Will Bush Fool Us Twice?

Today the Senate is expected to vote on changes to the FISA law. President Bush wants immunity for the telecoms because that will take the matter away from those pesky courts–which keep declaring his initiatives to be contrary to law. The Dems claim that we get sensible and desirable FISA rules in return for the telecom immunity deal. Just assume for a moment that that is true, what assurance do we have that such rules will not be bypassed with one of those fine print signing statements?

Reporter and author Charlie Savage:

Early on in the administration, Cheney arranged it so that all legislation that was going to be headed toward the president’s desk to be signed would be routed through the vice president’s office, allowing David Addington to take part in the bill-vetting process. Normally signing statements would be crafted by the Office of Legal Counsel, the White House Counsel’s office, the Office of Management and Budget. The vice president’s office was added to that mix, and this became another vehicle for the expression of these very strong views of executive power, this very aggressive conception of what it is that is beyond Congress’ ability to regulate when it comes to the executive branch.

Recall that after Congress tried to write new laws concerning interrogation practices run amok, Bush seemed to relent, but then quietly inserted a signing statement that essentially said he would interpret this new law in a way that would be consistent with his power as command-in-chief of the armed forces, which seemed to reduce the new law to nothing but words on paper. Will Bush fool everyone again?

For more on signing statements, go here.

Plainly Unreasonable

Hans Bader links to a prior post purporting to show how the immunity provisions of the FISA bill will “end a legal double standard that discriminates against the telephone companies.” In particular:

It’s worth noting that the federal officials who created a surveillance program already enjoy “qualified immunity” against having to pay damages, even if a court later declares the program illegal, unless their belief that it was legal was plainly unreasonable. (They can still be ordered by a court to stop operating the program, but they can’t be ordered to pay damages if the defense of qualified immunity applies). But private companies, unlike government officials, do not enjoy such “qualified immunity” against damages, exposing them to potentially huge liabilities and attorneys fees. That is odd, since the government should be subject to a tougher standard of liability than private companies, not the other way around.

There are two problems with this. First, the “qualified immunity” standard Bader discusses is not the standard that the “compromise” FISA legislation would establish. Rather, the legislation would require judges to dismiss the lawsuits if the defendants can produce a piece of paper from the government stating that the program was legal. Since we already know that the companies have such pieces of paper, that imposes no real restriction at all.

More importantly, the theory that warrantless wiretapping is legal was “plainly unreasonable.” Don’t listen to me, listen to Judge Vaughn Walker, a Republican appointee, who wrote in 2006: “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”

The FISA Bill: A Paper Tiger

The Washington Post has a defense of the FISA bill that shows a breathtaking level of naivete. Consider this sentence, for example:

The measure requires an individualized, court-approved warrant to conduct surveillance targeted at Americans’ communications with those overseas and – in an expansion of existing FISA protections – at Americans abroad.

It’s true that the bill contains language nominally prohibiting surveillance “targeted at” a particular American. If the NSA wants to spy specifically on Tim Lee in St. Louis, it will need to get an individualized FISA warrant to do so. But what the Post fails to mention is that while an individual warrant would be required to intercept just my communications, no warrant would be required to intercept all international calls by St. Louis residents. As long as no particular St. Louisans were the “target” of the surveillance, and as long as foreign intelligence was “a significant purpose” of this surveillance program—an easy standard to meet—nothing would prevent the government from also using the information intercepted for a variety of other purposes, such as catching people engaged in tax evasion or online gambling.

Moreover, precisely because of the lack of judicial oversight of such dragnet surveillance programs, it’s not clear that the prohibition on “targeting” Americans will have any teeth. Here’s what’s likely to happen: the NSA will develop a variety of sophisticated software algorithms to scan all the traffic intercepted for various patterns of interest to the NSA and other federal agencies. The NSA could conceivably use hundreds of different filters that single out particular communications based on a variety of criteria—keywords, unusual patterns of calls or emails, communications with current suspects, and so forth. The judge reviewing the “certification” for such a program would be required to wade through hundreds of pages of documentation describing what the software did—probably written in dense, technical language and then translated into lawyer-speak. I’ve got a computer science degree, and I doubt I could tell whether the algorithms so described “targets” Americans; certainly no 70-year-old judge is going to be able to do so.

It’s also important to remember that both the NSA and the FBI have a long history of evading laws they find inconvenient, and to using the results for unsavory purposes. From the 1930s until at least the 1970s, federal agencies repeatedly used illegal wiretaps and break-ins to spy on journalists, political activists, civil rights leaders, elected officials, actors, and other prominent individuals. They assembled files on thousands of Americans that included information about their sexual orientation, sexual dalliances, political opinions, and other potentially embarrassing information. The information collected was used for blackmail, intimidation, titilation, and to manipulate the political process. We have no evidence that the NSA or FBI are currently doing any of these things, but it would be naive to assume that it won’t happen in the future.That means that the judicial procedures for verifying that the rules are being followed are at least as important the rules themselves. A “no targeting” rule is worthless unless it comes with effective procedures for enforcing that rule. When Congress crafts surveillance law, it should assume that the government will try to skirt the rules, and include enforcement mechanisms that are hard to circumvent. Two crucial mechanisms in the original FISA legislation were the requirement for individualized warrants, and the requirement that telecom companies only participate in surveillance programs in response to a court order. Together, these requirements ensured that wiretapping activities got prompt and thorough scrutiny from a judge.

The legislation the Senate is on the verge of passing undermines both of these safeguards, replacing individualized warrants with broad “certifications” and allowing the government to issue “directives” directly to telecom companies without court involvement. Together these provisions make it trivially easy for government officials to evade proper oversight, either by submitting “certifications” that are so complex that no judge can understand them, or by simply issuing “directives” to telecom companies and then dragging out the judicial review process until the desired information has been collected.

The bottom line is that while the new FISA legislation nominally requires judicial oversight, it will be trivially easy for future government officials to evade. The bill may nominally require “individualized, court-approved warrant to conduct surveillance targeted at Americans’ communications with those overseas,” but it won’t be a meaningful constraint on government officials who wish to skirt the law in the future. And given the long history of law-breaking by government officials in the past, it’s a matter of when, not if, such abuses occur again.

A Central Banker with a Sense of Humor

The world’s worst central banker, Gideon Gono of Zimbabwe, gets a hearty chuckle out of the hyperinflation that has destroyed his country’s economy:

Of all the world’s central bankers, Zimbabwe’s gets the biggest – or at least the longest – salary. Mr. Gono won’t say how much he earns exactly as head of the Reserve Bank of Zimbabwe but does claim to have “more digits” on his pay slip that any of his peers. He earns trillions of Zimbabwe dollars. It now takes more than 16 billion of these to buy a single U.S. dollar. U.S. Federal Reserve Chairman Ben Bernanke earns only six figures, $191,300.

Ha, ha. Maybe he should be more direct and simply take credit for producing the world’s highest inflation. That’s something to be remembered for.

Antitrust Follies

Missouri politicians are trying to block the purchase of St. Louis beer maker Anheuser-Busch by the Belgian brewer InBev. Sen. Christopher Bond, a senior member of the party of free enterprise, has written to both the Department of Justice and the Federal Trade Commission, asking them to examine the merger for any possible antitrust problems.  Sen. Claire McCaskill said she would “do everything I could to stop this sale from going through” because “we do not have a ‘For Sale’ sign on our front lawn in America.”

Of course, nobody’s proposing to sell America. The question on the table is whether the people who have invested their money in Anheuser-Busch will choose to sell their shares at the handsome price offered by InBev. And that really should be their decision, not the business of Bond or McCaskill.

What really is the concern here? That beer prices might rise? Surely that’s something that could be left to a robustly competitive marketplace with lots of new entrants. Or that some people in St. Louis might lose their jobs? That’s understandably a concern for Missouri’s senators, but there’s constant job churn in a dynamic market – between 1993 and 2002 in the American economy, 327.7 million jobs were added, while 309.9 million jobs were lost – and there’s no good reason for senators to thrust a monkey wrench in a few high-profile cases. At least no good economic reason.

Maybe the real concern is that an “iconic” American brand will be owned by foreigners. Anheuser-Busch is indeed a classic piece of Americana, a company founded by German immigrants in a city founded by Frenchmen and named for the French king. And now, in an increasingly globalized world, it might be owned by a Belgian company that has been controlled by Brazilians since a 2005 merger. This sort of globalization is increasingly common. As Robert Reich said as far back as 1991, “It’s very hard to separate out any longer who is us and who is them. If you want to buy an American-made car today, you have a better chance buying an American-made car if you buy a Honda than if you buy a Pontiac LeMans, most of which is produced outside of the United States. People forget or they don’t understand the extent to which globalization has taken over these corporations  – foreigners coming here, we’re going there. Chrysler owns a big chunk of Mitsubishi, Ford owns 25 percent of Mazda.”

Have a cold Bud and chill out, senators.

Just a Few More Feet, Then I’ll Stop Digging

My friend Ezra Klein puts some more meat on the goofiness for which I recently dinged my friend Jonathan Cohn.  The Left’s approach to health-care cost containment is to give more health coverage to more people with more ailments, all the while making everyone pay less.  (What do you mean it doesn’t make sense?  Don’t you believe??)

Cohn expressed that strategy like so:

The better way to control costs is with a variety of approaches that starts with a guarantee of coverage to everybody.

Klein adds:

This is, at least in the abstract, the political logic of focusing on access first: Expanding access creates pressures that force the system to figure out how to control costs.

So if you have an alcoholic friend, Klein suggests you keep buying him drinks until he hits rock bottom.  Or maybe he means that we should keep buying “olive oil” until Don Corleone is so flush with cash that … no, wait.  That won’t work.  Maybe I just don’t understand abstract thinking.

Of course, the Church of Universal Coverage can always point to the health gains we’d see from covering the uninsured.  And I can’t dispute those gains.  It’s just a pity that they’re so obsessed with their holy grail that they don’t see other ways of improving health, maybe at a lower cost, and that wouldn’t feed the very beast that’s going to fight their future cost-containment efforts.

What Would Jesus Do as Zimbabwe’s Central Bank Chief?

Zimbabwe is a country descending into chaos through more ways than just its economy and political system. It seems that the very moral order is being turned upside down.

In an article in today’s Wall Street Journal, the head of Zimbabwe’s central bank, Gideon Gono, said that Jesus would approve of his stewardship of the nation’s currency.

Because of the disastrous policies of President Robert Mugabe, the traditional sources of government revenue have dried up, so the government has directed the central bank to print money to pay its soldiers, officials and other supporters of the regime. Mr. Gono has meekly complied, driving the inflation rate into the stratosphere. Under Gono’s watch, inflation in Zimbabwe has soared to an estimated annual rate of eight million percent.

To justify his mismanagement Gono cites the Bible and Christianity:

Anyone who says the bank governor should violate the head of state is violating a principle that Jesus Christ demanded of his disciples. A key element Christ looked for in his disciples was loyalty.

That begs the question: Loyalty to whom?

In reading his Bible, Mr. Gono must have missed the bit about “Thou shall not steal,” which is exactly what hyperinflation does. It massively expropriates wealth from private citizens and gives it to the government. When Peter and his fellow apostles were told by the government authorities of their day to stop preaching about Jesus (Acts of the Apostles, Chapter 5), they replied, “We must obey God rather than men.”

By propping up the Mugabe regime through hyperinflation, Mr. Gono has made a very different choice.