Author Archives: tom

The Justice Chronicles Volume 11: Thoughts on Edward Snowden, The NSA, and the 4th Amendment

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Earlier this month Edward Snowden, an employee of Booz Allen Hamilton leaked information that the National Security Agency has been collecting phone records of US citizens. It’s been a huge story and awakened a debate on privacy, security, and the 4th Amendment.

Unfortunately any story that hits the 24 hour news cycle loses all nuance and much its accuracy; we should begin with a few of the facts of the case. Here is what I’ve gleaned:

The NSA (National Security Agency) is tasked with protecting our nation and citizens from people and organizations who wish to harm us. They are secret by nature and work in the shadows; most of us don’t know what they do. The information age, global connectedness, and the internet has led to an explosion in both the ability to harm us and the ability of the agency to find out what they are doing. The NSA has worked hard to collect information, not only by people who mean us harm, but information that we might need later.

Earlier this month Edward Snowden leaked to the media the fact that the NSA is collecting phone records of nearly every call made here. If you think about all the calls you’ve made in the last month, multiplied by the 314,000,000 people who live here, it’s a large number. To be clear, they haven’t been listening in on every (or any) conversation. They’ve been collecting the data on the calls that we’ve made: not what we’ve said but who we’ve called and how long we’ve talked. They can’t access any of this information without a warrant from something called the “Foreign Intelligence Surveillance Court” (FISA).

Edward Snowden is in legal trouble because the Obama administration claims that by leaking this information he has committed espionage, normally defined as giving aid and comfort to the enemy. In other words, by telling us that the NSA is collecting this information we are “tipping our hand” and allowing our enemies to find other ways to harm us. This is the part I’m finding troubling.

I have to confess a bias here: I look at the 4th Amendment the way the NRA looks at the 2nd Amendment. The 4th Amendment says this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

When this amendment was written there was a limited ability to search and seize. That ability has dramatically changed with technology. For example, in the 19th Century the invention of the telegraph and telephone allowed for private communications to travel from one place to another. The courts could have easily found that the 4th Amendment applied only to the physical limits of houses, papers, and effects, but it didn’t. Law enforcement still needs a search warrant to tap telephone calls.

But what about now? What limits do we have on tracking our cell phone calls, emails, or social media platforms? Are we in the 19th Century where your telephone is part of your house or the 21st Century where even your trip to 7 Eleven is videotaped?

In my role as a hospice chaplain I am in public view a good part of the day. My 2006 Toyota Prius has an “event data recorder” that records (among other things) my speed, steering, and whether or not I’m wearing my seatbelt. Since I have a GPS my location is also recorded. Several of my patients live in gated communities or other places that have video surveillance. Most of the places where I stop for lunch or a soda also videotape. Anytime I get cash out of at ATM or use my credit card, that is recorded. During all this time I’m either alone or with people who don’t know me, and I carry with me the presumption of privacy.

But is that presumption is false? The government has the ability (though the court system) to look at all of this information. If all this tracking comes under the same eyes, my life would not be far off from Winston Smith in 1984 by George Orwell.

I think we can all agree that there needs to be limits on what can be revealed on us, but conversations about these limits needs to be public.

This is the point where I find myself in agreement with Mr. Snowden. We cannot have a dialogue about the limits of the 4th Amendment if we don’t know what the rules are. President Obama wants to prosecute him, claiming that revealing this information tips off our enemies about what kind of information they gather.

This type of argument is not new. When the Bush administration was trying to convince us that we needed to go to war against Iraq, they claimed we knew the location and existence of weapons of mass destruction. How did the administration know this? They couldn’t tell us because that information would tip the hand. Later, when we all learned that these weapons didn’t exist, many of us believed that they didn’t show us the evidence because they simply didn’t have it. Had we known the evidence either didn’t exist, or was unreliable, we would not have favored going to war.

Most people don’t feel as strongly about the 4th Amendment as I do. There is often the presumption that if you have nothing to hide, you have nothing to fear, and government surveillance in the interest of catching bad guys is always allowed. I disagree, and I believe the framers of the Constitution did too. They knew this amendment would make prosecution of criminals more difficult (as do jury trials and the prohibition to compel someone to testify against himself), but they thought it was worth it. So do I.

It's Good To Be the King

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I live in La Jolla, California; it’s a neighborhood on the northern edge of San Diego and it’s a nice place to live. It’s also fairly affluent (Mitt Romney has a house about 3 miles away) and I’m amused by the number of people who assume we’re rich because we live here. We regularly get mailings from financial planners and investment firms who want to manage our portfolios “over $1,000,000.” Yeah, right.

On the plus side we also get letters promising gifts if we do simple things. A few years ago we were promised a $150 gift certificate to Smith and Wollensky Restaurant if I test drove a Maserati at a local dealership. It was completely worth it, but $150.00 almost covered lunch.

In April I got a letter that said if I test drove a Lincoln I could get a free pair of Maui Jim sunglasses. These things always sound too good to be true, but I took the form down to the local dealership and got the form signed. I sent it in and today I got my free pair of glasses.

They retail for $269.00. Yeah, no kidding. To be fair they are much better than my bargain basement glasses that I don’t wear much because I have a hard time reading my car dashboard. I’m not sure they’re worth a month’s wages at WalMart but I’m keeping them for now. I only hope I don’t get addicted to them and break them in a few months. We’ll see.

My Field Trip to Washington DC

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Each year Nancy and I travel to her Pedriatic Convention the first week of May. She goes to meetings while I get to play and explore. It works for me. This year the convention was in our Nation’s Capital.

Going to Washington is always a return trip for me as I grew up just south of there in Woodbridge, Virginia. I didn’t fully appreciate this at the time, but school field trips to the Smithsonian Institution, the Capitol, and the National Zoo (which is part of the Smithsonian) were things I could take for granted. Only as an adult did I realize that most people paid to enter museums.

We stayed at a hotel that was close to several landmarks. Not only the Capitol and National Mall, but also Ford’s Theatre. It’s not an exaggeration to say that I walked my shoes off.

No matter how many times I walk these streets, I am moved. The role of governing this country is not for the feint of heart but it is honest. Nancy and I were able to get into the Senate gallery to watch the debate on taxing internet purchases. It wasn’t what most Americans expect: most of the Senators walked by the counter and gave a “thumbs up” or “thumbs down” while everyone else was congregated in small group discussions. It’s not exactly Mr. Smith Goes to Washington.

But it’s transparent. Any one of us can find out how our senator voted and we can vote against him (or her) in the next election. They can’t do this in Cuba or North Korea.

In the last few decades it’s become fashionable to see our government as the enemy and the taxes we pay as extortion but it’s not true. We pay our taxes to take for granted the freedoms we don’t think about. As I walked around Washington I was struck by the buildings I passed: the Department of Agriculture makes sure the food I eat is safe. The Justice Department ensures that my rights are as protected as the wealthiest of us. And the Library of Congress and National Archives makes sure the most valuable our most valuable documents will be preserved. It’s worth it.

I’m grateful to our Founders and I’m also proud of all the men and women who have worked as government employees since. They have preserved and protected our history and values; ironically they have also preserved the right of malcontents to criticize their existence.

I know they don’t recognize this, but I do. Thank you.

Boston Strong and Proud

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A few weeks ago I went to see one of my hospice patients. It was an ordinary visit, and the fact that she had the TV on wasn’t much of an issue: she often mutes the TV when I see her. That day the mute TV caught our attention. I hadn’t paid much attention to the fact that the Boston Marathon and Patriot’s Day was April 15th.

Now I’ll never forget it. On that day, in that place, two men decided to strike a blow. Tamerian and Dzhokhar Tsarnaev planted two bombs that exploded about 3:00 PM at Copley Place, the finish line of the marathon. The bombs were intended to kill as many people as possible and were scheduled when the largest number of runners were crossing the finish line. On one level it worked: the bombs killed Martin Richard, Krystle Campbell, and Lingzi Lu. A few days later Sean Collier died in the line of duty during their capture.

No doubt the brothers thought this would bring Boston to its knees. Clearly they didn’t fully understand Boston. It’s a tough city: it was here that the Sons of Liberty started. They survived the Boston Massacre and the closing of Boston Harbor after the Tea Party.

I lived in Watertown in the early 1980s and I can tell you that no attack can do what they intended to do. The people of Boston are more resilient than anyone can imagine; they are stronger than anyone can imagine; they are more stubborn than anyone can imagine.

Of the two suspects, one is dead and the other is in custody. We are going to understand what happened and why, and we are going to judge the remaining suspect. We are going to move forward.

Boston will go on. Terrorism will not.

Thoughts at the End of the Conclave

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It is, perhaps, funny that I’m writing my thoughts on the end of the conclave a week after the conclave actually ended. I’ll be more timely after I retire.

Last week at this time many of us were glued to our electronic devices. I was at a meeting at work and I got word shortly before noon that we had white smoke. It was a long hour or so before I heard the name Jorge Marion Bergoglio of Buenos Aires (who I had never heard of). My first reaction was hopeful that a non-European was chosen.

I continue that hope. When the Cardinals entered the conclave I was more than a little concerned because all 115 of them had been chosen by either Pope John Paul II or Pope Benedict XVI and I feared that they would choose yet another leader who was well liked by that group but not well suited for the job. I was also concerned that they would choose someone who would continue to reinforce fortress walls at the expense of the people of God.

The election of Pope Francis has calmed many of my fears. By all accounts this week he is determined to bring a renewed sense of simplicity and preferential option for the poor. I was impressed that he took the bus with the rest of the Cardinals back to his hotel to pay his hotel bill. I wonder if the airline will refund his plane ticket back to Buenos Aires.

As someone born in Georgetown Hospital (a Jesuit hospital) and educated at Boston College I’m fairly fluent in Jesuit. I’ve had countless discussions with dozens of Jesuits on a host of subjects. I’ve always been impressed with their emphasis on education and reason; I haven’t always agreed with their conclusions but I’ve always felt that I was heard and respected and more often than not I’ve learned something from the discussion.

I’m also encouraged by his choice to be named Pope Francis. There is no way around the knowledge that he chose his name after Francis of Assisi (1182-1226) who left an easy life and chose poverty as a spiritual value. In his life before last week, Cardinal Bergoglio did the same: he eschewed a palace and chose an apartment. He declined a limo and rode the bus to work. He dressed simply. All this points to an understanding of the world through the eyes of the poor and marginalized.

I hope this continues. This is no secret for readers of this blog, but I believe the Church needs to update its teaching on birth control and celibacy. The prohibition on artificial birth control may make sense among elderly celibate men, but among the poor it enslaves families (and primarily women) to children who overwhelm available resources. It’s easy to claim that married men should respect their wives in matters of sexuality, but allowing women control over their fertility is the only realistic way to make this happen.

In terms of celibacy, I’ll eagerly confess my bias here. Sixteen years ago I found myself a Catholic priest who loved being a priest but no longer felt called to (or capable of) celibacy. I left active ministry not because I didn’t like being a priest, but because I couldn’t imagine a God centered life without Nancy. I still can’t.

My name is legion. The shortage of priests lands directly on the demand that priests be celibate males. This has little or no impact on the number of priests in the Vatican but it dramatically impacts most of the rest of the world. Simply put, the sacraments that are reserved to priests (Eucharist, Reconciliation, and Anointing) are denied to large areas of the faithful who feel the priest shortage most acutely. In other words, the Church is choosing celibacy over the sacraments.

Francis is getting some pushback from the LGBT community who is unhappy that he has opposed gay marriage. To be fair, none of 115 Cardinals would have progressed this issue. The dragon of discrimination is difficult to slay; hopefully Francis will elect the Cardinal who will succeed him and slay this homophobic dragon.

In the meantime I remain hopeful that Pope Francis will carry on the prophetic word of his namesake.

Thoughts on the Beginning of the Conclave

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Not only has this been an interesting winter for me with San Diego Hospice, it’s also been an interesting winter for the Catholic Church.

On February 11, 2013 Pope Benedict XVI announced he would resign his position on February 28th. It’s not entirely without precedent but it hasn’t happened since 1415. In that year Gregory XII resigned to end a schism where three different men claimed to be Pope. We have to go back to 1294 and Celestine IV to find the last pope to resign for personal reasons. Celestine was, in his heart, a monk who was not suited for the job; he spent the last two years of his life living as a hermit.

There are some parallels to Benedict. He was elected in 2005 shortly after the death of John Paul II and was, frankly, not ever well suited to the job. Benedict is a scholar and theologian, not an administrator or the public face of the Church. It doesn’t take much to see how these last 8 years have taken a toll on him.

It’s also been devastating to his health. We have learned that he had a pacemaker and had gone blind in one eye. His increased weakness and decreased stamina prevented travel and made day to day administration virtually impossible. I believe he made the responsible decision to pass the torch. I’ve always been concerned about the possibility of a pope’s resignation out of fear that a good but unpopular pope would be pressured to resign. On the other hand we’ve seen in the last century that it’s possible to be very sick, and even nonresponsive, for a long period of time. In 2006 Israeli Prime Minister Ariel Sharon suffered a massive stroke and has not been able to effectively communicate since. Since there is procedure for replacing a prime minster but not a pope this would have been unprecedented had it happened to Benedict.

And so the Church moves on. On Tuesday the eligible Cardinals will enter the Sistine Chapel and choose the next pope. There are lots of people making predictions, but I was so completely wrong last time that I won’t try again. What should we look for in the next pope? That consensus is easy:

  • He needs to be an able administrator. Never before has the Roman Curia been so faithful to Jesus’ command of Matthew 6:3 that we not let our right hand know what the left is doing. The highest offices of the Church operate like silos don’t know what the other offices are doing, let alone cooperate. No organization works well if the oarsmen are not rowing in the same direction.
  • He needs clean hands on the issue of pedophilia. The scandal has enveloped the Church in the US, and to a lesser extent Canada and Europe and healing can’t happen if its leader has a history of covering up. Think it’s not that bad? One of the cardinals of the conclave, Roger Mahoney is my exhibit A. In a story in last month’s Los Angeles Times it was reported that Fr. Jose Ugarte sexually abused a boy and then prayed the prayer of absolution (given by a priest at the end of the sacrament of confession). He was sanctioned by Mahoney, not for the abuse of the victim, but for the abuse of the sacrament.
  • He needs to be someone who embraces the 21st Century. Both John Paul and Benedict came of age in the middle of the 20th Century during the Nazi occupation of central Europe and this dramatically informed their view of the Church in the world. Much as their countries (Poland and Germany) were under siege by evil forces in the 1940s, they saw the Church under attack for the rest of their lives. Unfortunately they often saw the attackers as fellow Catholics in search of a progressive understanding of the Church in the world. The Church will live its best future with a leader who embraces the creative spirit of the Holy Spirit and take seriously the Vatican II document on the Church in the Modern World (Gaudium et Spes). This is perhaps the best argument for looking beyond Europe for the next pope.

The College of Cardinals needs and deserves our prayers.

San Diego Hospice: 1977 – 2013

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On February 14, 1977 San Diego Hospice opened its doors to care for people with terminal illnesses. On February 13, 2013 we announced we were closing our doors forever.

I say “we” because since February 14, 2005 I have been an employee of San Diego Hospice.

So what happened? That’s a good question and I’m not sure we’ll ever completely know the answer. Perhaps it was Medicare who claims we were treating people who were not terminally ill. Or a disgruntled ex-employee who claimed to warn us of this but was fired for her efforts. Or mismanagement at the highest levels.

Or maybe it was a combination of all of these. On some level it doesn’t matter. The bottom line is that we are shutting our doors and asking our patients and employees to look elsewhere.

It’s been a hard road. For those of us on ground level (the ones with boots on the ground) we’ve done extraordinary work. We’ve come into peoples’ lives (and homes) and brought order to chaos, hope to despair, and calm to panic. We’ve taught people to die with dignity and we’ve taught caregivers to be miracle workers. We’ve shown countless people that while death is inevitable, suffering is not. Pain is not. Despair is not. I’ve cared for patients from age 3 days to 102 years and I’ve shown them – all of them – that their lives have meaning and their deaths have value.

Now we have to show that as an organization we can die with dignity. We are feeling our patients’ feelings and experiencing their experiences. The uncertainty, the bewilderment, the fear.

In 1950, while accepting his Nobel Prize, William Faulkner said this:

I believe that [we] will not merely endure: [we] will prevail.

He wrote this in the shadow of the Cold War where the United States and the Soviet Union were both building weapons of global destruction, but they speak to us on this day.

Hospice will prevail. Palliative medicine will prevail. Death with dignity will prevail.

Most importantly the smart, dedicated, committed and imaginative geniuses I work with will prevail.

When I am on hospice (hopefully decades from now) I will benefit from the work that was done at this place, in this time, with these people.

An Odd Twist in the Gay Marriage Debate

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This March 26th the Supreme Court will hear arguments in two cases on the issue of gay marriage: Hollingsworth v. Perry and United States v. Windsor. The two cases bring different issues to the Court but both deal with the issue of gay marriage.

The Supreme Court agreed to hear these cases; lower courts in both cases ruled in favor of gay marriage and if the court had not taken the cases it would have cleared the way for gay marriage.

Opponents of gay marriage have consistently argued that marriage has been, is, and always should be between one man and one woman. A group called Protect Marriage outlines these views.

A few days ago they appeared to change tactics; I say “appeared” because I’m still scratching my head over this. You can read the article in Sunday’s Los Angeles Times, and a follow up article in today’s paper.

As far as I can tell, this is what happened: Both cases put government in the role of defendant (the state of California in Hollingsworth v. Perry and the federal government in United States v. Windsor) and in both cases the governments refused to defend the laws. Several groups have taken that role, including a group of Republicans in the U.S. House of Representatives. This group hired a former Solicitor General under President Bush, Paul D. Clement, to argue on their behalf.

He filed an argument that said this (my interpretation): Heterosexual unmarried couples live with the possibility of an unexpected pregnancy. Children do better when raised in a home with two parents, and societal pressure for the couple to get married (known colloquially as a “shotgun marriage”) benefits everyone. Homosexual marriage has no possibility of an unexpected pregnancy. Therefore, if we allow gays to marry, we turn marriage from “have to” to “want to.” This will remove the pressure on a heterosexual pregnant couple to get married, and they won’t. This will harm society as children raised by one parent don’t do as well as children raised by two parents.

I can only hope I’m reading it wrong.

President Obama's Second Term: Grateful We Made It

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Once again Nancy and I were on the road to Yosemite during the inauguration. It meant we heard most of it on the radio and missed the visuals. That’s OK: the oratory was more than enough. Even the president’s strongest opponents must admit he’s a brilliant and articulate speaker.

Some of the highlights for me:

  • The fact that he was reelected. The Republican Party and several incredibly wealthy people spent obscene amounts of money to defeat him, and yet our votes could not be bought or intimidated.
  • While the crowds were not nearly as large as they were four years ago it speaks volumes that nearly a million people showed up.
  • And now for some quotes: “[W]e, the people, understand that our country cannot succeed when a shrinking few do very well and a growing many barely make it.”
  • “The commitments we make to each other through Medicare and Medicaid and Social Security, these things do not sap our initiative. They strengthen us. They do not make us a nation of takers. They free us to take the risks that make this country great.”
  • “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”
  • The elegant symmetry that we celebrated this on the day we celebrate Rev. Martin Luther King, Jr.

The part of his speech that I found the most moving and surprising was his words on our gay brothers and sisters. He and I have both been prodded in our support of gay marriage by brave gay men and women who cared about us enough to challenge our prejudices. Now we both support for them what we have been blessed to take for granted for us.

Though not quoted directly in this speech, President Obama has often quoted Dr. King’s “fierce urgency of now.” Dr. King used it initially in his opposition to the war in Vietnam but it’s a quote for the ages. It counters the argument that while what you want may be valid, we’re not ready for it. If it’s right, it’s right now. It is that time for full gay equality.

The Republican response was as expected as it was tiresome. They claim that he did not reach out to those who did not vote for the president. This after their candidate claimed it was not his job to care about people who don’t support him. This after his predecessor George W. Bush famously said on his reelection: “I earned capital in the campaign, political capital, and now I intend to spend it. It is my style.”

My advice to the president is this: Take off the gloves. The Republicans took the gloves off the day you announced you were running for president and all your attempts to negotiate with them were fruitless because they never intended to negotiate with you. The debt ceiling, gun control, the promises we’ve made to our veterans and the elderly: they never had any intention of working for a solution. All they ever wanted was your defeat and they failed at that. In the last 20 years there have been 6 presidential elections and they received the majority of the votes in one of them.

The Trouble With Satire? We've Become Too Dumb to Recognize It

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On December 28, 2012 Daniel Akst wrote an op-ed piece for the Los Angeles Times entitled: Hey Kids, Don’t Forget Your Guns. He began the article by talking about the NRA’s proposal that we make our schools safe by posting an armed law enforcement officer in every school. Daniel suggested that the best way to make schools safe is to give the students guns and train them in how to shoot.

My thanks to Mrs. Farris, my 12th grade English teacher who had us read A Modest Proposal by Jonathon Swift. Swift suggested in 1729 (in response to large numbers of his fellow Irish in poverty) that their 1 year old children be sold to the rich to be eaten. We learned in reading this about satire.

Daniel was doing the same thing. Several of us caught the meaning, but I’m amazed at how many didn’t. The responses of shock and outrage caused the Times to publish a postscript on January 5th that you can read here. In the article Sue Horton wrote: “Should we have made it more obvious that Akst was writing tongue-in-cheek if clearly intelligent readers didn’t get the joke?” At the end of the article she wrote: “We do like to run the occasional piece of satire on the Op-Ed pages, and we intend to continue to publish it. But we will also continue to look for ways — through headlines, say, or visual presentation — to better tip the readers to the joke. If we fail occasionally, as we almost certainly will, we apologize.”

We apologize? WE APOLOGIZE? C’mon man. I don’t expect that everyone who reads this article will make the connection to Jonathon Swift, but it scares me to think that we’ve gotten to the point where we can’t recognize satire. Last May I wrote an article about a column that claimed President Lincoln filed the first patent in 1845 for what would become Facebook. It was picked up by several news organizations who assumed it was true.

How does this happen? I have a few theories:

  • We are bombarded by too much information. We hear so much each day about so many things that we simply can’t keep up. No longer do we have the time to step back and ask: “Does this make any sense?” The media used to filter out the crazy stuff, but now they amplify it. Our 24 hour news organizations are so hungry for new content that they no longer filter but put everything out and tell us we decide. We’re not good at it.
  • Organizations that we think should be mature or reasonable are neither. My best evidence of this is the NRA itself. Their answer to gun violence is the need for more guns. Is is so much of a stretch to think that if 1 gun in a school is reasonable, 600 isn’t?
  • Finally, we’ve never been good at identifying satire. Indeed, in 1729 Swift’s essay was met by outrage in some circles by people who thought he was serious. On October 30, 1938 Orson Wells produced a radio show called War of the Worlds. Even with disclaimers before, during, and after the show, people thought that Earth was being invaded. Within days of the attacks of 9/11/2001 we began hearing that this was caused by the US government. Really. You can read about it here.

So where do we go from here? Me, I’m praying for the people who fall for these stories, and still vote.