Category: politics

The Universal Roots of Fantasyland

Intellectual history and cultural criticism always teeters on the brink of totalism. So it was when Christopher Hitchens was forced to defend the hyperbolic subtitle of God Is Not Great: How Religion Poisons Everything. The complaint was always the same: everything, really? Or when Neil Postman downplayed the early tremors of the internet in his 1985 Amusing Ourselves to Death. Email couldn’t be anything more than another movement towards entertainment and celebrity. So it is no surprise that Kurt Andersen’s Fantasyland: How America Went Wrong: A 500-Year History is open to similar charges.

Andersen’s thesis is easily digestible: we built a country on fantasies. From the earliest charismatic stirrings of the Puritans to the patent medicines of the 19th century, through to the counterculture of the 1960s, and now with an incoherent insult comedian and showman as president, America has thrived on inventing wild, fantastical narratives that coalesce into movements. Andersen’s detailed analysis is breathtaking as he pulls together everything from linguistic drift to the psychology of magical thinking to justify his thesis.

Yet his thesis might be too narrow. It is not a uniquely American phenomenon. When Andersen mentions cosplay, he fails to identify its Japanese contributions, including the word itself. In the California Gold Rush, he sees economic fantasies driving a generation to unmoor themselves from their merely average lives. Yet the conquistadores had sought to enrich themselves, God, and country while Americans were forming their shining cities on hills. And in mid-19th-century Europe, while the Americans panned in the Sierra, romanticism was throwing off the oppressive yoke of Enlightenment rationality as the West became increasingly exposed to enigmatic Asian cultures. By the 20th century, Weimar Berlin was a hotbed of cultural fantasies that dovetailed with the rise of Nazism and a fantastical theory of race, German volk culture, and Indo-European mysticism. In India, film has been the starting point for many politicians. The religion of Marxism led to Heroic Realism as the stained glass of the Communist cathedrals.

Is America unique or is it simply human nature to strive for what has not yet existed and, in so doing, create and live in alternative fictions that transcend the mundanity of ordinary reality? If the latter, then Andersen’s thesis still stands but not as a singular evolution. Cultural change is driven by equal parts fantasy and reality. Exploration and expansion was paired with fantastical justifications from religious and literary sources. The growth of an entertainment industry was two-thirds market-driven commerce and one-third creativity. The development of the World Wide Web was originally to exchange scientific information but was exchanging porn from nearly the moment it began.

To be fair, Chapter 32 (America Versus the Godless Civilized Word: Why Are We So Exceptional), provides an argument for the exceptionalism of America at least in terms of religiosity. The pervasiveness of religious belief in America is unlike nearly all other developed nations, and the variation and creativity of those beliefs seems to defy economic and social science predictions about how religions shape modern life across nations. In opposition, however, is a following chapter on postmodernism in academia that again shows how a net wider than America is needed to explain anti-rationalist trends. From Foucault and Continental philosophy we see the trend towards fantasy; Anglo-American analytical philosophy has determinedly moved towards probabilistic formulations of epistemology and more and more scientism.

So what is the explanation of irrationality, whether uniquely American or more universal? In Fantasyland Andersen pins the blame on the persistence of intense religiosity in America. Why America alone remains a mystery, but the consequence is that the adolescent transition from belief in fairytales never occurs and there is a bleed-over effect into the acceptance of alternative formulations of reality:

The UC Berkeley psychologist Alison Gopnik studies the minds of small children and sees them as little geniuses, models of creativity and innovation. “They live twenty-four/seven in these crazy pretend worlds,” she says. “They have a zillion different imaginary friends.” While at some level, they “know the difference between imagination and reality…it’s just they’d rather live in imaginary worlds than in real ones. Who could blame them?” But what happens when that set of mental habits persists into adulthood too generally and inappropriately? A monster under the bed is true for her, the stuffed animal that talks is true for him, speaking in tongues and homeopathy and vaccines that cause autism and Trilateral Commission conspiracies are true for them.

This analysis extends the umbrella of religious theories built around instincts for perceiving purposeful action to an unceasing escalation of imaginary realities to buttress these personified habits of mind. It’s a strange preoccupation for many of us, though we can be accused of being coastal elites (or worse) just for entertaining such thoughts.

Fantasyland doesn’t end on a positive note but I think the broader thesis just might. We are all so programmed, I might claim. Things slip and slide, politics see and saw, but there seems to be a gradual unfolding of more rights and more opportunity for the many. Theocracy has always lurked in the basement of the American soul, but the atavistic fever dream has been eroded by a cosmopolitan engagement with the world. Those who long for utopia get down to the business of non-zero-sum interactions with a broader clientele and drift away, their certitude fogging until it lifts and a more conscientious idealization of what is and what can be takes over.

Bright Sarcasm in the Classroom

That old American tradition, the Roman Salute

When a Pew research poll discovered a shocking divide between self-identifying Republicans/GOP-leaning Independents and their Democratic Party opposites on the question of the value of higher education, the commentariat went apeshit. Here’s a brief rundown of sources, left, center, and right, and what they decided are the key issues:

  • National Review: Higher education has eroded the Western canon and turned into a devious plot to rob our children of good thinking, spiked with avocado toast.
  • Paul Krugman at New York Times: Conservative tribal identification leads to opposition to climate change science or evolution, and further towards a “grim” anti-intellectualism.
  • New Republic: There is no evidence that college kid’s political views are changed by higher education and, also, that conservative-minded professors aren’t much maltreated on campus either, so the conservative complaints are just overblown anti-liberal hype that, they point out, has some very negative consequences.

I would make a slightly more radical claim than Krugman, for instance, and one that is pointedly opposed to Simonson at National Review. In higher education we see not just a dedication to science but an active program of criticizing and deconstructing ideas like the Western canon as central to higher thought. In history, great man theories have been broken down into smart and salient compartments that explore the many ways in which groups and individuals, genders and ideas, all were part of fashioning the present. These changes, largely late 20th century academic inventions, have broken up the monopolies on how concepts of law, order, governance, and the worth of people were once formulated. This must be anti-conservative in the pure sense that there is little to be conserved from older ideas, except as objects of critique. We need only stroll through the grotesque history of Social Darwinism, psychological definitions of homosexuality as a mental disorder, or anthropological theories of race and values to get a sense for why academic pursuits, in becoming more critically influenced by a burgeoning and democratizing populace, were obligated to refine what is useful, intellectually valuable, and less wrong. The process will continue, too.

The consequences are far reaching. Higher education correlates necessarily with liberal values and those values tend to correlate more with valuing reason and fairness over tradition and security. That means that atheism has a greater foothold and science as a primary means of truth discovery takes precedence over the older and uglier angels of our nature. The enhanced creativity that arises from better knowledge of the world and accurate and careful assessment then, in turn, leads to knowledge generation and technological innovation that is derived almost exclusively from a broad engagement with ideas. This can cause problems when ordering Italian sandwiches.

Is there or should there be any antidote to the disjunctive opinions on the value of higher learning? Polarized disagreements on the topic can lead to societal consequences that are reactive and precipitous, which is what all three sources are warning about in various ways. But the larger goals of conservatives should be easily met through the mechanism that most of them would agree is always open: form, build, and attend ideologically-attuned colleges. There are at least dozens of Christian colleges that have various charters that should meet some of their expectations. If these institutions are good for them and society as a whole, they just need to do a better job of explaining that to America. Then, like the consumer flocking from Microsoft to Apple, the great public and private institutions will lose the student debt dollar to these other options and, finally, indoctrination in all that bright sarcasm will end in the classroom. Maybe, then, everyone will agree that the earth is only a few thousand years old and that coal demand proceeds from supply.

Inclement Science

Found at 6,500 feet in New Mexico’s Organ Mountains this morning, driven into an old log, facing White Sands Missile Range:

Can’t help but think it is a statement on the threat to climate science and missions like Jason-3, but someone likely just lost it on the trail and a good soul pushed the pin into the wood for potential rediscovery.

The Ethics of Knowing

In the modern American political climate, I’m constantly finding myself at sea in trying to unravel the motivations and thought processes of the Republican Party. The best summation I can arrive at involves the obvious manipulation of the electorate—but that is not terrifically new—combined with a persistent avoidance of evidence and facts.

In my day job, I research a range of topics trying to get enough of a grasp on what we do and do not know such that I can form a plan that innovates from the known facts towards the unknown. Here are a few recent investigations:

  • What is the state of thinking about the origins of logic? Logical rules form into broad classes that range from the uncontroversial (modus tollens, propositional logic, predicate calculus) to the speculative (multivalued and fuzzy logic, or quantum logic, for instance). In most cases we make an assumption based on linguistic convention that they are true and then demonstrate their extension, despite the observation that they are tautological. Synthetic knowledge has no similar limitations but is assumed to be girded by the logical basics.
  • What were the early Christian heresies, how did they arise, and what was their influence? Marcion of Sinope is perhaps the most interesting one of these, in parallel with the Gnostics, asserting that the cruel tribal god of the Old Testament was distinct from the New Testament Father, and proclaiming perhaps (see various discussions) a docetic Jesus figure. The leading “mythicists” like Robert Price are invaluable in this analysis (ignore first 15 minutes of nonsense). The thin braid of early Christian history and the constant humanity that arises in morphing the faith before settling down after Nicaea (well, and then after Martin Luther) reminds us that abstractions and faith have a remarkable persistence in the face of cultural change.
  • How do mathematical machines take on so many forms while achieving the same abstract goals? Machine learning, as a reificiation of human-like learning processes, can imitate neural networks (or an extreme sketch and caricature of what we know about real neural systems), or can be just a parameter slicing machine like Support Vector Machines or ID3, or can be a Bayesian network or mixture model of parameters.  We call them generative or non-generative, we categorize them as to discrete or continuous decision surfaces, and we label them in a range of useful ways. But why should they all achieve similar outcomes with similar ranges of error? Indeed, Random Forests were the belles of the ball until Deep Learning took its tiara.

In each case, I try to work my way, as carefully as possible, through the thicket of historical and intellectual concerns that provide point and counterpoint to the ideas. It feels ethically wrong to make a short, fast judgment about any such topics. I can’t imagine doing anything less with a topic as fraught as the US health care system. It’s complex, indeed, Mr. President.

So, I tracked down a foundational paper on this idea of ethics and epistemology. It dates to 1877 and provides a grounding for why and when we should believe in anything. William Clifford’s paper, The Ethics of Belief, tracks multiple lines of argumentation and the consequences of believing without clarity. Even tentative clarity comes with moral risk, as Clifford shows in his thought experiments.

In summary, though, there is no more important statement than Clifford’s final assertion that it is wrong to believe without sufficient evidence. It’s that simple. And it’s even more wrong to act on those beliefs.

A Big Data Jeremiad and the Moral Health of America

monopolydude2The average of polls were wrong. The past-performance-weighted, hyper-parameterized, stratified-sampled, Monte Carlo-ized collaborative predictions fell as critically short in the general election as they had in the Republican primary. There will be much soul searching to establish why that might have been; from ground game engagement to voter turnout, from pollster bias to sampling defects, the hit list will continue to grow.

Things were less predictable than it seemed. During the 2008 and 2012 elections, the losing party proxies held that the polls were inherently flawed, though they were ultimately predictive. Now, in 2016, they were inherently flawed and not at all predictive.

But what the polls showed was instructive even if their numbers were not quite right. Specifically, there was a remarkable turn-out for Trump among white, less-educated voters who long for radical change to their economic lives. The Democratic candidate was less clearly engaging.

Another difference emerged, however. Despite efforts to paint Hillary Clinton as corrupt or a liar, objective fact checkers concluded that she was, in fact, one of the most honest candidates in recent history, and that Donald Trump was one of the worst, only approximated by Michelle Bachman in utter mendacity. We can couple that with his race-bating, misogyny, hostility, divorces, anti-immigrant scapegoating, and other childish antics. Yet these moral failures did not prevent his supporters from voting for him in numbers.

But his moral failures may be precisely why his supporters found him appealing. Evangelicals decided for him because Clinton was a threat to overturning Roe v. Wade, while he was an unknown who said a few contradictory things in opposition. His other moral issues were less important—even forgivable. In reality, though, this particular divide is an exemplar for a broader division in the moral fabric of America. The white working class has been struggling in post-industrial America for decades. Coal mining gives way to fracked, super-abundant natural gas. A freer labor market moves assembly overseas. The continuous rise in productivity shifts value away from labor in the service of innovation to disintermediated innovation itself.

The economic results are largely a consequence of freedom, a value that becomes suffused in the polarized economy where factories close on egghead economic restructuring. Other values come into question as well. Charles Murray’s Coming Apart: The State of White America, 1960-2010, brought a controversial conservative lens to the loss of traditional values for working class America. In this world, marriage, church, and hard work have dissolved due to the influence of the 60s pernicious counter-cultural deconstruction that was revolutionary for the college-educated elite but destructive to the working class. What is left is a vacuum of virtues where the downtrodden lash out at the eggheads from the coasts. The moral failings of a scion of wealth itself are recognizable and forgivable because at least there is a sense of change and some simple diagnostics about what is wrong with our precious state.

So we are left with pussy grabbing, with the Chinese hoax of climate change, with impossible border walls, with a fornicator-in-chief misogynist, with a gloomy Jeremiad of divided America being exploited into oblivion. Even the statisticians were eggheaded speculators who were manipulating the world with their crazy polls. But at least it wasn’t her.

Build Up That Wall

No, I’m not endorsing the construction of additional walls between the United States and Mexico. There are plenty of those and they may be of questionable value. Instead, it is Thomas Jefferson’s birthday and I’m quoting from Christopher Hitchens (who shared his birthday with Jefferson) in repurposing and inverting Reagan’s famous request of Gorbachev. Hitch promoted the Jeffersonian ideal of separating out the civic from the religious:

Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.

from Jefferson’s Virginia Statute for Religious Freedom

A rather remarkable continuation of Enlightenment concepts that derive, typically, from a notion of “natural rights” and, even in the Virginia Statue, from religious concepts: “Whereas, Almighty God hath created the mind free.” With the following paragraphs noting that human rulers are fallible and have tended to create false religions down through time, apparently regardless of God’s wishes.

Natural rights are an interesting idea that re-occurs in the Declaration of Independence and were also championed by George Mason in the Virginia Declaration of Rights. The notion that natural rights did not extend to slaves was something that Jefferson was conflicted about, according to Hitchens, until the end of his life, with the issue of state’s rights a pragmatic basis for opposition to an institution that he both profited from and found morally repugnant.

Natural rights might also be derivable from something like Rawl’s  “veil of ignorance,” which, in this capacity, just reiterates what might be more simply considered a method for minimizing the interference of people in the behavior and thoughts of other people. This concedes that evolving perspectives on interference may reduce the universality of any claim concerning those rights. But an interference model only accounts for specific categories of rights.  The right to schooling provided via taxation would not be covered, nor would the right for equality in dealings in the civic space. In fairness, Rawls’ argument about rights is greater than this minimal fragment, but both show how jettisoning a deontological approach to ethics yields testable hypotheses.

Michael Boylan’s “Are there natural human rights?” in the Stone Reader covers the controversy in some detail, describing the agency and capability theories, as well as objections from Chinese and Islamic sources. The latter rise to the level of problematic, for if the individuals within a society complain that outside perspectives on natural rights are not their own, is there any sense of universality in natural rights? Oppressing women is Allah’s will, after all, and is therefore “natural.”

And so, on Thomas Jefferson’s birthday, I have to commemorate one of the greatest contributions to our modern world: a secular state with definable rights of conscience and radical freedoms, regardless of how natural that might be.

Artsy Women

Victoire LemoineA pervasive commitment to ambiguity. That’s the most compelling sentence I can think of to describe the best epistemological stance concerning the modern world. We have, at best, some fairly well-established local systems that are reliable. We have consistency that may, admittedly, only pertain to some local system that is relatively smooth or has a modicum of support for the most general hypotheses that we can generate.

It’s not nihilistic to believe these things. It’s prudent and, when carefully managed, it’s productive.

And with such prudence we can tear down the semantic drapery that commands attention at every turn, from the grotesqueries of the political sphere that seek to command us through emotive hyperbole to the witchdoctors of religious canons who want us to immanentize some silly Middle Eastern eschaton or shoot up a family-planning clinic.

It is all nonsense. We are perpetuating and inventing constructs that cling to our contingent neurologies like mold, impervious to the broadest implications and best thinking we can muster. That’s normal, I suppose, for that is the sub rosa history of our species. But only beneath the firmament, while there is hope above and inventiveness and the creation of a new honor that derives from fairness and not from reactive disgust.

In opposition to the structures that we know and live with—that we tolerate—there is both clarity in this cocksure target and a certainty that, at least, we can deconstruct the self-righteousness and build a new sensibility to (at least) equality if not some more grand vision.

I picked up Laura Marling’s Short Movie last week and propagated it to various cars. It is only OK, but it joins a rather large collection of recent female musicians in my music archive. Indeed, the women have outnumbered the men at this point: St. Vincent, Joni Mitchell, Joanna Newsom, Hole, P.J. Harvey, Gwen Stefani, Courtney Love (sans Hole), Ani DiFranco, Joan Armatrading, Lily Allen, Valerie June. I’m particularly fascinated by female artists because they are unspoken or underrepresented in our brief human history, and maybe also because my wife is one. But more than some progressive political commitment, female voices simply discuss things in different ways than male voices do.

Where there is perhaps an evolutionary inevitability for a perspective of pursuit and desire from men, for women there is the rage against social and familial expectations, of abuse, of being pursued, and of the complex relationship with the power of men. These aspects make for new thoughts that would not arise in male arts.

 

Language Games

Word GamesOn The Thinking Atheist, C.J. Werleman promotes the idea that atheists can’t be Republicans based on his new book. Why? Well, for C.J. it’s because the current Republican platform is not grounded in any kind of factual reality. Supply-side economics, Libertarianism, economic stimuli vs. inflation, Iraqi WMDs, Laffer curves, climate change denial—all are grease for the wheels of a fantastical alternative reality where macho small businessmen lift all boats with their steely gaze, the earth is forever resilient to our plunder, and simple truths trump obscurantist science. Watch out for the reality-based community!

Is politics essentially religion in that it depends on ideology not grounded in reality, spearheaded by ideologues who serve as priests for building policy frameworks?

Likely. But we don’t really seem to base our daily interactions on rationality either. 538 Science tells us that it has taken decades to arrive at the conclusion that vitamin supplements are probably of little use to those of us lucky enough to live in the developed world. Before that we latched onto indirect signaling about vitamin C, E, D, B12, and others to decide how to proceed. The thinking typically took on familiar patterns: someone heard or read that vitamin X is good for us/I’m skeptical/why not?/maybe there are negative side-effects/it’s expensive anyway/forget it. The language games are at all levels in promoting, doubting, processing, and reinforcing the microclaims for each option. We embrace signals about differences and nuances but it often takes many months and collections of those signals in order to make up our minds. And then we change them again.

Among the well educated, I’ve variously heard the wildest claims about the effectiveness of chiropractors, pseudoscientific remedies, the role of immunizations in autism (not due to preservatives in this instance; due to immune responses themselves), and how karma works in software development practice.

And what about C.J.’s central claims? Well I haven’t read the book and don’t plan to, so I can only build on what he said during the interview. If we require evidence for our political beliefs as much as we require it for our religious perspective we probably need to have a scheme for how to rank the likelihood of different beliefs and policy commitments. For instance, C.J. follows the continued I-told-you-so approach of Paul Krugman in his comments on fiscal stimulus; not enough was done and there is no evidence of inflationary pressure. Well and good that fiscal stimulus as a macro-economic stabilizer has been established in the most recent economic past. The non-appearance of inflation was somewhat surprising, actually, but is now the retrospective majority opinion of economists concerned with such matters. It was a cause for concern, however, as were the problematic bailouts that softened the consequences (if not rewarded them) of risky behavior in pursuit of broader stability.

The language game theory of politics and religion accounts for most of the uncertainty and chaos that drives thinking about politics and economics. We learn the rules (social and pragmatic impact as well as grammatical rules) and the game pieces (words, phrases, and concepts) early on. They don’t have firm referential extension, of course. In fact, they never really do. But they cohere more and more over time unless radically disrupted, and even then they try to recohere against the tangle of implications as the dust settles. This is Wittgensteinian and anti-Positivist, but it is also somewhat value-free in that there is no sense for why one language game should be preferential to another.

For C.J., there is a clear demarcation that facts trump fantasy, and our lives and society would be better served by factually-derived policies and factually enervated perspectives on the claims of most religions. But it is far less clear to me as to how to apply some rationalist overlay to the problem of politics that would have consistent and meaningful improvements in our lives and society save the obvious one of improving general education and thinking.

I recently irritated and frustrated my teen son in questioning him about some claims he was making about bad teachers in the local school system. The irritation came as I probed into various rumors about a teacher who had been fired because she was, according to him, sexist and graded boys poorly. It turns out he only had a handful of rumors about everything from the teacher’s firing to the sexism. It looked more likely that one of his friends made it up in conjunction with other boys who were doing poorly in the teacher’s class. They created a meme in a language game and it propagated. My son was defensive about the possibility of the whole story and I admitted it was possible but that it was sufficiently unlikely as to not warrant concern. The attachment of levels of likely veracity and valuations were ultimately the only difference in the end.

I apologized for making him mad but didn’t apologize for my skepticism and, later, there were signals that his network of beliefs had been moved a bit, the vile evil sexist teacher drifting out of focus among the other shades of consideration.

And that is how the language game is played.

Substitutions, Permutations, and Economic Uncertainty

500px-SHA-2.svgWhen Robert Schiller was awarded the near-Nobel for economics there was also a tacit blessing that the limits of economics as a science were being recognized. You see, Schiller’s most important contributions included debunking the essentials of market behavior and replacing it with the irrationals of behavioral psychology.

Schiller’s pairing with Eugene Fama in the Nobel award is ironic in that Fama is the father of the efficient market hypothesis that suggests that rational behavior should overcome those irrational tendencies to reach a cybernetic homeostasis…if only the system were free of regulatory entanglements that drag on the clarity of the mass signals. And all these bubbles that grow and burst would be smoothed out of the economy.

But technological innovation can sometimes trump old school musings and analysis: BitCoin represents a bubble in value under the efficient market hypothesis because the currency value has no underlying factual basis. As the economist John Quinnen points out in The National Interest:

But in the case of Bitcoin, there is no source of value whatsoever. The computing power used to mine the Bitcoin is gone once the run has finished and cannot be reused for a more productive purpose. If Bitcoins cease to be accepted in payment for goods and services, their value will be precisely zero.

In fact, that specific computing power consists of just two basic functions: substitution and permutation. So some long string of transactions have all their bits substituted with other bits, then blocks of those bits are rotated and generally permuted until we end up with a bit signature that is of fixed length but that is statistically uncorrelated with the original content. And there is no other value to those specific (and hard to do) computations. The only value might be the opportunity costs of spending those compute cycles doing pointless computations, the capital expenditures on mining technology, or the heat generated by the machinery.

So if the BitCoin bubble continues to not self-correct, the efficient market hypothesis is replaced by bootstrapped irrational exuberance for the money, and economics has been reset to the range of cognitive biases that dominates much of our other thinking. That is a science in itself, but it is less an independent economics than had been envisioned by the greats of the field.

This leads us to the question of how to rank the value of specific areas of knowledge for application to real world problems. Applied economic theory remains a hotbed for policy and politics: Does deficit spending lead to economic improvements? How much debt is acceptable? Does economic regulation negatively or positively impact economic growth? Yet if the theory is so porous and incomplete, why should we be so proactive in trying to set policy? Maybe the fallback is individual and group self-interest? Or is the better approach smaller-scale economic experimentation on policy that looks at the effects of targeted changes?

FICLO Forever

hairballEdward Snowden set off a maelstrom with his revelation concerning the covert use of phone records and possibly a greater range of information. For those of us in the Big Data technology universe, the technologies and algorithms involved are utterly prosaic: given the target of an investigation who is under scrutiny after court review, just query their known associates via a database of phone records. Slightly more interesting is to spread out in that connectivity network and identify associates of associates, or associates of associates who share common features. Still, it is a matching problem over small neighborhoods in large graphs, and that ain’t hard.

The technological simplicity of the system is not really at issue, though, other than to note that just as information wants to be free—and technology makes that easier than ever—private information seems to be increasingly easy to acquire, distribute, and mine. But let’s consider a policy fix to at least one of the ethical dilemmas that is posed by what Snowden revealed. We might characterize this by saying that the large-scale, covert acquisition and mining of citizen data by the US government violates the Fourth Amendment. Specifically, going back in the jurisprudence a bit, when we expect privacy and when there is no probable cause to violate that privacy, then the acquisition of that information violates our rights under the Fourth. That is the common meme that is floating around concerning Snowden’s revelations, though it is at odds with widespread sentiment that we may need to give up some rights of privacy to help fight terrorism.

I’m not going to argue here about the correctness of these contending constructs, however. Nor will I address the issue of whether Snowden should have faced the music, fled, or whether he simply violated a rule and an oath requiring secrecy. Instead, I want to drill into one technical aspect of the way in which data was apparently acquired. The methodology that was employed (and more details may change this description) involved certification of the legality of the program by the Foreign Intelligence Surveillance Act (FISA) courts. The order from the court was closely held since it was all secret, of course, though there may have been a path for the telco providers to appeal to the FICA (Foreign Intelligence Court of Appeals) and possibly even to the Supreme Court under the terms of the Protect America Act of 2007. But why would the telcos bother unless it posed a risk of time, money, or peccant customer aggravation in some distant future?

So the point I am making is that there should be a path for judicial review that provides for an adversarial engagement with the Justice Department and the Intelligence Community. When Justice or Three-Letter Agency ABC wants to tap 50 million phones, they can approach the FISA court with their request. The court then provides the request to a cleared group of Constitutional lawyers who report to some Judicial Branch Office of Special Defense and are charged with representing the American people in these deliberations. I call them the FICLOs (Foreign Intelligence Court Loyal Opposition). These attorneys will be sworn to secrecy, as well, but will have an out in their secrecy clause that says that if they identify clear malfeasance in the process of FISA to FICA to SCOTUS escalation they are required to inform Congress (sure, initially in the Intelligence Committee). The end result injects a modicum more scrutiny into the process and perhaps saves us all from excessive overreach while providing a path for necessary secrecy.