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    Vol. 81, No. 12, December 2008

    Book Reviews

    Privacy on the Line: The Politics of Wiretapping and Encryption

    By Whitfield Diffie & Susan Landau (Cambridge, MA: The MIT Press, 2007). 400 pgs. $27.95. Order, (800) 405-1619.  

    Reviewed by Susan Mae McCabe

    When originally published in 1998, Diffie and Landau’s Privacy on the Line: The Politics of Wiretapping and Encryption was regarded as perhaps the leading treatise on the emerging issues surrounding the impact of technological advances on the privacy of communications and national security. The authors examined the social and political functions of privacy in a democracy and warned of the dangers that a democratic form of government faced when the private communications of citizens, associations, and commercial enterprises were not protected from interception. Their exhaustive and well-documented book detailed the history of efforts by law enforcement and intelligence agencies to intercept communications and explored how cryptography could and, more importantly, should be used to protect both secrets and civil liberties.

    In this recently updated and expanded edition that contains an extensive set of notes and a lengthy bibliography, Diffie and Landau address the rapidly shifting landscape of communications privacy concerns and technology since their book was first published. The authors argue that we face a very different set of issues today – issues that are infinitely more complex than those we confronted only a decade ago. Political events, societal changes, and rapid technological advances have moved privacy concerns beyond what now seems to be the relatively straightforward issue of whether people using technology have a right to encrypt communications to protect them from unauthorized interception by government agencies and law enforcement.

    Diffie and Landau assert that events such as the Sept. 11 terrorist attacks, the perceptions of a terrorist threat to the United States, and the changing role of the United States in the world community have resulted in a significant erosion of civil liberties and privacy protections. Political responses to this new uncertainty included the passage of legislation such as the USA Patriot Act, the Government Information Security Reform Act (which became the Federal Information Security Management Act), and investigative actions by governmental agencies such as the NSA, the CIA, and the FBI. The result has been a significant curtailment of civil liberties. Advances in sophisticated interception and communications tracking technology (such as the FBI’s “Carnivore” software that scans and records Internet traffic) have allowed law enforcement and intelligence agencies to monitor domestic and international communications – often bypassing the limited civil liberties protections offered by the Foreign Intelligance Surveillance Act or Title III courts.

    Privacy protections have been eroded further by a dizzying array of technological and social transformations. Increasingly inexpensive data storage has fostered the explosive growth of data mining and data retention, computers and electronic data have become increasingly portable, cameras and video surveillance have proliferated, it is increasingly more difficult to distinguish between domestic and international communications due to the world-wide explosion in the number of Internet users, and computers are becoming increasingly virtualized: These are but a few of the many innovations of the last decade.

    Ultimately, the authors argue that if Americans are to successfully confront such grave challenges to our democracy, civil liberties, and national security, we must develop a new set of “rules and a mechanism for overseeing those rules that allows society to defend itself from its genuine enemies while keeping communication surveillance from stifling dissent, enforcing morality, and invading privacy.” While this book offers no simple solutions, it does frame the debate and provide an exhaustive and authoritative discussion of the issues we must confront if we hope to guarantee security while also protecting the privacy of our communications and our citizens.

    Susan Mae McCabe, U.W. 1986, is the paralegal program coordinator at Kellogg Community College in Battle Creek, Mich., and currently is authoring a text book.

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    Unruly Americans and the Origins of the Constitution

    By Woody Holton (NY: Hill and Wang, 2007). 370 pgs. $27. Order, (212) 741-6900. 

    Reviewed by Kenneth W. Krause

    The small farmer takes center stage in this defiant but scrupulously researched and documented history of the American Constitution’s much-debated genesis. Economic interpretations of the document are no doubt far from rare, but University of Richmond associate professor of history Woody Holton may be the first author to attempt to dispel, for a nonacademic audience, common, antiseptic myths about the Framers’ intent and, at the same time, to champion the ordinary, uneducated, and occasionally destructive citizens who, in the end, were largely unsuccessful in their opposition to then-privileged and now-legendary figures like James Madison and Alexander Hamilton.

    Holton excises three broad misconceptions. First, amateur commentators and the just-plain ill-informed, he argues, have long supposed that the Framers’ primary constitutional motive was merely to bolster a national government that had proven dangerously fragile under the 1781 Articles of Confederation. Madison’s complaints about federal weakness, however, were drastically outnumbered by his public and private grievances against the irresponsible conduct of state legislatures. Instead, it was a perceived excess of democracy – the fear that the American Revolution had gone entirely too far on the average man’s behalf – that spurred the Founders on to Philadelphia.

    “Most glaringly,” Holton specifies, state representatives “had shown excessive indulgence to debtors and taxpayers.” Many were permitted to satisfy liabilities with chattel property rather than gold and silver, and, in some instances, the civil courts – a creditor’s only legal remedy for delinquency – were temporarily but nonetheless unceremoniously closed down. Worse yet, every state assembly had funded the war in part by printing more paper money than the economy could bear, creating runaway inflation. Seven states, in fact, continued to print currency well after the peace of 1783. Such were the Founders’ recurring criticisms.

    But, unsurprisingly, a good many farmers disagreed as to the post-war recession’s causes – and quite fiercely in some notable cases. For example, Adonijah Mathews, a tavernkeeper in Greenbriar County, Va., apparently judging his taxes to be unjustly burdensome, organized a rebellion that, in 1787, resulted in the razing of a county jail. Others complained that their government had rendered money too scarce and, thus, that paper currency was their only other means of tax and debt repayment. “These were not trivial differences,” Holton emphasizes. “[F]or no peacetime governmental policy has a greater impact on ordinary citizens than taxation and the money supply.”

    The Framers eventually prevailed, of course. Article I, section 8 of the U.S. Constitution granted the national government its first power to tax. Section 10 prohibited the states from rescuing farmers by issuing paper money or by “impairing the obligation of contracts.” At least as crucial, though, were the political provisions that resulted in federal representatives being less responsive than their local counterparts to majority will. Larger districts meant reduced accountability, and, until 1913, only U.S. House of Representative members would be elected by popular vote. Even then, representatives’ decisions could be nullified either by senators and presidents – all of whom would be elected far less frequently – or by justices of the U.S. Supreme Court – who would never be elected at all. The Founders’ message – that ordinary people are incapable of governing themselves – was made manifest and indeed woven into the fabric of America’s founding document, where, according to Holton, “it remains there still.”

    All of which leads us to the second well-worn myth, that Madison and company endeavored to create an “underdog’s Constitution,” conferring not only some modicum of prosperity, but significant power as well, to the people. In truth, the amendments we revere most today – those providing freedom of speech, religion or irreligion, and minority rights, for example – stand in stark contradiction to the Framers’ antidemocratic intent. “It is richly ironic,” Holton quips, “that what has arguably become history’s greatest experiment in shielding the powerless began as a slur on the capacities of ordinary citizens.”

    Finally, Holton recommends a more cautious approach to professional historians who not only recognize, but also rashly affirm, the Founders’ elitist and cynical attitudes. Both sides had valid points, he admits. For instance, although certain local relief policies, including the issuance of paper currency, did indeed threaten America’s collective credit rating, colonial-era loan companies were for the most part successful during times of peace. But in the end, Holton instructs, “the single greatest harm anyone inflicted on the economy during the 1780s was the state legislature’s adoption of fiscal and monetary policies so harsh as to make popular demands for tax and debt relief inevitable.”

    Post-revolutionary economic crises were severe, no doubt, but also complex and multifaceted. What the American recession and rebellions did not prove, however, was that the reins of government could be trusted only in the unsoiled hands of the privileged few. Such, at least, is the lesson to be drawn from Unruly Americans, a clearly better-than-competent history marketed for – you guessed it – a popular audience.

    Kenneth W. Krause is books editor for both Tapestry and Secular Nation magazines. He has recently contributed to various national and international periodicals including Skeptical Inquirer, The Humanist, Free Inquiry, Skeptic, Truth Seeker, and Freethought Today, and to local publications including Wisconsin Lawyer and Wisconsin Political Scientist.  

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    Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy

    By Charlie Savage (New York: Little, Brown & Co., 2007), 330 pgs.

    Unchecked and Unbalanced: Presidential Power in a Time of Terror

    By Frederick A.O. Schwartz Jr. & Aziz L. Huq (New York: The New Press, 2007), 207 pgs.

    The Terror Presidency: Law and Judgment Inside the Bush Administration

    By Jack Goldsmith (New York: W.W. Norton & Co., 2007), 216 pgs.

    Reviewed by Frederick B. Wade

    These books concern the George W. Bush administration’s claims that presidents have a unilateral power to nullify laws and treaties that the U.S. Constitution calls “the Supreme Law of the Land.” These claims are based on a novel theory with two premises: 1) Presidents have inherent powers, as commander in chief and as chief executive, that are not spelled out in the Constitution; and 2) these inherent powers are exclusive, so that neither Congress nor the courts have power to regulate or oversee the use of such powers.

    Unchecked and Unbalanced contends this “new model of executive power” is equivalent to saying that “the president stands above the law.” Congress and the courts may say what they wish, but the president may simply declare that their pronouncements are not binding.

    This novel theory of untrammeled executive power has been asserted in opinions issued by the Justice Department’s Office of Legal Counsel (OLC) and in litigation. The theory has been used to circumvent provisions that prohibit the use of torture in interrogations, forbid electronic surveillance without a warrant, preclude indefinite detention of persons without a hearing, and ban the rendition of persons to nations where they may be tortured. For example, an OLC opinion declared in October 2002 that “[a]ny effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.”

    Takeover and Unchecked and Unbalanced contend that these claims of unilateral power are erroneous. The latter points out that Article I of the Constitution gives Congress important powers that relate “not only to when a president can exercise military power but also how he may use it” (emphasis in original). These include powers to declare war, to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces. Each book cites Alexander Hamilton’s essay in The Federalist 69, which declares that the role of commander in chief “amount[s] to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral.” The authors contend, in essence, that the title was intended merely to ensure civilian control of the military under the oversight of Congress.

    Takeover points out that the same theory of executive power has been used in presidential “signing statements,” in a manner akin to a line-item veto, because it effectively nullifies sections of bills when they are signed into law. The most prominent example is the McCain amendment that sought to ban the torture of detainees. Similarly, when Congress passed laws that forbade the use of U.S. combat troops in Colombia, signing statements declared that the prohibitions would be treated merely as advisory, rather than binding.

    The Terror Presidency provides the perspective of Jack Goldsmith, a Bush Administration insider, who served as head of the OLC from October 2003 to June 2004. He portrays an administration caught “between fear of another attack … and the countervailing fear of violating the law” and facing the consequences. Goldsmith “shared the basic assumptions, outlook, and goals of top administration officials.” He viewed his job as making “sure the President could act right up to the chalk line of legality,” whether the issue was the infliction of pain in interrogations or approval of “a covert operation to assassinate a foreign leader or rig a foreign election.”

    Despite this view of his role, Goldsmith decided that the October 2002 opinion must be withdrawn. After characterizing the assertion of exclusive power that is quoted above as “extreme,” he declares that it “has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law.”

    Takeover and Unchecked and Unbalanced each warn that the Bush Administration has created precedents for the use of unilateral executive power that will lie about “like a loaded weapon” for future use. Each faults Congress for failing to act in defense of its rightful powers.

    However, the books differ in several respects. Takeover is a chronological narrative that excels in documenting how the new theory of executive power was developed and how it has been used. It is the best overall treatment of the subject.

    Unchecked and Unbalanced is organized topically. It is superior in recounting the work of the Church Committee in the 1970s that led to enactment of the Foreign Intelligence Surveillance Act, in placing the Bush administration’s claims of power in a broader historical perspective, and in marshaling legal and historical arguments to demonstrate that those claims of power are without merit.

    The Terror Presidency excels in describing the role of the OLC and the perspectives of individuals within the Bush administration but is thin on legal analysis. The author’s criticism of the administration is focused primarily on its reluctance to work with Congress.

    Each book might have been improved by providing additional historical perspectives. As Bernard Schwartz declared, in The Roots of Freedom, our system of government is based on the experience of the English that “the king is not only capable of doing wrong, but is more likely than others to do wrong if he is given the chance.” After reviewing the English experience, he concluded that “the root principle”of freedom is a concept of the rule of law, which holds that the executive “is … bound by the law” as agreed to by the legislative representatives of the people. Another excellent source is Louis Fisher’s Presidential War Power, which documented how some presidents have “breached constitutional principles and democratic values” between 1789 and 1994, by exercising “war powers with little or no involvement by Congress.”

    Members of the State Bar, who have sworn “to support the Constitution of the United States,” will benefit from reading these books. As former Representative Mickey Edwards (R. - Okla.) observed in reviewing Takeover, each book is “must reading for anybody who cares about preserving our constitutional system of government and understanding how seriously that system has been threatened.”

    Frederick B. Wade, U.W. 1972, maintains a law practice in Madison, with an emphasis on corporate governance issues.

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    Essentials of Corporate Fraud

    By Tracy L. Coenen (Hoboken, NJ: John Wiley & Sons, 2008). 207 pgs. $39.95. Order, www.wiley.com/accounting.

    Reviewed by Erik R. Guenther

    Internal fraud is costly to companies and is most often discovered by accident. In many cases, none of the stolen goods or money is recovered. Revenue losses resulting from fraud, in the United States alone, are estimated at more than $600 billion annually. These sobering points illustrate the need for fraud prevention plans and for an understanding of the costs, rationale, and limitations of outside fraud investigation.

    The author explains, in a simple to follow manner, the basic characteristics of internal fraud, its detection, and the investigation process. She also discusses the hazards to investors and corporate employees who have misconceptions about audits and misplaced faith in Sarbanes-Oxley reform.

    The author examines the difficulties in labeling the type of person who perpetuates a fraud scheme on an employer; however, she spends too much space reviewing the often contradictory possible characteristics of this type of criminal. Sometimes the examples fail to note the reality of business. For example, the author’s suggestion that friendship and “personal relationships [which] can facilitate fraud” are warning signs for potential malfeasance neglects the reality that these close relationships also can lead to confidence between a vendor and supplier and result in increased profits.

    The author describes concrete and inexpensive examples of fraud prevention tools. Some are quite simple, such as an anonymous hotline to report employee misconduct. Others, such as mandatory vacations and job rotations, might be more onerous, depending on the industry.

    The author, a fraud investigator, is best when describing the nuts and bolts of various fraud schemes and when outlining the elements of an investigation team and how a fraud investigation is conducted. Asset misappropriation, bribery, procurement fraud, corruption, and financial statement fraud are all detailed. The author also explains the composition of an outside fraud investigation, including budgeting for such investigation and what to expect in terms of reporting and conclusions, both within the business and with possible referral to a law enforcement agency.

    Essentials of Corporate Fraud tries to be too many things to too many audiences. It does not fail at any of its goals, but it is best used as a resource for corporate executives and general counsel who are looking for a lay of the land. To that end, the book can be a useful resource to provide to corporate clients. Business managers will benefit from the straightforward explanations of fraud schemes and their investigation.

    Erik R. Guenther, U.W. 2002, is an associate with the criminal defense practice group of Hurley, Burish & Stanton S.C., Madison, representing individuals and business entities. He also handles internal investigations of wrongdoing on behalf of corporate clients.

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    Alive and Kicking: Legal Advice … for Boomers!

    By Kenney F. Hegland & Robert B. Fleming (Durham, NC: Carolina Academic Press, 2007). 286 pgs., $24.95. Order, www.cap-press.com

    Reviewed by Melinda Gustafson Gervasi

    With short, concise chapters on a variety of issues, Alive and Kicking is a useful book for any lawyer who works with today’s baby boomers. Chapters address issues ranging from estate planning to identity theft to Social Security to divorce and remarriage. Written for boomers, instead of attorneys, the book offers straightforward insight into the issues faced as people age.

    The book’s primary strength is its service as a quick and handy reference guide to the common issues older clients might raise during representation. While it is not wise for lawyers to practice outside their focus areas, estate planning for example, no lawyer wants to answer a client’s inquiry with “I have no idea.” Alive and Kicking can help address a client’s question while a lawyer develops a more detailed referral if needed.

    As with many books related to these timely topics, the book does not provide state-specific information. Moreover, the book’s examples are dated because they do not reflect increasing levels and limits. For example, the exempt gift amount for the gift tax is listed at $10,000, but the current limit is $12,000.

    Most print media are limited in their currency of information. However, because the underlying information is sound, I would recommend the book to anyone whose practice serves boomers. At 286 pages, the book is a quick and often humorous read. One piece of new information I gained concerns the 1983 Congressional action to prohibit federally assisted housing designated for elderly or disabled persons from discriminating against owners of cats, dogs, and fish.

    Melinda Gustafson Gervasi, U.W. 2001, is the founder of Gustafson Law Office, Madison, and concentrates in estate planning and probate. 

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    Whose Monet? An Introduction to the American Legal System

    By John Humbach (Riverwoods, IL: CCH, 2007). 260 pgs., $32. Order, (800) 638-8437. 

    Reviewed by Faun M. Phillipson

    When I was a first-year law student, I was required to take a course called elements of law. I never understood its aim or purpose, although supposedly the point was to provide aspiring young lawyers with an overview of the law in order to supplement the daily tortures of torts, civil procedure, property, and contracts courses. From my perspective, the elements of law course was a complete waste of time – bogging us down with useless minutiae instead of providing a user-friendly foundation and overview of the big picture. Whose Monet? An Introduction to the American Legal System succeeds in doing just as its title promises. In just 260 pages, the author provides an introduction to the study of law and an overview of nearly the entirety of the legal system.

    Focusing on one legal matter, the conflict of ownership surrounding one of Claude Monet’s paintings, the author traces the course of litigation from beginning to end. As a litigator, I especially appreciated that the author’s examination of the issues did not merely begin with service of the summons and complaint and end with trial. Instead, the author provides a thoughtful analysis of the need to counsel a client about whether to initiate litigation, the benefits of state versus the federal court systems, the appropriateness of settlement negotiations, and the lawyer’s duties regarding zealous advocacy. The author explains the litigation process through a step-by-step examination of such things as filing an answer, discovery (including an appendix of deposition transcripts), trial (opening and closing arguments, presenting evidence, jury instructions, burden of proof), and the appeals process. In so doing, the book manages to stick to a tone, usually uncaptured in legal writing, that is both instructive and accessible but does not patronize or confuse the reader.

    Of course, most Wisconsin Lawyer readers have far surpassed the need for an introduction to the American legal system. However, I highly recommend this book for anyone teaching a general elements of law-type legal course, for any person considering attending law school, or for anyone seeking a brief but complete overview of the litigation process. 

    Faun M. Phillipson, Yeshiva Univ. 1999, is a partner and founding member of Phillipson & Uretsky LLP, a securities and commercial defense litigation firm with offices in New York, New Jersey, and New Glarus.  

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