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January 11, 2014

What Could Possibly Go Wrong?

Intriguing question for debate:

Should a state legislature that thinks the United States military is illegal and immoral have the right to block water or power to military bases within its borders?

Should a state legislature be able to cut off public utilities to Tea Party headquarters? How about the local GOP headquarters?

Posted by Cassandra at January 11, 2014 12:00 PM

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Really intriguing question. I think there are a couple different things at play here. A state denying access to water to the federal military would likely be considered near at act of war/secession. But the other groups are quite different.

What i mean is that I'm a hierarchical structure such as ours there is a difference between an action taken against a superior (or a subdivision of a superior) and an action taken against a junior. Part of the state's function is to act in an adversarial capacity a against the federal govt. Not at all times and all ways, but certainly that is not an improper function for the state to exercise at Times when it thinks it has done something objectionable.

This is categorically different than the govt, federal or state, taking adversarial action against its citizens for having the wrong opinions or voting the wrong way. If the state has evidence a particular Tea Party group has done something it believes to be illegal then arrest them and go to trial. If they haven't paid the water bill then yes, shut off their water.

But collective punishment of citizens is a completely different ballgame. (And why the IRS matter is such a big deal to me, because that's exactly what it is.)

Additionally, a state turning off the water to the federal parks service over their aiming handling of the shutdown is different than that state turning off the water at the military base.

Posted by: Yu-Ain Gonnano at January 11, 2014 09:35 PM

I won't be able to fight this in two fora as usual; I'm having internet connection issues that won't be fully resolved until Wednesday. Here's what I said at The Hall.

If a state cut off water to a military base, the military would move to another (more pliant) state.

The real issue is that this is a better tactic than a strategy. Once the NSA has a major data system in your state, you can tactically use water pressure to force it to comply with demands for openness or accountability. But if you deny it water by law, it will just go somewhere else. The leverage doesn't work strategically.

As for the question of the ends justifying the means, I don't see it. The whole idea of enumerated powers for the Federal government, with other powers being reserved to the states, is to force the Federal government into a role of limited powers -- including accountability to the states. Since the Founding, one of the key questions considered has been how to structure the power relationships so that the Federal government doesn't become overweening.

It's not a question of 'the ends justifying the means.' The whole structure of the government was intended to allow checks and balances, not only between Federal branches but between the states and the Federal government.

Posted by: Grim at January 11, 2014 11:01 PM

While I see where you're coming from with the premise of the basic question, a nit to pick wrt to your analogy:
The Constitution requires a military, so while I understand where the idea that a state would declare our military illegal would come from, perhaps not the best comparison in that it is a requirement of our federal government.
As to the rest, I'm coming at this from an individual country sort of direction. If this were, say, Germany that found out Russia had a facility in their country that was storing information garnered from spying on them, would Germany be justified in an action such as this? An action which is non-violent and only affects the computers on which the information is stored?
I realize this is the United States of America, but we are still *supposed* to be individual states, which is why we all have our own Constitutions, our own legislatures and leaders, etc. Theoretically, kinda technically, we were originally supposed to be individual states - individual countries - to begin with. How would other countries in the world react to finding such a thing in their back yard?

Posted by: DL Sly at January 12, 2014 12:11 AM

I'm going to start at the end and move backwards, Sly :)

The Constitution requires a military, so while I understand where the idea that a state would declare our military illegal would come from, perhaps not the best comparison in that it is a requirement of our federal government.

I am not at all sure the Constitution requires a permanent standing military. In Article I, Section 8 there are several clauses that enumerate various powers delegated to Congress: to raise (and raise money for) the Army for periods not to exceed 2 years, to raise and maintain a Navy, to declare War.

But I don't see anything in there that *requires* a standing military. Saying that Congress *may* do a thing does not require it to do that thing.

If this were, say, Germany that found out Russia had a facility in their country that was storing information garnered from spying on them, would Germany be justified in an action such as this?

But that's a completely different thing from a part of the United States (be it a town, county, or state) deciding to starve out/sabotage a federal agency. If Russia, for instance, had such a facility, would that be legal (and legally protected) under our laws? I'm pretty sure it would not - non-US citizens don't have the same rights as US citizens ....yet. Give Obama time - there are lots of votes to be found abroad!

Yes, we were supposed to be individual states, but within a federal framework. That's pretty much what the Constitution and the Civil War were all about. The reason the Articles of
Confederation were replaced by the Constitution is that the original framework proved too weak.

I do think it's a fascinating question.

Posted by: Cassandra at January 12, 2014 11:02 AM

Grim, I happen to agree with you on the practical merits of state sabotage. But I'm surprised you don't see the dangers.

The military absolutely can (and does) relocate, but that involves a massive waste of taxpayer dollars.

One of the things that most bothers me about conservative thinking on this is that they only worry about federal power - almost never state power. And yet these same people will argue that they can't leave their state to seek more opportunity elsewhere b/c of things like family ties, money invested in real estate (family home), etc.

So clearly, the "hey - if you don't like it, go to some other state" retort isn't quite as easy as it sounds.

Posted by: Cassandra at January 12, 2014 11:06 AM

...in a hierarchical structure such as ours there is a difference between an action taken against a superior (or a subdivision of a superior) and an action taken against a junior. Part of the state's function is to act in an adversarial capacity a against the federal govt. Not at all times and all ways, but certainly that is not an improper function for the state to exercise at Times when it thinks it has done something objectionable.

There is all kinds of thinking, though. Opinion or whim vs. careful proof of illegality or wrongdoing, for instance. Political gamesmanship vs. principled dissent. What bothers me about these types of arguments is that whoever's proposing Act X presents only the Warm and Fuzzy Case (where we like the outcome and trust the actors). They never consider the Bad Case where we deplore the outcome and the actors are acting in bad faith.

It seems to me that private and public institutions act within a framework of the rule of law. If they can casually ignore the law whenever they feel like it, that's a problem. If the law itself is the problem, it should be changed through the democratic process (which requires convincing your fellow citizens why your way is better).

This is categorically different than the govt, federal or state, taking adversarial action against its citizens for having the wrong opinions or voting the wrong way.

Yes, that's true. But a lot of the commentary on the NSA debate is political in nature.

If the state has evidence a particular Tea Party group has done something it believes to be illegal then arrest them and go to trial. If they haven't paid the water bill then yes, shut off their water.

And that would be my argument wrt to the NSA - the state Atty. general should take them to court. If you can't prove the offense, I don't think you should be able to pre-emptively cut off vital service before you've even proven your case.

Additionally, a state turning off the water to the federal parks service over their aiming handling of the shutdown is different than that state turning off the water at the military base.

Only, really, from an "end justifies the means" or harm perspective. Both cases deprive citizens of a product/service they have paid for with their tax dollars. The harm is obviously worse if you believe that the US is under threat of cyber attacks.

One of the problems the NSA and the military cyber commands are dealing with is that - as with the case of physical attacks that are FAR less likely - the civilian sector and states literally have no capability to defend themselves from the consequences of cyber attacks on our vital infrastructure.

I find it more than a bit amusing that the folks at the 10th Amendment center want to use public utilities as weapons against the very folks that are attempting to guard the nation against foreign actors who would do the very same thing to us :p

Posted by: Cassandra at January 12, 2014 11:17 AM

I'm deeply disturbed by the assertion 'that the military can always move elsewhere.'
That may be true for the Army, Air Farce (aka Chair Force), and to some extent the USMC . . . but it is categorically untrue for my Navy.

While we can and do move some ships around, there are a limited number of suitable locations for deep water ports (Aircraft Carriers, Subs), and the infrastructure is *hugely* expensive.
It is *not* possible to fight a large war/conflict OUTCONUS w/o the Navy and military sealift.

Best Regards,

Posted by: CAPT Mike at January 12, 2014 07:20 PM

Only, really, from an "end justifies the means" or harm perspective. Both cases deprive citizens of a product/service they have paid for with their tax dollars.

To me, this sounds like arguing against corporal punishment by lumping a slap on the wrist in with the cat-o'nine-tails. Yes, both cases use force against the offender, but they are still very different from each other.

One can hold that corporal punishment is always wrong, but doing so by equating those two things doesn't seem very persuasive. And I don't think most people would consider the difference between then as just an "end justifies the means" perspective. There are very good and principled reasons that one is legitimate and the other isn't. The principle of proportionality != "end justifies the means" (Interestingly, Machiavelli's original statement was actually closer to the former and has since been bastardized into the latter).

What bothers me about these types of arguments is that whoever's proposing Act X presents only the Warm and Fuzzy Case (where we like the outcome and trust the actors). They never consider the Bad Case where we deplore the outcome and the actors are acting in bad faith.

That's certainly a possibility. It's also why I haven't addressed the specific case of the NSA (at least yet) and have tried to establish a framework that can be generalized. That there is a difference in a hierachical structure between actions taken against superiors and inferiors and that there is a difference in the severity of those actions. There is a difference between a slap on the wrist and a punch in the face and there is a difference between a slap from a child and a slap from a parent. These situations can not be treated as if they are equal.

To me, this is something of a pre-requisite before a discussion of whether any of these actions may or may not be appropriate in general much less in how that principal may be applied in any specific case.

Another difference is that tools don't matter, a person's purposes do. A person who uses a hammer to build a deck does good. A person who uses a hammer to kill someone and steal their wallet does bad. A person who uses a hammer to kill someone to defend himself does good. The hammer is not the issue, the person is not the issue. The purpose is the issue.

The question then, is a particular use of controlling the water supplies Passive (we can't supply you with this much water and continue to serve the existing population, sorry, no water for you), Offensive (you didn't vote for me, now you will pay), or defensive (I'm not supplying the aggressor with the tools he will use against me).

This is not always so clear cut. The murderer very well may see his victim as "the aggressor capitalist stealing bread from the mouths of the poor". And you are right to worry about whether anyone is thinking about the Bad Case and not just the Warm Fuzzy. But the reverse is also true. One can not abandon something because of the Bad Case, because the Bad Case remains even if you choose not to avail yourself of the Warm Fuzzy.

Case in point: The attempted removal of people from National Parks during the shutdown. The Bad Case happened. It isn't theoretical, it's not hypothetical. It's already happened. A resource, that taxpayers had already paid for, was withheld by extralegal means, to punish the citizens for voting and/or supporting the "wrong" politicians. The federal gov't took to the collective punishment of the citizens and spent more money, even though it was complaining it didn't have enough, in the process. Witholding water/electricity to the Federal Parks Service doesn't open up the possibility of this tool being used by the wrong people for the wrong thing. It already is being used that way. Thus returning the favor by shutting off water and power, through extralegal means, seems a proportionate response. Yes, that may be petty political gamesmenship, but so was the original offense. I know you aren't a fan of "but he did it first" type arguments, but sometimes object lessons can be instructive.

Doing the same to the military as a response, however, would be extremely excessive. And unless you are prepared to fight a new civil war extremely unwise. But if you are to that point, trying to resolve things through the other side's courts is not likely to resolve things amicably.

Which brings us back to the hierarchy issue. The Federal gov't, being in the senior position to the states with vastly more resources and abilities is legitimately hampered by greater burdens on it's actions against the State gov't . The State gov't being in the junior position to the federal gov't with far fewer resources has more freedom of actions against the federal gov't.

When the citizen takes an action against the state gov't he must essentially seek remedy from the very same entity he thinks is abusing him.

This is like complaining to your boss about how badly your boss is treating you. Maybe he's a good person and didn't realize his error and will correct it. Maybe he's just an asshole. At that point, you can either suck it up or it becomes necessary to appeal to an impartial party higher up the chain: HR. But what if HR comes back and says that calling female employees "Sweet Cheeks" is acceptable behavior? Well, you appeal higher up the chain.

The problem is that for a state, the federal gov't is the highest appeal. Sure, there's an "HR department" over at SCOTUS but there's no guarantee they won't call you "Sweet Cheeks" themselves.

At that point, extralegal means are really all that's left to you.


Now, how does this apply to the NSA?
And that would be my argument wrt to the NSA - the state Atty. general should take them to court.

A couple of difference in this particular case. Part of the reason for a trial is to act as a fact finder. In this case the facts at issue are publically known and admitted by both sides. The NSA collects metadata on US citizens telecommunications even when *both* sides are domestic. This is not in dispute. Also not in dispute is that the federal courts have repeated said that this is acceptable behavior, Sweet Cheeks.

So at this point, your options are 1) to suck it up for now, 2) admit that your cheeks are sweet, or 3) resort to extralegal means.

I think most people think that option 2 is unacceptable. The question then is whether you believe that you can suck it up and wait 2, 4, 6, or more years without it causing more harm than going extralegal. I'll admit, that's a tough calculus to solve for.

It's not a Crossing the Rubicon gambit, but it's certainly looking at the shore wistfully.

I find it more than a bit amusing that the folks at the 10th Amendment center want to use public utilities as weapons against the very folks that are attempting to guard the nation against foreign actors who would do the very same thing to us :p

The problem is that the NSA *isn't* attempting to guard the nation solely against *foreign actors*, but domestic ones as well. If the NSA were collecting phone and email data between two Frenchmen none of this would be of concern. Hell, most conservatives were OK with this when just one side of the conversation was foreign. But for communication between two citizens? Well, you don't build elaborate databases and storage facilities to collect data you aren't going to use.

You've already discussed the issues and enormity such an undertaking requires. One doesn't do that for a handful of queries per year. You're doing some serious statistical model building with that. On domestic groups. Like maybe the Tea Party. Or GreenPeace.

After the park closures which were an attempt to punish (annoy might be better) citizens for having the wrong politics, after the IRS targets Obama's political enemies (and the ATF, OSHA and others joined in), after Fast and Furious tried to create the crisis needed to justify new laws on gun owners, after Bridgegate's punishing citizens in retaliation for a single mayor's actions, my trust in the goverment's civic mindedness in doing stuff "for our own good" is really incredibly low at this point.

I don't have a problem with the concept of Watchmen, but having watched them, I really don't like the particular ones we have. There's a lot of trust that needs to be rebuilt and I don't see much evidence that they are even trying. Just repetitive statements of "Trust me".

None of which is to say that I necessarily agree with opting for the extralegal means, on principle (undecided) or whether it would even work (it won't).

Posted by: Yu-Ain Gonnano at January 13, 2014 12:05 PM

Sorry Yu-Ain - I'm not ignoring you.

This is 'drop dead' week for a really big project and I'm scrambling at work. I will respond once I have the fire in my hair put out! :)

Posted by: Cass at January 13, 2014 01:56 PM

No worries. I understand. I just finished putting my hair out. The next few hair burners for me are already looking for the sparker.

Posted by: Yu-Ain Gonnano at January 13, 2014 06:09 PM

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