Topic: General

NSA Redux

In his latest posting, my colleague Roger Pilon restates several of his arguments in defense of the NSA’s warrantless domestic surveillance.  Each of Roger’s points has been addressed in detail in our recent debate and in my Senate testimony.  For those who prefer a nutshell version of my response, here it is:

Roger asks, “How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government …?”  I do not dispute that the president has inherent powers, especially during wartime.  The question is not the existence, but rather the scope, of those powers.  And because Congress too has wartime powers, an express restriction by Congress, like the FISA statute, is persuasive when deciding whether the president has overreached. 

Indeed, the Constitution specifically authorizes Congress to shape the  president’s inherent powers.  Article I, section 8 empowers Congress to “make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 

If, as Roger insists, warrantless domestic surveillance is incidental to the president’s inherent powers, so too are sneak-and-peek searches, roving wiretaps, library records searches, and national security letters – all of which were vigorously debated in deciding whether to reauthorize the Patriot Act.  Could the president have proceeded with those activities even if they were not authorized by Congress?  If so, what was the purpose of the debate?  Why do we even need a Patriot Act? 

President Bush has also asserted “inherent powers” to justify military tribunals without congressional authorization, secret CIA prisons, indefinite detention of U.S. citizens, enemy combatant declarations without hearings as required by the Geneva Conventions, and interrogation techniques that may have violated our treaty commitments banning torture.  Are those activities outside the president’s wartime authority?  If not, what are the bounds, if any, that constrain his conduct?

The animating sentiment at the time of the founding was fear of executive power – return of the king.  Against that backdrop, it’s remarkable that the president, with Roger’s apparent approval, now claims to wield unilateral powers with no safeguards – in effect, an irrebuttable presumption of authority, unfettered by Congress or the courts, to do just about anything that he pleases in battling terrorists.

NSA: Keeping One’s Eye on the Constitutional Ball

Followers of Cato’s Constitutional Studies department know that my colleague Bob Levy and I have a respectful disagreement over the constitutionality of recently revealed NSA surveillance practices. Consider this the latest installment in that discussion….

In an earlier Cato@Liberty post, Bob finds it “ominous” that the NSA might be “monitoring the content of wholly domestic calls.” But he adds, “When communications from and to a US person in the US are monitored, that’s domestic surveillance, no matter whether the party on the other end is inside or outside of the US (original emphasis).”

I have to disagree. Perhaps Bob thinks that the monitoring of international calls, as we would normally call them (one party outside the United States), is also ominous, because he next says, “Since Bush believes that warrantless domestic surveillance is permissible regardless of FISA’s contrary provisions, we shouldn’t be surprised if the NSA has much more data (including content) than USA Today has uncovered.”

This focus on domestic/nondomestic, pressed by the Bush critics, comes from the language of FISA—and points to yet another problem with the statute. After all, the calls we want most to monitor are those that go to and come from al-Qaeda sleeper-cells in the United States. Insofar as FISA burdens that “domestic” surveillance, it frustrates the very purpose of surveillance.
In Nov. 2002, the FISA Court of Review cut through that distinction when it spoke of the president’s “inherent authority to conduct warrantless searches [leaving it open whether inside or outside the United States] to obtain foreign intelligence information,” adding that the “appropriate distinction” to be drawn in balancing the government’s interest against individual privacy interests is between “ordinary crimes and foreign intelligence crimes.” Unlike with the former, where punishment and deterrence are the main purposes, the government’s concern with foreign intelligence crimes, the court said, “is overwhelmingly to stop or frustrate the immediate criminal activity.” It can hardly do that effectively if it has to run to court for a warrant at every turn—nor did the court hold that it had to since that issue was not before the court.
The deeper issue with FISA, however, is the constitutional separation-of-powers question: whether Congress has the authority to restrict an inherent power of the president. How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government that has been exercised, with no objection, by every president since George Washington? Congress, by mere statute, can no more restrict the inherent power of a president—or a court, or a state, for that matter—than it can restrict the constitutional rights of an individual. If a line is to be drawn between the power of the president and the rights of the people, it is for the courts to do it. And if the courts will not or cannot do so (because of standing or other such problems), then the matter is ultimately political, not legal.

Kiddie Mac

Pop Quiz:

“Kiddie Mac” is:

     A. America’s next great hip-hop star

     B. a cheesy new dish from Kraft

     C. a youth-oriented computer by Apple

     D. a foolish idea floating around the halls of Congress

I assume most people identified the correct answer. Kiddie Mac is in fact, the informal title of a the proposed Children’s Development Commission—a federal agency that would provide loan guarantees for child daycare centers. The ridiculousness of this proposal speaks for itself. Yet, Rep. Carolyn Maloney recently introduced a bill to create Kiddie Mac, and has done so repeatedly since 1999. 

Reagan Alert

Tonight (5/12) at midnight EDT (11 p.m. Illinois time, 9 p.m. Bel Air time) Turner Classic Movies will broadcast “Knute Rockne, All American.” Win one for the Gipper!

BlogEditor’s note: An additional reason for liberty-lovers to tune into TCM: Cato H.L. Mencken Research Fellows Penn & Teller will serve as TCM guest programmers on May 22nd. Among the films they have spooled up: The Marx Brothers’ oft-overlooked 1939 gem At the Circus.


Judicial Independence as Key Ingredient of Freedom

I’m in Beirut, where I’ve been meeting with Arabic newspaper and book publishers for Cato’s Arabic publishing venture and where I led a seminar today at the American University of Beirut.

One hot topic of discussion here has been the ongoing protests in Egypt over the independence of the judiciary. Democracy is often identified only with elections, but a lasting democracy has to involve a lot more than the ballot box. A liberal democracy isn’t just about free elections, but about the constitutional context – securing the rights of the people to freedom under law, rather than subjugation to arbitrary power – within which free elections serve an important but limited role.

As the Egyptian demonstrators have realized, free elections are not possible without an independent judiciary to ensure that the law is followed. That very same independent judiciary, in turn, is a central feature of the predictability of law that is necessary for a social order to flourish. Mancur Olson pointed out in 1993 in the American Political Science Review that ”the same court system, independent judiciary, and respect for law and individual rights that are needed for a lasting democracy are also required for security of property and contract rights.”

Let’s hope that as the Egyptians struggle for an independent judiciary that can monitor and check the executive power, we in the U.S. manage to keep our judiciary from submitting to domination by an executive branch that is hell-bent on sacrificing the separation of powers in pursuit of its claims of unlimited power. As James Madison noted in Federalist 78, the independence of the judiciary should be regarded as “the citadel of the public justice and the public security.”

“Starve the Beast” Just Does Not Work

For nearly 30 years, many Republicans have asserted that the best way to control federal spending is to “Starve the Beast” by reducing federal tax revenue. Moreover, this assertion has been endorsed by two Nobel-laureate economists, Milton Friedman and Gary Becker.

There are at least three problems with this perspective:

  1. It is most implausible that reducing the tax burden of government spending on current voters would reduce the level of government spending that Congress would approve. In private markets, there is a consistent negative relation between the price of a good or service and the amount demanded.
  2. The “Starve the Beast” assertion is inconsistent with the facts, at least since 1980.  My study finds that there was a strong negative relation between the federal spending percent of GDP and the federal revenue percent of GDP from 1981 through 2005, even controlling for the unemployment rate.
  3. An increased belief in the “Starve the Beast” assertion has substantially reduced the traditional Republican concern for fiscal responsibility – leading to a pattern of tax cuts, increased spending, and increased deficits. This pattern has been strongest during the current Bush administration, primarily because the Republicans control both the administration and a majority of both houses of Congress.

In 2005, federal revenues were 17.8 percent of GDP. My estimate is that an increase of federal revenues to about 19 percent of GDP would be necessary to stabilize the federal spending percent of GDP. Control of at least one house of Congress by the Democrats, however, is likely to be necessary to achieve this outcome. Republicans should not consider this inconsistent with Reaganomics. After the major reduction in marginal tax rates in 1981, Reagan approved tax increases in each of the next three years and a major tax reform that increased federal revenues in the short run.

Bitter Ironies

Remember when conservatives wrote books with titles like Absolute Power: the Legacy of Corruption in the Clinton-Reno Justice Department? Those were the days.  But here’s a new selection from the Conservative Book Club: Can She Be Stopped?  Hillary Clinton Will Be the Next President of the United States Unless… What? I don’t know, but that’s the title of a new book from John Podhoretz of NRO and the New York Post

What I do know is that if Hillary is the next president, she’ll be able to lay claim to a number of vast, extraconstitutional powers championed by right-wingers like, uh, John Podhoretz. Among those powers is the ”inherent executive authority” to wiretap at will and, perhaps, to seize American citizens on American soil and hold them without charges for the duration of the war on terror – in other words, forever. 

The ’90s weren’t that long ago. And I remember a lot of wailing and gnashing of teeth over misused FBI Files and suspicious IRS audits. Over the last four and a half years, many of the same wailers and gnashers have cheer-led the concentration of unreviewable power in the executive branch, as if George W. Bush would be the last president ever to wield that power. And now, lo and behold, there’s the mistress of Travelgate warming up in the on-deck circle. Join me in a bitter chuckle. 

Funny, that didn’t make me feel better.