Archives: 09/2011

Stalking the Secret Patriot Act

Since this spring’s blink-and-you-missed-it debate over reauthorization of several controversial provisions of the Patriot Act, Senators Ron Wyden (D-OR) and Mark Udall (D-CO) have been complaining to anyone who’d listen about a “Secret Patriot Act“—an interpretation of one of the law’s provisions by the classified Foreign Intelligence Surveillance Court granting surveillance powers exceeding those an ordinary person would understand to be conferred from the text of the statute itself. As I argued at the time, there is an enormous amount of strong circumstantial evidence suggesting that this referred to a “sensitive collection program” involving cell phone location tracking—potentially on a mass scale—using Patriot’s “Section 215” or “business records” authority.

Lest anyone think they’d let the issue drop, Wyden and Udall last week released a sharply-worded letter to Attorney General Eric Holder, blasting the Justice Department for misleading the public about the scope of the government’s surveillance authority. The real audience for an open letter of this sort, of course, is not the nominal recipient, but rather the press and the public. Beyond simply reminding us that the issue exists, the letter confirms for the first time that the “secret law” of which the senators had complained does indeed involve Section 215. But there are some additional intriguing morsels for the attentive surveillance wonk.

The letter focuses particularly on “highly misleading” statements by Justice Department officials analogizing Section 215 powers to grand jury subpoenas. “As you know,” Wyden and Udall write, “Section 215 authorities are not interpreted in the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are ‘analogous’ they provide the public with a false understanding of how surveillance law is interpreted in practice.”

Now, this is a little curious on its face. Ever since the original debate over the passage of the Patriot Act, its defenders have tried to claim that a variety of provisions allowing the FBI to more easily obtain sensitive records and documents were no big deal, because grand juries have long enjoyed similarly broad subpoena powers. The comparison has been specious all along: grand juries are an arm of the judicial branch designed (at leas in theory) to serve as a buffer between the power of prosecutors and the citizenry. It exists for the specific purpose of determining whether grounds for a criminal indictment exist, and is granted those broad subpoena powers precisely on the premise that it is not just another executive branch investigative agency. To argue, then, that it would make no difference if the FBI or the police could secretly exercise the same type of authority is to miss the point of how our system of government is meant to work in a pretty stunning way. It’s akin to suggesting that, since juries can sentence people to life in prison, it would be no big deal to give the president or the director of the FBI the same power.

That’s not what Wyden and Udall are stressing here, however. Rather, they seem to be suggesting that the scope of the 215 authority itself has been secretly interpreted in a way that goes beyond the scope of the grand jury subpoena power. Now that ought to be striking, because the grand jury’s power to compel the production of documents really is quite broad. Yet, what Wyden and Udall appear to be suggesting is that there is some kind of limit or restriction that does apply to grand jury subpoenas, but has been held by the secret court not to apply to Section 215 orders. One possibility is that the FISC may have seen fit to issue prospective 215 orders, imposing an ongoing obligation on telecommunications companies or other recipients to keep producing records related to a target as they’re created, rather than being limited to records and documents already in existence. But given the quantity of evidence that already suggests the “Secret Patriot Act” involves location tracking, I find it suggestive that the very short list of specific substantive limits on grand jury subpoena power in the U.S. Attorneys’ Manual includes this:

It is improper to utilize the grand jury solely as an investigative aid in the search for a fugitive in whose testimony the grand jury has no interest. In re Pedro Archuleta, 432 F. Supp. 583 (S.D.N.Y. 1977); In re Wood, 430 F. Supp. 41 (S.D.N.Y. 1977), aff’d sub nom In re Cueto, 554 F.2d 14 (2d Cir. 1977). … Since indictments for unlawful flight are rarely sought, it would be improper to routinely use the grand jury in an effort to locate unlawful flight fugitives.

As the manual makes clear, the constraints on the power of the grand jury generally are determined by its purpose and function, but locating subjects for the benefit of law enforcement (rather than as a means of securing their testimony before the grand jury) is one of the few things so expressly and specifically excluded. Could this be what Wyden and Udall are obliquely referring to?

On a possibly related note, the Director of National Intelligence’s office sent Wyden and Udall a letter back in July rebuffing his request for information about the legal standard governing geolocation tracking by the intelligence community. While refusing to get into specifics, the letter explains that “there have been a diverse set of rulings concerning the quantum of evidence and the procedures required to obtain such evidence.” Now, a bit of common sense here: it is inconceivable that any judge on the secret court would not permit cell phone geolocation tracking of a target who was the subject of a full-blown FISA electronic surveillance warrant based on probable cause. There would be no “diversity” if the intelligence agencies were uniformly using only that procedure and that “quantum of evidence.” This claim only makes sense if the agencies have sought and, under some circumstances, obtained authorization to track cell phones pursuant to some other legal process requiring a lower evidentiary showing. (Again, you would not have “diversity” if the court had consistently responded to all such requests with: “No, get a warrant.”)

The options here are pretty limited, because the Foreign Intelligence Surveillance Act only provides for a few different kinds of orders to be issued by the FISC. There’s a full electronic surveillance warrant, requiring a probable cause showing that the target is an “agent of a foreign power.” There’s a warrant for physical search, with the same standard, which doesn’t seem likely to be relevant to geotracking. The only other real options are so-called “pen register” orders, which are used to obtain realtime communications metadata, and Section 215. Both require only that the information sought be “relevant” to an ongoing national security investigation. For pen registers, the applicant need only “certify” that this is the case, which leaves judges with little to do beyond rubber-stamping orders. Section 215 orders require a “statement of facts showing that there are reasonable grounds” to think the information sought is “relevant,” but the statute also provides that any records are automatically relevant if they pertain to a suspected “agent of a foreign power,” or to anyone “in contact with, or known to” such an agent, or to the “activities of a suspected agent of a foreign power who is the subject of [an] authorized investigation.” The only way there can logically be “a diverse set of rulings” about the “quantum of evidence and the procedures required” to conduct cell phone location tracking is if the secret court has, on at least some occasions, allowed it under one or both of those authorities. Perhaps ironically, then, this terse response is not far short of a confirmation.

In criminal investigations, as I noted in a previous post, the Justice Department normally seeks a full warrant in order to do highly accurate, 24-hour realtime location, though it is not clear they believe this is constitutionally required. With a court order for the production of records based on “specific and articulable facts,” they can get call records generally indicating the location of the nearest cell tower when a call was placed—a much less precise and intrusive form of tracking, but one that is increasingly revealing as providers store more data and install ever more cell towers. For realtime tracking that is less precise, they’ll often seek to bundle a records order with a pen register order, to create a “hybrid” tracking order. Judges are increasingly concluding that these standards do not adequately protect constitutional privacy interests, but you’d expect a”diverse set of rulings” if the FISC had adopted a roughly parallel set of rules—except, of course, that the standards for the equivalent orders on the intelligence side are a good deal more permissive. The bottom line, though, is that this makes it all but certain the intelligence agencies are secretly tracking people—and potentially large numbers of people—who it does not have probable cause to believe, and may not even suspect, are involved in terrorism or espionage. No wonder Wyden and Udall are concerned.

Ongoing Ripples from the Auto Bailout

A couple of weeks ago I suggested that the person responsible for Ford’s anti-bailout ads was deserving of a raise. Today, I wonder how that extra income will be spent…in Siberia. According to media accounts seemingly originating with the Detroit News, Ford has pulled that ad after learning the Putin Obama White House was none too pleased.

It is unclear from the Detroit News article whether overt threats, implied repercussions, or mild expressions of regret best characterize the communications from the White House to Ford. Regardless, something spooked Ford enough to prompt it to pull the popular ad (no longer available on YouTube), which sought to differentiate the Ford brand over the “bailout” characteristic, which is not insignificant to auto purchasing decisions.

Hopefully, some probing journalists will discover the true nature of what transpired. In the meantime, it’s important to reflect on the fact that—contrary to the views of E.J. Dionne and others who cannot contemplate what is not seen—the auto bailout was not a discrete event, which happened and now resides in our memories. It is an ongoing tipping of the scales of competition—intentionally and inadvertently. Ford’s mere perception that the administration might stir up trouble if it didn’t fall into line is a vestige of the bailout.

To the extent that the administration wants to tout the bailout as evidence of its “successful” economic stewardship, it should know that there are plenty of us willing and able to do the auditing on that claim.


How About ‘Not-Bought Books Week’?

In case you hadn’t heard, we’re in the midst of “Banned Books Week,” a self-righteous time of year when librarians in particular condemn efforts to get books booted out of public schools and libraries. It’s supposed to be a week in which Americans are shocked and dismayed over efforts to make Twilight novels, or The Catcher in the Rye, harder for kids to get for free.

Well, not “free,” exactly. I should say “on the public dime.”

Wait? This isn’t about outright burning of books, or expelling them from every home and Amazon list, but removing them from publicly funded institutions?

That’s right, and that makes such “banning” much more complicated than the American Library Association would have you believe.

You see, when a public institution chooses to buy a book with taxpayer money, more than just free speech rights come into play. So to does the right of taxpayers not to be compelled to support the speech of others. So book “banners” have just as much right to demand the removal of books as others have to demand that they remain on the shelves. It’s not censorship. It’s equal rights.

There’s another part of this: with public libraries and schools, government employees or some other governmental entity—maybe a selection committee—is choosing which books to purchase. That’s just as much discrimination against one or another book as demanding that a volume already purchased be removed. It’s just censorship on the front end instead of the back.

Here’s what I propose: go to your local public library and see if they offer every Cato book ever published. If they don’t, loudly decry their unconscionable censorship. Then, tell them that as long as anyone decides what goes into their library at public expense, someone’s rights will be trampled—rights don’t just kick-in after books have been procured. Finally, let them know that the only way to end this unacceptable situation—and the constant, zero-sum battles over who’s rights will be respected—is to get taxpayer money out of schools and libraries.

That will go over like a lead library cart, of course, but it will at least begin to address the real problem.

Term Limits and Popular Government

Rasmussen Reports has a new poll indicating 71 percent of the public want term limits for members of Congress. This finding is nothing new. Strong majorities have supported congressional term limits for the past two decades. What about before that? I decided to take a look at the Gallup polling going back more than six decades. Here’s what I found.

The first polling on the topic in 1947 showed 46 percent supporting limits for the House (48 percent opposed) and 52 percent favoring them for the Senate. Eight years later Gallup found support had fallen to 38 percent for senatorial limits. In 1964-5, from 48 to 50 percent favored term limits for members of both chambers. The late 1960s and early 1970s saw weak results for term limits. In 1969, 43 percent favored House limits; two years later a survey showed support for Senate limits had fallen to 39 percent.

And then everything changed.

Surveys in 1977 and 1981 showed about 60 percent support for limits on the terms of members in both houses. Later in the 1980s, support went up toward 65 percent or so. By 1994, Gallup found its first 70 percent response in favor of congressional term limits. A year later, the number was 67 percent. Thereafter, Gallup apparently did not poll on the topic, perhaps because the Supreme Court took term limits off the political agenda.

Still, in 2003, an NBC/Wall Street Journal survey found 67 percent of the public thought term limits were a good idea. A year later a Fox News/Opinion Dynamics poll found 78 percent supported the idea. Against this background, the Rasmussen poll makes perfect sense.

People sometimes argue that popular changes to the Constitution or the rules of the political game can reflect momentary passions that pass, leaving only unwise policies. This concern is not without merit. However, if the public indicates a strong and growing desire for change over more than three decades, shouldn’t a republican government follow that settled and presumably considered desire? I mean, republican government is government by the people, right?

Strength vs. Stupidity

The New York Times weighs in this morning with a timely and sensible editorial on military spending. The main focus is on the increasingly outdated pay and benefits system for the nation’s troops. Some choice excerpts:

Military pay, benefit and retirement costs rose by more than 50 percent over the…decade (accounting for inflation). Leaving aside Afghanistan and Iraq, those costs now account for nearly $1 out of every $3 the Pentagon spends.

Much of that is necessary to recruit and retain a high-quality, all-volunteer military….But current military pay, pension systems and retiree health care benefits are unsustainable and ripe for reform.


The retirement system is both unfair and increasingly expensive. Most veterans, including many who have served multiple combat tours, will never qualify for even a partial military pension or retiree health benefits. These are only available to those who have served at least 20 years. Those who do qualify can start collecting their pensions as soon as they leave service, even if they are still in their late 30s, making for huge long-term costs.

So far, so good. Two essential points bear repeating.

First, the rise in military spending over the past decade has not been driven solely by the costs of the wars in Iraq and Afghanistan. Pentagon costs are growing, and the rate of growth is rising. Programmatic reform is needed to reign in those costs; avoiding stupid wars won’t solve the problem (although it won’t hurt).

Second, the current system disproportionately rewards individuals who stay in the service for 20-plus years, and undercompensates those men and women who serve several tours, but who do not qualify for military retirement. A better system would allow anyone who has served to retain some of what they paid (or what taxpayers paid for them) into a portable retirement account that they control. Private industry has been steadily moving away from a fixed-benefit, pension-style system for years. I have heard the arguments against such a move, but I don’t find them particularly convincing.

One point from the Times editorial, however, calls out for clarification. The editors claim on two separate occasions that current military spending patterns are “unsustainable.” They conclude:

The United States already has a comfortable margin of [military] dominance….The Pentagon’s ambitions expanded without limit over the Bush era, and Congress eagerly wrote the checks. The country cannot afford to continue this way, and national security doesn’t require it. (emphasis added)

The latter point, “national security doesn’t require it,” is crucial, correct, and should be repeated at every opportunity. The former assertion, “the country cannot afford” it, is false. Repeating that claim plays into the hands of the inveterate hawks who never saw a war, or a weapon system, that wasn’t deserving of more lives/money.

The hawks are correct to point out that the United States has in the past, and could in the future, choose to spend as much or more on our military. Current spending levels amount to about five percent of GDP (when including the costs of the wars), and military spending as a share of total government spending has been falling steadily for years. According to the hawks, it is other spending, or too little revenue, that is putting our children and grandchildren into debt.

I wish that the Times had spent more time hammering the point that such spending is unnecessary. Contrary to anecdote and the evening news, the international system is remarkably stable and peaceful. The United States need not spend more than we did at the height of the Cold War in order to be secure from most threats. And those few genuine threats to our security could be handled with a smaller, more efficient military—if we offloaded some responsibilities to other countries that have sheltered under the U.S. security umbrella for decades.

The Times doesn’t directly address that last point. By focusing most of their attention on programmatic reforms to pay and benefits, and a bit on costly procurement of unnecessary weapons, but not enough to the underlying flawed assumptions that drive military spending, the editors contribute to the misconception that the U.S. military should continue to be the world’s policeman, and find ways to do this on the cheap.

That is unfortunate. Spending more than we need to doesn’t make us stronger. Ignoring our favorable strategic circumstances is simply stupid. We spend too much on our military because we ask our troops to do too much. To spend less, we must do less. The good news is that we can. The bad news is that too few people understand that.

Explaining the Perverse Impact of Double Taxation With a Chart

Whether I’m criticizing Warren Buffett’s innumeracy or explaining how to identify illegitimate loopholes, I frequently write about the perverse impact of double taxation.

By this, I mean the tendency of politicians to impose multiple layers of taxation on income that is saved and invested. Examples of this self-destructive practice include the death tax, the capital gains tax, and the second layer of tax of dividends.

Double taxation is particularly foolish since every economic theory—including socialism and Marxism—agrees that capital formation is necessary for long-run growth and higher living standards.

Yet even though this is a critically important issue, I’ve never been satisfied with the way I explain the topic. But perhaps this flowchart makes everything easier to understand.

There are a lot of boxes, so it’s not a simple flowchart, but the underlying message hopefully is very clear.

  1. We earn income.
  2. We then pay tax on that income.
  3. We then either consume our after-tax income, or we save and invest it.
  4. If we consume our after-tax income, the government largely leaves us alone.
  5. If we save and invest our after-tax income, a single dollar of income can be taxed as many as four different times.

You don’t have to be a wild-eyed supply-side economist to conclude that this heavy bias against saving and investment is not a good idea for America’s long-run prosperity.

There are various ways to protect yourself from double taxation, particularly by using IRAs and 401(k)s. You lock up your capital until retirement, but it is protected from double taxation.

Also, you cannot accumulate enough savings and investment to be subject to the death tax, though that’s not exactly aiming high.

But these strategies—and others—are not economically optimal. There should not be a tax bias against capital formation.

Too bad we can’t be more like Hong Kong, which has eliminated all extra layers of taxation.

That’s the benefit of real tax reform such as a flat tax. You get a low tax rate and you get rid of corrupt loopholes, but you also get rid of double taxation so that the IRS only gets one bite at the apple.

A ‘Soviet-Style Power-Grab,’ to Squelch Bad Press for ObamaCare

The Department of Health and Human Services has released new guidelines on communications between department employees and the media.  The guidelines evidently require all communications to be approved by the Assistant Secretary for Public Affairs.  Also: no off-the-record communications.

The media are not happy.  The editor of FDA Webview & FDA Review writes (via Poynter; more here):

The new formal HHS Guidelines on the Provision of Information to the News Media represent, to this 36-year veteran of reporting FDA news, a Soviet-style power-grab. By requiring all HHS employees to arrange their information-sharing with news media through their agency press office, HHS has formalized a creeping information-control mechanism that informally began during the Clinton Administration and was accelerated by the Bush and Obama administrations. The U.S. now takes a large step toward joining other information-controlling countries like my native Australia, where government employees who talk with the news media without permission commit a federal crime. I came to the U.S. in 1974 to escape this oppression.

The HHS guidelines once again show that the purpose of a public information office is not to disseminate information to the public but to withhold information from the public.

Since this came on the heels of an HHS official announcing that the agency is scuttling ObamaCare’s long-term care entitlement, a.k.a. the “CLASS Act,” one wonders if there is a connection.  Or maybe HHS is just motivated by a general fear that the more the public learns about ObamaCare, the less we will like it.

(Update: Turns out, HHS released their new guidelines the same day that agency official voiced his opinion about the future of the CLASS Act. HT: Chris Jacobs.)