Casual food

I've been a trifle moody lately, and so not all that inspired to write.

Bacon. I like bacon. There's a charcuterie in town and I keep meaning to go and buy a flitch. The idea of being able to slice it myself and use it in chunks and the like was just so tempting (and comes from reading books as a kid which referred to doing things like this. Much as I recall reading about someone who had the chore of carving a bit off the hanging ham and then dipping the cut face in salt again, every morning before breakfast).

So one of the members of the Tuesday Night Supper Club Crowd used to work at some meat distributor and he gave me a flitch. Whoo-hoo. I used some of it in the baked beans of a a couple weeks back.

It's fatty. The top rind is thick. So thick I actually can't eat it if it's been fried, because it gets tougher than shoe leather.

So night before last there was no Supper Club meeting, because it was moved to tonight (I am planning to fake some chicken gumbo-ish dish so I can disappear to the dojo for awhile.) The housemates were out (one was working, and the other was bowling) I decided it was time for comfort food. Mid-afternoon I boiled some potatoes (Yukon gold, waxy, good boilers, when mashed {even through a ricer} they are a tad gummy. Butter in the mix would probably help with that) and let them cool.

I decided, years ago, the secret to hash browns is the cooking, and cooling, of the potatoes; before they get saut&eacut;ed. For chunky ones, boil them whole and cut them later, for the sort one gets in a diner, shred them, and toss them in boiling water (I use a pasta pot) and the plunge them into ice water. The cooking gelatinises the startch, and the cooling makes it easier to brown them without burning.

I wanted some bacon. So I took out the flitch, cut off a slab (about five slices worth; of the sort stores would call "thick" in packaged bacon) sliced the top-rind off (which was then chopped into pieces for using as treats in training the dogs) and cut that piece into three pieces (of what I would call thick) and put it on a low fire.

I wanted the fat to render, so I could use it to do the potatoes.

It smelled divine. I think (from the texture of the rind) that this was really smoked. The smell is potent, even when all that's done is opening the bag. The fat is silky, greasy, and pure white. It renders out wonderfully. I got about an eighth of an inch in the pan.

Maia didn't want any bacon, so I ate it as I was cooking the onions in the renderings. When they (bermuda) were almost done I put them in a strainer and set them aside, while the potatoes were browning. The bacon was great. I am not a big fan of fat, qua fat. I like marbled meat, but the gobbets that sit on the outside of a piece of prime rib, or a pork roast, &c, not so much. I usually cut them away and feed them to the dogs. This wasn't like that. Maybe it's the smoke and the age, but it was good. The best part of it was the salt. It was low. If you wanted this to taste like bacon you'd have needed to add salt.

On the other hand, if you wanted a milder, meatier, and slightly nutty flavor, this is the stuff for you. Now I want to get some bacon from pigs fed on mast.

When the potatoes were almost done, the onions went back in. In my omelette pan went five eggs, some white pepper and a dash of cumin. Ten minutes later dinner was on the stove.

For planning ahead, one can cook some potatoes, leave them in the skin, and use them later (they'll keep a week in the fridge). For a slightly different bit of planning ahead, make some potatoes in parsley and butter for supper. Just make more than will be eaten, put the rest in the fridge overnight and use them (with a little olive oil) for making hash browns in the morning.

Power grab

There have been comments, and memos, and assertions made that Bush has all sorts of power because we are, "at war," and that until such time as we are no longer at war he gets to do all sorts of things which would be otherwise unacceptable.

The Dept. Of Justice now officially believes, so far as I can tell, that anything Bush does is, perforce, legal. We are you see at war, and the Congress has authorised force, and so the only thing that matters now is that the president believes his actions are in furtherance of the end authorised.

DoJ released a document entitled, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT. It has some stunning stuff in it. According to the theory they are spinning if there is any conflict between what the NSA has been ordered to do, and FISA, then FISA, and the FISA Court are unconstitutional.

Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context.

Whew!

Part of what goes before that says The AUMF places the President at the zenith of his powers in authorizing the NSA activities. Under the tripartite framework set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), Presidential authority is analyzed to determine whether the President is acting in accordance with congressional authorization (category I), whether he acts in the absence of a grant or denial of authority by Congress (category II), or whether he uses his own authority under the Constitution to take actions incompatible with congressional measures (category III). Because of the broad authorization provided in the AUMF, the President’s action here falls within category I of Justice Jackson’s framework. Accordingly, the President’s power in authorizing the NSA activities is at its height because he acted “pursuant to an express or implied authorization of Congress,” and his power “includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635

Interestingly, Congress, back in 2002, was debating this very question. They decided to engage in a little bit of what Jackson's concurrence called, congressional authorization and deny the White House the permission to engage in the sort of wiretapping the NSA was already doing. Mike DeWine wanted to ammend the statue to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion in the FISA.

In a bit of irony (the sort where the left hand doesn't know what the right hand is doing) the Justice Dept. said The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going "up" on those suspected terrorists in the United States.

One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism...

The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it...

The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions. (and thanks to Glenn Greenwald of Unclaimed Terriroty for finding that.

The DoJ thought the PATRIOT Act had made lowering the stanadard needless.

They also said they didn't want it lowered because that might make it harder to get evidence into court, and so hurt the aim of fighting terrorism.

But over at the NSA we had Gen. Hayden saying that (on the President's say-so) they had gone to a "reasonable suspicion" standard. OK... There are a number of things cops can do with "reasonable suspicion", bring in dogs to sniff a car, luggage, etc. Detain a suspect for a little while while they frisk him, pull a car over, &c. They do, however, have to explain themselves, and can get in trouble if they do it for no reason. My dad's a Auxilliary
Dept. Sherriff in Tenn. If he wants to pull someone over, they will do something which counts. Drift over the speed limit, forget to use a turn signal, heck, if they drive perfectly he can pull them over; because that level of care shows they were worried about being pulled over; which is suspicious, so the standard is pretty loose. But it can be because the cop/agency is liable (generally speaking) if the suspicion wasn't reasonable.

Back to Gen. Hayden. I heard part of his little press conference, and I sat straight up when I heard this exchange:


QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --

GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the --

GEN. HAYDEN: That's what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable --

GEN. HAYDEN: No. The amendment says --

QUESTION: The court standard, the legal standard --

GEN. HAYDEN: -- unreasonable search and seizure...

GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.

It was more apparent when one heard it that he was saying the Fourth Amendment didn't require probably cause, and that the employees of the NSA are familiar with it.

For the rest of us, who aren't so familiar with it at the good folks running the NSA, I'll (purely as a public service) reprint it here:

" "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. "

In some sense, he's right. It says we are secure from unreasonable searchs and seizures, and since the NSA wasn't worrrying about warrants the fact that "no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" isn't really wrong either.

Where am I going with this? It goes back to the 42 pages of the DoJ argument I started this with.

"The same day, the Attorney General elaborated and explained that in order to intercept a communication, there must be “a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.”

Have any of you ever played six degrees of separation? I have. I'll bet I can get to OBL inside those six degrees. Lessee, 1: Former SecDef 2:Clinton 3: House of Saud 4:OBL.

Whoo! That was hard.

Maybe I have to go to five, what with just who in the House of Saud OBL knows, and Clinton met with, but that's still connecting me, to him, and didn't need all six steps.

What else is in there? Oh yeah, part of the justification is based on the preamble to the Authorization of Force. That's what lawyers call predicate language, it has no legal force (it isn't the first time this administration has done this... they used parts of the predicate language (which they supplied) for the authorization of force against Iraq to show that Congress really wanted them to do it, but I digress).

They take passages of the Federalist Papers, which address the Gov't in general (The Founders, after all, intended the federal Government to be clothed with all authority necessary to protect the Nation. See, e.g., The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (explaining that the federal Government will be “cloathed with all the powers requisite to the complete execution of its trust”); id. No. 41, at 269 (James Madison) (“Security against foreign danger is one of the primitive objects of civil society . . . . The powers requisite for attaining it must be effectually confided to the federal councils.”). Reading that closely says the total of the Gov't is now vested in the Executive, and they say this is what the founders wanted.

Angels and Ministers of Grace.

They take a number of decisions from before FISA, and say those liberties, to surveille, are still extant (never mind the fact of Congress acting in it's role as the maker of laws, passing a few which curtailed that)

The core argument is that FISA was seen to allow electronic surveillance, and that as this is a time of war, and the people being targeted are "reasonably believed" to be either the enemy, supporting the enemy, or at least speaking with the enemy, there is no need for a warrant because this is just part of normal intel-gathering in a war. That actually makes a certain amount of sense, save that there's no way to know that. There's no oversight.

Looking at this argument The amendments that section 201(b) of FISA made to title 18 are fully consistent, however, with the conclusion that FISA contemplates that a subsequent statute could authorize electronic surveillance outside FISA’s express procedural requirements. Section 2511(2)(e) of title 18, which provides that it is “not unlawful” for an officer of the United States to conduct electronic surveillance “as authorized by” FISA, is best understood as a safe-harbor provision. what I see is that Congress contemplated just such a statutory change and rejected it. Congress decided the 4th amendment concerns were at least as important as gathering intel. From the lack of prosecutions, the complaints of the FBI about the leads they were handed and suchlike it seems they were right.

They go on:

As explained above, it is not necessary to demarcate the outer limits of the AUMF to conclude that it encompasses electronic surveillance targeted at the enemy. Just as a majority of the Court concluded in Hamdi that the AUMF authorizes detention of U.S. citizens who are enemy combatants without expressly mentioning the President’s long-recognized power to detain, so too does it authorize the use of electronic surveillance without specifically mentioning the President’s equally long-recognized power to engage in communications intelligence targeted at the enemy. And just as the AUMF satisfies the requirement in 18 U.S.C. § 4001(a) that no U.S. citizen be detained “except pursuant to an Act of Congress,” so too does it satisfy section 109’s requirement for statutory authorization of electronic surveillance.10 In authorizing the President’s use of force in response to the September 11th attacks

That seems to argue they think it legal to do this to anyone. If one can detain a US citizen by calling him an enemy combatant, how much less of a stretch is it to say one can tap his phone?

The most frightening thing (and with this I will end this, as it is already longer than it probably ought to be) is the way they interpret the Authorization for the Use of Military Force as being more sweeping, and so conferring more power to the president than an actual declaration of war would be.

As a historical matter, a formal declaration of war was no longer than a sentence, and thus Congress would not expect a declaration of war to outline the extent to which Congress authorized the President to engage in various incidents of waging war. Authorizations for the use of military force, by contrast, are typically more detailed and are made for the specific purpose of reciting the manner in which Congress has authorized the President to act. Thus, Congress could reasonably expect that an authorization for the use of military force would address the issue of wartime surveillance, while a declaration of war would not. Here, the AUMF declares that the Nation faces “an unusual and extraordinary threat,” acknowledges that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” and provides that the President is authorized “to use all necessary and appropriate force” against those “he determines” are linked to the September 11th attacks. AUMF pmbl., § 2. This sweeping language goes far beyond the bare terms of a declaration of war.

Recall that all of the broad claims to presidential power have, thus far, been couched in terms of fighting a war; but this is seen by them as being bigger than a war, which implies the president needs more powers than he has already (and they are claiming some pretty broad powers) when it's only understood to be a war.