The interpretation of federal law should be made not by judges but by the beliefs and commitments of the U.S. president and those around him, according to Sunstein. "There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him," argued Sunstein.[18]
Sunstein (along with his coauthor Richard Thaler) has elaborated the theory of libertarian paternalism. In arguing for this theory, he counsels thinkers/academics/politicians to embrace the findings of behavioral economics as applied to law, maintaining freedom of choice while also steering people's decisions in directions that will make their lives go better. With Thaler, he coined the term "choice architect."[19]
Military commissions
In 2002, at the height of controversy over Bush's creation of military commissions without Congressional approval, Sunstein stepped forward to insist, "Under existing law, President George W. Bush has the legal authority to use military commissions" and that "President Bush's choice stands on firm legal ground." Sunstein scorned as "ludicrous" an argument from law professor George P. Fletcher, who believed that the Supreme Court would find Bush's military commissions without any legal basis.[20]
First Amendment
In his book Democracy and the Problem of Free Speech Sunstein says there is a need to reformulate First Amendment law. He thinks that the current formulation, based on Justice Holmes' conception of free speech as a marketplace “disserves the aspirations of those who wrote America’s founding document.”[21] The purpose of this reformulation would be to “reinvigorate processes of democratic deliberation, by ensuring greater attention to public issues and greater diversity of views.”[22] He is concerned by the present “situation in which like-minded people speak or listen mostly to one another,”[23] and thinks that in “light of astonishing economic and technological changes, we must doubt whether, as interpreted, the constitutional guarantee of free speech is adequately serving democratic goals.”[24] He proposes a “New Deal for speech [that] would draw on Justice Brandeis' insistence on the role of free speech in promoting political deliberation and citizenship.”[
http://en.wikipedia.org/wiki/Cass_Sunstein
Here is Glenn Greenwald's take on Sunstein written way back in March 2010.
In 2002, at the height of controversy over Bush’s creation of military commissions without Congressional approval, Sunstein stepped forward to insist that ”nder existing law, President George W. Bush has the legal authority to use military commissions” and that “President Bush’s choice stands on firm legal ground.” Sunstein scorned as “ludicrous” the argument from Law Professor George Fletcher that the Supreme Court would find Bush’s military commissions without any legal basis. Four years later — in its Hamdan ruling — the Supreme Court, with Justice Stevens in the majority, held that Bush lacked the legal authority to create military commissions without approval from Congress, i.e., the Court (and Stevens) found Bush lacked exactly the “legal authority” which Sunstein vehemently insisted he possessed. Had Sunstein been on the Court then instead of Stevens, that decision presumably would have come out the opposite way: in favor of Bush’s sweeping claims of executive authority.
Worse still, in 2005, Sunstein became the hero of the Bush-following Right when, in the wake of revelations that the Bush administration was illegally eavesdropping on Americans, he quickly proclaimed that Bush was within his legal rights to spy without warrants in violation of FISA. Sunstein defended Bush’s NSA program by embracing the two extremist arguments at the core of Bush/Cheney lawlessness: that (1) the AUMF silently authorized warrantless eavesdropping in violation of FISA and, worse, (2) the President may have a plausible claim that Article II ”inherently” authorizes warrantless eavesdropping regardless of what a statute says.
http://www.salon.com/2010/03/26/court_3/
Since Sunstein may have a personal reason to disagree with Greenwald after Greenwald's scathing comments, I think that Sunstein is a very poor choice for this commission, a very poor choice indeed.
Swire is maybe kind of middle of the road on internet privacy. Here is an article on him. He isn't a strong advocate for privacy, but sounds more reasonable than Sunstein.
http://www.nytimes.com/2012/11/29/technology/mediator-appointed-in-do-not-track-efforts.html?_r=0
Not much independence on that commission in my view.
More on Swire's association with the organization, "Future of Privacy."
http://www.futureofprivacy.org/category/the-team/
Richard Clarke's comments on the Patriot Act and surveillance from 09/2011
Q: The Patriot Act, has it worked, or was it overkill?
Clarke: A lot of people react negatively to the Patriot Act when the phrase is used because they associate things with the Patriot Act that frankly aren't in it, things that were abusive. And when you go back and look at the Patriot Act none of those things were justified by the act. There were a few minor things that needed adjustment in it. But overall I think it did help break down the wall between the FBI people working on criminal cases and the FBI people who were working on intelligence cases. That so-called Chinese wall that existed between the two was really detrimental.
So, have there been any abuses or overstepping of bounds?
Clarke: I haven't seen one. That's not to say there hasn't been any. I am aware there are some provisions where it was never specified that there had to be a terrorism-related predicate, and that's a tweak that should be made. There are some cases where, for example, national security letters were signed out originally by FBI officers who were mid-level supervisors and that's been changed so you have to have a senior officer sign them out. So there were minor problems. But I'm not aware of any really major problems that resulted from the Patriot Act. That's not to say there weren't abuses but they weren't authorized by the Patriot Act.
Do you think the Patriot Act should be amended to require a warrant for an agency to read someone's e-mail or track their location, say via cell phone GPS?
Clarke: Yes, I believe a warrant should be necessary for the government to access personal e-mail.
. . . .
So, what is the vision of the future for privacy and surveillance?
Clarke: I think we need to have in the federal government a civil liberties protection and privacy protection point in the White House. The 9/11 Commission recommended that and Congress authorized it. As far as I know President Obama has not even appointed the Civil Liberties Commission, unless I missed it. I think we need to have a bipartisan group that is reporting to the president that has top clearances and can see everything and have subpoena authority and can look at activity to see if anyone in the government is engaged in questionable activities that violate privacy rights or civil liberties. But we need a clear understanding first of what privacy rights are. In the U.S. those rights are not as clearly defined as they are in Europe, unfortunately. The European standard is that you have to opt in to data collection by commercial companies and the American standard is you have to opt out. So commercial companies know an enormous amount about you.
http://news.cnet.com/8301-27080_3-20108374-245/richard-clarke-on-patriot-act-wikileaks-privacy-q-a/
Morrell has been at the CIA for some time and may bear some responsibility for the mess the surveillance program seems to be in (I'm just guessing and don't know that is true) sounds a little paranoid, but sane enough from this very recent Wall Street Journal article:
WASHINGTON—The Central Intelligence Agency's second-in-command warned that Syria's volatile mix of al Qaeda extremism and civil war now poses the greatest threat to U.S. national security.
Michael Morell who, at the CIA may have had some input (but maybe says the risk is that the Syrian government, which possesses chemical and other advanced weapons, collapses and the country becomes al Qaeda's new haven, supplanting Pakistan.
. . . .
Rounding out Mr. Morell's list of threats are cyberattacks, because U.S. adversaries are working hard to develop attack capabilities. Cyberattacks that destroy networks in the U.S., he said, could come in the next few years. Cyberattacks are "the thing I worry most about in the long term," he said.
http://online.wsj.com/article/SB10001424127887323420604578652330222498920.html
Also from a very recent article on Morell from the Huffington Post:
(excerpt from a letter from Morell on his resignation)
Whenever someone involved in the rough and tumble of Washington decides to move on, there is speculation in various quarters about the “real reason.” But when I say that it is time for my family, nothing could be more real than that.
From being the PDB briefer at the side of President Bush on that horrific day in September 2001 to being at President Obama’s side as the United States brought Bin Ladin to justice in May 2011—and all the ups and downs in between—few Americans have been as privileged as I have been to work at, and to represent, such an extraordinary organization.
. . . .
WASHINGTON — CIA Deputy Director Michael Morell, who defended harsh interrogation techniques and was involved with the fallout after the attack on the diplomatic outpost in Benghazi, Libya, announced his retirement Wednesday.
http://www.huffingtonpost.com/2013/06/12/michael-morell-resigns_n_3430155.html
There aren't any real defenders of civil liberties in that group. The closest is maybe Peter Swire, second closest Richard Clarke in my opinion based on my very, very superficial research in the past few minutes.
Looks like a whitewash in the making.
The emphasis will be on preventing terrorism, and that is good, but the approach is not going to be balanced enough from the point of view of protecting our privacy rights in my opinion. I sure hope that I am wrong. And I could well change my mind as I learn more about these individuals, but it looks to me like Obama has picked a commission to sell the program he has, maybe clean up a tiny bit just for looks, but it looks like the goal will be to sell the public on what will be a very superficial clean-up of the surveillance.
ALL surveillance needs to be ended, starting with private companies that snoop without first obtaining our permission. I want to be able to choose whether a company can send me e-mails or watch as I look at knitting or gardening stuff online. I do not want anyone reviewing or collecting or doing anything to my e-mails, not people in corporations, not people in foreign countries and not my own government. I don't have things to hide. It is just the principle of the matter. I have curtains on my window. I also wear clothing. It's not that I have something to hide. It's that I like to have privacy.
It's odd. The same government that will arrest you for indecent exposure if you walk out your door in the morning completely naked wants to look at your phone bill and your e-mail contacts list. Very odd. Maybe we should all pull an Anthony Weiner and just send ourselves e-mails with pictures of us wearing nothing at all. I'm joking of course, but it might put the folks on the commission on notice that we really object to what they are doing and that it makes no sense.
= new reply since forum marked as read
standard, being rolled out currently.
