Originally published September 4, 2013. I've got a few more of these for the weekend and then that'll be it for the old posts.

No Matter How Hard We Run, We Can Never Escape Our Childhood Breakfast Cereals

I don't want to admit this, really, but -- and what you're about to read is pretty much actually true -- since I was a child, I've had a strong revulsion to Kaboom cereal, due to what may be called a early-childhood type of social dysmorphia.

And, ultimately, self-hatred.

You say you've never heard of Kaboom? You think I'm making Kaboom up?

Well let me explain this. You've heard of Apple Jacks, right? Sure you have. Everyone has.

I wanted to be an Apple Jacks kid.

Apple Jacks kids had so much fun in the commercials. Fresh-faced, healthy, and free, and hopeful for the future. Singing and dancing and just loving on their Apple Jacks.

And the cereal was awesome too. I had it once in a Snack-Pack that fell off a truck.

But there were no commercials for Kaboom.

It was just a dirty little secret, like massage parlors and the back room at a pawnbroker's.

That's why you never heard of it.

But Kaboom kids know. Kaboom kids understand.

Apple Jacks was for winners.
Kaboom was the cereal of The Defeated

Posted by: Ace at 01:45 PM | Comments (268)
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I cringe thinking that this is in our future. Which is having a worse year, Obamacare or NHS?

Cartoon by Michael Ramirez. more...

Posted by: CDR M at 05:48 PM | Comments (550)
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Last week a federal district judge agreed with Larry Klayman that the NSA's suspicion-free bulk data collection on every US citizen was almost certainly unconstitutional. He enjoined the NSA from collecting the data under this program, but then immediately stayed his own ruling, so as to allow the case to proceed to appeal before enforcement began taking place.

Now a federal judge for the southern district of New York* rules that the same program is "lawful."

The judge to rule in the government's favor characterizes the government's policy of Let's Clean All The Data as merely a "counter-punch" against terrorism.

Pauley said that if the U.S. government had the phone data collection program before the Sept. 11, 2001, terrorist attacks, it could have helped provide critical clues. He said that so-called telephone metadata might have permitted the NSA to notify the FBI that one of the terrorists was calling a Yemeni safe house from inside the United States.

“The government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world,” Pauley wrote. “It launched a number of counter-measures, including a bulk telephony metadata collection program — a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.”

Politico quotes more from the opinion. Having found the program lawful, the judge states that is up to the political branches to decide if the program should continue.

"This blunt tool only works because it collects everything," Pauley said. "The collection is broad, but the scope of counterterrorism investigations is unprecedented."

He said the mass collection of phone data "significantly increases the NSA's capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations. Armed with all the metadata, NSA can draw connections it might otherwise never be able to find."

...

"The question for this court is whether the government's bulk telephony metadata program is lawful. This court finds it is. But the question of whether that program should be conducted is for the other two coordinate branches of government to decide," he said.

Part of the judge's findings is that this program is effective in stopping terrorism. That is far from clear. The government makes many vague assertions about the efficacy of the program, but offers very few verifiable examples of terrorist actions thwarted.

And one former NSA employee says the flood of data is nearly useless -- with so many terabytes of data collected from random citizens, the Agency is drowning in data but has no clear idea how to swim through it all.

William Binney, creator of some of the computer code used by the National Security Agency to snoop on Internet traffic around the world, delivered an unusual message here in September to an audience worried that the spy agency knows too much.

It knows so much, he said, that it can't understand what it has.

"What they are doing is making themselves dysfunctional by taking all this data," Mr. Binney said at a privacy conference here.

The agency is drowning in useless data, which harms its ability to conduct legitimate surveillance, claims Mr. Binney, who rose to the civilian equivalent of a general during more than 30 years at the NSA before retiring in 2001. Analysts are swamped with so much information that they can't do their jobs effectively, and the enormous stockpile is an irresistible temptation for misuse.

Drew has previously criticized the argument which the judge now endorses. Although section 215 of the Patriot Act, by its own terms, only permits the government to snoop in three categories of cases, it is argued that these classes are merely "exemplars," just some for-example fer-instances of whom the government may spy on. The specification of these three categories of permitted spying is not, the government argues, a limitation on its power, but merely a jumping off point for whichever powers it thinks would be useful.

As Drew says:

The criteria outlined in (b)(2) of Section 215 are the only cases in which the Congress has authorized the production of records (within the Patriot Act/FISA Court). In order to collect the records of someone the government has to be able to show that they fit into one of those three categories. This isnÂ’t optional. It isnÂ’t an invitation to find ever wider definitions that would eventually ensnare EVERY America who uses a cellphone. ItÂ’s the law. Full stop. End of story

To say they are nothing more than the noodlings of the Congress or a jumping off point for an active and imaginative executive branch implies a level of possible lawlessness that is breathtaking. Congress gave a specific grant of authority to the executive here; that they didnÂ’t rule all other possible grants out doesnÂ’t mean the executive can simply claim those other situations are OK too. If that were the case, why bother picking 3? Or any? Congress isnÂ’t a consulting firm with expertise in investigative lines the Department of Justice might not have thought of. ItÂ’s a lawmaking body that either says you can or canÂ’t do certain things.

The full decision is here, which is 53 pages long, but many pages of that are about non-essential procedural questions (such as standing) that a reader may skip to get to the heart of the ruling. Drew says it's doable (but I haven't read it yet myself).

Gabe sends this helpful comparison between the holdings of Judges Leon and Pauley. For example:

On Smith v. Maryland, a 1979 U.S. Supreme Court ruling that allowed police to collect phone records from a suspect in a robbery case without a warrant:

Judge Leon: “In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program. It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the government.”

Judge Pauley: “Clear precedent applies because Smith held that a subscriber has no legitimate expectation of privacy in telephony metadata created by third parties. Inferior courts are bound by that precedent. … Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. The fact that there are more calls placed does not undermine the Supreme Court’s finding that a person has no subjective expectation of privacy in telephony metadata.”

* Corrected. I stated that Pauley was a DC Circuit Court judge. He isn't. Thanks to Drew and Gabe for correcting me.

Posted by: Ace at 11:12 AM | Comments (281)
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South Dakota is one of those states that should be routinely electing two conservative Senators but which generally doesn't. With longtime Democrat Tim Johnson finally retiring, the state is a key battleground in the fight for control of the Senate.

But that won't be easy. A Libertarian candidate is drawing 11% of the vote.

And now, curiously enough, as the Democrats' political position deteriorates further, it gets even harder. An allegedly "moderate" former Senator, Larry Pressler, who endorsed Obama in both 2008 and 2012 (I guess he was very impressed by his first term!), is joining the race as well.

Geraghty notes the state is R+10. But even an R+10 state can go Democratic with not one but two challengers for the right-leaning vote.

Thanks to @drewmtips.

Posted by: Ace at 10:15 AM | Comments (220)
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"Kung Fury."

You know you wanna. more...

Posted by: Ace at 12:45 PM | Comments (145)
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The last time Piers Morgan said "Bring it on," he said it to Megyn Kelly, who was about to begin her show competing in Morgan's time slot.

It did not go well.

It turns out this is just a standard Piers Morgan taunt. And lately he's been taunting Australian cricketeers. Australians keep beating English cricket teams, and Piers Morgan acts all upset about that, because soft pudgy aging men with no athletic ability think it makes them seem youthful and athletic if they act like children when they root for sports teams.

So, in some kind of dare, Morgan took pitches from an Australian pitcher, who beaned him with every throw, except for one to the head that Morgan barely dodged (by falling on his ass).

I suppose he thought he looked gutsy taking the punishment. I think he looked pretty foolish and stupid. Why would a man with any kind of dignity or sense just take 80 mile per hour pitches to the ribs?

I think maybe the answer is simple. Morgan, like Michael Eric Dyson, is a clownish provocateur, subscribing to the theory that any attention is good attention. Although their official job titles may vary, their actual function and self-definition is Professional Wrestling Villain.

Like Andy Kaufman. But he was doing it as some kind of ironic commentary (perhaps understandable only to himself). Idiots like Chris Matthews, Piers Morgan, Michael Eric Dyson, Ed Shultz and the rest of the progressive professional slobberknocker circuit are doing this because that's how they get on TV and get paid.

Below, Piers Morgan gets beaned a whole heck of a lot.

more...

Posted by: Ace at 09:27 AM | Comments (231)
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Originally published March 1, 2013. I've changed the actual caption Iowahak uses to a slightly different one. And, Open Thread.

...

Iowahawk said something yesterday (which he's said before, but he reminded me of it yesterday) about The New Yorker's cartoons.

You know those drab, vague watercolor black-and-white cartoons skewered on Seinfeld for never making any sense?

Iowahawk proposed that every New Yorker cartoon -- every one -- could be made funnier by replacing its caption with:

Is it true? Well let's test this proposition under strict laboratory conditions. Let's do Science. more...

Posted by: Ace at 02:58 PM | Comments (372)
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The podcast crew took the week off, but the archive of previous episodes is always available for your enjoyment.

Thanks to everyone who's taken the time to listen to this new feature of the blog we launched mid-year. It's averaging around 3,000 listens a week between the download channels (RSS/iTunes/direct) and the streaming channel on Stitcher. We hope we've provided some thought-provoking insights and amusement, but mainly amusement, along the way.

In 2014, we plan to add some specialized podcasts, starting with a guns/2A one that should debut early in the year, and we'll of course be continuing the main one with our lineup of guests from around the Interwebs.

Thanks again for listening, and be sure to submit your questions & comments here: Ask the Blog

Follow on Twitter:
AoSHQ Podcast (@AoSHQPodcast)
Ace (@AceofSpadesHQ)
Drew M. (@DrewMTips)
Gabriel Malor (@GabrielMalor)
John E. (@JohnEkdahl)
Andy (@TheH2 and @AndyM1911)

Open thread in the comments.

Posted by: andy at 07:15 AM | Comments (147)
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Some of ya'll asked some questions in the comments to my Obamacare and Religion post.

Emile Antoon Khadaji asked:

Does ACA's purported lack of severability come into play with any of these challenges?

Short answer: no.

Long answer: no, of course not. For some reason, the question of severability has been batted around since the first Obamacare lawsuits. I'm not sure where the idea started that the statute needs a severability clause or it all fails if any single part of it is found unconstitutional, since that has never been the law. There are, quite simply, no consequences from the lack of a severability clause. The courts will still try to preserve as much of a duly passed law they can, if any one part of it is found unconstitutional.

For example, should the contraception mandate be held unconstitutional, that obviously doesn't affect the Medicaid mandate, the individual mandate, the subsidies, the exchanges, etc. etc. On the other hand, should the subsidies be knocked down in that litigation, it's possible (not probable, but possible) that the individual mandate itself as well as the exchanges will fall, since the Obama administration has argued that one can't survive without the other. Note, even if the individual mandate were to fall in this manner, many other parts of Obamacare would survive, including the Medicaid expansion, numerous taxes, etc.

Frumious Bandersnatch asks:

Excellent post, Gabe. Some of the comments provoke me to make a bleg.

There's a lot of hate in the horde for Roberts. (There are elements of the horde that have no forgiveness for apostasy. No matter how brilliant a Peggy Noonan column is there will be five comments saying the scrunt still has Obama's dribble on her chin from 0.

Roberts called OCare a tax, when O had insisted it wasn't a tax. That was a big fuck you to Obama. What is u pardonable around here is that Roberts didn't sieze an opportunity to get the right result (he coulda killed it dead!) by striking down the signature law of a (then) popular president. So he said, fuck you, it's a tax, have fun with it. And he let a structurally flawed monstrosity launch itself into the world where its flaws and failings can be exposed and attacked by other actors. And that's working.

So, here's my bleg. If you share this general sentiment can you make a post about it that's a lot smarter than I could do?

Sorry. I don't share that sentiment. Chief Justice Roberts wrote an outstanding decision in the Obamacare case and then lost his nerve. Justice Scalia signed his name to Roberts' first opinion, Justice Kennedy read it from the bench as their joint dissent -- an act signalling deep disapproval of Roberts' actions. Roberts wrote a new decision holding that the individual mandate passes constitutional muster as a tax, something that wasn't even in the realistic expectation of any of the parties and that decision is now the law of the land.

There's one thing to like about the Chief Justice's decision and that's the determination that the individual mandate was not authorized under the Commerce Clause. That's good. Conservatives have been trying to rein in Congress' Commerce Clause overreach for decades. So we got that. But justifying the individual mandate as a tax was so patently a dodge by the Chief Justice that it damaged the Court's legitimacy in all eyes -- which was exactly what the Chief was trying to avoid.

I don't think there's any reason to believe the Chief Justice was playing n-dimensional chess. It appears, particularly given the gibberish in the tax portion of his decision, that he simply lost his nerve. As I wrote shortly before the decision, ironically defending Roberts from the accusation that he was an activist judge, "The Roberts Court doesn't even come close to overturning the number of laws that its three predecessors did. . . . One could even creditably call the Roberts Court the most restrained, incrementalist Court of the modern era." Alas, Roberts turned out to be too incrementalist for my taste.

Posted by: Gabriel Malor at 06:22 AM | Comments (185)
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FRIIIIIIDAAAAAAY!

Ken White aka @Popehat on speech and outrage.

Obama's Top 10 Constitutional Violations of 2013.

The academic boycott of Israel continues to go not-so-well for the idiot group that proposed it.

How Obamacare Costs Michigan: among other things, "when Jan. 1 arrives there will actually be less people who have health care coverage than there were when Obamacare was passed." He means "fewer," but you get the point.

Have a great weekend.

Posted by: Gabriel Malor at 02:51 AM | Comments (219)
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