Archives: 02/2011

Showdown in Madison

Today POLITICO Arena asks:

Should Wisconsin Gov. Scott Walker be commended or criticized for his proposal to change certain collective bargaining agreements for public sector employees, adding that Republicans won’t be “bullied” by protesters?

My response:

In November the government-union cabal that has driven Wisconsin, like other states, to the brink of bankruptcy was thrown out of office in a landslide election. So what are the union thugs now occupying the capitol and the state’s Democratic senators who’ve fled the state complaining about? The lack of democracy. That so many are “teachers,” waving signs likening Gov. Walker to Hitler and Stalin, gives rise only to sympathy for the children of Wisconsin.

In fact, if ever there were an argument for separating school and state, it’s unfolding today in Madison. Private schools in the state are functioning quite normally through this Athens-like spectacle, because they operate under normal market conditions, where parents, administrators, and teachers decide personnel matters through voluntary agreements. By contrast, as the Cato Institute’s Chris Edwards has shown through numerous studies, because public-sector unions occupy, effectively, both sides of the bargaining table, their pay and benefits over the years have far outstripped those of private-sector workers who pay those benefits.

Well the taxpayers spoke in November. The unions’ beef is with them. Deal with it.

Alaska’s Parnell Becomes 2nd Gov. to Refuse to Implement ObamaCare

The Associated Press reports that Alaska Gov. Sean Parnell (R) told the Juneau Chamber of Commerce that he will not be implementing ObamaCare:

“The state of Alaska will not pursue unlawful activity to implement a federal health care regime that has been declared unconstitutional by a federal court,” Parnell told the Juneau Chamber of Commerce, to applause, Thursday.

The AP included a couple of interesting comments from ObamaCare supporters Timothy Jost, a law professor at Washington & Lee University, and Ron Pollack, executive director of Families USA.

Jost described Judge Roger Vinson (to whom Parnell referred) as “one renegade judge,” when in fact two federal judges have struck down ObamaCare’s individual mandate as unconstitutional.  (Since only two federal judges have upheld ObamaCare, who’s to say which pair are the renegades?)

Jost also called Alaska an “outlier” among states, while the AP reported, “Neither [Pollock] nor Jost knew of any other state taking action similar to Parnell.”  Jost and Pollack should know that Florida Gov. Rick Scott (R) had already refused to implement ObamaCare.  (Here he is telling an approving audience of Cato supporters.)  Ironically, the AP story overlooking Scott’s leadership appeared on the Miami Herald web site, which had previously reported that Scott even returned to the federal government the ObamaCare money that his predecessor Charlie Crist accepted but hadn’t spent. Scott may not be enough company to keep Parnell from being an outlier.  But Jost should also know that dozens of governors who are implementing ObamaCare are also hoping the Supreme Court will strike it down as unconstitutional.  Parnell and Scott are outliers for their courage, not because they oppose ObamaCare.

The news about Parnell came as the U.S. Department of Justice filed a motion asking Judge Vinson to clarify that his declaratory judgment “does not relieve the parties of their rights and obligations under [ObamaCare] while the declaratory judgment is the subject of appellate review.”  Ilya Shapiro and I clarified that issue in our oped, “President Should Heed Court and Stop Implementing ObamaCare.”

A Reply to Andy McCarthy on Patriot and Roving Wiretaps

National Review’s Andrew McCarthy thinks proponents of Partiot Act reform, yours truly included, are too concerned with hypothetical problems:

Concerns about “John Doe” warrants — i.e., roving wiretap authorizations that do not name a specific person or place to be surveilled — have been discussed since 2001. Two things stand out. First, although we’ve now had this provision for close to a decade, civil liberties advocates like Mr. Friedersdorf and Cato’s Julian Sanchez still have to couch their objections in the subjunctive mood: the warrants “raise the possibility” of overbreadth abuses “disturbingly similar to the ‘general warrants’” prohibited by the Fourth Amendment. That is, although the Patriot Act has been examined, debated, and reauthorized a number of times since its initial passage shortly after 9/11, critics still have no concrete record that roving taps have been systematically abused, so they have to raise potential abuses that never seem to materialize.

A few points. The concerns about overbreadth—which at the collection stage are at least as likely to result from error as deliberate abuse—are about as “subjunctive” as the benefits of roving taps, given the paucity of public information about their use, which is precisely why caution is in order. (So useful are they, on McCarthy’s telling, that you’d have to be “downright dumb” not to get a roving tap whenever you do FISA surveillance. I’m not sure what he means to imply about our intelligence agents, given that 99 percent of FISA wiretaps are non-roving.) We’ve had extensive Inspector General audits of both Section 215 business record authority and expanded National Security Letter powers—audits which have assuaged some worries in the former case and confirmed them in the latter one. We’ve had nothing comparable for roving wiretaps. It seems a little cute to use the very absence of transparency that characterizes surveillance in the criminal context as some kind of cudgel. And it seems downright absurd when you consider some of the practical realities of intelligence surveillance.

Just in fiscal 2008, the FBI alone collected 878,383 hours (or just over 100 years) of audio, much of it in foreign languages; 1,610,091 pages of text; and 28,795,212 electronic files. A recent review of FBI backlogs by the Office of the Inspector General found that fully a quarter of the audio collected between 2003 and 2008 remained unreviewed (including 6 percent of counterterror acquisitions and 31 percent of counterintelligence acquisitions, the two categories covered by FISA wiretaps). Let that sink in for a second: They have literally years worth of audio material alone that the Bureau itself can’t be sure of the contents of, never mind any kind of independent oversight body.

In the criminal context, that recorded material would have been minimized in realtime to ensure that only conversations relevant to the criminal violation specified in the search warrant were recorded. In the case of a criminal roving tap, acquisition would begin only when an investigator had ascertained—by visual surveillance of a payphone, for example—that an individual target identified by name in the warrant was “reasonably proximate” to the facility being intercepted. (It is precisely these requirements, which leave “virtually no possibility of abuse or mistake” that have persuaded courts to find criminal roving taps compatible with the “particularity” requirements of the Fourth Amendment.) The targets of that criminal surveillance must be informed about it soon after the wiretap terminates, and since the purpose of criminal wiretaps is, of course, criminal prosecution, it will typically be subject to discovery at trial, subject to scrutiny by defense attorneys with a powerful incentive to identify any improprieties.

Under FISA, initial acquisition is broad with “minimization” occurring weeks or months later—if not longer. Those minimization standards are fairly permissive, and even recordings that have nominally been “minimized” (by omitting them from logs or indexes, for example) may remain retrievable in practice. The targets will typically never learn they have been tapped—nor will the non-targets whose communications get swept up in the process. Since the purpose of FISA surveillance is intelligence gathering rather than prosecution, there will never be a trial or a discovery process for most of that material. Now add atop that the realization that some of that material may be acquired on the basis of an agent’s decision to target an account or phone line not identified in any warrant, on the basis of a belief that it is being used by an unnamed target identified only by description.

Finally, consider the nature of the “abuses” we need to be concerned about in the intelligence context. The most notorious cases in our history occurred under Richard Nixon, who brazenly authorized surveillance of political enemies unrelated to any legitimate national security or intelligence purpose—but was also often obtained in the course of initially justifiable investigations that strayed too far afield. Intelligence of political value was selectively leaked to friendly legislators and other government officials, while personally embarrassing or scandalous tidbits about activists, political figures, journalists, and celebrities found their way to J. Edgar Hoover’s infamous “Personal and Confidential” file for safekeeping, where they might stay for months or years—until they could be converted into tools of intimidation, extortion, or personal destruction.

Two conclusions, I think, can safely be drawn from these facts. First, meaningful after-the-fact oversight of the fruits of FISA surveillance is a chimera. The issue is not just that the safeguards here are less stringent on the front end—in this case, the absence of the requirement that roving taps name each individual target—but that many of the the back end safeguards are missing too. Sometimes, of course, it is possible to catch abuses on the backend, but the reality is that if they do occur, there’s a good chance we won’t know about it. Last year, the Office of the Inspector General concluded that someone at the FBI had retroactively fabricated an investigation to justify the ill-considered (and, when it was disclosed, highly embarrassing) assignment of a rookie agent to observe an anti-war protest. As a result, the director of the FBI (unwittingly) provided false—and falsified—information to Congress under oath. Despite a protracted and intensive inquiry into this single incident, the OIG could not determine who within the Bureau was responsible for this. Yet Andy McCarthy assures us that there were any improprieties in the collection of that century of wiretap material, of course we’d know about it.

Second, the nature of intelligence abuses is such that the practical harm of overbroad information collection may not occur until well after the initial acquisition, and may be all but impossible to trace to the source when it does. Initially sweeping and discretionary acquisition, I suspect McCarthy would insist, doesn’t count as an “abuse” because, of course, the rules permit sweeping and discretionary acquisition! (See what I did there?) Should some unscrupulous person find a way to exploit the overcollection years after the fact, it will certainly count as “abuse” by anyone’s definition, should we ever learn of it—but history provides scant grounds for optimism there. The whole point of using private information as a mechanism of control is that the people over whom you’re exerting that control—the victims—generally don’t want it publicized. Because this sort of abuse is fairly difficult to detect or check on the back end, what you need to do in practice is ensure that the breadth and discretion of acquisition are sufficiently constrained on the front end.

One last general observation. McCarthy’s approach here—and even more so in his previous post on the topic—is one we see surveillance hawks applying in a wide range of particular debates. Though they are forever reminding us that it is a grave error to conflate intelligence missions with ordinary criminal investigations, the vast differences between those two domains are conveniently forgotten when it’s time to defend more surveillance powers. Then we’re told that some new authority just gives intelligence agents “the same” tools as ordinary police or prosecutors have. But it is never the same. In this case even the narrow claim is false, insofar as criminal roving taps lack a “John Doe” option. But the more important point is that everything else about the context of intelligence—from the byzantine legal architecture to the anticipation of publicity to the institutional culture to the ultimate purpose of surveillance—is different. You might as well expect a drowning man to be grateful when you throw him a Ford Explorer. It is, after all, the very same vehicle that works so well in the context of ordinary road travel!

Time to Get Rid of the Corporate Income Tax?

Here’s a video arguing for the abolition of the corporate income tax. The visuals are good and it touches on key issues such as competitiveness.


I do have one complaint about the video, though it is merely a sin of omission. There is not enough attention paid to the issue of double taxation. Yes, America’s corporate tax rate is very high, but that is just one of the layers of taxation imposed by the internal revenue code. Both the capital gains tax and the tax on dividends result in corporate income being taxed at least two times.

These are points I made in my very first video, which is a good companion to the other video.

There is a good argument, by the way, for keeping the corporate tax and instead getting rid of the extra layers of tax on dividends and capital gains. Either approach would get rid of double taxation, so the economic benefits would be identical. But the compliance costs of taxing income at the corporate level (requiring a relatively small number of tax returns) are much lower than the compliance costs of taxing income at the individual level (requiring the IRS to track down tens of millions of shareholders).

Indeed, this desire for administrative simplicity is why the flat tax adopts the latter approach (this choice does not exist with a national sales tax since the government collects money when income is spent rather than when it is earned).

But that’s a secondary issue. If there’s a chance to get rid of the corporate income tax, lawmakers should jump at the opportunity.

No Mr. Secretary, It Is Not in America’s “Interest” to Stay in Iraq

In testimony yesterday before the House Armed Service Committee, Defense Secretary Robert Gates stated that the United States has an “interest” in keeping troops in Iraq past the agreed date of withdrawal, December 31, 2011.  Rep. Duncan Hunter (R-Calif.) pressed Gates by asking:

How can we maintain all of these gains that we’ve made through so much effort if we only have 150 people there and we don’t have any military there whatsoever,” Hunter asked. “We’d have more military in Western European countries at that point than we’d have in Iraq, one of the most central states, as everybody knows, in the Middle East?

The logic of Rep. Duncan’s question provides some interesting context. His logic implies that the thousands of U.S. troops stationed in wealthy, developed, Western Europe is both necessary and beneficial to our current interests. But this is not a very good argument as European countries continue to cut their defense budgets in large part because they are sheltered under the American security umbrella. It is in fact highly questionable why Americans should be willing to accept massive deficits as far as the eye can see and spend still more on our military, so that our allies can continue to shirk their fundamental obligations to their own people. There is no reason why we should want to adopt the same model for Iraq.

And yet, Rep. Duncan assumes that U.S. troop deployments in Europe are the model for providing political and economic stability everywhere in the world. If U.S. troops withdraw, all of our “gains” in Iraq would be lost.

This assumes that, first, U.S. troops can provide this stability, and second that our strategic interests in Iraq are on par with those in other parts of the world. But leaving U.S. troops in Iraq for another two, five, or seven years will not advance American security. It is not now, and should never have been, the responsibility of U.S. troops to create a functioning state in Iraq. That is the responsibility of the Iraqi people and their government. Likewise, our troops should not serve as Iraq’s police force.

There is no doubt that there are political and security challenges in Iraq, but these concerns should not delay the withdrawal. There will always be excuses, especially from those who favored the war at the outset, for a continued presence. And these risks will persist no matter how long U.S. troops stay. The future of Iraq lies with the people of Iraq, and it is well past the time when they must take the reins.

A handover of security responsibilities to the Iraqi people is in America’s strategic interest. As we are currently seeing with European defense budgets, the United States has been in the business of doing for other governments what they should be doing for themselves.  Now would be a good time to start to change this pattern.

How Many 215 Orders?

There was an interesting exchange during a Senate Intelligence Committee hearing yesterday concerning the use of the Patriot Act’s §215 orders for business records and other tangible things. FBI Director Robert Mueller hinted that the orders may have been used to track purchases of hydrogen peroxide purchases in the investigation of aspiring bomber Najibullah Zazi, while Sen. Ron Wyden (D-Oreg.) asserted that there is “a huge gap today between how you all are interpreting the PATRIOT Act and what the American people think the PATRIOT Act is all about and it’s going to need to be resolved.”

Let’s leave our curiosity about that by the wayside for the moment, though. I’m curious about one simple empirical claim Mueller made in his testimony: That the provision has been used over 380 times since 2001. I assume he’d know, but that seems inconsistent with what’s been publicly reported to date. It’s worth noting that there are actually minor discrepancies between the numbers provided in Congressional Research Service reports, audits from the Office of the Inspector General, and the Justice Department’s annual reports to Congress. But there are plenty of legitimate reasons these numbers might vary depending on how you count, and the total variance is a difference of about 17 orders total over the years.

We know from those Inspector General reports that the majority of those 215 orders issued were “combination” orders issued in tandem with another type of surveillance order called a “pen register” so that investigators could get subscriber information about the people whose communications patterns they were tracking. When Congress amended the Patriot Act in 2006, it built that authority right into the pen register statute, making it unnecessary to seek those “combination” orders. Prior to the amendment, the government got 173 of those “combination” orders. “Pure” 215 orders, which are now the only type needed, have been used much more sparingly. None were issued at all until 2004, and from 2004 through 2009 (depending on whose tally you want to use) there were between 75 and 92 orders issued (for an average of 12–15 annually since 2004). Throw in the combination orders and the upper-bound number through the end of 2009 is 265 orders.

Unless I’ve miscounted or missed something significant—you can get the reports at the links above and check my math—that leaves 115 orders unaccounted for, assuming Mueller’s number is accurate. There are two possibilities, then: Either the government got ten times as many orders in 2010 as the historical average (the figures should be out sometime in April) or there are a whole lot of these missing from the public reporting. Possibly these have something to do with the “sensitive collection program” in which these orders play a key role, alluded to in a Justice Department official’s testimony at a hearing during the 2009 reauthorization debate. Either alternative seems like it would merit additional scrutiny. I sent an e-mail seeking clarification this morning to some of the experts at the Congressional Research Service responsible for keeping legislators informed on these issues, but haven’t yet heard back.

I’m not belaboring this because it’s inherently hugely significant whether the government has used this authority 265 times or 380. Ideally, in the coming months we’ll see a substantial narrowing of National Security Letter authority, which would predictably lead to a large increase in the number of 215 orders issued. And that would be entirely proper, since it would mean more information being sought pursuant to a judicial order rather than FBI fiat. What I do think is significant, however, is that this reminds us how little we know—and how little the vast majority of legislators know—about the use of these powers. In contrast with criminal investigative tools, these powers are entirely covert: People whose records are swept up by the government almost never learn about it, and the recipients of the orders are subject to an effectively permanent gag on speaking about them. Rulings of the secret FISA Court interpreting the scope of these authorities are never made public. Our assurance that they have been or will continue to be used properly rests entirely on the minimal required reporting to Congress and the findings of internal audits. And yet it’s hard to pin down the facts on even this most elementary factual question about 215 orders: How many times have they been used?

Despite this, we have legislators confident enough that these expanded powers are both so necessary and so well controlled that they’re advocating making them permanent. I wish I were as confident.

Gambling Raid in Baltimore

The Baltimore police must have solved the city’s violent crime problem. They’ve shifted resources to illegal gambling:

Baltimore County police arrested five men after an undercover detective infiltrated an illegal high-stakes poker game in Edgemere, records show.

Police say “Texas Hold ‘Em” games were held regularly at the Lynch Point Social Club in the 3100 block of Roger Road, where organizers were making as much as $1,500 in profit a night, according to charging documents.

After receiving a tip, officers conducted surveillance at the club and later sent an undercover detective inside, who participated in a game with a $65 buy-in. The detective played for hours — leaving after he lost all his chips, records show.

A tactical unit conducted a raid on the club Feb. 11, seizing poker chips, electronic gambling machines and a surveillance system, among other items. Forty-one people were inside at the time of the raid.

Posted at the Raidmap, where you can find similar “isolated incidents.” A December gambling raid in South Carolina turned into a gun fight when poker players mistook a SWAT team for armed robbers. The family of Sal Culosi, the Virginia optometrist killed in a 2006 gambling raid, just settled its lawsuit against Fairfax County for $2 million. Radley Balko has more on that tragedy here.