Archives: 02/2008

ACLU Provides Inadvertent Civics Lesson

Tuesday the Supreme Court declined to review the ACLU’s challenge to the Terrorist Surveillance Program (TSP), the NSA’s post-9/11 foreign intelligence-gathering initiative whose critics labeled “domestic spying.”

This case shows the interplay of the foundational legal doctrine of “standing” with one of the privileges courts recognize as being more important than allowing full discovery of information during the litigation process – and it also shows the proper relationship between the political and judicial branches in our constitutional system. To maintain a legal claim a plaintiff must show that he was injured in a unique and concrete way. Here, a motley crew of plaintiffs – who also included the Council on American-Islamic Relations (CAIR), journalist Christopher Hitchens, various lawyers, and others – cannot demonstrate that they have been harmed in any but a generalized, speculative way by the TSP. They simply have no idea whether their international communications had been monitored.

While the plaintiffs previously argued that they were denied the opportunity even to find out about possible violations of their civil liberties because the relevant evidence is classified, the lower court correctly ruled that the government’s “state secrets privilege” prevented the dissemination of this information that, if disclosed, could compromise national security. Further, the state secrets at issue here relate to foreign intelligence, involving the monitoring of cross-border communications of people suspected of affiliation with a foreign enemy. As Justice Robert Jackson (commonly cited by those who would curtail executive authority over intelligence gathering) wrote in 1948:

The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

Ultimately – and wherever you put the dividing line between executive and legislative authority – this case is just such a disagreement over policy that should be handled in the political branches, rather than as unnecessary litigation in the courts. Much like disputes over high tax rates, immigration enforcement, earmarks, and a host of other issues now being debated by the presidential candidates, the TSP presents a classical political (not legal) question. The plaintiffs were not more affected by the policy than other Americans, so their recourse, as ACLU legal director Steven Shapiro (no relation to me) correctly noted, is to petition Congress (and the executive). Ironically, this is exactly what the ACLU and its allies already did successfully, contributing to the political pressure that led the Bush administration to shut down the program in January 2007. For good or ill, this is the way our democracy is supposed to function.

Lilla on Heilbrunn on the Neocons

Mark Lilla has a hot-and-cold review of Jacob Heilbrunn’s book They Knew They Were Right in the New Republic. Lilla, a former editor of The Public Interest, hilariously describes his view that Commentary was “the great simplifier–everything always came down to holding the line and proving your manliness. The articles made sense only if you imagined the authors screaming at the top of their lungs.” But he has some scathing remarks for the unrepentant neocons of today:

Poor Iraq! And poor America! The dénouement we all know, but Heilbrunn’s book, for all its superficiality, still shows how depressingly predictable it all was. By leaving the reality-based community and creating their own Team-B approach to every issue–and stocking that team with reliable soldiers who happened not to know what the hell they were talking about (trivia question: who was Laurie Mylroie?)–the neoconservatives had become the very last people you’d want leading you to war. They knew how everything connected but not how anything worked–the Army, the United Nations, the Sunni-Shiite quarrel, the balance of power, human culture in the face of occupation and humiliation. And what they used to know about the unintended consequences of political action they seem to have willfully forgotten. Reactionaries are like that–because in the end, contrary to Heilbrunn’s title, they really don’t care whether they are right. What they care most about is reconfirming their picture of the world.

Whole thing’s worth a read.

FISA Non Sequiturs

Julian Sanchez notes this absurd post at The Corner about the Supreme Court’s refusal to review a decision of the Sixth Circuit ruling that the ACLU lacked standing to sue the NSA over the president’s warrantless wiretapping program. Andy McCarthy thinks that…

This underscores that the President had constitutional authority to order warrantless surveillance; that the cooperating telecoms were not only being patriotic but exercising sound judgment when they complied with requests for assistance; and that the House Democrats are acting reprehensibly by refusing to consider the intelligence reform bill passed overwhelmingly in the Senate.

Julian is right to call this an insane non sequitur. The amazing thing is the number of levels on which it’s nonsensical. Let me see if I can count them.

In the first place, the Supreme Court gets thousands of appeals every year, and only accepts a few dozen of them. So the Supreme Court declining to hear a case, in and of itself, tells us absolutely nothing about the merits of the case. It simply suggests that the justices had other cases they were more interested in hearing.

Second, the Sixth Circuit decision the Supreme Court allowed to stand didn’t address the merits of the ACLU’s lawsuit—i.e. the legality of the so-called Terrorist Surveillance Program—either. Rather, the Sixth Circuit held that because the plaintiffs couldn’t prove that they personally had been spied upon, they lacked standing to bring the lawsuit. This has absolutely nothing to do with whether the program is legal or constitutional.

Third, the telecoms were not a party to this lawsuit at all, so I’m baffled as to how it could have any implications for whether what they did was legal. The legality of the program and the legality of the telecoms’ participation in it are distinct questions. One could perfectly well argue that the program was legal but the telecoms’ participation in it was not, or vice versa. So the fact that a lawsuit against the government failed tells us nothing about whether the lawsuits against the telecoms will succeed.

Fourth, the lawsuits that have been filed against the telecoms are different in important respects from this decision. The EFF suit against AT&T, for example, is based on specific evidence that AT&T is diverting traffic from its fiber-optic network into a secret room controlled by the NSA. This is the kind of concrete evidence that was missing from the ACLU v. NSA case.

Finally, and most obviously, none of this has anything to do with the merits of the competing House and Senate FISA reform bills, or with any ulterior motives Democrats might have. And indeed, if McCarthy is right that all of the lawsuits are groundless, then it’s a little bit of a mystery why he’s so anxious for telecom immunity. If the telecoms didn’t break the law, or if the law they broke was unconstitutional, then they should be able to make that argument in court. It’s only if their arguments aren’t likely to stand up in court that immunity becomes important.

Right-Wing Glasnost on Foreign Policy?

Ryan Lizza, in a profile of John McCain in the New Yorker, describes the dispute between factions on the Right, with Newt Gingrich and Co. arguing that in order to win, conservatives must jettison conservative economic principles, and Grover Norquist’s faction arguing that conservative economic principles are the core of conservatism. Here’s Lizza describing Norquist’s view:

In a forthcoming book, “Leave Us Alone,” he describes the Republican Party as little more than a collection of interest groups—such as anti-tax activists, gun-rights advocates, and homeschoolers—that, if they are carefully tended, will grow into a “supermajority.” The merits of his argument aside, Norquist’s description of the conservative coalition is notable for what it leaves out—voters whose overriding concern is national security. That exclusion seems to be a trend on the small-government right. Not long ago, I spoke with Mallory Factor, a Republican fund-raiser and the co-organizer of a monthly meeting for conservative thinkers and activists in New York. When I mentioned that McCain’s aides plan to use the Iraq war to unite the right, he said, “That’s not the glue that keeps conservatives together. There is an enormous amount of frustration over the war on a number of grounds, from the cost, to the way the war has been fought, to what the outcome is. One of the things that I’ve talked about in our group is that we’re using the finest military in the world as an N.G.O. I mean, we’re talking about nation-building, not fighting a war. Is that the proper use of our military?”

Factor has reason to be concerned. In a recent Foreign Affairs article, McCain called for the kind of costly nation-building capacity that makes libertarians shudder, arguing that the United States should “energize and expand our postconflict reconstruction capabilities” and create a “deployable police force” that would prop up collapsing states. Echoing Norquist’s book, Factor insisted that the war in Iraq is not a unifying issue for the right. He told me, “The bottom line is that to the base of the Party the war isn’t Communism—to the Republican Party under Ronald Reagan, Communism was a rallying point. This is not like that.

Lizza goes on to describe how all of the non-Norquist factions of conservatism have essentially made their peace with the welfare-warfare state:

Gingrich, Gerson, and Frum all reject the anti-government ethos that has come to define conservatism. Gingrich calls for managerial competence in government. Gerson asks for expanded programs to fight poverty at home and to combat AIDS abroad. Frum recommends making peace with the realities of the welfare state.

For whatever it’s worth, down here in the policy trenches, it doesn’t feel too much like Mallory Factor’s description of a conservative reunion with reality on foreign policy is accurate. But here’s hoping it is.

Towards a Cuba Libre

Today an important step has been taken towards a democratic transition in Cuba. The decision of the dictator Fidel Castro to retreat from aspiring to a new presidential period in the island indicates that his poor health has worsen to a point where probably Castro won’t make it to end of this year.

Soon he will become another page in history; a very sad one, characterized by repression, tortures, political prisoners, massive impoverishment, hunger, scarcity, and murders.

His statement of giving an opportunity to the new generations is nothing less than a bad joke, after almost 50 years in power. Even worse, he delegates power to his brother Raul, who at 76 years old can hardly be considered fresh blood.

Nevertheless, as long as Castro remains alive, we can’t expect dramatic changes in Cuba. His presence behind the scenes will be intimidating for any successor, who will think twice before proposing reforms that could anger the declining tyrant. Even so, in the last months, some timid but positive signs of political openness, or at least certain degree of tolerance towards the opposition, have been perceived.

We libertarians in Latin America must be prepared for what is about to come. Probably the transition will last for years, but it is important that the people who will lead a democratic Cuba are firm believers of classical liberal ideals. Because that is exactly what Cuba needs, not only democracy, but also liberty.

Inside the Sausage Factory

The cover story of this week’s Washington Post Magazine offers a fantastic look at how lobbyists make a living by helping some people take from others.  Every citizen should read it.  Casual observers of government may be surprised (and nauseated) to see how elaborate, expensive, and disingenuous such efforts have become.  (Students of public choice economics will not be.)  As author Jeffrey H. Birnbaum notes, it’s usually the wealthy who are trying to do the taking.

The article is about the travel industry trying to force taxpayers to fund the industry’s advertising campaigns.  (Birnbaum includes such gems as: “One thing everyone agreed on: The travel industry did not want to pay for the ads itself.”)  But the story could have been written about nearly any of the countless lobbying shops littering the D.C. landscape:

The explosion in the size of K Street, the locus of the lobbying industry, is an extension of the growth and reach of government. The ballooning federal budget has its tentacles in every aspect of American life and commerce. No serious industry or interest can function without monitoring, and at least trying to manipulate, Washington’s decision makers. The penalty for ignoring the federal government can run into the billions of dollars. Just ask Microsoft. The software giant was hit with an antitrust lawsuit by the Justice Department in the late 1990s and, in 2001, agreed to alter the way it packaged its computer operating system. Before then, it had mostly ignored the nation’s capital.

Bad mistake. Chastened by its defeat, Microsoft has built a powerhouse presence in Washington, as have scores of other companies and industries. Lobbyists argue that it’s a relatively cheap investment. The Carmen Group, a mid-size lobbying firm, regularly compares its clients’ costs with the benefits it says they receive from lobbying. In its latest internal assessment, Carmen said it collected $15 million in fees from about 70 clients and delivered $1.5 billion in assistance – measured both in benefits received and in burdens avoided – a return ratio of roughly 1 to 100. Most clients still part with their lobbying dollars grudgingly. But they do part with them, which is why new buildings are going up all the time to accommodate the industry’s growth. Want a former senator to guarantee a meeting with a current senator? No problem. Half the senators who leave Congress for the private sector register to lobby. Need to know the history of a tax law and whom best to ask to change it? Easy. At least half a dozen consulting firms are composed of nothing but former congressional tax aides and Treasury Department officials who know as much as, and probably more than, the current people inside.

And why wouldn’t ex-lawmakers and aides gravitate to K Street? Lobbying jobs pay at least twice and sometimes three times government salaries. Serving in government is now viewed by many on Capitol Hill as a steppingstone to a lucrative career in bending government to the whims of paying clients. In many ways, lobbying now mimics the government it targets. It has become a bureaucracy, with its own language, its own peculiar ways of doing business and, most important, its own instinct to survive.

Indeed, the last thing any lobbyist wants is to win everything his or her client is seeking. That would mean an end to a retainer, the closing of the feedbag. Success for a lobbyist is not outright victory but, rather, just enough progress to justify the creation of an elaborate and well-funded lobbying apparatus. Even outright failure can underscore the need to lobby harder.

Lobbying is Washington’s version of a perpetual motion machine. Once it gets revved up, it rarely stops running. In fact, it tends to grow. 

All of which raises this question: why don’t we see more such stories?  Whatever the reason, Birnbaum deserves kudos for inspecting this small corner of the sausage factory.

Of course, the solution is not to restrict the people’s ability to lobby Congress.  All that sleazy lobbying is nothing more than “petition[ing] the government for a redress of grievances” – a constitutionally protected activity.  The solution, conveniently enough, is to respect the rest of the Constitution too.  Were the People to do that, those sleazy lobbyists wouldn’t get anywhere.

Moving the Goalposts on Surveillance

Fox News correspondent and former judge Andrew Napolitano has a great op-ed in the Los Angeles Times arguing that FISA, which the Bush administration claims places too many restrictions on the administration’s intelligence-gathering activities, has itself eroded the privacy rights guaranteed by the Fourth Amendment:

The FISA statute itself significantly – and, in my opinion, unconstitutionally – lowered the 4th Amendment bar from probable cause of “crime”to probable cause of “status.” However, in order to protect the 4th Amendment rights of the targets of spying, the statute erected a so-called wall between gathering evidence and using evidence. The government cannot constitutionally prosecute someone unless it has evidence against him that was obtained pursuant to probable cause of a crime, a standard not met by a FISA warrant.

Congress changed all that. The Patriot Act passed after 9/11 and its later version not only destroyed the wall between investigation and prosecution,they mandated that investigators who obtained evidence of criminal activity pursuant to FISA warrants share that evidence with prosecutors. They also instructed federal judges that the evidence thus shared is admissible under the Constitution against a defendant in a criminal case. Congress forgot that it cannot tell federal judges what evidence is admissible because judges, not politicians, decide what a jury hears.

Then the Bush administration and Congress went even further. The administration wanted, and Congress has begrudgingly given it, the authority to conduct electronic surveillance of foreigners and Americans without even a FISA warrant – without any warrant whatsoever. The so-called Protect America Act of 2007, which expired at the end of last week, gave the government carte blanche to spy on foreign persons outside the U.S., even if Americans in the United States with whom they may be communicating are spied on – illegally – in the process. Director of National Intelligence J. Michael McConnell told the House Judiciary Committee last year that hundreds of unsuspecting Americans’ conversations and e-mails are spied on annually as a consequence of the warrantless surveillance of foreigners outside the United States.

So where does all this leave us? Even though, since 1978, the government has gotten more than 99% of its FISA applications approved, the administration wants to do away with FISA altogether if at least one of the people whose conversations or e-mails it wishes to monitor is not in the U.S. and is not an American.

I’m not sure I entirely agree with the characterization of FISA as it was originally enacted in 1978. We do, I think, want our intelligence agencies to be keeping tabs on foreign governments, and so I think there’s a decent argument for allowing surveillance of people who are likely to be agents of a foreign power rather than requiring probable cause that a specific crime has been broken. The far more important point, though, is that since 1978, Congress has repeatedly and dramatically expanded the president’s ability to conduct surveillance with minimal oversight. Whether those changes went too far in 1978, 2001, or somewhere in between is debatable. But it’s clear that since 2001, the executive branch has had sweeping powers to eavesdrop on suspected terrorists with minimal judicial oversight.

What the Bush administration is doing here is moving the goalposts. In 2001, the president said that the changes to FISA that were found in the Patriot Act gave him plenty of authority to spy on terrorists that were using the latest communications technology. Now, seven years later, he’s saying those reforms weren’t good enough and that he needs even broader powers to spy with minimal court supervision. If Congress approves the changes the president is requesting this year, we can expect a future president sometime in the next decade to insist that she’s still subject to too much judicial scrutiny. At some point, we have to say that enough is enough.