Concurring Opinions » Heidi Kitrosser

I KNEW that global warming was a hoax!!

Heidi Kitrosser — Sat, 23 Dec 2006 16:40:47 +0000

From The Onion:

Al Gore Caught Warming Globe to Increase Box Office Profits

Abusive Secrecy

Heidi Kitrosser — Fri, 22 Dec 2006 23:39:42 +0000

Here are some statements from an op-ed published in February, 1989 in the Washington Post:

“It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.”

The author also referred to the famed Pentagon Papers case of the early 1970s, in which the Nixon administration had sought to enjoin press publication of a Defense Department-commissioned history of the Vietnam War. The op-ed author wrote: “I have never seen any trace of a threat to the national security from the [Papers'] publication. Indeed, I have never seen it even suggested that there was such an actual threat.”

Who wrote this op-ed piece? None other than Erwin N. Griswold, former Solicitor General of the U.S. during the Nixon Administration, who argued the Pentagon Papers case before the Supreme Court on behalf of the White House.

Griswold’s words — not to mention his very example as a government servant who fought tooth and nail for secrecy only to acknowledge later that the fight was unjustified — resonate all too well today. Just this past week, we’ve seen the release of a classified document that was the subject of a major subpoena brouhaha until the government finally released the document and its innocuous nature became clear. Also released after twenty-five years was was the previously classified FBI file on John Lennon, revealing such shockers as the fact that “Lennon has encouraged the belief that he holds revolutionary views, not only by means of his formal interviews with Marxists, but by the content of some of his songs and other publications.”

Today, the NY Times op-ed page features a stunning piece by two former CIA employees, explaining that the CIA refuses to let them release an unredacted op-ed about Iran policy. The CIA concluded on its own that the piece contains no classified material, but explained to the former employees (who are subject to a pre-publication review agreement as ex-employees) that the agency “had to bow to the White House.” Because all of the redacted information apparently is in the public domain, the ex-employees have released the redacted op-ed along with citations to public sources that fill in the redaction gaps. The authors acknowledge that readers will have to review each of the citations “to make much sense of [the] Op-Ed article.” Needless to say, such a cumbersome read is far less likely to be effective, let alone to get read, than would a single, unredacted piece.

I don’t know of anyone who seriously suggests that the government must never keep secrets. Secret-keeping sometimes is a necessary evil to protect national security and other government functions. But abusive secrecy in the form of massive over-classification, unwarranted pre-publication restraints, etc. should not be tolerated in a system that is founded in large part on the free flow of ideas, an informed populace, and ultimately self-government. Nor MUST it be this way. Both Congress and the courts can play a much more active watch-keeper role over executive branch secrecy than they generally do. As I have written about here and here (and in a forthcoming piece on classification leaks and the First Amendment which I haven’t yet released) such a role is entirely consistent with, even demanded by, the checks and balances that are supposed to keep our system from devolving into tyranny.

Balkin on the Subpoena Power as an End-Run Around the First Amendment

Heidi Kitrosser — Thu, 14 Dec 2006 15:36:50 +0000

Very good discussion by Jack Balkin of the administration’s dangerous new use of the subpoeana power. In a nutshell, the administration is attempting to use the subpoena power to create a de facto prior restraint on speech by demanding “any and all copies” of a document, thus making it impossible for a speaker ever to disseminate the document. As Balkin explains, this amounts to an attempted end-run around the very strong judicial presumption against prior restraints on speech — a presumption that applies even to classified information dissemination. See, e.g., the Pentagon Papers case.

on exams and motivation (or “good luck on exams!”)

Heidi Kitrosser — Mon, 11 Dec 2006 16:24:41 +0000

Good luck to all students on their exams.

Given that it’s exam time, it only seems fitting that there’s been some talk lately in the blogosphere about motivation. See this terrific first post by fellow C.O. blogger Marcy Peek, and this great little note by Jim Chen over at MoneyLaw.

Here are my two cents. First, I couldn’t agree more with Jim & Marcy that one should frequently remind one’s self of the big picture reasons why one came to law school, why one is struggling through exams, etc. Second, I think it’s also key to find a way to appreciate the day-to-day struggle itself. Sure, there’ll be lousy days, depressing moments. That’s part of being human. But if you can find some joy, purpose and excitement in the day-to-day process, make some good friends along the way, and remember your big picture reasons for going through that process – especially in the not-so-joyful moments — well, that makes for a pretty successful existence, I think.

So good luck and enjoy your well-deserved breaks when exams are done!

Borat & Free Speech

Heidi Kitrosser — Fri, 08 Dec 2006 04:26:40 +0000

I just saw a link to this story at Althouse:

“Borat” lawsuit takes aim at forthcoming DVD

Thu Dec 7, 2006 5:18 PM ET

LOS ANGELES (Reuters) – A Los Angeles judge on Thursday said he would consider a request by two U.S. college students to have a scene cut from the hit movie “Borat” that shows them guzzling alcohol and making racist remarks.

In a lawsuit originally thrown out a month ago and now aimed at DVD sales, the fraternity brothers said they were tricked into appearing in the film and that including the scene on the forthcoming DVD would harm their chances of finding work.

To quote Althouse, “Outrageous!”

Also, I think that the free speech case law winds blow pretty strongly against this. The most on point Supreme Court case probably is Bartnicki v. Vopper (2001). If I may plagiarize my own work for a moment (just an excerpt from a paragraph in a work-in-progress in which I summarize Bartnicki): The Bartnicki Court invalidated federal and state privacy statutes as applied against a private citizen and a radio station for disseminating illegally intercepted cellular telephone conversations. In the intercepted conversations, members of a teachers’ union discussed a labor dispute. The Bartnicki Court made clear that its analysis was limited to the relevant factual context, in which “respondents played no part in the illegal interception . . . their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else . . . [and] the subject matter of the [intercepted] conversation was a matter of public concern.”

Granted, I gather that the plaintiffs here allege that the Borat folks _did_ illegally gain their cooperation in addition to disseminating the end result, so obviously that’s a potential ground for distinction. Plus, they likely will try to argue that the Borat movie is largely for entertainment value, as opposed to having clear-cut political relevance as in a labor dispute.

HOWEVER, these distinctions shouldn’t fly, I think, for a few reasons: First, the Court has never resolved how a Bartnicki type case would go were the information obtained illegally by the disseminator, so it’s not clear that such a distinction automatically requires a different result. Second, assuming that the men’s cooperation was gained under false pretenses, agreeing to be taped for a film under false pretenses as to where the film will be shown and the nature of the film seems substantially less invasive than having a phone conversation that you believe to be private intercepted and published. To the extent that the Bartnicki Court essentially balanced out various interests, including speaker privacy and free speech, the extent of the invasiveness seems relevant. Third, there are sound arguments to the effect that Borat is politically relevant as an attempt at political satire about racism, sexism, anti-semitism, etc. Fourth, and perhaps most importantly, the remedy sought by the plaintiffs is a restraint on future speech, rather than civil or criminal penalties. (They might also be seeking the latter — I don’t know either way). Courts virtually always deem prior restraints substantially more troubling than post-publication punishments. Granted, this restraint is unusual in that it would occur after the speech already has been widely disseminated. But it would still be a prior restraint with respect to future prints, perhaps all DVD sales, etc. Plus, to the extent that wide dissemination already has occurred, that would seem to diminish the degree of relief that the plaintiffs can obtain from restraint, thus further impacting the balance of interests against the plaintiffs.

Information Manipulation and the Iraq Study Group Report

Heidi Kitrosser — Thu, 07 Dec 2006 05:24:24 +0000

A line from the report:

”Good policy is difficult to make when information is systematically collected in a way that minimizes its discrepancy with policy goals.”

amen to that!

The line referred to systematic underreporting of Iraq violence. A bit more elaboration here.

beer, Santa, and commercial speech

Heidi Kitrosser — Thu, 07 Dec 2006 00:15:36 +0000

Over at PrawfsBlawg, Rick Garnett posts the following:

Free-speech beer

“Ban on Saucy Beer Labels Brings a Free Speech Suit,” the New York Times reports.

Santa Claus will not be coming to Maine this year, at least not on a beer label, if state officials have their way.

The state’s Bureau of Liquor Enforcement in September rejected three beer labels proposed by Shelton Brothers, a Massachusetts beer importer, including one for “Santa’s Butt Winter Porter” that depicts St. Nick from behind, checking a list and drinking a beer, his ample posterior on a wooden barrel.

The bureau said the labels violated a regulation stating that alcohol advertisements cannot contain “undignified or improper illustrations.”

Sorry, I couldn’t resist.

This fact scenario is pretty amusing. But it also makes me think about a First Amendment issue over which I’ve long been torn – the appropriate level of protection for commercial speech. I’m curious as to opinions that others may have on the matter. So I’ll begin with a bit of background on the issue and then I’ll end with a question.

There’s a longstanding debate on this matter in the scholarship. Just to give a few examples, Marty Redish argues that self-realization is the core First Amendment value, that this value is infringed every time the state limits the information that we may disseminate or that we may gather to inform ourselves of matters impacting major and minor life choices. From this, he argues, it follows that information about our daily commercial decisions should be protected at the same level as political and other forms of speech. (See, e.g., Redish, The Value of Free Speech, 130 Penn. L. Rev. 591 (1982))Ed Baker focuses on the autonomy of the speaker and argues that commercial speech is less valuable than political and some other forms of speech from this perspective because commercial speech is motivated by an individual’s desire for commercial gain, not necessarily by their true beliefs. (See, e.g., Baker, Realizing Self-Realization: Corporate Political Expenditures and Redish’s The Value of Free Speech.) On the other hand, Alexander Meikeljohn deems the facilitation of self-government the core free speech value. (See, e.g., MEIKLEJOHN, FREE SPEECH AND IT’S RELATION TO SELF-GOVERNMENT (1948))From this perspective, commercial speech is of lesser value and deserves less protection.

The Supreme Court has been as confused about this question over the years as the next person, gravitating from a position of no protection for commercial speech to varying levels of protection for the same. At present, perhaps the most frequently invoked doctrinal test for assessing commercial speech regulations is called the Central Hudson test, named for a case called Central Hudson Gas & Electric v. Pub. Svce. Cmmn.

The central Hudson test asks if:

1. The regulated speech concerns an illegal activity,

2. The speech is misleading, or

3. The government’s interest in restricting the speech is substantial, the regulation in question directly advances the government’s interest, and the regulation is no more extensive than necessary to serve the government’s interest. (The Court in later cases explicitly referred to question 3 as “intermediate scrutiny,” as distinct from rational basis review or the strict scrutiny that “high value” speech regulations receive).

As I said at the beginning, I’ve long been torn on the commercial speech front. I’m inclined of late to side with the notion that free speech, at its core, is most about facilitating the process of self-government and checking of our governors. At the same time, I think that we must protect other forms of speech partly because of the difficulty of separating out the different types, the politically and socially relevant content potentially present in any and all types of speech (perhaps by definition in cases where people find speech content culturally or otherwise objectionable), and the values, such as individual autonomy, etc., with which self-government itself is intertwined (this last point is a major part of Redish’s argument, by the way)).

From this perspective, I’m inclined to think that time, place and manner restrictions that give more advantage to political versus commercial speech (say, phone solicitation restrictions that do not apply to political groups) often will be acceptable, and that fraud restrictions on commercial speech can be more stringent than those on defamatory speech in the context of debate about politics or public figures. At the same time, I’m very wary of lowering the bar on restrictions for content that occurs within commercial speech and that doesn’t involve lying about the market transaction – say, oh, I don’t know, a state restriction on offensive usage of Santa in beer advertisements! My concern is that the value of the genre as a whole (commercial speech) is different from the value of the content within a given product of the genre. As with any speech, there is no telling what content of what social or political relevance will pop up within a given bit of commercial speech. So perhaps there’s something to be said for allowing more sweeping regulations of the genre as a whole (especially where space, etc., is limited), more sweeping regulations of the genre that involve truth about the commercial transactions at stake, but broad protections of content within the genre that don’t relate to factual truths.

For free speech doctrine nerds (totally unlike myself), you’ll note that this in many respects is an “R.A.V.” type analysis.

I’m curious as to the views that others might have on this front. Any thoughts?

Silicone Injections & The Twilight Zone

Heidi Kitrosser — Wed, 06 Dec 2006 19:34:18 +0000

Frank previously has blogged about the “Beauty-Industrial Complex.” This story in today’s L.A. Times is another reminder of the serious health risks through which some people will put themselves in the quest for eternal youth and “beauty.” As the blurb under the headline sums it up, “‘Dr. Daniel’ gets prison after injecting Beverly Hills women with a wrinkle remover better suited to a Bentley.” The injections were given at fancy house parties … sort of like tupperware parties with industrial-grade silicone, loads of cash and syringes.

All of this reminds me, by the way, of an excellent old Twilight Zone episode: “Eye of the Beholder” — the picture above is a scene from the same.

Tim Noah: “Happy Birthday, Iran Contra!”

Heidi Kitrosser — Thu, 30 Nov 2006 00:07:29 +0000

Timothy Noah has a great piece in slate.com entitled “Happy Birthday, Iran Contra!”

In it, he questions why the scandal’s 20th anniversary has seen virtually no media coverage. Noah’s take: (1) The various factual and legal issues were “mind-numbingly complex,” and hence not conducive to media sound-bites and (2) Noah makes the interesting argument that: “To the extent one can tease out a story line, the Iran-Contra saga is at odds with what we “know” about some of the characters involved, a great many of whom hold positions of power in the current Bush administration.”

He also offers some lessons that we can glean from the scandal including:

“Even when Congress forbids specified activities touching on national security, presidents will be tempted to ignore the law, and when they do, they will tend not to suffer many consequences.”

On that last point, keep in mind that the NSA surveillance program is still ongoing, it is unclear what if anything the new (or lame-duck) Congress will do about it, and the Bush Administration only just approved security clearances for a limited DOJ investigation of the program (one that will not consider the program’s legality), after effectively shutting down a more expansive DOJ ethics investigation last year by denying security clearances to investigators.

Keep in mind also that a grand jury investigation has been convened as a possible precursor to prosecutions for those who leaked and/or published information revealing the existence of the once-secret NSA program. I hope to blog more at some point about this last subject (criminal prosecution of classified information leaks).

“The Little Bit of Michael Richards in Us All”

Heidi Kitrosser — Tue, 28 Nov 2006 00:45:32 +0000

This post’s title is a teaser that I heard on NPR this morning, referencing an upcoming story. While I missed the story itself, I was encouraged by the teaser line. Encouraged, because it suggests that the story was to take an approach similar to that which many other media stories have taken in discussing Michael Richards’ racist outburst. The approach being one which does not single Richards out as an evil racist in contrast to all of us egalitarian, non-racist folks. Rather, the approach sees Richards’ outburst as symptomatic of a much, much larger, ubiquitous undercurrent of racism in our society, one which lurks to some degree in all of us, threatening to bubble to the surface under pressure. For stories on Richards’ outburst that take this approach in whole or in part, see, e.g., Spencer Overton’s excellent piece in blackprof.com; this op-ed in the Washington Post; and this op-ed in the Baltimore Sun.

This approach is an important one because it is grounded, I think, in a deeply important truth. Most of us understand intellectually that it’s wrong to judge people for the color of their skin, the language that they speak, their gender, their sexual orientation, their national origin, and countless other factors that have nothing to do with the “content of [our] character[s],” to paraphrase the great Martin Luther King., Jr. And we know this to be the case not simply because we have been told so, but because logically and from experience with diverse groups we realize that it simply makes no sense, and is deeply, painfully unfair, hurtful and destructive to judge one another by such factors. That said, we continue to live in a society that is fraught with racist, sexist and other stereotypes, stereotypes that pervade our culture and the barely conscious attitudes of even the most well-meaning among us. This is not a surprise: women have had the vote for less than a century, and state sanctioned racial segregation existed well into the 20th century. It takes a long, long, long time for a society and its people to purge itself of the social inequalities, divisions and attitudes bred by such longstanding discrimination. From this perspective, the view that we are all creatures of our society and that we all must harbor some degree of racism, sexism, homophobia, etc., is hardly a radical one. And I certainly do not exempt myself from this observation. I can think of many occasions in which I realized in retrospect that I had judged or treated someone differently because of their race or gender.

The first step in getting past this terrible social and cultural legacy is for each of us to recognize and admit, at least to ourselves, the racism, sexism and similar forms of stereotype and group-based hostility that lurk within us. Pointing to people like Richards as uniquely racist and evil not only seems incorrect, but seems to miss the point entirely. Rather, we should take events like the Richards outburst as an opportunity to admit the hatred and stereotyping that continues to exist within our society, and within all of us. Only then can we confront that which we harbor within us, but which most of us understand is very, very wrong. That the Richards incident seems to have sparked just such a national conversation is a sign, I think, that there is much about which to be hopeful as we continue to evolve as a society.

Billy Bob Thornton and the Law

Heidi Kitrosser — Sat, 25 Nov 2006 20:22:42 +0000

Okay, okay, I’m a big liar, this post has nothing to do with the law. Though Billy Bob Thornton really does factor into the post. And I’m pretty sure I’d have a First Amendment defense to any false advertising suits — my immediate admission of lying arguably negates any misleading aspects of the title. And I don’t know that any restriction on my misleading title could be sufficiently tailored toward a substantial governmental interest. (See, e.g., Greater New Orleans Broadcasting v. U.S. (citing Central Hudson Gas & Elec. Co. v. Pub. Svce. Commission)). Not to mention, doesn’t this paragraph on the First Amendment bring the law into my post, thus making my title technically true??

ANYWAY … the post REALLY is about winter holiday movies. What with the holiday season now upon us, I thought it important, nay, CRUCIAL, to pose and to ponder this pressing question: what makes for the best holiday movie double feature?

My nomination:

“It’s a Wonderful Life” + “Bad Santa”

When you think about it, both end on pretty much the same note, reflecting the fact that they’re about pretty much the same thing. Sure, “It’s a Wonderful Life” ends with all of the townspeople gathered ’round the Bailey household, toasting George Bailey (Jimmy Stewart) and singing “Auld Lang Syne,” as George reads a written message sent to him from heaven by the angel Clarence. “Bad Santa” ends with a little kid in a t-shirt that says “S**t happens when you party naked,” reading a letter sent to him by Willie (Billy Bob Thornton), as Willie recovers from multiple bullet wounds.

But look past those minor surface differences … each ends with an important written message to the effect that it’s our friends who give our lives meaning. Bad Santa’s just a bit, well, rougher around the edges in expressing it.

See what I mean?:

“No man is a failure who has friends.” – Clarence the Angel, writing to George Bailey in “It’s a Wonderful Life”

“Dear Kid. I hope that you got my present and that there wasn’t too much blood on it, although there was blood on the present you gave me which didn’t keep me from enjoying it, so maybe the blood doesn’t matter so much I guess.” – Willie, writing to “the kid” in “Bad Santa”

In any event, I, like Billy Bob Thornton and Jimmy Stewart before me, wish you all much love and friendship in the coming months and years!!

Murumba & Sebok on “Brooklyn Style Pizza”

Heidi Kitrosser — Wed, 22 Nov 2006 18:45:16 +0000

Sam Murumba and & Tony Sebok of Brooklyn Law School have a nice post up at Findlaw entitled:

Should the Law Regulate Whether and When Corporations Use Locality-Based Food Designations Such as “Brooklyn Style Pizza”?

The Significance of Appellations of Origin

The post relates to issues raised in recent Concurring Opinion posts by Kaimi Wenger and Christine Farley. Kaimi considered why New Yorkers would ever opt for a Domino’s “Brooklyn pizza” over a real NYC pizza. And Christine raised the possibility of regulating locality designations in the context of African artisans.

hat tip to Jason Mazzone of Brooklyn Law School for the cite.

The fabulous Brooklyn Law School, by the way, is my old stomping grounds. And I must include a shout-out to “My Little Pizzeria” on Court Street in Brooklyn Heights … best pizza I’ve ever had in my life!

Mia Fineman on Fernando Botero’s Abu Ghraib Paintings

Heidi Kitrosser — Sun, 19 Nov 2006 19:22:38 +0000

a very powerful slide show and insightful commentary at slate.com:

http://www.slate.com/id/2153674/slideshow/2153797/

“Self-Important Law Professor Blog”

Heidi Kitrosser — Sat, 18 Nov 2006 18:44:54 +0000

okay, okay, so the joke’s on us law bloggers, but this is still a very funny page:

The Self-Important Law Professor Blog

hat tip to Jim Chen for first linking to this from MoneyLaw

we may be in for some executive privilege fights …

Heidi Kitrosser — Sat, 18 Nov 2006 17:55:00 +0000

This story (an excerpt of which is pasted below) may well be a harbinger of things to come — as Democrats prepare to take over committee chairpersonships, fights over documents that congressional committees request and that the administration does not want to turn over may become common. Will Congress cave upon the mere invocation of terms like “executive privilege” and “national security?” Or will they do their job as a co-equal branch of government, actually probing whether and when national security needs for secrecy exist and when it’s appropriate to demand documents, even to issue subpoeanas or to threaten contempt sanctions? For anyone curious about the constitutional ramifications of executive privilege tussles between Congress and the President, I’ve written about the issue at some length in this linked paper.

Democrats demand CIA detainee documents

Posted 11/17/2006 8:28 PM ET

By Laurie Kellman, Associated Press

WASHINGTON — A Senate Democrat who will chair its Judiciary Committee next year asked the Justice Department to release newly acknowledged documents setting U.S. policy on how suspects in the war on terrorism are detained and interrogated.

“The American people deserve to have detailed and accurate information about the role of the Bush administration in developing the interrogation policies and practices that have engendered such deep criticism and concern at home and around the world,” Sen. Patrick Leahy, D-Vt., wrote Attorney General Alberto Gonzales.

. . . .

Free Speech & Animal Rights “Terrorism” via Bartow & Dees

Heidi Kitrosser — Sat, 18 Nov 2006 00:22:43 +0000

I just noticed this posting from the other day on Feminist Law Professors — I’m pasting it in full but the the whole thing’s also a hyperlink to itself, as the original contains some links of its own:

The Animal Enterprise Terrorism Act

A recent article by Diane E. Dees at the Mojoblog pointed out that in response to steps being taken to stop institutionalized animal abuse, espcially “factory farming,” the farming industry was lobbying for the Animal Enterprise Terrorism Act, which, she observed:

…would make it a crime punishable by imprisonment to engage in any act that causes an “animal enterprise” (factory farm, puppy mill, research facility, pet stores, circus, etc.) to lose a profit. These acts include legal activities, such as peaceful protesting and organizing media boycotts. Furthermore, it would make no difference if the animal enterprise were engaging in an obviously illegal activity. Also, there is no exemption for financial damage caused to an enterprise by the dissemination of public information.

Unfortunately, she noted at The Dees Diversion that it passed the House on 11/13. She says it “exacts harsher penalties on those who protest research laboratories, and also makes it easy to prosecute on behalf of anyone connected in any way with an animal enterprise–a wife, a sister, a vendor, an attorney, a public relations firm, etc.” At a moment in history when Supposedly Liberal Dudes are claiming that the right to purchase lap dances at strip clubs is at the cutting edge of the First Amendment, it’s perplexing that the free speech ramifications of this legislation aren’t getting more attention. Actually, I’m not perplexed at all; “depressed” is a more accurate description.

–Ann Bartow

Enhancing Access to Non-Proprietary Information

Heidi Kitrosser — Fri, 17 Nov 2006 18:10:47 +0000

There’s much to be said about the dramatic overbreadth of “official” government secrecy, such as the classification system. But there’s also a great deal of very valuable, non-proprietary information that is under-used and under-accessed because it is unnecessarily difficult to discover.

Homeland Security Watch has a nice post up about this problem as it relates to the Congressional Research Service (”CRS”) website. The CRS analyzes major policy issues (including many intelligence issues) for Congress, and its reports are technically available to the public. I can attest to what an amazing resource CRS is, having relied on many, many of their reports in my own research. But as Homeland Security Watch points out, the CRS does not post its reports on its website, making it difficult for most members of the public even to know of the wealth of analysis available, let alone to access it. While wonderful sites like the Federation for American Scientists make many of the reports available on their website (which is how I access the reports most of the time), there seems no good reason for CRS itself not to have a central database of its content.

What other examples of “available-but-hard-to-access” information come to mind? Are there feasible ways, for example, to make proposed legislation easier for the public (not to mention Congress) to decipher, given that bills often must be decoded through comparison to the many provisions of old statutes that we’re told, line by line, that the bills would amend?

The breadth of official government secrecy is breathtaking (over 14 million classification decisions in 2004 alone, for example), and there are many worthy battles to be fought on that front. But it seems also that much can be done, and with relative ease, about available-but-hard-to-access information on pressing public issues.

who can resist that face??

Heidi Kitrosser — Wed, 15 Nov 2006 02:30:10 +0000

Apropos of pretty much nothing, I thought I’d share a picture of my adorable mutt, Tyler. I just adopted him this past August. As one of my friends says – Tyler is of “unknown but surely disreputable origin.” My guess is he’s part greyhound, maybe some springer spaniel, maybe some dalmation.

I note also that this is not Tyler’s first appearance in the blogosphere – he once made a cameo appearance in a Jurisdynamics post, courtesy of Jim Chen.

Finally, in an effort to give this post some socially useful content, I would highly recommend to any prospective pet owners out there that you consider adopting your furry (or feathered, or scaled) friend from a shelter. Petfinder.com is a wonderful, nationwide resource. That’s how I found Tyler. Just go to the site, type in your zip code and other requested info., and they’ll link you up to info. on local shelter pets that match your interests.

“Reviving Congressional Oversight” Plus Some Reflections on Oversight in Years Past …

Heidi Kitrosser — Tue, 14 Nov 2006 16:32:11 +0000

Steve Aftergood of The Federation of American Scientists’ Project on Government Secrecy has a very good post up called “Reviving Congressional Oversight.”

Here’s an excerpt:

. . . .

But it is nevertheless true that congressional oversight atrophied under Republican leadership and that many fateful national policy decisions escaped scrutiny or challenge. That is expected to change as Democrats take charge in January.

New members and staff may need to learn or relearn the tools and techniques of oversight.

. . . .

The post also includes links to Congressional Research Service manuals on the purposes and practices of congressional oversight.

For a lesson in how to conduct effective congressional oversight, including balancing executive branch secrecy with public and congressional knowledge, I also highly recommend reviewing parts (or at least accounts of) the mid-1970s Church Committee hearings in the Senate. The committee was charged to study intelligence agency abuses. The Committee neither recklessly publicized intellgience information nor simply took the executive branch at its word that information was classified and could not be discussed. Instead, the Committee engaged in detailed study and had probing debates among its members as to whether and when to release information to the public.

I particularly like this quote by Chairman Church from the start of the hearings on the National Security Agency:

The Committee has elected to hold public hearings on the NSA only after the most careful consideration. . . . . To make sure this committee does not interfere with ongoing intelligence activities, we have had to be exceedingly careful, for the techniques of the NSA are of the most sensitive and fragile character. We have prepared ourselves exhaustively; we have circumscribed the area of inquiry to include only those which represent abuses of power; and we have planned the format for today’s hearings with great care, so as not to venture beyond our stated objectives. . . .

Our staff has conducted a 5-month investigation of NSA, and has been provided access to required Agency files and personnel. NSA has been cooperative with the committee, and a relationship of mutual trust has been developed. Committee members have received several briefings in executive session on the activities of the Agency, including a week of testimony from the most knowledgeable individuals, in an effort to determine what might be made public without damaging its effectiveness. Among others, we have met with the Directors of the NSA and the CIA, as well as the Secretary of Defense. Finally, once the decision was made to hold public hearings on the NSA, the committee worked diligently with the Agency to draw legitimate boundaries for the public discussion that would preserve the technical secrets of NSA, and also allow a thorough airing of Agency practices affecting American citizens.

In short, the committee has proceeded cautiously. We are keenly aware of the sensitivity of the NSA, and wish to maintain its important role in our defense system. Still, we recognize our responsibility to the American people to conduct a thorough and objective investigation of each of the intelligence services. We would be derelict in our duties if we were to exempt NSA from public accountability.

my congressional district makes history!

Heidi Kitrosser — Fri, 10 Nov 2006 18:35:05 +0000

The newly elected congressperson from my congressional district (Minnesota’s 5th), Keith Ellison, is making a lot of headlines as the first Muslim ever elected to Congress, and as Minnesota’s first black congressperson. I’m also proud to note that he’s a graduate of the University of Minnesota Law School. I had the pleasure of speaking with Ellison when he made the rounds around the law school last spring — I have high hopes that he will make an outstanding addition to the Congress.

Here are a couple of recent articles:

WP: “Minnesota Congressman is Muslim Trailblazer”

NYT: Muslim’s Election is Celebrated Here and in Mideast