DoJ’s Public Lobbying - A Legal Violation?

Here’s the language of 18 U.S.C. § 1913 (“Lobbying with appropriated moneys”):

No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation, whether before or after the introduction of any bill, measure, or resolution proposing such legislation, law, ratification, policy, or appropriation; but this shall not prevent officers or employees of the United States or of its departments or agencies from communicating to any such Member or official, at his request, or to Congress or such official, through the proper official channels, requests for any legislation, law, ratification, policy, or appropriations which they deem necessary for the efficient conduct of the public business, or from making any communication whose prohibition by this section might, in the opinion of the Attorney General, violate the Constitution or interfere with the conduct of foreign policy, counter-intelligence, intelligence, or national security activities. Violations of this section shall constitute violations of section 1352 (a) of title 31.

Now here is some language from a Department of Justice Web site called lifeandliberty.gov:

FISA 101: Why FISA Modernization Amendments Must Be Made Permanent
FISA Amendments In The Protect America Act Of 2007 Remain Necessary To Keep Our Nation Safe

The Protect America Act modernized the Foreign Intelligence Surveillance Act (FISA) to provide our intelligence community essential tools to acquire important information about terrorists who want to harm America. The Act, which passed with bipartisan support in the House and Senate and was signed into law by President Bush on August 5, 2007, restores FISA to its original focus of protecting the rights of persons in the United States, while not acting as an obstacle to gathering foreign intelligence on targets located in foreign countries. By enabling our intelligence community to close a critical intelligence gap that existed before the Act became law, the Protect America Act has already made our Nation safer.

The tools provided by the Protect America Act are scheduled to expire in early February 2008 – it is essential that Congress act to make the legislation permanent. Congress must also pass legislation to provide meaningful liability protection to those alleged to have assisted our Nation following the 9/11 attacks.

A public DoJ Web site that says “it is essential that Congress act to make the legislation permanent” seems designed to influence Members of Congress. It was probably created and is maintained through the expenditure of appropriated funds. Did Congress expressly authorize this? Is a public Web site “proper official channels”? Did the Attorney General find that failing to advocate for this law would interfere with national security?

It looks like this Web site violates the law, but it’s hard bein’ a country lawyer here in the big city.

Privacy Advocacy Overreach

I originally started studying and writing about privacy policy because I thought the advocates in Washington, and Congress itself, didn’t have a full grasp of the issues. They were treating privacy as a political football, and grinding their political, ideological, and self-interest axes on “the privacy issue.”

Illustrating how that problem may persist, Declan McCullagh has a strong rip on the Electronic Privacy Information Center on his Iconoclast blog. It seems that EPIC and some of its allies recently filed a strongly worded complaint with the Federal Trade Commission about problems with AskEraser that no longer exist.

The AskEraser cookie originally had a time-stamp that could act like a unique identifier, so Ask.com changed it. Nonetheless, in went EPIC’s “Complaint and Request for Injunction, Request for Investigation and for Other Relief.”

The government’s undirected, surveillance-heavy overreaction to the 9/11 terrorist attacks brought me together with lots of folks with whom I disagree on lesser issues like private-sector regulation and privacy practices. I often joke that people will know their privacy is pretty well protected when I’m back to fighting with EPIC and the ACLU. Well, I don’t intend to pick a fight now, because there’s still too much to be done, but a privacy advocacy group shouldn’t just be an FTC-complaint mill.

Declan speculates that EPIC files with the FTC rather than suing (there are some arguable causes of action) because courts would sanction them for frivolous filings. Prospectively calling EPIC’s future bluffs, he says: “The next time you see them complaining to the FTC about some alleged wrongdoing, remember these attorneys’ odd reluctance to litigate.”

Gimme that Ol’ Time Science…

Just had a nice chat with Brandon Weim, who’s writing a story on the evolution / creationism school wars for Wired magazine. It seems that eight Florida school districts (and in Florida, each district comprises an entire county) have passed resolutions calling for alternatives to evolutionary theory to be taught in biology classes. Brandon fears that:

If Florida opts for evolution-unfriendly textbooks and is followed by neighboring Texas – also undergoing its own curriculum revision – then other states, looking for less-expensive texts, may buy those same books. Much of an entire generation could be raised to think of evolution as a theory with no more grounding in reality than intelligent design.

The thing is… that’s already true. As a Gallup poll reported in 2004, only a third of Americans think that evolution is a theory well-supported by scientific evidence (Frank Newport, “Third of Americans Say Evidence has Supported Darwin’s Evolution Theory,” Gallup Poll News Service, 19 November, 2004).

And this is true, remember, generations after the scientific explanation of the origin of species became the only one legally permitted in public school biology classes around the country. As I’ve said before, we’ve already tried the “You evolved, Dammit!” approach for a protracted period of time, and it has failed.

Scientists pride themselves on being driven by the evidence rather than personal dogma. Well, here’s your chance, guys: Dump the failed government-mandated-curriculum approach and start campaigning for unfettered parental choice and a competitive education marketplace. Free schools to teach science properly if they so desire, and quit fooling yourselves into imagining that you can force the rest of the public to understand science by having government ram it down their throats. Make science humble, exciting, and welcoming again, in the vein of Carl Sagan and Jacob Bronowski, instead of calling our religious fellow citizens rubes or worse, and treating them like recalcitrant children.

And as for the fear that educational freedom would lead old time religion to eclipse science, consider that the Netherlands has had universal public and private school choice for a century, including religious schools, and has become one of the most secular nations in the world. Another datum for the science crowd to stick in their thinking caps….

Padilla Gets 17 Years

Jose Padilla received a 17-year prison sentence today.  Padilla’s criminal trial and sentence were fairly straightforward.  It was Padilla’s imprisonment in a military brig between 2002 and 2005 that raised profoundly important questions concerning the power of the presidency.  Can the president lock up any person in the world and then deny that person access to family, defense counsel, and civilian court review?  And what about the use of “harsh conditions” and “environmental stresses”?  Can such techniques be employed against anyone once the president gives an order?  Those legal questions remain unsettled even today.  By abruptly moving Padilla from the military brig and into the ordinary criminal justice system, the Bush administration was able to forestall Supreme Court review of the president’s military powers.

For additional background, go here, here, and here.

Freudian Slip by the WaPo?

A telling penultimate sentence in an article Friday in the Washington Post (online) about proposed changes (and none of them good) to U.S. sugar policy.

But the top Senate Republican in the negotiations, Saxby Chambliss (Ga.), represents a major Savannah refinery that could be hurt by the proposed agreement, sources said. (emphasis mine)

And here I was thinking that Sen. Chambliss represents the state of Georgia.

Leave Them Teams Alone

Nick Gillespie and Matt Welch have a great article in Sunday’s Washington Post on the absurdity of Congress demanding that Major League Baseball do something about steroids right now, or else. They point out that, in the first place, “Major League Baseball, along with other sports leagues and private-sector ventures, simply should not be required to submit their business plans – much less blood and urine samples – to Congress or any other government body.” And in the second place, steroids just aren’t that big a deal, much as Congress wants them to be.

Alas, Reason’s editors do trip up on one point. They write that baseball’s exemption from federal antitrust legislation should be repealed. Why? Because it “has caused more harm than good by allowing owners to collude against players and prospective competitor leagues and by allowing cartel arrangements and restraints on trade unimaginable in other industries.”

Aside from the general problems with antitrust law, the notion that baseball owners “collude” in “cartel arrangements and restraints on trade” reflects a misunderstanding of the organization of a sports league. The different teams in Major League Baseball are not competitors like Coke and Pepsi. They’re not even quite like McDonald’s franchisees, who clearly don’t compete in the way different companies do. Rather, the economic unit is MLB, which is in the business of providing baseball games for entertainment. The competition on the field is real, but the teams are not actually economic competitors. As the Supreme Court ruled in a case involving the NFL:

The NFL owners are joint venturers who produce a product, professional football, which competes with other sports and other forms of entertainment in the entertainment marketplace. Although individual NFL teams compete on the playing field, they rarely compete in the marketplace… . The league competes as a unit against other forms of entertainment.

Gillespie and Welch are more right than they know. Congress should stay entirely out of baseball’s business, including by not siccing antitrust regulators on a single economic unit often misunderstood as 30 competing businesses.

Escaping Ireland’s High Personal Tax Rates

While Ireland has a very attractive 12.5 percent corporate tax, the tax treatment of individuals is much less benign. The top tax rate on personal income is 42 percent, and capital gains are hit with a 20 percent levy. As a result, more than 3,000 of Ireland’s most productive people have become non-residents for tax purposes, including at least half of the nation’s wealthiest citizens. The Sunday Business Post reports:

Although Ireland’s tax rates are relatively low by international standards, an increasing number of high-net-worth individuals are deciding to leave the country of their birth and move to places with more welcoming and forgiving tax regimes. …New figures prepared by the Revenue Commissioners finally reveal just how many tax exiles have decamped Ireland for other jurisdictions. According to new figures obtained by The Sunday Business Post, there are 19 high-net-worth individuals who are Irish domiciled but who are legally non-resident for tax purposes. The figures, from the Department of Finance, only includes individuals whose net worth (their assets less their liabilities) is valued at more than €50 million. …Of the top 20 individuals on the Irish Rich List, at least half are tax resident outside Ireland. John Magnier and JP McManus, the Irish horseracing tycoons, are both based in Geneva, as is Hugh Mackeown, the chairman of the Musgrave Group, the €4.6 billion Cork retail giant. Michael Smurfit, the packaging magnate, is the honorary Irish consul to Monaco, while dancer Michael Flatley also pays his tax in the principality. Billionaire financier Dermot Desmond officially resides in Gibraltar. …The 19 names on the list are just the top of the tax exile iceberg, however. According to the Department of Finance, it only includes individuals who filed an annual return in Ireland for the 2005 financial year. …It is not just the high rollers who are relocating to tax-efficient economies. According to the Revenue Commissioners, Ireland now has more than 3,000 tax exiles who claim non-residency. Many of these individuals are not in the top 250, but have serious wealth nonetheless.