Tag Archives: freedom

Score One for the Other Part of the 1st Amendment

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The Wall Street Journal’s Law Blog describes a victory for religious freedom.  In a case about which I first wrote just after its inception, a gang known as Freedom From Religion Foundation sued the village of Warren, MI, for having the temerity to put up a Christmas display without permitting FFRF to put up a sign next to it announcing that religion is “myth and superstition that hardens hearts and enslaves minds.”

First, Mayor James Fouts told them to take a hike, followed by their suit:

If you requested permission to put up a sandwich board saying that there is no Santa Claus, you would be met with the same response.  Santa Claus lives in the minds and hearts of many millions of children.  The belief of God and religion lives in the hearts and minds of hundreds of millions of people and is as much a part of the fabric of America, as the belief in democracy and freedom….

Your non-religion is not a recognized religion.  Please don’t hide behind the cloak of non-religion as an excuse to abuse other recognized religions.

Then a Michigan district court told these folks to take a hike.

Then the 6th Circuit told this…crowd…to take a hike.  On the matter of Warren’s alleged favoring of the religious over the secular, they had this:

That is not true even on its own terms.  All but one of the objects in the holiday display are nonreligious.  Ribbons, ornaments, reindeer, a lighted tree, wreaths, snowmen, a mailbox for Santa, elves, wrapped gift boxes, nutcrackers, poinsettias, candy canes, a “Winter Welcome” sign—all of them, all that is but the nativity scene—are secular…

A city does not run afoul of the Establishment Clause by including a creche in a holiday display that contains secular and religious symbols.

On the matter of the “Winter Welcome” greeting in particular, the 6th expanded with this [emphasis added]:

When one neighbor greets another in mid-December with “Happy Holidays,” it is the rare person who hears “Happy Holy Days.”  What was once the most religious of invocations has become one of the most faith-neutral, even secular.  One indeed can fairly wonder who has co-opted whom over time with these displays and words.  But that is a matter for another day.

On the gang’s bellyache that Fouts’ letter was itself some sort of cynical violation, the 6th had this:

These are not the words of someone trying to establish any one religion or religion in general; they are the words of someone trying to explain the common sense risks of disparaging faith-based and secular symbols, whether a creche or a Santa, alike….

It may be true that the Mayor misapprehended the Religion Clauses when he implied that atheists receive no protection from them by saying that the Foundation’s “non-religion” was “not a recognized religion.”  In this respect, the Mayor, apparently untrained as a lawyer, may not have missed his calling….  But this defense of his actions, premised on a misreading of precedent, does not transform his actions or the City’s display into an establishment.

On the gang’s crying about their free speech rights, here’s the 6th, again:

[Warren] could choose to add a Santa.  And it could choose to deny a sign saying, “There is no Santa.”  It could choose to incorporate a message about Ramadan.  And it could choose to deny a message disparaging any one religion or religion in general.  Just as Congress’s creation of a National Day of Prayer on the first Thursday of May does not compel the legislature to recognize a National Day of Non-Prayer each year, so too the City of Warren could opt to have a holiday display without a Winter Solstice sign.  Such holiday displays are quintessentially government speech….

And the Foundation, like everyone else, is free to urge the City to add or remove symbols from the display each year or to try to elect new officials to run the City—the customary answer to permissible government speech and the customary answer to policies with which citizens disagree.

FFRF Co-President Annie Laurie Gaylor responded to her loss without any sense of irony:

Apparently we are a Christian nation, and cities may prefer religion over non-religion[.]

On the first, well, duh.  On the second, she needs to ask her lawyer to read the 6th‘s opinion to her.  It’s not what they said.  Her lawyer can find that opinion can be found here.

Thus we see the benefit of not taking the easy way out—the coward’s way out—and acceding to the demands of such anti-freedom fighters as these as soon as the latter threaten.

These lose—as all bullies lose—when faced with forthright and just opposition.

Facing down bullies is expensive, certainly.  However that expense pales beside the expense of meekly surrendering freedoms for the demanding.  Once you pay the Danegelt, you never get rid of the Dane.

The Efficacy of Government-Held Databases on Citizens

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Here’s an all too likely outcome from letting government maintain databases on its citizens, ostensibly for the safety of those citizens.

A Muslim US Air Force veteran who had trouble entering the country last year to visit his terminally ill mother was barred again Saturday from trying to return home to Qatar, the second time this month that he’s been prohibited from boarding a flight in Oklahoma City because his name appears on a government no-fly list.

The reason?  There isn’t one, really:

[Saadiq, who is an American citizen as well as a vet] Long said a TSA agent told him that he was “still on the list” and he would have to contact the FBI.

Pass that buck.  But

Long said the FBI has not told him why he is on the no-fly list[.]

It’s entirely possible this is on the up and up.  There’s no information to support that thesis, though.  On the other hand, database errors happen, but it’s deucedly hard to get government to correct their errors.  Bureaucracy, don’t you know.

More Government Interference

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…and more overreach by one branch of government.  James Bovard had this in a recent Wall Street Journal piece.

In 1989, the [Equal Employment Opportunity Commission] sued Carolina Freight Carrier Corp of Hollywood, FL, for refusing to hire as a truck driver a Hispanic man who had multiple arrests and had served 18 months in prison for larceny.  The EEOC argued that the only legitimate qualification for the job was the ability to operate a tractor trailer.

US District Judge Jose Alejandro Gonzalez Jr, in ruling against the agency, said: “EEOC’s position that minorities should be held to lower standards is an insult to millions of honest Hispanics. Obviously a rule refusing honest employment to convicted applicants is going to have a disparate impact upon thieves.”

Despite this crystalline ruling of long standing, the EEOC is persisting.

Last April, the agency unveiled its “Enforcement Guidance on the Consideration of arrest and Conviction Records in Employment Decisions,” declaring that “criminal record exclusions have a disparate impact based on race and national origin.”

Thus,

If a background check discloses a criminal offense, the EEOC expects a company to do an…”individualized assessment” that will somehow prove that it has a “business necessity” not to hire the ex-offender (or that his offense disqualifies him for a specific job).  Former EEOC General Counsel Donald Livingston, in testimony in December to the US Commission on Civil Rights, warned that employers could be considered guilty of “race discrimination if they choose law abiding applicants over applicants with criminal convictions” unless they conduct a comprehensive analysis of the ex-offender’s recent life history.

Just one more example of this administration’s disregard for the other two branches of our Federal government.  And of our individual liberties.

PRC Cyberwar

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Here’s an example of the People’s Republic of China’s war on us, here in cyberspace, described in BusinessWeek.

In 2011, [Dell SecureWorks Director of Malware Research, Joe] Stewart turned his sights on China. “I thought I’d have this figured out in two months,” he says.  Two years later, trying to identify Chinese malware and develop countermeasures is pretty much all he does.
…
Malware from China has inundated the Internet, targeting Fortune 500 companies, tech startups, government agencies, news organizations, embassies, universities, law firms, and anything else with intellectual property to protect.  A recently prepared secret intelligence assessment described this month in the Washington Post found that the US is the target of a massive and prolonged computer espionage campaign from China that threatens the US economy.  With the possible exceptions of the US Department of Defense and a handful of three-letter agencies, the victims are outmatched by an enemy with vast resources and a long head start.
…
Stewart tracks about 24,000 Internet domains, which he says Chinese spies have rented or hacked for the purpose of espionage. … He catalogs the malware he finds into categories, which usually correspond to particular hacking teams in China.  He says around 10 teams have deployed 300 malware groups, double the count of 10 months ago. “There is a tremendous amount of manpower being thrown at this from their side,” he says.

The intel assessment to which the BusinessWeek article referred was summarized here.

The National Intelligence Estimate identifies China as the country most aggressively seeking to penetrate the computer systems of American businesses and institutions to gain access to data that could be used for economic gain.

The report, which represents the consensus view of the U.S. intelligence community, describes a wide range of sectors that have been the focus of hacking over the past five years, including energy, finance, information technology, aerospace and automotives, according to the individuals familiar with the report, who spoke on the condition of anonymity about the classified document. The assessment does not quantify the financial impact of the espionage, but outside experts have estimated it in the tens of billions of dollars.

An example of the cascade effects of China’s war, from that intel summary:

In 2011, when Chinese hackers attacked network security company RSA Security, the technology stolen was used to penetrate military-industrial targets.  Shortly after, the networks of defense contracting giant Lockheed Martin, which used RSA security tokens, were penetrated by Chinese hackers.

There are a couple of questions remaining in this cynic’s mind.  One concerns the apparent ease with which Stewart and his Indian follow-on tracked down this Chinese hacker (an effort described in the BusinessWeek article).  I have to wonder whether the “hacker” was a honeypot and how well the two trackers covered their own tracks—or whether they left their employers exposed.

The other flows from that first question.  Assuming no honeypot, it seems apparent that the hacker was discovered because he was careless, and not because our guys were better at the cyber combat.  Is the US helplessly bringing a jackknife to a combined arms assault?  Is that why our government’s efforts to protect us—and to counter and retaliate—are so infantile?  And the latter so timid:

[T]he Obama administration is seeking ways to counter the online theft of trade secrets, according to officials.  Analysts have said that the administration’s options include formal protests, the expulsion of diplomatic personnel, the imposition of travel and visa restrictions, and complaints to the World Trade Organization.

Pleas and chit-chat, nothing serious.

How did we get so helplessly far behind?  Our government (not just the present administration) has had no understanding at all of the threat posed.  A former government official said,

The problem with foreign cyber-­espionage is not that it is an existential threat, but that it is invisible, and invisibility promotes inaction.

Understanding how our weapons work so they can be neutralized, knowing where and how to plant malware to shut down our financial, transportation, and energy infrastructure—and having the malware to plant—threatens our sovereignty.  That it’s “invisible” is simply an aspect of any war: camouflage and stealth.  The government has first to understand that we’re in a war with the Chinese for our independence; then the fact of invisibility for the Chinese combatants will be understood for what it is—just a technique for advancing their attacks.

Obama and our Constitution

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Michael Mukasy, President George Bush the Younger’s last Attorney General, in a recent Wall Street Journal op-ed described President Barack Obama’s leaked (should I say “surreptitiously released?”) white paper memo concerning presidential authority to conduct drone warfare, including against American citizens overseas.  Mukasey had this to say, in part, about the memo:

The memo mentions the president’s constitutional responsibility under Article II to defend the country, but it grounds the president’s authority to act not in the Constitution but in “the inherent right of the United States to national self-defense under international law…and the existence of an armed conflict with al-Qa’ida under international law.”

A moment’s reflection yields the insight that the US government’s powers are defined by the Constitution, not by international law, and that in any event international law is a highly elusive concept, there being no universally recognized source for it.  Yet here the Obama administration seems to prefer abandoning the Constitution altogether rather than relying on an inherent presidential power….

Because the Constitution is more than 100 years old, hard to understand, and not binding on anything, anyway.  And a law “professor” says we ought to just do away with it.  Plainly, our president buys that line, too.