon then adds, "However, in view of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal." So, on the one hand, the plaintiffs won; on the other hand, they will not enjoy what they have won until the case has weaved its way through an appeal to the U.S. Court of Appeals for the D.C. Circuit -- and possibly the United States Supreme Court.

A discussion of these issues, and the FISA law and procedures, consume the first 43 pages of the opinion.

At that point, under the heading, "The Collection and Analysis of Telephony Metadata Constitutes a Search," is where the constitutional analysis begins -- one that accords with the earlier analysis of myself and others.

Here's some brief background. The Fourth Amendment prohibits the government from engaging in "unreasonable searches," thereby logically requiring two findings: (1) that there was a "search," and (2) that it was "unreasonable." The Supreme Court once gave the Fourth Amendment something of a anti-trespass interpretation, as it only keeps Americans "secure in their persons, houses, papers, and effects." (Tapping a defendant's phone, without a warrant, while at a distance from his property, was found not to violate the Fourth Amendment, Olmstead v. U.S. (1928).) By 1967, in Katz v. U.S., the Court held that "the Fourth Amendment protects people, not places" (in that instance a person inside a public phone booth). Justice Harlan, in concurring, wrote that "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable'" (the source of the "reasonable expectation of privacy" standard).

The problem, in the context of NSA collection of every American's mobile phone metadata, is that the Court has also held that once someone knowingly provides information to a third party, they can no longer claim a "reasonable expectation of privacy" with regard to that information. This was found to apply to the information bank customers give to their banks regarding their checking accounts, U.S. v. Miller (1976), and more to the point in this Klayman case, the information telephone customers provide their carriers (what was then the monopolist AT&T) regarding the phone numbers they call, or from which they receive calls. Smith v. Maryland (1979).

As I wrote this past June, contrasting the 1970s with 2013,

Today the combination of electronics, digitization, the Internet, computers and telecommunication result in your sharing a large portion of your "papers" with others. Neither librarians nor store owners used to keep records of what books or other merchandise you examined. Today you share a record of every search with Google, a record of every product you examine on a company's Web site, your Kindle book library with Amazon, your music choices with iTunes. You've shared your email and text messages with some company, your photos with Picasa and Facebook, your videos with YouTube, your documents with Dropbox or some other firm that offers you real estate in their "cloud." In addition to your bank, "your" financial records are held by your credit card companies, airlines, rental car companies, hotels, and many local merchants.

"Law's Losing Race With Technology," June 7, 2013.

And that is essentially what Judge Leon had to say about the Smith case.

When do present-day circumstances -- the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies -- become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply?

Klayman, pp. 43-45. He then responds to his own question, "The answer, unfortunately for the Government, is now." p. 45.

Has the Supreme Court ever made this kind of technological distinction before? He finds an example in U.S. v. Jones (2012), in which the Supreme Court distinguished the facts of that case (using a GPS device to trace Jones' movements for a month, which it found violated his "reasonable expectations of privacy") from U.S. v. Knotts (1983) (an earlier case in which the use of lesser technology for a shorter time was found acceptable). pp. 45-46.

Smith involved law enforcement using "pen register" and "trap and trace" techniques that collect limited data (numbers called, or calling), from one phone, during a limited time. What the NSA is doing involves more data (e.g., length of call, and possibly cell phone locations), from every telephone in America (and beyond), continuously (with daily updates), which it stores for five years, and can search in ways undreamed of when Smith was decided (1979).

Has Judge Leon "overruled" Smith? Not really. He has neither the power nor the need to do so. He is simply saying "the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search. . . . I believe that . . . [it] almost certainly does violate a reasonable expectation of privacy. . . . Count the phones at the bus stop, in a restaurant, or around the table at a work meeting or any given occasion. Thirty-four years ago, none of those phones would have been there. Thirty-four years ago, city streets were lined with pay phones. Thirty-four years ago, when people wanted to send 'text messages,' they wrote letters and attached postage stamps." pp. 47, 52.

The tidal wave that's swept over us during this Century's technological tsunami has changed everything from family relations to foreign relations, from the way we do business to the way we teach school, from the nature of crime to the nature of war. The necessary response from lawyers and legislators has been lagging far behind what is needed. That is the context -- and the contrast -- in which Judge Leon's Klayman decision takes on its powerful and encouraging significance.

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LINKS TO OPINION AND RELATED STORIES

Klayman v. Obama, ___ F.Supp.3d ___ (D.D.C. 2013), http://s3.documentcloud.org/documents/901810/klaymanvobama215.pdf [Judge Richard J. Leon, Dec. 16, 2013]. Charlie Savage, "Judge Questions Legality of N.S.A. Phone Records," New York Times, Dec. 17, 2013, p. A1. [Photo credit: Jim Lo Scalzo/European Pressphoto Agency/New York Times]

And see, Sheryl Gay Stolberg, "‘Passionate’ Judge Has Record of Wrestling With Thorny Issues, and the U.S. Government," New York Times, Dec. 17, 2013, p. A22; and Michael D. Shear, "Score One for the Legal Thorn in Government’s Side; Larry Klayman, Plaintiff in N.S.A. Case, Savors Victory," New York Times, Dec. 17, 2013.

Since The Guardian broke the Snowden revelations earlier this year, there have been a number of essays in this blog regarding the issues. See, e.g., "Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.

[Cites/links for the Dec. 27/28 Update:] Today [Dec. 27] the U.S. District Court for the Southern District of N.Y.'s decision in ACLU v. Clapper, ___ F.Supp.3d ___ (S.D.N.Y. 2013), http://www.nysd.uscourts.gov/cases/show.php?db=special&id=364 [Judge William H. Pauley, Dec. 27, 2013], is being perceived as contrary to Klayman, the District Court decision that prompted this original blog essay. Adam Liptak and Michael S. Schmidt, "Judge Upholds N.S.A.’s Bulk Collection of Data on Calls," New York Times, Dec. 28, 2013, p. A1 ("the latest contribution to an extraordinary debate among courts and a presidential review group about how to balance security and privacy in the era of big data").

Klayman v. Obama, ___ F.Supp.3d ___ (D.D.C. 2013), http://s3.documentcloud.org/documents/901810/klaymanvobama215.pdf [Judge Richard J. Leon, Dec. 16, 2013]. Charlie Savage, "Judge Questions Legality of N.S.A. Phone Records," New York Times, Dec. 17, 2013, p. A1. # # #