“I believe that it is very possible,” former Defense Secretary Leon Panetta told a rapt audience at Georgetown University earlier this month, “the next Pearl Harbor could be a cyber attack that would have one hell of an impact on the United States of America.” That’s a belief Homeland Security Secretary Janet Napolitano shares—in January, she urged Congress not to “wait until there is a 9/11 in the cyber world” to act on cyber-security legislation. Subtle warnings, these are not.
Over the past 12 months, hackers have broken into the networks of major news organizations, including The New York Times, The Washington Post, and The Wall Street Journal in a string of audacious security breaches. The U.S. Government Accountability Office found that cyber-security incidents reported by federal agencies have risen 800 percent since 2006. Chinese hackers infiltrated the networks of nearly 800 U.S. companies and research institutions between 2000 and 2010, siphoning trillions of dollars in trade secrets and industrial IP. “They are stealing everything that isn’t bolted down,” warned House Intelligence Committee chair Mike Rogers, the lead sponsor of CISPA—the bill designed to counter these cyber threats. “And it’s getting exponentially worse.”
You could be forgiven for thinking that recent news out of New York proves gun-rights supporters have lawmakers on the run. In mid-February, 500 outraged opponents of gun restrictions held a rally in Albany’s freezing temperatures to protest the state’s new gun-control regulations passed January 15. The president of a large state gun dealer said on January 21 that tens of thousands of assault rifle owners would boycott an April 2014 registration deadline mandated by the law. An anonymous source in Governor Andrew Cuomo’s office responded like a parent who’s given up doing anything about their acting-out teen: “Many of these assault-rifle owners aren’t going to register; we realize that.”
That official called it right. Those who expect the New York SAFE Act— which bans the purchase of new assault weapons and requires registration of those owned before the law took effect—to keep new assault rifles out of New York immediately will probably be disappointed.
Local prosecutors and cops have wide latitude in how aggressively to pursue busts and convictions under state law, says James B. Jacobs, professor of constitutional law at New York University. In a wink and nod to gun-rights supporters, the New York Sheriff’s Association issued a statement on January 25 asserting that the law doesn’t require its members to “go door-to-door to confiscate any weapons newly classified as assault weapons, and [sheriffs] will not do so.” In downstate Ulster County, the district attorney told a local paper that when dealing with otherwise law-abiding citizens who have banned weapons, “(police) will take those items away, but that’s not necessarily something we would prosecute.”
All of that would seem to augur poorly for getting results on the ground with new gun laws in other states. Why pass an assault-weapons ban if it’s honored more in breach than observance?
It is hard to overstate the importance of the Voting Rights Act of 1965. At the heart of the law that ended decades of disenfranchisement in former Confederate states is Section 5, the "preclearance" provision. Section 5 requires jurisdictions with a history of discrimination to get prior federal approval for any changes to state voting laws. The necessity of this provision was clear: without it, states had been able to nullify the commands of the 15th Amendment by passing measures that were formally race-neutral but were discriminatory in practice.
By delegating broad authority to the executive branch to engage in warrantless wiretapping of Americans, the Foreign Intelligence Surveillance Act (FISA) raises serious potential constitutional issues. The Fourth Amendment, which forbids "unreasonable" searches and seizures and under which warrantless searches are presumptively unconstitutional, is difficult to square with the kind of powers claimed by Congress and the Executive Branch. Today, however, the Supreme Court decided to duck this crucial constitutional issue based on almost comically illogical reasoning.
The gun crowd is so paranoid about the erosion of their Second Amendment rights that they make Chicken Little look like an actuary. The president’s recent gun proposals include initiatives such as expanded background checks, a ban on certain military-type rifles, and limits on the size of magazines. But if you listen to the gun folks, even these tepid proposals are—to quote a past president of the National Rifle Association—“unconstitutional schemes to gut the Second Amendment.” Iowa Senator Charles Grassley accused Obama of thinking “the Second Amendment can be tossed aside.” Any skeptical glance in the direction of that Glock on their hip is worth a Second Amendment yelp.
Warren Hill has an IQ below 70. Despite this, barring an unlikely intervention by the Supreme Court, he will be executed by the state of Georgia tonight. The likelihood of this outcome is a lesson in how Supreme Court decisions can't always be taken at face value.
Chief Judge David Sentelle’s recent opinion in Noel Canning v. NLRB holding President Barack Obama’s recess appointments unconstitutional is a trenchant reminder that the D.C. Circuit is, as is often said, the nation’s “second most important court after the Supreme Court.” It has also been, historically, a stepping stone to the high Court. The court now faces four vacancies among 11 judgeships with Sentelle’s February 12 assumption of senior status. But the Obama administration is the first in decades which confirmed no D.C. Circuit judge and has only submitted two names for consideration. The importance and complexity of the circuit caseload means it requires all eleven judges to deliver justice. For this reason—and to increase ideological balance on the court, which has four active and five senior judges whom Republican presidents appointed—Obama and the Senate must expeditiously fill the D.C. Circuit openings.
On January 25, Anonymous, the international hacktivist collective, declared war on the U.S government. In the past two years, more than 20 Anonymous acolytes have been arrested in a string of high-profile operations, most notably disrupting online service of PayPal, MasterCard, and Visa in retribution for blacklisting WikiLeaks, and hacking a defense intelligence firm’s server and using the company’s credit card records to donate $1 million to war-related charities. Aaron Swartz, a figurehead of the Free Internet Movement who was facing 35 years in prison for downloading the online academic library JSTOR, committed suicide last month. Now, in honor of its fallen brethren, members of Anonymous say they have hacked and downloaded reams of compromising government documents, and likened the stolen data to “fissile material for multiple warheads” aimed at the U.S. Department of Justice. It’s the latest escalation in an unpredictable rise. Without formal organization or leadership, Anonymous has turned technological acumen and a general disavowal for the law into increasingly deliberate acts of political defiance.
So yesterday, Harry Reid hinted that he'll be introducing a gun control measure that doesn't include a new ban on assault weapons. If we assume for a moment that other proposed measures eventually pass, but an assault weapons ban doesn't, how bad an outcome would it be?
In a major reportorial coup, NBC's Michael Isikoff has uncovered the "white paper" that the Obama administration used to internally justify extrajudicial killings in the "war on terror." Not only has Isikoff performed a valuable service by making the memo available to the public, this will also be the first time it had been made available to most members of Congress.
We're in the early stages of a lengthy process that will involve hearings, competing bills, horse-trading, and the usual ugliness of life in the Capitol Hill sausage factory, but the contours of gun legislation are beginning to take shape. Though President Obama is out campaigning for the full package of reforms he has been advocating, there are indications that the assault weapons ban may get dropped in order to forestall a Republican filibuster in the Senate, and a bipartisan group is about to introduce a bill in the House on gun trafficking and straw purchases. (I'll discuss the assault weapons question in a later post). In other words, the actual legislative process is getting underway.
And though it's by no means assured that some gun measures will pass Congress, if any do, we'll partly have the NRA to thank. That's because, I believe, the organization fundamentally misread the role it plays in the minds of the average voter.