The Long View 2005-12-20: Domestication; Wiretaps; Scandals Past


Earlier this week, I said that Greg Cochran's the 10,000 Year Explosion was one of the five books that have influenced me most. I've probably given different answers to this kind of question in the past, but right now this is pretty accurate.

In this 2005 blog post, John Reilly mentions some of the things that Cochran and Harpending discuss in their book.

Domestication; Wiretaps; Scandals Past

The human condition is cast in a troubling light by this finding:

A detailed look at human DNA has shown that a significant percentage of our genes have been shaped by natural selection in the past 50,000...This analysis suggested that around 1800 genes, or roughly 7% of the total in the human genome, have changed under the influence of natural selection within the past 50,000 years. A second analysis using a second SNP database gave similar results. That is roughly the same proportion of genes that were altered in maize when humans domesticated it from its wild ancestors...Genes that aid protein metabolism – perhaps related to a change in diet with the dawn of agriculture – turn up unusually often in [the] list of recently selected genes. So do genes involved in resisting infections, which would be important in a species settling into more densely populated villages where diseases would spread more easily. Other selected genes include those involved in brain function, which could be important in the development of culture.

Am I the only one who remembers the song that goes, "We'll make great pets"? Evidently not.

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More gerbil-brained behavior was evident in the reactions of members of Congress to President Bush's observation that they had, in fact, been informed of the extraordinary wiretaps he had directed the NSA to conduct:

Some Democrats say they never approved a domestic wiretapping program, undermining suggestions by President Bush and his senior advisers that the plan was fully vetted in a series of congressional briefings.

Some now say that they were troubled by this outrage from the very beginning and protested most vehemently:

"I feel unable to fully evaluate, much less endorse, these activities," West Virginia Sen. Jay Rockefeller, the Senate Intelligence Committee's top Democrat, said in a handwritten letter to Vice President Dick Cheney in July 2003. "As you know, I am neither a technician nor an attorney."

So also says:

House Minority Leader Nancy Pelosi, D-Calif., received several briefings and raised concerns, including in a classified letter, her spokeswoman Jennifer Crider said.

In contrast, the brighter ones know enough to play dumb. If they had enough information to raise the suspicion that something might be wrong, after all, then they should have done something about it. That is what consultation with the Executive Branch is for. So, we are also getting reactions like this:

"It seemed fairly mechanical," Graham said. "It was not a major shift in policy."

And to similar effect:

Daschle's successor, Sen. Harry Reid, D-Nev., said he received a single briefing earlier this year and that important details were withheld. "We need to investigate this program and the president's legal authority to carry it out," Reid said.

Confusion makes merry with a death-wish in this comment from Jonathan Alter:

This will all play out eventually in congressional committees and in the United States Supreme Court. If the Democrats regain control of Congress, there may even be articles of impeachment introduced. Similar abuse of power was part of the impeachment charge brought against Richard Nixon in 1974.

In reality, it is hard to see how President Bush's executive orders in this matter could ever wind up in the Supreme Court: the only people who could file a lawsuit to contest them would be the people whose communications were monitored, and their names are secret. More interesting is the notion, which has been popping up in recent weeks, that a change in the control of the House of Representatives in next year's election would mean impeachment for President Bush, if not necessarily conviction in the Senate.

I may be quoting Instapundit again, but impeachment might be the one issue that could maintain a Republican majority. Many people, including me, had been considering voting Democratic next year, to punish the Republican Party for its irresponsible fiscal policies and its refusal to acknowledge the malfunctioning of the health-care system. If it becomes clear that voting to put a Democrat in office means voting to eject President Bush from office, however, there will simply be a repeat of the election of 2004.

And speaking of the election of 2004, we know that the New York Times knew about the NSA program before that election and considered running with the story then. Why did they decline? Their candidate, John Kerry, was trying to look serious on defense issues. If the NSA program had been revealed, he would have been faced with the choice of saying he would have done the same thing, or opposing what no one denies was necessary surveillance because of some questionable technicalities. Perhaps the Times realized that Kerry would try to say both.

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Speaking of technicalities, the continuing discussion at The Volokh Conspiracy shows how close a question the legality of the NSA wiretaps was. The basis for discussion there is Orin Kerr's analysis of the constitutional and statutory issues. His assessment is that the NSA program was probably constitutional, but that it probably violated the Foreign Intelligence Surveillance Act (FISA) by failing to require judicial warrants. That is, by the way, more or less the Bush Administration's position, too. However, the Administration also argues that the Congressional act, passed after 911 to authorize the use of force to prevent further attacks, superceded FISA in this context: intelligence, after all, is part of the use of force, and so the surveillance of communications between al-Qaeda contacts in the United States with al-Qaeda abroad was authorized by the later and narrower statute.

This is a toughie. The Supreme Court did find that the post-911 authorization act did allow the military to make arrests in Afghanistan, but the relevant decision was written by Justice O'Connor, so no one knows what it means. As Kerr point out, it would be a stretch to extend that act to cover wiretaps, but the argument is not unreasonable.

The comments to Kerr's analysis are very good, too. They point out that the NSA program may not have been within the purview of FISA at all, if the intercepts were done outside the United States, or if the people whose communications were being watched could be classed as foreign agents, or if the taps were on email addresses and telephone numbers rather than people. These are factual questions, of course, and they may be the sort of facts that have to remain secret.

A final point, by the way: legality means nothing in an impeachment prosecution, in the sense that no court could review what Congress does in this area. President Bush could be impeached even if the NSA program were authorized.

Perhaps now the impeachment of President Clinton for nothing in particular seems like a less dandy idea?

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Again, I could be missing something, but it seems to me that this will be another case where the accusation becomes the scandal rather than what the accused is supposed to have done.

My favorite meaningless scandal is, of course, the Affair of the Necklace, the baroque (no, roccoco) intrigue at the fringes of the court of Louis XVI. The Affair, a great fraud in which a cleric, who sought to return to the queen's favor, was duped into facilitating the theft of a necklace of legendary cost, went a long way toward persuading the French people that everyone involved, innocent and guilty, was a head too tall. It's a long story, but look how it turned out:

The cardinal de Rohan accepted the parlement of Paris as judges. A sensational trial resulted (May 31, 1786) in the acquittal of the cardinal, of the girl Oliva and of Cagliostro. The comtesse de Lamotte was condemned to be whipped, branded and shut up in the prostitutes' prison, the Salpêtrière. Her husband was condemned, in his absence, to the galleys for life. Villette was banished.

Yes, in those days that had Cagliostro for their scandals. There was never any reason to believe he might have been involved; he was arrested because in the neighborhood. How the world has worsened.

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