Category Archives: rights

A UN Official…

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…gets one right.

Progressive-Democrat President Joe Biden, through organs of his administration, is moving to expand Title IX’s definition of sex and sexual discrimination to include “gender identity” and to bar schools, colleges, and universities from banning transgender athletes from women’s sports.

Even an agency of the UN sees this as…foolish.

Reem Alsalem, UN Special Rapporteur on violence against women and girls:

I share the concern expressed by women and girl athletes and women sports associations, as well as women and girls on sports scholarships, that the proposed Title IX rule changes would have detrimental effects on the participation of biological women and girls in sports, including by denying them the opportunity to compete fairly, resulting in the loss of athletic and scholarship opportunities[.]
More importantly, it would lead to the loss of privacy, an increased risk of physical injury, heightened exposure to sexual harassment and voyeurism, as well as a more frequent and accumulated psychological distress due to the loss of privacy and fair and equal sporting and academic opportunities[.]

Right on all counts. A better solution, and it is a problem that wants a solution, even as the Biden administration refuses even to consider the alternative, would be to modify Title IX to create a transgender section and separate transgender athletic programs.

A Critical Item

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Israeli Prime Minister Benjamin Netanyahu is on the right track. In his Christmas Wall Street Journal op-ed, he laid out Israel’s three criteria for achieving real peace in the Gaza Strip:

Hamas must be destroyed, Gaza must be demilitarized, and Palestinian society must be deradicalized. These are the three prerequisites for peace between Israel and its Palestinian neighbors in Gaza.

Netanyahu is well down the right track, but I disagree with him to a slight extent.

The destruction of Hamas (and of the Palestinian Islamic Jihad, I add) is the Critical Item in this trio, and so it is the sole prerequisite to peace in and with the Gaza Strip. Without this, the other two, necessary as they also are, become irrelevant.

Gaza will never be demilitarized so long as the terrorist organizations exist.

It is possible to deradicalize Palestinian society, but that at best will be a multi-generational task—and the Palestinians themselves must be willing, beginning with their letting go of their deeply emotional hatred of all things Jewish.

NACs and the Takings Clause

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The SEC is looking at allowing a new class of enterprises, Natural Asset Companies, to be listed on the NYSE. NACs are companies that would raise capital via the Exchange and ultimately purchase land to prevent its use for natural resource extraction. That is, their sole purpose would be not to make money for their owners, vis., by developing that land or any minerals or other wealth in/below that land, but rather by simply sequestering the land and sitting on it, preventing any wealth creation from it.

In response to a broad-based hue and cry, the SEC has reopened and extended the comment period for this proposed action, but the fact remains, the agency is seriously considering such an action. Utah State Treasurer Marlo Oaks is one of a number of State officials from 21 different States who protested the rule and forced the reopening of the comment period, and who object generally to the rule and its underlying concept altogether. His take on this SEC foolishness:

The proposed creation of Natural Asset Companies is one of the greatest threats to rural communities in the history of our country. Under the proposal, private interests, including foreign-controlled sovereign wealth funds, could use their capital to purchase or manage farmland, national and state parks, and other mineral-rich areas and stop essential economic activities like farming, grazing, and energy extraction. Recreating on Utah’s incredible natural lands could also face significant curtailment.

Marlo could speak only for Utah in the particular examples, but the situation is the same in all 21 States, and in the other 29 States and the several territories of our nation.

However, this might be a venue in which the Left’s views of private property, given concreteness in the Supreme Court’s badly misguided decisions in Berman v Parker, Hawaii Housing Authority v Midkiff, and Kelo v City of New London could come back to bite them. In Kelo, especially, the Court ruled that it was perfectly jake for private property, a widow’s home, to be seized by the city of New London, CT, and turned over to a private enterprise, a mall developer, for his benefit, and further that such seizures need not be limited to public use: the developer wanted to build another mall, a private use, on land that included the widow’s home.

Were the SEC to follow through, and its rule to stand, then it could be that suitably situated State governments could then seize the NACs’ land holdings and turn them over to State agencies for public use, per the original text and meaning of our Constitution’s 5th Amendment Takings Clause, or, per Kelo, to private enterprises for private exploitations of the lands.

Here’s that Takings Clause:

…nor shall private property be taken for public use, without just compensation.

 

Berman, Midkiff, and Kelo can be read here, here, and here, respectively.

Search Warrants and Sect 702

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The Wall Street Journal editors are worried about a House Judiciary Committee proposal to reform Foreign Intelligence Surveillance Act’s Section 702 (the proposal has subsequently been withdrawn for unrelated reasons). Their plaint centers on the Committee’s proposal to require search warrants to look at emails already lawfully collected.

The House Judiciary Committee…bill would require a warrant for queries of US persons, even though the information was already lawfully collected.

Contra the worthies at the WSJ, the Judiciary bill is well down the right track. The information about which the editors worry was, indeed, lawfully collected, but only as a side effect of the collection run against a foreign entity. To explicitly look at—to read—those accidentally collected emails, to make those emails explicit targets of a search, that absolutely should require 4th Amendment search warrants.

Further, those warrants should be issuable only by an Art III judge or a magistrate directly subordinate to an Art III judge, and the FISA court should be removed completely.

Convenience and the FBI

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Stewart Whitson, late of the FBI and currently Foundation for Government Accountability Legal Director, decried in his Tuesday Wall Street Journal op-ed, a Consumer Financial Protection Bureau effort to completely eliminate the ability of credit-reporting companies to sell credit-header data to law enforcement agencies, including to the FBI. Those header data include a variety of identifying material but, as Whitson was careful to emphasize, no financial information.

This, actually, is one of the few things the CFPB would get right were it to follow through.

In support of his plaint, Whitson related an 8-year-old incident in which he and a partner were conducting surveillance on a suspect and observing his contact with a third individual. Whitson bragged about being able to use credit-header data—but no financial data, mind you—to contact that third individual, arrange a meeting, and through that, foil the suspect’s planned terrorist attack.

Without the credit-header data, we might not have been able to contact the occupant for a while, giving [the suspect] more time to carry out his attack.

Whitson bragged about FBI success with such purchases and then put his disingenuous question.

I worked on hundreds of terrorism-related investigations at the FBI, all of which relied on credit-header data. Why doesn’t the CFPB want law enforcement to have quick access to this information?

Perhaps because the purchases are, at bottom, violations of our Constitution’s inconvenient 4th Amendment, regardless of their convenient-to-government speed.

How inconvenient it is, after all, to follow the Constitution’s requirement for warrants before searches occur. That the FBI got lucky—or even that purchasing personally identifying data (the lack of financial data being a cynically offered red herring here) materially helped—in no way legitimizes the FBI’s bypassing Constitutional requirements.

Get the warrants. If it often takes too long to get them, and that’s a legitimate beef, work on streamlining the process through the political branches of our government: the House and Senate. The Executive Branch does not get to skip the hard work or usurp political branch authorities.

Not even when its FBI claims that anxious and enthusiastic mothers at school boards are akin to domestic terrorists or that traditional Catholics are behaving suspiciously.