Tag: rule of law

The Constitutional Vision of The New York Times

The editorialists at the The New York Times are out of sorts this morning over a Tea Party backed constitutional amendment that would give state legislatures the power to veto any federal law or regulation if two-thirds of the legislatures approved. Despite the backing of incoming House majority leader Eric Cantor and legislative leaders in 12 states, the proposal has little chance of succeeding, the Times avers, “but it helps explain further the anger-fueled, myth-based politics of the populist new right.” Indeed, it expresses “with bold simplicity the view of the Tea Party and others that the federal government’s influence is far too broad.”

Well? Isn’t that what the election last month was all about? But right there, for the Times, is the problem: “In past economic crises, populist fervor has been for expanding the power of the national government to address America’s pressing needs. Pleas for making good the nation’s commitment to equality and welfare have been as loud as those for liberty.” With the Tea Party, however, the tables have turned. What most troubles the Times, it seems, are Tea Party signs that say “We Want Less!”

And nowhere is that better captured than when the Times speaks of “the mistaken vision of federalism on which [this amendment] rests. Its foundation is that the United States defined in the Constitution are a set of decentralized sovereignties where personal responsibility, private property and a laissez-faire economy should reign. In this vision, the federal government is an intrusive parent.”

If that vision is “mistaken,” so too, apparently, were the Founders, because it was their vision as well. To be sure, the Constitution they crafted held “competing elements, some constraining the national government, others energizing it,” as the Times writes. And true also, the government they shaped was meant “to promote economic development that would lift the fortunes of the American people” – but mainly by securing the framework for liberty, the rule of law, not by pursuing prosperity through government programs. In particular, the Framers believed in personal, not government, responsibility; private, not collective, property; and a free, not a planned, economy. And they left most power with the states, where it would be exercised responsibly, or not – something to keep in mind as we watch our “failed states” asking Washington (read, the other states) to bail them out.

Is Congress Above the Law?

The first item on this election campaign’s Contract with America was that, if elected (as they have been), the House Republicans would require that all laws that apply to the rest of the country also apply to Congress.  We’ll see if that and the other promised reforms materialize, but it does raise yet another issue in the context of Obamacare.

As my colleague Michael Cannon pointed out to me, the new health care law kicks congressmen out of the Federal Employees Health Benefits Program.  (The current FEHB is no different from the health coverage provided by any private employer -– federal employees choose from a series of private plan options (none of which is run by the government), and receive a subsidy from the federal government acting in its role as an employer.)

My first reaction to hearing this was:  Good – if the rest of us lose our health care freedom, so should those who forced this new atrocity on us.  But apparently this result was not intended, so the Obama administration has decided to ignore that part of the law.

No joke.  Here is the Congressional Research Service report on the provisions that oust members of Congress from their health insurance.  And here is the letter in which an Obama appointee announces that the administration will ignore the law.  These two articles also provide important information.

Now, assuming that something constitutionally problematic is going on here, what can anyone do about it?  To put it in legal terms, who has standing to sue for this apparent constitutional violation?  It’s a tough row to hoe – taxpayers cannot bring suit based on generalized grievances – but off the top of my head, I can think of two possibilities: (1) members of Congress suing the president or the Department of Health and Human Services for essentially passing new law and therefore infringing on congressional prerogatives (thereby violating the separation of powers); or (2) an insurance broker or carrier who would otherwise be signing up new clients.

And there are two additional related questions:

1. Why did Congress expand Medicaid while refusing to participate in it themselves?  Obamacare expanded Medicaid to an estimated 18 million new Americans, none of whom will have a choice of private plans, instead being dumped into Medicaid, a program notorious for access problems (and which in Arizona now doesn’t cover organ transplants).  Yet all Senate Democrats voted against an amendment enrolling members of Congress in the new Medicaid program (all Republicans voted for it, except one who was absent).

2. Will members of Congress use their own salaries to pay any fines assessed because their employees have “unaffordable” health coverage?  Obamacare includes a $2,000 per worker penalty for any employer that does not provide “affordable” coverage, beginning in 2014.  Many junior staffers have incomes below 400 percent of the federal poverty level ($43,320 for a single person, or $88,200 for a family of four), and thus could be subject to the new statutory test of whether their health insurance options are “affordable.”  While it’s unclear how this particular provision will be implemented for Hill staff – due to the “significant unintended consequences” of sloppy drafting – it’s entirely possible that member offices could be assessed a $2,000 penalty for every worker needing insurance subsidies because they have no “affordable” alternative.  If that scenario happens, will the members of Congress who voted for the law pay the penalty out of their own salaries or will they rely on taxpayer funds to finance an obligation they imposed on themselves?

Things to Be Thankful For

Not long ago a journalist asked me what freedoms we take for granted in America. Now, I spend most of my time sounding the alarm about the freedoms we’re losing. But this was a good opportunity to step back and consider how America is different from much of world history – and why immigrants still flock here.

If we ask how life in the United States is different from life in most of the history of the world – and still  different from much of the world – a few key elements come to mind.

Rule of law. Perhaps the greatest achievement in history is the subordination of power to law. That is, in modern America we have created structures that limit and control the arbitrary power of government. No longer can one man – a king, a priest, a communist party boss – take another person’s life or property at the ruler’s whim. Citizens can go about their business, generally confident that they won’t be dragged off the streets to disappear forever, and confident that their hard-earned property won’t be confiscated without warning. We may take the rule of law for granted, but immigrants from China, Haiti, Syria, and other parts of the world know how rare it is.

Equality. For most of history people were firmly assigned to a particular status – clergy, nobility, and peasants. Kings and lords and serfs. Brahmans, other castes, and untouchables in India. If your father was a noble or a peasant, so would you be. The American Revolution swept away such distinctions. In America all men were created equal. Thomas Jefferson declared “that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.” In America some people may be smarter, richer, stronger, or more beautiful than others, but “I’m as good as you” is our national creed. We are all citizens, equal before the law, free to rise as far as our talents will take us.

Equality for women. Throughout much of history women were the property of their fathers or their husbands. They were often barred from owning property, testifying in court, signing contracts, or participating in government. Equality for women took longer than equality for men, but today in America and other civilized parts of the world women have the same legal rights as men.

Self-government. The Declaration of Independence proclaims that “governments are instituted” to secure the rights of “life, liberty, and the pursuit of happiness,” and that those governments “derive their just powers from the consent of the governed.” Early governments were often formed in the conquest of one people by another, and the right of the rulers to rule was attributed to God’s will and passed along from father to son. In a few places – Athens, Rome, medieval Germany – there were fitful attempts to create a democratic government. Now, after America’s example, we take it for granted in civilized countries that governments stand or fall on popular consent.

Freedom of speech. In a world of Michael Moore, Ann Coulter, and cable pornography, it’s hard to imagine just how new and how rare free speech is. Lots of people died for the right to say what they believed. In China and Africa and the Arab world, they still do. Fortunately, we’ve realized that while free speech may irritate each of us at some point, we’re all better off for it.

Freedom of religion. Church and state have been bound together since time immemorial. The state claimed divine sanction, the church got money and power, the combination left little room for freedom. As late as the 17th century, Europe was wracked by religious wars. England, Sweden, and other countries still have an established church, though their citizens are free to worship elsewhere. Many people used to think that a country could only survive if everyone worshipped the one true God in the one true way. The American Founders established religious freedom.

Property and contract. We owe our unprecedented standard of living to the capitalist freedoms of private property and free markets. When people are able to own property and make contracts, they create wealth. Free markets and the legal institutions to enforce contracts make possible vast economic undertakings–from the design and construction of airplanes to worldwide computer networks and ATM systems. But to appreciate the benefits of free markets, we don’t have to marvel at skyscrapers while listening to MP3 players. We can just give thanks for enough food to live on, and central heating, and the medical care that has lowered the infant mortality rate from about 20 percent to less than 1 percent.

A Kenyan boy who managed to get to the United States told a reporter for Woman’s World magazine that America is “heaven.” Compared to countries that lack the rule of law, equality, property rights, free markets, and freedom of speech and worship, it certainly is. A good point to keep in mind this Thanksgiving Day.

This article originally appeared in the Washington Times in 2004 and was included in my book The Politics of Freedom.

Destroying Evidence = American Hero

That’s what the attorney for former CIA officer Jose Rodriguez is saying about his client. Rodriguez and other CIA personnel destroyed videotapes of detainee interrogations. The Justice Department announced that Rodriguez will not face criminal charges, but did not elaborate on the reasoning behind the decision.

Rodriguez’s decision to get rid of the tapes came after White House lawyers, responding to a court order, instructed the CIA not to destroy any evidence associated with detainee interrogations.

I know that the term “slippery slope” is overused, but it’s clearly evident here. Thwart the rule of law by declaring torture legal, thwart it again to cover up your actions.

And Of Course They Won’t, No Not Until The Next Time

Here is the test of whether we still live in a society governed by the rule of law: Will anyone at the FBI be fired over the latest report out of the Office of the Inspector General?

Let’s review. Earlier this year, a comprehensive OIG report revealed that for years the FBI had ignored the paper-thin procedures demanded by our National Security Letter statutes to obtain sensitive telecommunications records of thousands of Americans, not just without a court order—because apparently we’re fine with that now—but without any kind of legitimate process at all. With nothing more elaborate than a Post-It Note requesting the data. As far as the public record is concerned, nobody has suffered any consequences for this massive abuse of the public trust.

Now we learn that an FBI supervisor, in an exercise of spectacularly poor judgment, sent a rookie out to monitor an antiwar rally—evading the charge of monitoring Americans based exclusively on the basis of First Amendment protected activity only because of the laughable pretext that said rookie was there to eye the crowd for any international terrorists who might be in attendance. Fine.  But when Congress got wind of this and began to inquire into why this had occurred—and why said rookie had filed a report on “antiwar activity” that focused on whether any persons of apparent “Middle Eastern descent” had been involved—the OIG found that someone at the FBI had utterly fabricated a retroactive justification for the investigation, involving dubious “terror suspects” that nobody had actually believed at the time might be present at this rally.

According to the FBI, this fabrication was then offered up by FBI Director Robert Mueller before the Bureau’s overseers in Congress. This leaves us with a limited number of possibilities. One is that the head of the FBI was aware of and welcomed what the OIG determined to be a complete invention designed to cover up for an improper investigation. If that’s what happened, the head of the FBI committed perjury and should be prosecuted for it. But the OIG doesn’t believe that’s how it went, and I’m inclined to believe them: It would be irrational to risk perjuring oneself before the Senate Judiciary Committee over a minor error like this, however foolish.

But then someone gave the FBI director a pack of lies to feed to Congress, and the OIG was inexplicably unable to trace this fabrication to its source—which even allowing for the FBI’s massively dysfunctional computer systems seems implausible. So now we have a pressing question: If we don’t think the head of the FBI decided to lie to Congress, who concocted the lies he told them? Are we to believe that the nation’s top cops are either so inept or so indifferent to the question that they can’t answer it? I suspect they very well could find out if they were so inclined. If they don’t, and if there are no consequences for this clumsy cover-up, why should we believe that congressional oversight of intelligence will ever discover or check abuse of investigative power? The message will be clear: Concoct lies to protect your bosses, and your colleagues will wink at your deception, perhaps grateful for having been spared the obligation of making up their own lies.  One lie out of a hundred might be called out in an OIG report—they only have so much time and so many resources—but even if it is, no harm will come of it. The investigators will be mysteriously unable to identify the liar, and everything will blow over. Why risk telling the truth? The initial fuss will subside, and Americans will soon enough be distracted by the next episode of Jersey Shore.

I think we’ve had quite enough of that.  Someone at the FBI decided that it was a good idea to lie to Congress in order to cover up improper monitoring of an unpopular political group.  In this case, it was pacifists, but who knows who’ll be next. If brazen lies aren’t punished the one case out of a dozen or a hundred that draw the attention of the overseers, why should they ever bother to observe the rules? So watch the Department of Justice.  If someone is fired over this, maybe we still live in a country governed by the rule of law. If not, they’re convinced we’re so dim and besotted by reruns of Friends that they no longer even feel obliged to put up a good show.

Take Off the Blinders: Diversity Demands Educational Freedom

Yesterday, FoxNews.com posted a story on what appears to be a growing problem for public school systems across the country: accommodating Muslim holidays. Unfortunately, the report didn’t contain the solution to the problem. It did, though, contain a very succinct discussion of the root of the problem; an example of the good intent that causes people to ignore the problem; and the kind of “solution” that is ultimately at odds with the most basic of American values.

A quote from New York City mayor Michael Bloomberg captured the essence of the problem:

One of the problems you have with a diverse city is that if you close the schools for every single holiday, there won’t be any school.

There you have the basic conundrum in a nutshell: Whenever you have a diverse population – whether in a hamlet, city, state, or nation – and everyone has to support a single system of government schools, you cannot possibly treat all people – or even most of them – equally. Either there are winners and losers, or nobody gets anything.

Understanding why public schooling  can’t handle diversity – why, simply, one size can’t fit all – is really basic common sense. So why isn’t there more outrage over, or even just recognition of, the utter illogic of our education system? Mohamed Elibiary, President and CEO of the Freedom and Justice Foundation, illustrated the attitude that likely causes lots of Americans to wear blinders:

I’m a little torn. I want Muslims to be getting the same recognition as other Americans, but at the same time I don’t want to see public education systems be a battleground between religious identities, because then we’re missing the point of why we have a public education system to begin with.

No doubt many people truly believe as Elibiary does: that a major purpose of public schooling is to bring diverse people together and, by doing so, unify them. It’s a fine intention, but also a classic case of intent not matching reality. Indeed, the reality is often very much the opposite. Rather than unifying people, public schooling has repeatedly forced religious conflict (as well as conflict over race, ethnicity, political philosophy, curriculum, and on and on).

It started almost on Day One, when Horace Mann, a Unitarian, was locked in conflict with Calvinists over what kind of Protestantism the state’s nascent “common schools” would teach. When Roman Catholics began arriving in America in large numbers, battles – sometimes deadly – erupted over who would get what kind of Christianity in the public schools. When Tennessee outlawed the teaching of evolution, the Scopes “Monkey Trial” fired the first big blast in the war over the teaching of human origins, a fight we are still very much in. In the latter part of the twentieth century, the fighting moved to what, if any, religious expression is permissible in public schools. And now, we’re getting fired up over whose holidays will get the most deference from government schools. It almost seems like war without end.

Finally, the article gropes at – but doesn’t grab – the solution to our education and diversity problem. Says Georgetown University professor Bradley Blakeman:

That’s the beauty of having a school district responsive to the localities as opposed to blanket rules that affect multiple jurisdictions, states or even countries. One size doesn’t fit all when it comes to these kinds of rules and regulations. We’re not a homogeneous nation, which makes us so great.

Blakeman is heading in the right direction (even as federal policy pushes us the opposite way): The closer that control of education gets to individual people, the more easily it can be tailored to unique needs, values, and desires. Unfortunately, Blakeman fails to identify the obvious last step: completely decoupling government funding from provision of education. In other words, instituting universal educational choice. Making matters worse, Blakeman for all intents and purposes concludes that as long as decisions are made at the local level, and the majority gets its way, everything is fine:

A school should reflect the beliefs and practices of the community that they serve. And if school boards are sensitive to their populations, that’s fine, provided the decisions of the board reflect the majority opinion of its community.

It may sound harsh, but one way to describe this is simply ”tyranny of the majority” – whatever the majority wants, it gets, as long as it is the local majority. It’s a solution that completely ignores that ours is not supposed to be a nation of majority rule, but rule of law that protects individual freedom. And, of course, one of the most basic protections is the prohibition on government tipping the scales in favor of one religion, two religions, or no religion at all. 

This solution also fails, by the way, to address the problem at hand: School districts – not states or Washington – having to accommodate diverse populations. In other words, ”local control” is ultimately no solution at all.

Universal choice is, quite simply, the only system of education compatible with the most basic of American values – individual liberty – and the only way to avoid constant, divisive battles over who will get what out of the schools. Hopefully, people will come to realize that before our conflicts get even worse.

Accountability for ‘Exigent Letter’ Abuse At Last?

It is more than three years since the Office of the Inspector General first brought public attention to the FBI’s systematic misuse of the National Security Letter statutes to issue fictitious “exigent letters” and obtain telecommunications records without due process. Nobody at the Bureau has been fined, or even disciplined, for  this systematic lawbreaking and the efforts to conceal it. But the bipartisan outrage expressed at a subcommittee hearing of the House Judiciary Committee this morning hints that Congress may be running out of patience—and looking for some highly-placed heads to roll. Just to refresh, Committee Chairman John Conyers summarized the main abuses in an opening statement:

The IG found that more than 700 times, such information was obtained about more than 2,000 phone numbers by so-called“exigent letters” from FBI personnel. In some cases, the IG concluded, FBI agents sent the letters even though they believed that factual information in the letters was false. For more than 3,500 phone numbers, the call information was extracted without even a letter, but instead by e‐mail, requests on a post‐it note, or “sneak peaks” of telephone company computer screens or other records…. In one case, the FBI actually obtained phone records of Washington Post and New York Times reporters and kept them in a database, leading to an IG conclusion of “serious abuse” of FBI authority and an FBI public apology.

It’s probably actually worse than that: Since these letters often requested a “community of interest” analysis for targeted numbers, the privacy of many people beyond the nominal targets may have been implicated—though it’s hard to be sure, since the IG report redacts almost all details about this CoI mapping.

And as Rep. Jerry Nadler pointed out, the IG report suggests a “clear pattern here of deliberate evasion,” rather than the innocent oversight the Bureau keeps pleading.  Both Nadler and the Republican ex-chair of the committee, Rep. James Sensenbrenner, expressed frustration at their sense that, when the FBI had failed to win legislative approval for all the powers on its wish list, it had simply ignored lawful process, seizing by fiat what Congress had refused to grant. Sensenbrenner, one of the authors of the Patriot Act, even declared that he felt “betrayed.” But we’ve heard similar rhetoric before. It was the following suggestion from Conyers (from my notes, but pretty near verbatim) that really raised an eyebrow:

There must be further investigation as to who and why and how somebody in the Federal Bureau of Investigation could invent a practice and have allowed it to have gone on for three consecutive years.  I propose and hope that this committee and its leadership will join me, because I think there may be grounds for removal of the general counsel of the FBI.

That would be Valerie Caproni, one of the hearing’s two witnesses, and an executive-level official whose dismissal would be the first hint of an administration response commensurate with the gravity of the violations that occurred. Caproni’s testimony, consistent with previous performances, was an awkward effort to simultaneously minimize the seriousness of FBI’s abuses—she is fond of saying “flawed” when le mot juste is “illegal”—and also to assure legislators that the Bureau was treating it with the utmost seriousness already. Sensenbrenner appeared unpersuaded, at one point barking in obvious irritation: “I don’t think you’re getting the message; will you get the message today?” The Republican also seemed to indirectly echo Conyers’ warning, declaring himself “not unsympathetic” to the incredulous chairman’s indictment of her office. Of course, the FBI has it’s own Office of Professional Responsibility which is supposed to be in charge of holding agents and officials accountable for malfeasance, but apparently the wheels there are still grinding along.

It’s also worth noting that Inspector General Glenn Fine, who also testified, specifically urged Congress to look into a secret memo issued in January by the Office of Legal Counsel, apparently deploying some novel legal theory to conclude that many of the call records obtained by the FBI were not covered by federal privacy statutes after all. This stood out just because my impression is that OIG usually limits itself to straight reporting and leaves it to Congress to judge what merits investigation, suggesting heightened concern about the potential scope of the ruling, despite FBI’s pledge not to avail itself of this novel legal logic without apprising its oversight committees. Alas, the details here are classified, but Caproni did at one point in her testimony conclude that “disclosure of approximately half of the records at issue was not forbidden by ECPA and/or was
connected to a clear emergency situation.”  There were 4,400 improperly obtained “records at issue” in the FBI’s internal review, of which about 150 were ultimately retained on the grounds that they would have qualified for the emergency exception in the Electronic Communications Privacy Act.  Since that tally didn’t include qualifying records for which legitimate process had nevertheless been issued at some point, the number of “real” emergencies is probably slightly higher, but that still suggests that the “half” Caproni alludes to are mostly in the “disclosure…not forbidden by ECPA” category.  Since ECPA is fairly comprehensive when it comes to telecom subscriber records—or at least, so we all thought until recently—we have to assume she means that these are the types of records the OLC opinion has removed from FISA’s protection. If those inferences are correct, and the new OLC exception covers nearly half of the call detail records FBI obtains, that would not constitute a “loophole” in federal electronic privacy law so much as its evisceration.

Of course, it’s possible that the specific nature of the exception would allay civil libertarian fears. What’s really intolerable in a democratic society is that we don’t know. Operational facts about specific investigations, and even specific investigatory techniques, are rightly classified. But an interpretation of a public statute so significant as to potentially halve its apparent protections cannot be kept secret without making a farce of the rule of law.