Archives: 06/2013

How Much Bulk Records Snooping Bypasses Judges?

The revelation that the National Security Agency has been indiscriminately collecting Americans’ phone records using sweeping bulk orders issued by a secret court has sparked enormous controversy. Yet we know that at least in the first few years after 9/11, something very similar occurred without any judicial process at all, as first reported by USA Today in 2006. Though that story was dwarfed at the time by the controversy over the Bush administration’s warrantless wiretap program, it was actually the call records program that provoked a dramatic showdown between the White House and Justice Department, nearly triggering a mass resignation when the president threatened to reauthorize it over the objections of the acting attorney general that it was unlawful.

The controversy reemerged earlier this month when the Guardian published a leaked court order to Verizon’s business-focused subsidiary to produce “all call detail records,” including all “routing information,” and specifically requesting communications “wholly within the United States, including local telephone calls.” The order made it clear that the program continued, and was not merely large-scale but sought literally all domestic records. Moreover, it raised concerns about the Foreign Intelligence Surveillance Court’s interpretation of §215 more generally. The court had apparently determined that an authority to demand “any tangible thing” from nearly any person or entity could be exercised in a completely non-particularized way: Give us everything, we may eventually decide some of it is “relevant.” But it’s still not wholly clear when and why the FISC got involved in the metadata program—and how much of it may still bypass judicial supervision.

It’s clear from the original USA Today story that the metadata program in its original incarnation “didn’t need a court order—or approval under FISA—to proceed.” It’s also relatively clear that something changed around 2006. Statements from the program’s defenders in Congress indicate that the current version of the program, involving orders reissued at three-month intervals, has been operating for seven years. Moreover, you can read between the (heavily redacted) lines of a March 2008 Inspector General report on the use of §215 in 2006 and see intimations that “unlike in previous years,” the authority was being used in some programmatic way that would not be included in the IG’s discussion or metrics.

Yet the numbers reported annually for §215 orders, as Amie Stepanovich of the Electronic Privacy Information Center reminded me, are hard to square with a major shift to reliance on the authority for metadata at that time. Only a handful of §215 orders were issued in the subsequent years: six in 2007, 13 in 2008, and 21 in 2009. Even if those metrics only count the “primary order” authorizing acquisition from multiple providers, and not the “secondary orders” issued to each provider, that seems low. You’d still need at least four each year for each type of bulk order, and the Wall Street Journal has reported that the program reaches far beyond telephone data to encompass “records from Internet-service providers and purchase information.”

Instead, we see two enormous jumps in orders starting in 2010. That year, there were 96 orders, of which a surprising 43 were modified. That seemed odd to observers because §215 authority is so broad, requiring only “relevance” to an investigation, that the court would rarely have occasion to intervene—unless what was being demanded was so mindbogglingly expansive that it strained even that flaccid standard. We then see another big jump in 2011, to 205 orders (176 modified), which levels off in 2012 at 212 orders (200 modified). What was going on there? If the NSA bulk metadata program moved over to reliance on §215 in 2006, why is there no sign of anything like it in the numbers until four years later?

Michael Carvin on Halbig v. Sebelius

Michael Carvin is the lead attorney in Halbig v. Sebelius, a legal challenge that various media report “could tear down major pieces of ObamaCare” or even “sink ObamaCare.”

Carvin will be discussing Halbig at a Cato policy forum on the case this coming Monday, June 17. Register to attend here.

Here he is discussing the case on Cavuto last month:

Justice Thomas Shows Again that the Federal Emperor Has No Constitutional Clothes

Yesterday’s unanimous Supreme Court opinion in American Trucking Associations v. City of Los Angeles is a run-of-the-mill federal preemption case, not inviting much attention. But the interesting bit isn’t Justice Kagan’s majority opinion. It’s Justice Thomas’s short concurrence. Thomas agrees that federal law trumps conflicting state/local law regarding certain regulations related to the Port of Los Angeles, but seizes on the plain language of the preempting statute to take a shot at the massive expansion of federal authority under a misreading of the Commerce Clause.

Justice Thomas focuses on a section of the relevant statute (the Federal Aviation Administration Authorization Act, or FAAAA–don’t ask why this covers ports) titled “Federal authority over intrastate transportation.” He denies that Congress possesses this authority: the Commerce Clause, part of Article I, section 8, only gives Congress the power to regulate commerce “among the several States.” Thomas can’t believe that Congress could have been granted power to legislate something so local as where trucks park once they leave the port (one of the regulations at issue in American Trucking):

Congress cannot pre-empt a state law merely by promulgating a conflicting statute–the preempting statute must also be constitutional, both on its face and as applied. As relevant here, if Congress lacks authority to enact a law regulating a particular intrastate activity, it follows that Congress also lacks authority to pre-empt state laws regulating that activity

The reason that Justice Thomas nevertheless concurs in the judgment here, however, is that Los Angeles waived any constitutional claims against the FAAAA, instead relying solely on statutory arguments (which correctly lost 9-0).

This isn’t the first time that Thomas upheld a federal law but noted federalism concerns that, as here, the plaintiffs didn’t raise (or didn’t preserve on appeal). In Gonzales v. Carhart, for example, Thomas concurred with a majority decision that sustained the federal Partial-Birth Abortion Ban Act against a challenge based on Roe v. Wade and Planned Parenthood v. Casey but noted that the issue of whether a federal abortion regulation “constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

Justice Thomas’s opinions in these sorts of cases illustrate the misuse of the Commerce Clause given the Constitution’s careful enumeration of congressional powers. These brief, pointed concurrences show that our imperial government isn’t clothed in constitutional authority.

And they also have a direct use for legal practitioners. I wasn’t a “real” lawyer for that long before joining Cato, but here’s an easy practice tip: Don’t just assume that the federal government has the power to pass the law you don’t want applied to your client.

Washington Foolishly Tilts Towards War in Syria

The bitterest fights tend to be civil wars. Today, Syria is going through such a brutal bloodletting. 

The administration reportedly has decided to provide arms to Syria’s insurgents. It’s a mistake.

This kind of messy conflict is precisely the sort in which Washington should avoid. Despite the end of the Cold War, the U.S. armed services have spent much of the last quarter century engaged in combat. At the very moment Washington should be pursuing a policy of peace, policymakers are preparing to join a civil war in which America’s security is not involved, other nations have much more at stake, many of the “good” guys in fact are bad, and there would be no easy exit.

Military action should not be a matter of choice, just another policy option. Americans should have something fundamental at stake before their government calls them to arms.

No such interest exists in Syria.

Intervention against Damascus means war. Some activists imagine that Washington need only wave its hand and President Bashar Assad would depart. However, weapons shipments are not going to oust a regime which has survived two years of combat. Intervening ineffectively could cost lives and credibility while ensuring heavier future involvement.

There is no serious security rationale for war. Damascus has not attacked or threatened to attack America or an American ally. America’s nearby friends, Israel and Turkey, are capable of defending themselves.

Another concern is the conflict spilling over Syria’s borders. But this does not warrant U.S. intervention. Maintaining geopolitical stability rarely approaches a vital interest justifying war.

Moreover, intervening would not yield stability. Washington foolishly attempted to sort out Lebanon’s civil war three decades ago and was forced into an embarrassing retreat. There’s no reason to believe joining the Syrian killfest today would yield a better result.

Another claim is that ousting the Assad dictatorship, allied with Tehran, would weaken Iran. Likely so, but then Iran would have a greater incentive to emphasize ties with Shia-dominated Iraq, which also has been aiding Assad.

Moreover, a chaotic, fragmented, sectarian Syria likely would do more to unsettle Iraq, Israel, and Lebanon, allied or friendly to America, than Iran. Tehran’s divided elite also might close ranks in response to an increased feeling of encirclement.

Advocates of U.S. action point an accusing finger at Iran, Lebanon’s Hezbollah, and Russia for helping Damascus. However, Qatar and Saudi Arabia are providing money and weapons to the rebels. Turkey is offering sanctuary for insurgents. The international nature of the struggle is a good reason for Washington to stay out.

Syria’s chemical weapons stockpiles also argue against intervention. Chemical agents are the least effective and most geographically constrained of so-called weapons of mass destruction. Thus, “leakage” is more likely to threaten Syria’s neighbors than America.

Weakening or overthrowing the Assad regime is more likely to release chemical agents to potentially hostile governments or groups. Air strikes would loose chemicals against surrounding civilians. Boots on the ground would mean regime change, leaving Damascus no reason not to use chemical weapons as a last resort defense.

The most pressing concern is humanitarian. But Syria is not a case of genocide committed by an armed government against an unarmed people. There are two forces ready to kill. Defeating one does not mean peace. Rather, it means the other gets to rule, perhaps ruinously.

In both Kosovo and Rwanda the U.S.-backed victors committed atrocities. In Syria reprisals are certain whoever wins. Neither Afghanistan nor Iraq offer reasons for optimism—extended blood-letting, interminable involvement, disappointing outcome.

The result in Syria actually could be far worse, because of the rise of Islamic radicalism among insurgents. These fine folks recently executed a 15-year-old boy for blasphemy in front of his parents.

The final pitch for war is camouflaged as a call for American leadership. However, whether leader or follower, the U.S. would lose by attacking Assad.

Although diplomacy looks forlorn after two years of combat, it remains the best hope. Despite recent gains, Assad’s forces remain unlikely to reassert control over the northern half of the country. The opposition’s divisions and Assad’s outside assistance make a complete rebel victory unlikely. All of the surrounding states have much to lose from continuing war. A second best modus Vivendi might be possible.

Even if diplomacy fails, however, Washington should stay out of the war.

Syria is a tragedy. There is no reason to make it America’s tragedy. President Barack Obama should ask: does he want his administration to be defined by involvement in an unnecessary and unpopular no win war, as was that of his predecessor?

The I Told You So Files: NSA Bulk Collection Edition

I will confess, when I contemplated the most paranoid scenarios for how the govenrment might use the Patriot Act’s §215 “business record” authority that still seemed realistic, I did not imagine they would use it to routinely collect all Americans’ phone (and perhaps Internet) records for years at a time. I thought perhaps in a panic they might do something similar for an entire city over the course of a month. Clearly, I was thinking too small. Still, I have just been reminded that when I testified about the reauthorization of this Patriot Act provision back in 2011 before the House Judiciary Committee, I did very specifically plead with members of Congress with access to the details to look into what we now know to be this bulk metadata program:

While both [National Security Letter & §215] powers have been expanded along multiple dimensions since 9/11, the main cause for concern in both cases has been the removal of the requirement that there be some evidence—not “probable cause,” but some evidence—linking the people whose records are sought to terrorism or espionage. Now records need only be “relevant” to an investigation, and in the case of §215 orders the court is required to deem records “relevant” if they pertain to someone connected, however tenuously, to a suspect under investigation. As the Justice Department readily acknowledges, these tools are used in the early phases of an investigation to broadly sweep in large amounts of data, mostly about innocent people, which is then stored indefinitely in classified government databases.

Here, again, we should bear in mind that while the easiest and most obvious response to any intelligence failure is always to grant more power to collect more information, the evidence is very thin that the problem before 9/11 was a lack of raw data. On the contrary, reflexively expanding collection authorities can exacerbate what has been colorfully characterized as the problem of “drinking from a firehose.” This can even lead to a vicious cycle, where it comes to seem that more and more data is needed to close down all the dead end leads generated by indiscriminate data collection. […]

Of special concern here is a “sensitive collection program” involving §215 alluded to by Acting Assistant Attorney General Hinnen last year in his testimony on these authorities. Though the Senate had previously unanimously approved an amendment limiting §215 authority to records pertaining to the activities of terror suspects or their associates, a similar reform appears to have been abandoned last year following claims by the Justice Department that such a change would hamper that secret program. Soon afterward, Sen. Russ Feingold purported to have knowledge of clear misuse of §215 unknown to the general public.

If nothing else, I would urge those with access to the relevant details to take a long, hard look at that. But I would also suggest that we should be highly skeptical of any intelligence program that cannot function within even those very modest limitations. The United States was able to observe the time-tested principle of individualized suspicion in a decades-long conflict with a hostile empire armed with nuclear weapons. We should not assume it is an insuperable handicap against scattered bands of religious fanatics.

I guess they either didn’t, or didn’t think it was a problem.

No Need to Fear China’s Military Build-Up

America’s and China’s presidents are meeting amid popular fears that Beijing is set to surpass Washington as the globe’s premier power.  However, America’s advantages remain overwhelming, including in military strength. 

The U.S. Department of Defense recently published its latest report on the Chinese military, warning that the People’s Republic of China “continues to pursue a long-term, comprehensive military modernization program designed to improve the capacity of its armed forces to fight and win short-duration, high-intensity regional military conflict.” 

Beijing’s advances are real.  However, as I point out in my latest article on the China-US Focus website, the Chinese military poses little threat to America.

As I explain, the PRC is focusing on Taiwan, a mission which

conflicts with Washington’s objectives but does not threaten U.S. security.  The PRC has no interest in war with America or any design to threaten U.S. territory, population, or prosperity.  Rather, China envisions a world in which it has greater influence and America has less. 

While this world may not be a better place—certainly from Washington’s viewpoint—it will inevitably arrive.  The U.S. should not view Beijing’s challenge as primarily military, which must be resisted with force.

Equally important is the question of capabilities.  China is the world’s number two in military spending—DOD estimates the equivalent of between $135 billion and $215 billion.  But America’s advantage remains huge.  Washington possesses the world’s biggest and most powerful military and continues to spend far more than the PRC, three or more times on the U.S. “core,” non-war budget.

China’s real “threat” is the potential of creating a force capable of preventing the U.S. from intervening throughout East Asia along the PRC’s border.  This would be inconvenient for Washington policymakers, but they would react the same way if Beijing was attempting to preserve Chinese military domination along U.S. borders.  Although some Americans have come to view global hegemony as their birthright, Washington’s dominance is artificial and temporary. 

The U.S. has to prepare for a new world.  That means expecting allies, such as Japan and South Korea, to defend themselves and their regions rather than America doing everything for them.  That means encouraging new powers, such as India, to play a larger security role, even though their objectives will not always match those of America.  And that means finding a peaceful accommodation with China, a rising Asian power determined to play a much larger role in regional and ultimately global affairs. 

Censorship in the National Security State

Today the Washington Post says the federal government “should allow” Google and other business firms “to say a little more about their relationship with the government.” It is a telling indication of our “relationship with the government” that we are now pleading for freedom of speech.

Quick story to illustrate this point. Nick Merill is a business person in the telecommunications and web services field and one day federal agents brought him a “national security letter.” Astonished by what the “letter” demanded of him, Merill sought legal advice even though the government threatened him with jail if he told anyone else about his “letter.” I invited Merill to a Cato event on Capitol Hill. Listen to his story and then forward it across the internet so others will have a better idea of what the government is doing.

It seems to me that Edward Snowden has put his liberty on the line to sound the alarm about the national security state. I agree with what security expert, Bruce Schneier, wrote the other day in the New York Times, “I believe that history will hail Snowden as a hero – his whistle-blowing exposed a surveillance state and a secrecy machine run amok. I’m less optimistic of how the present day will treat him, and hope that the debate right now is less about the man and more about the government he exposed.”   

More Cato work here, here, and here.