Rights, defense policies threatened by FBI cell phone quest

The FBI, trying to force Apple to break into its own protected software, wants the public to ignore its own failings and misstatements.

There's much more than anti-terrorism involved in the attempt to crack a cellphone.

After the December 2015 attack in San Bernardino, California, the two terrorists were quickly found and killed. One of them had an Apple iPhone in his possession.

Though it did not need access to the phone's data to pursue the terrorists, who were already dead, the FBI wanted to see if they were part of a terrorist network. The FBI asked for and received Apple's help in accessing the phone's data.

The FBI gained some information, but agents thought more might exist. The phone had been automatically backed up in October, making data until then available, but the FBI also wanted the data between the backup and the attack.

Ignoring Apple's offer to help, the FBI fumbled in its attempt to back up the remaining data. Apple says that, with its available help, the FBI could have accessed the data. The FBI reluctantly confirmed that was true.

The FBI could not otherwise access the data, because it was password protected, and agents did not know the terrorist's password. The phone's lock allowed only ten tries with the delay between each try growing longer.

When asked, Apple said it had designed the software to provide complete customer security and even it could not access the data. The FBI then asked the company to develop new software to break its own security. Apple refused.

It said that it had promised customer security as part of its product. Even more important, it said that, once the new software existed, it could be reused, even by America's enemies, to view secret data.

The FBI then went to a California federal court and asked it to order Apple to develop the new software without waiting to hear Apple's side of the argument. After the judge said she would give Apple time to reply, the FBI filed a request that she should compel it to comply immediately. It argued the new program could be controlled by Apple and destroyed by it after just this one use.

As the basis for its demand, the FBI relied on the All Writs Act, a law passed in 1789 allowing federal courts to issue orders on all matters unless Congress had addressed the issue.

Apple replied that the federal government could not force a company to produce software and that the program would end up being used more than once. The California case remains in court.

Meanwhile, in New York, the FBI was seeking the same password access program in a drug trafficking, criminal case, not related to national security. The judge there found that the AWA did not give courts the authority to order the company to prepare new software, which would be overly burdensome on Apple. He said that Congress had “considered [such] legislation but not adopted it.”

In short, the AWA could not give courts authority that Congress had intentionally declined to give them. The federal judge decided in favor of Apple and turned down the FBI, which has appealed his ruling.

The California case revealed that the FBI could have accessed the data without the court order. The New York case revealed that, despite the FBI's claim, it would not limit its access to a single case.

The FBI seemed to be trying to stir up public sentiment for its position by raising the threat of losing terrorists' secrets. In this effort, it was willing to undermine the principles of real security protection and user privacy and to mislead both courts and the public.

That the FBI was on its own crusade became clear when both the Secretary of Defense and the chief of the U.S. Cyber Command said maintaining strong password protection is more important than opening the access the FBI seeks.

The U.S. uses passwords and other protections for its data and has its own software for breaking into the secret files of other countries. Key agencies want no legislative or court action that could compromise or expose their efforts. U.S. adversaries should continue using software they may mistakenly believe is impenetrable.

While virtually all Americans support tough action against terrorism, the FBI-Apple case demonstrates the dangers of total software access that overrides privacy rights, supposedly being protected by the government. The situation is even worse when, in its zeal, the government agency itself departs from the truth.

More thoughts on the campaign -- 3

Trump. He's still considered the frontrunner and the likely nominee, but he seems to be losing some momentum. (Update: wrong on that one.) To stop him, the GOP would have to find an alternative, a process slowly happening.

Cruz. He's the likely alternative, because he is picking up delegates. But he may turn out to be no more appealing to many Republicans. He is more conservative than Trump (when you can figure out Trump's positions) and is totally unwilling to compromise with anybody. To watch: if the combined Trump-Cruz delegates are a convention majority, one of them will be the nominee. Trump delegates should be able to support Cruz, but probably nobody else.

Rubio. Must win in Florida to avoid having to drop out, but he is not attracting enough support to make it all the way. Objective must be to depart in a favorable enough light to run again.

Kasich. Substitute “Ohio” for “Florida” and the picture is the same as for Rubio. But he could take VP (not likely) or cabinet slot.

Ryan. The all-purpose savior. But it is difficult to see how most delegates already elected could move in his direction. His only path may be an open convention. But it is far more probable that a deal will be made pre-convention that will avoid carrying the battle to the floor.

Bloomberg. As forecast, he did a careful, non-ego-driven analysis. He is sane enough to know that, if Clinton were the Democratic nominee, he could hand the election to Trump or Cruz. So he backed off. His thinking about the choice going to the House for decision was a bit fanciful.

Clinton. She will have to continue to focus on Sanders, when she would rather be running the fall campaign early. Unless she is deserted by the superdelegates because of an embarrassing revelation, she has the nomination. If they did desert her, it would not be for Sanders.

Sanders. Appeals to voters the Democrats need. Much depends on how he leads his supporters at the moment he must concede. Meanwhile, he forces Clinton to be a better candidate.

The media. Mostly lemmings. Gene McCarthy said they are like birds on a power line. When one flies off, they all fly off.

The media says more people are coming out for GOP primaries/caucuses than for the Democrats. Maybe, but here's a story.

The NYT gave prime coverage to Rubio's win in Puerto Rico and less attention to Sander's caucus win in Maine. Why? AP said that almost 37,000 people had voted in Puerto Rico, but less than 4,000 in Maine. The fact was that almost 47,000 Democrats voted in Maine (more than the less than 10,000 Republicans a day earlier), setting a new record. That undermined, at least somewhat, the reports that the Democrats are pulling fewer voters than the GOP and that Sanders, despite big crowds, is not causing bigger voter turnouts. The NYT obviously did not bother to check the data, possibly leading its pundits rely on bad info. There is objective truth out there somewhere, but we are probably not getting it.

Nominating process leaves many voters unhappy with choice

The presidential campaigns are getting closer to the choice of party nominees, but many people say they are unhappy about the most likely outcome.

Party rules and relatively few voters are responsible for the likely matchup between Democrat Hillary Clinton and Republican Donald Trump.

This possible choice results from the demise of the “smoke-filled room” in which a handful of party bosses picked the party’s nominee. They would pick the person who would best help them hold onto or increase their local power.

These power brokers could deliver delegates at the party’s national convention. They doled out public sector jobs or supplied social benefits and, in return, were repaid by the loyalty of convention delegates. A few people could deliver large blocks of delegates, often enough to pick the nominee.

Of course, there were times when conventions were deadlocked, and the bosses had to make deals about federal appointments and even policies to reach an agreement.

The smoke filled room began to lose its role as people who were more policy oriented than patronage dependent became politically active. And, increasingly the exclusion of women and African-Americans became unacceptable.

Finally, the Democrats decided to change the delegate selection process. Delegates to national conventions would be selected in primary elections or caucuses. Ordinary party members could gain control of the delegation selection process, ending boss control.

It became impossible for the Republican Party to resist this tide of change and it, too, adopted voter selection of its nominee.

But something went wrong. The open process for delegate selection has not worked in practice as well as in theory. While the bosses were mostly gone, the process was not left to the mass of all party voters. It fell to a relatively small group of them.

It turned out that many people who registered in a political party had little interest in actively participating in party affairs. They might vote in a primary for state or local office, but their party identification probably indicated alignment with party policy or a specific candidate more than an interest in activism.

The open process proved to be an attraction mainly to party members with strong ideological motivation. The Democratic Party process became heavily influenced by strong liberals and the Republican Party by strong conservatives.

The problem would turn out to be the weak representation of others who were less strongly committed to the parties. While they form the majority of the electorate in November, they can find themselves forced to choose between candidates supporting agendas with limited appeal to them.

Donald Trump may be changing the calculation. Turnout for the GOP primaries has shot up, partly because of the large number of candidates and partly thanks to Trump’s appeal to people who normally scorn politics. But, even with relatively high GOP turnouts, Trump is winning with the support of less than 10 percent of general election voters.

The Democrats have backed away somewhat from the purely open process. A modern version of the party boss, people with a deep stake in the party, was adopted.

These are the so-called super delegates, who get their slots because they hold public office or are committed party officials. In both cases, they give a lot of time and effort to their party. Like the old-time bosses, they care about having a candidate at the top of the ticket who will help other party candidates.

Their weight can influence the party’s choice. Hillary Clinton has about 90 percent of the declared super delegates, leaving Bernie Sanders with a huge uphill challenge from the start of the campaign.

A few steps could improve the process for selecting party nominees. The GOP might adopt its own version of super delegates, giving its party officials and office holders a bigger role.

And both parties would benefit from fewer, larger primary and caucus days. The confusing flood of elections may discourage participation and it certainly gives too much weight to the Iowa caucuses, notable for their small turnout, and the New Hampshire primaries, which allow independents into party votes.

Finally, the November voters need to start participating in the nominee selection process. Too many people, unhappy about their choices, are unwilling to vote in a primary or give a couple of hours every four years to a caucus.

The Campaign -- the view after Super Tuesday

Trump. You can’t beat somebody with nobody. The anti-Trump people, now thinking about opposing him, are not yet united behind an alternative. Trump draws wider support from voters who are unhappy with current Washington politics and support him, not because they really like him, but because he is seen as a sure agent of change. If you really believe things are bad, then they cannot be worse with Trump and they seem sure to be different. This rejectionist approach is working.

Rubio. He has become the so-called mainstream alternative, though he is a strong conservative. To the traditional GOP, he seems likely to be able to govern in a reasonably responsible manner without ceding conservative positions. His only chance would be for the party to coalesce around him quickly and make him the March 15 alternative. That’s not likely. He needs Cruz and Kasich to drop out.

Cruz. He is trying to be a cleaned-up version of Trump. If you listen to what he is saying, he is even more quixotic than Trump. His proposals cater to the hard-core right and it doesn’t matter that they often make no sense. He is gaining enough delegates to stay in the race a while.

Kasich. It looks like he wants to be the Ohio favorite son. He thought people would come to their senses and pick a candidate who could win by appealing to independents and Democrats, but that may be old-style thinking. Either people will abandon him for Rubio or he helps Trump. Lots of talk about a Rubio-Kasich deal, maybe for the national ticket.

Carson. Good-bye.

Clinton. The more likely a Democratic victory seems, the more she has a lock on the nomination. Her troubles seem small beside Trump’s apparent vulnerability. Besides, everybody already knows she has skeletons in her closet. Can she make Clinton-Trump look like Johnson-Goldwater in 1964, when it seemed patriotic to support Johnson? Given the temper of the times, she may face a tougher race than many now forecast. She is really a mainstreamer in a country where the people want change.

Sanders. Nice try, and he does well enough to last as long as he wants. He carries on, because he has a strong message and looks a lot more genuine than the others, and he can raise money. The longer he lasts, the more likely he will pull Clinton to the left. He could hang on until the convention just to try to influence the party. He can really help or hurt Clinton by where he goes.

Bloomberg. Does he wait for March 15 to decide? His polling would have to show that he would take GOP voters who might stay home if Trump is the nominee and Democratic voters who are unhappy with Clinton. If he runs, he would have concluded he could win by using hard data, not hope. Watch and wait, but decreasingly likely.

Senate. This may be the key election if the GOP, which looks vulnerable, abandons its own nominee. The message could be that the GOP needs to hold onto the Senate to keep President Clinton under control. But the Democrats could argue against a Senate that would have to support President Trump.

Endorsements. They mean little except for the p.r. and whatever benefit to the endorser if the candidate wins. But Maine Gov. Paul LePage takes the cake. He tried to get the GOP governors to oppose Trump. Then Christie, who had aided his campaign and whom he had endorsed, chose to back Trump. LePage fell right in line, gaining the attention of the New York Times for his fast switch – in just a single week. Reminds me of the Everett Dirkson quote; “I am a man of principle and my first principle is flexibility.”

National campaign. Nominee selection could be over by March 15 and then the national campaign begins. There will be blood.

British, Americans head for unknown future

Last week the current American debate over the role of the federal government echoed in Europe.

The United Kingdom negotiated a deal allowing it to vote on remaining a member of the European Union (EU).

The EU is a voluntary group of states, like the U.S., but it is not a fully federal. In Europe, no country is forced to join, but, unlike this country, members may secede. Countries can quit the group and go it alone, if they don’t like EU policies.

The European situation recalls the pre-Civil War southern effort to allow individual states the right of “nullification,” blocking the effect of federal laws within their borders. Nullification was rejected, because upon joining the Union, a state had to accept the Constitution as it stood and the laws made under it.

In Europe, states entering the EU negotiate special terms for themselves. For example, even before its new deal, Britain kept its own currency while other members either use or are expected to adopt the euro as their currency.

The difference between the systems on the two sides of the Atlantic may be narrowing. As the power of the U.S. federal government is reduced, more control could be left in the hands of state governments.

If that process is pursued, it could produce much the same result as nullification. For example, some conservatives hope for a situation in which some states could ban same-sex marriage or abortions, while others did not.

Conservatives are the driving force behind the moves to weaken both the EU and the U.S. federal government. They stress national (Europe) or states’ (U.S.) rights over the benefits of common action on a wide range of issues.

In Europe, nationalistic movements are growing in many countries, including France, Poland and Hungary. British Conservatives, the ruling party, are split between pro-Europeans and an element sensitive to the right-wing United Kingdom Independence Party. One might almost find their motto to be, “Make Britain Great Again.”

In the U.S., one writer recently suggested, “the nation has become Southernized just as much as the South has become nationalized. Political conservatism, the traditional creed of the white South, went from being presumed dead in 1964 to being a powerful force in national politics.”

The growth in anti-government conservatism, probably fueled somewhat by the election of an African-American president, has paved the way for at least one presidential candidate who is openly anti-Mexican, anti-Muslim and anti-immigrant. He is positioned so far from the center that, without embarrassment, he can support torture as an instrument of national policy.

Europe cannot come to grips with the problems of worker migration and a flood of refugees, people who have different ethnic or cultural backgrounds. Britain wants to offer fewer benefits to such people. Right-wing parties in many European countries gain support by opposing immigrants.

Similarly, the U.S. cannot resolve the question of undocumented or illegal immigrants who seek a better life and contribute to the economy, but are believed to be seeking welfare benefits or causing crime.

Perhaps more than any other, these problems fuel nationalism, causing people who feel threatened by government to turn against the authorities that allow immigration. This concern has probably become one of the major wedge issues in American politics.

The main question is whether people insist so strongly on their individual or national rights that they are willing to sacrifice benefits they obtain from central governments providing them services that are otherwise impossible or uneconomic.

The question is not easily answered. Both the EU and the U.S. federal government have sometimes gone far in extending their power. Many EU regulations go well beyond what is done federally in the U.S. The Commerce Clause in the U.S. Constitution has been greatly extended. These moves have made people uneasy.

As the 2004 book called “What’s the Matter with Kansas?” showed, many people vote against their own interests when they support conservatives who want to reduce the role of government. These voters believe their taxes are too high and government either is deadlocked or flat wrong on social issues.

European nationalists and many American conservatives share a rejection of strong central government but they do not offer alternatives that would produce the same results for people. Still, even if government action would improve matters, some people rally to the anti-government cause.

This year, the British referendum and the U.S. elections might send a message. On both sides of the Atlantic, voters are making a choice between government, which has greatly disappointed them, and the unknown.

New threat to constitutional tradition

The furor over whether President Obama should be allowed to replace Supreme Court Justice Antonin Scalia looks like yet another case of today’s partisanship overriding the unwritten understandings that have made government work.

Should Democrat Obama leave the appointment to his successor taking office in 11 months? Should the Senate, controlled by the Republicans, refuse to act on any nomination, forcing the decision into next year?

Donald Trump expressed the view of the GOP candidates when he said the Republican policy should be, “Delay, delay, delay.”

A lot of ink has already been spilt to show that history points toward an early presidential nomination and confirmation. But that’s just the point. In recent years, bitter partisanship has reversed the constitutional practices that have allowed government to function.

Though there are many court confirmations that support the history, one embodies almost all the elements of the current clash.

In October 1956, a month before the presidential election and just as the Supreme Court began its annual session, one justice resigned. The Senate was not in session. GOP President Dwight Eisenhower made an immediate, recess appointment. That meant William Brennan could take his place on the court without confirmation.

The next year, the Democratic-controlled Senate voted on the nomination, allowing Brennan to remain on the Court. He was easily confirmed by a voice vote of the Senate.

Eisenhower was in the closing days of the presidential campaign when he made the recess appointment, far stronger than a nomination, because it allowed Brennan immediately to join the Court. The Democrats, the Senate majority, did not force the president to delay.

A president, having won a national election to a four-year term, was considered to be entitled to select Supreme Court justices who agreed with his political views. Consistent with this understanding, Scalia, a strong conservative later appointed by Republican President Ronald Reagan, had been confirmed by a vote of 98-0, meaning the Democrats also approved.

The current issue results largely from the partisanship affecting how the Constitution functions. It has changed the filibuster and undermined the president’s power of appointment.

The filibuster, historically used rarely for the sole purpose of blocking civil rights legislation, is now used routinely, meaning the Senate acts on bills and appointments only when 60 senators agree.

As a result, a party with 41 senators could prevent any judicial nomination getting to a vote. Republican senators used the filibuster to block Obama’s court appointments. In reaction, the Democrats finally deployed the so-called “nuclear option” and eliminated the 60-vote requirement for federal judges, except for the Supreme Court. The Republicans were furious.

The GOP has stripped presidents of the ability to make appointments to office when the Senate is in recess, as Eisenhower did, by finding ways to making it seem the Senate was in session continuously, even when it is not. Scalia and his court allies approved the move.

The reason for having the president hold off is that his Supreme Court appointee is likely to remain in his or her lifetime job long after Obama has left office. That’s not unusual, but a president in his last year should no longer control the future, opponents say.

If Republicans believe they will capture the presidency, they could want the choice left open for more than year including the approval process, increasing the likelihood of replacing conservative Scalia with another conservative. This plan could backfire if the GOP wins the presidency but loses control of the Senate.

By contrast, Democrats want their president to do the constitutional job for which he was elected, even if that means risking disapproval by the GOP Senate. Either the Republicans accept a reasonable nomination or they might face the political consequences of delay. Win or lose, the Democrats could gain.

Blocking a Scalia successor might happen at the cost of allowing this year some Supreme Court decisions, strongly opposed by conservatives. The conservative wing of the Court is depleted by Scalia’s death, and the result could be some more liberal results on cases relating to immigration, public sector unions, abortion and health care.

The combination of possibly unfavorable decisions, negative voter reaction in this year’s Senate elections and Obama’s firm intention to make a nomination seems to be changing some Republicans’ minds.

Perhaps political reality may block, for the moment at least, the continued dismantling of the understandings that allow constitutional government to function.

The Constitution cannot deal with all the issues that arise in applying it. Without agreement on using historical practices that have worked, long-term deadlock is inevitable.

The 2016 Campaign – the view in February

Nobody faintly interested in politics can ignore the campaigns.  But nobody really knows much, leaving it to a largely inexperienced group of television pundits to state their opinions as fact.  And everybody relies too heavily on polls.

So, for what it’s worth, here are my updated thoughts on the campaigns as they stand in mid-February.

Donald Trump.  His popularity is based on his style and his clear opposition to business as usual.  Amazingly, there is some substance to his ideas, occasionally on foreign policy, but his racism and free-swinging attacks turn many voters off.  He probably can get no more than 40 percent of all Republicans.  Not enough to win.

Ted Cruz. His main appeal is that he is not Trump and is a religious person.  But he is not a compromiser and has no friends in the Senate because of his destructive approach.  He does not offer enough of a viable alternative to win.

John Kasich, Jeb Bush, Marco Rubio.  One of these should emerge as the mainstream GOP alternative to Trump and, unlike Cruz, at least two of them really would be different.  Kasich, the Ohio governor, is a conservative by conviction and can still be pragmatic.  Appeals to Democrats.  Bush, the former Florida governor, seems to be an opportunistic conservative who does not project leadership qualities.  Rubio is a conservative trying to pass himself off as mainstream.  He also obviously lacks experience.

Could come down to Trump v. Kasich or Bush.  Trump loses because he cannot win the general election.

Hillary Clinton.  The most experienced person in the field, but acts as if she is privileged and is thus somewhat exempt from full-scale honesty.  Not really a modern liberal, so probably could work with GOP.  Friendly to big money interests.  Probably would turn out to produce results like Obama and her husband.

Bernie Sanders.  The most authentic candidate and holds the most progressive views.  He favors big change, which others say he could not produce or pay for.  If he won, his victory alone could provide at least some momentum toward changes he proposes.  Appeals to young.  If enough Democrats share his views on big money, he could win, but that’s not likely.

Somebody else.  If Sanders defeats Clinton or comes close in races she should win, the Democrats could turn to an alternative.  Vice President Biden, Secretary of State Kerry, California Gov. Brown come to mind.  All old men.

Likely to come down to Clinton, a pragmatic but not popular choice.

The main event: Clinton facing Bush or Kasich.  The country saved.

U.S. House of Representatives.  Likely to remain Republican thanks to gerrymandered districts dating from 2010 state elections.  But margin likely to be reduced if the Democratic presidential candidate does well or wins.  There are enough close seats to allow the Democrats to close the gap.  Maine’s second district is a good example.

U.S. Senate.  Could swing to Democrats with more GOP-held seats up for grabs.  This would be influenced by presidential race and lack of the ability to gerrymander.  Democrats need a strong coordinated national campaign, which would mean sticking with Sanders if he were nominee.

U.S. Supreme Court.  Beyond Scalia, almost certainly, there will be appointments to be made in the next four years.  Much depends on the presidential and Senate elections to determine the Court’s approach to the domination of campaign finance by big money, attempts to suppress voting, health care and immigration.  This was the hidden element of the 2016 elections, but now could be a focal point.

All national elections are important. This year’s could mark a transition, but to what?  Pragmatism or deeper partisan war?

As for Maine, Republican Gov. LePage helps Democrats gain control of the Senate and hold the House, because he worries people, who will want to limit his power.

Your thoughts?