Wisconsin
Lawyer
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.
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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.
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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.”
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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.
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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.
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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.
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