Topic: Government and Politics

More on Bush’s Surveillance Flip-Flop

Based on the DOJ briefing regarding the NSA surveillance about-face, it appears that the Foreign Intelligence Surveillance Court (FISC) is not approving surveillance on a program-wide basis.  Instead, it is issuing individualized surveillance orders against particularized targets.  It remains unclear, though, how exactly the FISA orders have changed to permit more “speed and agility” and, because so much is taking place within the dark, all suggestions are pure, unadulterated guess-work.

One compelling theory is Orin Kerr’s:  namely, that the FISA court is issuing anticipatory warrants (warrants based on a finding that there is probable cause to search when a future triggering condition appears.)  As Kerr notes, that’s consistent the one bit of evidence we can glean:  that the FISA court is limiting the approval orders to a 90 day period, rather than the full statutory one year period permitted under FISA.  Shorter review is consistent with ensuring that the triggering condition for the search and the probable cause requirement mesh.  It also helps explain the timing, since the Supreme Court approved anticipatory warrants in United States v. Grubbs last term.  (For more on Grubbs, read Professor David Moran’s article on last term’s Fourth Amendment cases, The End of the Exclusionary Rule, Among Other Things, in the latest Cato Supreme Court Review.)

Kerr’s theory, however, doesn’t explain one part of the puzzle:  multiple sources’ statements to the Washington Post that the orders touch on ”programmatic” issues.  What might this mean, if FISC is approving orders on a case-by-case, rather than program-level, basis?

One possibility is that DOJ has adopted a streamlined internal approval process for emergency FISA applications within the executive branch, and that FISC has approved it.  FISA imposes some internal pre-approval requirements for emergency applications–including review by the AG and a cabinet level official with foreign affairs responsibility.  In February testimony last year, Gonzales complained at length that this statutory approval process had become overly cumbersome:

To be sure, FISA allows the government to begin electronic surveillance without a court order for up to 72 hours in emergency situations or circumstances. 

But before that emergency provision can be used, the attorney general must make a determination that all of the requirements of the FISA statute are met in advance. 

This requirement can be cumbersome and burdensome.  Intelligence officials at NSA first have to assess that they have identified a legitimate target. After that, lawyers at NSA have to review the request to make sure it meets all the requirements of the statute. And then lawyers at the Justice Department must also review the request and reach the same judgment or insist on additional information before processing the emergency application.  Finally I, as attorney general, must review the request and make the determination that all of the requirements of FISA are met.  

But even this is not the end of the story. 

Each emergency authorization must be followed by a detailed formal application to the FISA courts within three days. The government must prepare legal documents laying out all of the relevant facts and law and obtain the approval of a Cabinet-level officer as well as a certification from a senior official with mass security responsibility, such as the director of the FBI. 

Finally, a judge must review, consider and approve the application.  All of these steps take time. Al Qaida, however, does not wait.  … Just as we can’t demand that our soldiers bring lawyers onto the battlefield, let alone get the permission of the attorney general or a court before taking action, we can’t afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive Al Qaida operatives in real time.  

In the briefing on the new FISA process, however, the administration noted that one change that made compliance with FISA possible was a change in executive branch “infrastructure”:

[O]ne thing that did change was – authorization earlier this year, last year, the National Security Division, which is a new agency in the Department of Justice, which will – be coordinating with the FISA Court on all kinds of matters including this one. So we’re now equipped in a way we weren’t before to handle this work.

One way to read this is that the new FISC order finds that new streamlined executive branch procedures for internal review of emergency applications accords with FISA.  Its hard, unfortunately, to guess exactly what such procedures might be, but it almost certainly includes eliminating duplicative layers of legal oversight within the executive.

Less Redress, More Grievances

The first bill proposed in the U.S. Senate in the new session of Congress attacks freedom of speech.

Some organizations use direct mail and other means to urge the public to contact members of Congress on a variety of issues. Currently some of those groups do not have to disclose those efforts to prompt public input.

Sen. Joseph Lieberman (I-CT) is not happy with such freedom from regulation. He has proposed that such organizations should be forced to disclose these efforts if they spend more than $25,000 a quarter and do not have a dues-paying membership (see S1, Sec. 220).

According to CQ Today, Lieberman’s spokeswomen said, “There’s nothing in this measure that will stop, deter or inhibit anyone from petitioning the government.” If that were true, no one in Congress would support Lieberman’s proposal. Congress passes restrictions on First Amendment rights primarily to discourage political activity, thereby increasing the discretion of a member while decreasing their accountability.

This particular measure imposes new costs on the groups who exercise their First Amendment rights. It will also expose the groups and their supporters to abuse and attacks in the political arena. Both costs increase the price of petitioning the government for redress of grievances and thereby reduce its likelihood.

Is Lieberman’s bill constitutional? The U.S. Supreme Court has said that mandatory disclosure of activities tied to First Amendment rights (like say, “the right to petition the government for redress of grievances”) may be justified to prevent corruption (or its appearance) and to inform the public better about candidates or legislation. The groups give money to the U.S. Post Office or other direct mailers, not to members of Congress or other policymakers. Hence, quid-pro-quo corruption is not at issue here. The groups are also informing the public about issues and urging them to contact Congress. How any of this constitutes the “appearance of corruption” is anyone’s guess.

I suspect the traditional justifications for mandatory disclosure do not matter much here. No one seriously believes these direct mail campaigns corrupt politics. Members of Congress no doubt believe that these direct mail groups have more influence than they should have. In particular, members of the new majority running the Senate may believe the direct mail efforts to foster contacts with Congress give “undue influence” to their conservative opponents. Hence, Sen. Lieberman comes up with a bill to throw some sand in the gears of the conservative political machine.

If you ever doubt why the First Amendment exists, consider this: the first thing mild-mannered Joe Lieberman did when a new majority took control of the Senate was to attack the constitutional rights of those who disagree with him.

Next Up: Democrats’ Plan for Tax Augmentation

The Washington Post reports:

[Sen. Chuck] Hagel, a Vietnam veteran, angrily condemned the “escalation” of the [Iraq] war. “To ask our young men and women to sacrifice their lives to be put in the middle of a civil war is … morally wrong. It’s tactically, strategically, militarily wrong.”

“I don’t see it, and the president doesn’t see it, as an escalation,” [Secretary of State Condoleezza] Rice replied.

Hagel looked stunned. “Putting 22,000 new troops, more troops in, is not an escalation?”

“Escalation is not just a matter of how many numbers you put in,” Rice ventured.

“Would you call it a decrease?” Hagel pressed.

“I would call it, Senator, an augmentation.”

The War Decider

I can answer the question Senator Webb put to Secretary Rice yesterday. The answer is, yes, it is “the administration’s position that it possesses the authority to take unilateral action against Iran in the absence of a direct threat without congressional approval.” They haven’t yet directly said “we can launch a war with Iran and we don’t need anyone’s permission,” but it’s not hard to read between the lines:

In April 2002, John Yoo, then with the Justice Department’s Office of Legal Counsel, testified  before the Senate Judiciary Committee that ”the President has the constitutional authority to introduce the U.S. Armed Forces into hostilities when appropriate, with or without specific congressional authorization.” In an internal memorandum prepared shortly after September 11, 2001, Yoo had put it even more starkly: “In the exercise of his plenary power to use military force, the President’s decisions are for him alone and are unreviewable.” 

That is consistent with Vice President Cheney’s long-held view of the president’s powers, as can be seen in this Frontline interview in which Cheney discusses his role as secretary of defense during the Gulf War:

Q: The Congressional vote. Do you recall discussing with the President what he would have done if he’d lost the votes. 

Cheney: It was my view at the time [that] we were absolutely committed to getting Saddam Hussein out of Kuwait one way or the other, no matter what we had to do. We had to have the Saudis as allies in that venture, but if no one else had been with us, if it had just been the United States and Saudi Arabia, without the United Nations, without the authorization of the Congress, we were prepared to go ahead. I argued in public session before the Congress that we did not need congressional authorization…. I was not enthusiastic about going to Congress to ask for an additional grant of authority. I was concerned that they might well vote NO and that would make life more difficult for us, or that even if they voted YES and then we had a disaster on our hands and it didn’t work, they’d still be against us….

Q: But if you’d lost the vote …?

Cheney: If we’d lost the vote in Congress, I would certainly have recommended to the President we go forward anyway.

If and when Secretary Rice provides her promised written answer to Senator Webb, I doubt that it will say: “The president has the constitutional authority to launch wars at will, anywhere in the world, at any time of his choosing, without anyone’s permission. So yes, of course he can start a war with Iran.” But that is the administration’s view.

(Hat tip: Matt Yglesias

Health Plan Hubris

Jacob Hacker writes:

[E]very legal resident of the United States who lacks access to Medicare or good workplace coverage would be able to buy into the “Health Care for America Plan,” a new public insurance pool modeled after Medicare. This new program would team up with Medicare to bargain for lower prices and upgrade the quality of care so that every enrollee would have access to either an affordable Medicare-like plan with free choice of providers or to a selection of comprehensive private plans.

It seems to me that if a plan “bargains for lower prices,” then many providers would prefer not to participate. In that case, “free choice of providers” would require forcing doctors to join.

I was pointed to this plan by Matthew Yglesias, who praised it. I got to Yglesias via Tyler Cowen, who is more skeptical.

I am very pessimistic about the outlook for health care policy. It seems to me that wonks are engaged in a bidding war for politicians, in which the guy with the most hubris (Great health care for all! At half the cost!) wins. 

I think that the best that libertarians can hope for is to see some of these ideas tried in state laboratories and have their outcomes measured against their promises. My fear is that we will get the former but without the latter.

Subsidies Fail to Save French Farms

French farmers harvest billions of euros every year in government support through the Common Agricultural Policy (CAP). Yet those lavish subsidies and trade barriers have failed to achieve one of their primary objectives: saving the French family farm.

According to a study just released by the French Statistical Institute (INSEE), and reported in today’s Financial Times, an average of 100 French farms have gone out of business EVERY DAY for the past 50 years. The number of farm workers in France has dropped by two-thirds in the past 25 years. France’s farm exports have been declining by 3.4 percent per year since 1999, and farm household income has actually fallen during the past decade, while the incomes of non-farm households in France have been going up.

The decline of the French farm has occurred despite, or perhaps because of, the generous support of the CAP. France’s farmers receive the equivalent of $11.6 billion a year in handouts, more than one fifth of total European Union spending on agriculture. Those subsidies have arguably kept French farms from becoming more competitive and thus contributed to their long-term decline.

When the EU’s farm commissioner, Mariann Fischer Boel, warned that French farmers should seek second incomes outside the farm sector to survive, the French farm minister denounced her comments as “an insult to the social model to which European citizens are profoundly and legitimately attached.”

Is an agricultural “social model” that costs billions of euros a year and only adds to the decline of the French farm worth holding on to?

‘Net Wars

It’s a politician’s dream:

Congress is about to embark on new policymaking that will make some of America’s largest and wealthiest corporations into big financial winners and others into big losers. Given the money at stake, firms are dispatching lobbyists, armed with perks and campaign contributions, to D.C. to ensure that their clients end up on the good side of the legislation.

Making the dream even more wonderful is that the issue is obscure and complex. Most Americans will be affected, but few Americans will understand the issue and thus be able to hold politicians accountable for bad policymaking.

Welcome to the Net Neutrality fight.

To understand the fight, think of how the Web is increasingly making use of video and audio content, e.g., YouTube’s video streams, Internet radio’s audio streams, even Cato’s webcasts and podcasts. And now, on the technological horizon, is the ability to receive whole movies over the Internet. The flow of all of that data places considerable strain on high-speed Internet service providers (ISPs), who have to maintain and upgrade their portions of the Internet in order to keep the streams moving quickly.

Notice the economic asymmetry that results: content providers benefit from the upgrades, but high-speed ISPs like Comcast and AT&T pay the cost. Such asymmetries open the way for consumer-harming inefficiency and mischief.

The ISPs have responded to this situation by threatening to charge content providers for priority access. That is, a modest, text-driven website like Cato@Liberty, which doesn’t use much bandwidth, would likely go uncharged because it wouldn’t need priority service, but YouTube, with its bandwidth-consuming media streams, would need priority service and thus have to pay fees to the high-speed ISPs.

The content providers would prefer to avoid those fees, of course. They’re asking Congress to prohibit the ISPs’ proposal, and instead mandate “net neutrality” — ISPs giving equal priority to all Internet content, regardless of uneven bandwidth demand.

The New York Times nicely summarizes this fight:

Beyond the debate, the fight over net neutrality is, like most regulatory political battles, a fight over money and competing business models. Companies like Google, Yahoo and many content providers do not want to pay for the kinds of faster Internet service that will enable consumers to more quickly download videos and play games.

There are interesting arguments for both neutrality and non-neutrality. For a good argument for neutrality, read this article [pdf] by Stanford Law School’s Larry Lessig that appeared in the Fall 2005 issue of Regulation. Lessig’s Stanford colleague Bruce Owen makes a good argument for non-neutrality in this article [pdf] from the Summer 2005 issue.