Thanks to Cato’s Caleb Brown for this graphic reminder of then-candidate Barack Obama’s hairpin backflip on the question of telecom immunity—one that was to prefigure his backflips on a long list of other surveillance and civil liberties issues.

Faithful readers of this blog will have noticed that the government lost unanimously before the Supreme Court in yesterday’s quirky raisin case (which Ilya Somin points out is the government’s third unanimous property-rights loss in 15 months). Even more keen Cato followers will have realized that this ruling comes on the heels of three other unanimous government losses this term, which I described in a Bloomberg View op-ed last week. And my biggest fans (hi Dad!) will have remembered that this continues a seeming pattern — not sure if statistically significant, but does look anomolous — that I chronicled in a Wall Street Journal op-ed a year ago.

As I said last week,

These cases have nothing in common, other than the government’s view that federal power is virtually unlimited: Citizens must subsume their liberty to whatever the experts in a given field determine the best or most useful policy to be.

If the government can’t get even one of the liberal justices to agree with it on any of these unrelated cases, it should realize there’s something seriously wrong with its constitutional vision.

I wonder if I’ll get to write the same op-ed every year at this time.

As Ilya noted, the Supreme Court yesterday cleared the procedural roadblocks for the Horne family, which grows and processes raisins in California, to challenge the operations of the USDA’s marketing order system as an unlawful taking of their property without compensation. The Hornes say that under the USDA’s California Raisin Marketing Order, the Raisin Administrative Committee demanded that they hand over 47 percent of their raisins to be disposed of in ways that do not compete with sales in the domestic retail raisin market, such as export programs and school lunches. 

47 percent! Back in January that figure reminded me of an earlier scale of government extraction: 

Max Boot, who has written a new book on the history of guerrilla movements, tells how Shamil, firebrand leader of a celebrated 19th-century Muslim insurgency in Chechnya and Dagestan, began to lose the allegiance of “many ordinary villagers who balked at his demands for annual tax payments amounting to 12 percent of their harvest.” Instead, they switched their allegiance instead to the rival Russian czar, whose demands were more modest.

If only Washington were content with the czar’s less-than-12 percent. For more on regulatory takings, check out this testimony from way back in 1995 by Cato’s own Roger Pilon before the House Judiciary Committee.

Yesterday, the Washington Post and the Pew Research Center released a joint poll that purportedly showed that “a large majority of Americans” believe the federal government should focus on “investigating possible terrorist threats even if personal privacy is compromised.”

But a careful look at the poll shows citizens are far less sanguine about surrendering their privacy rights, as the facts continue to be revealed.

Pollsters faced a difficult challenge—to accurately capture public opinion during a complex and evolving story. Recall, on Wednesday of last week, the story was about the NSA tracking Verizon phone records. So the pollsters drew up a perfectly reasonable and balanced question:

As you may know, it has been reported that the National Security Agency has been getting secret court orders to track telephone call records of MILLIONS of Americans in an effort to investigate terrorism. Would you consider this access to telephone call records an acceptable or unacceptable way for the federal government to investigate terrorism?

Fifty-six percent found this “acceptable.” Thus, the “majority of Americans” lead in the Washington Post.

However, on Thursday, the Washington Post revealed explosive details about the massive data-collection program PRISM—and the public was alerted that the NSA was not just collecting phone records, but email, Facebook, and other online records. So the pollsters quickly drew up a new question, asked starting Friday, from June 7–9:

Do you think the U.S. government should be able to monitor everyone’s email and other online activities if officials say this might prevent future terrorist attacks?

Fifty-two percent—a majority—said “no.” So Americans feel differently about the story based on the facts on Wednesday, when the story was about tracking “telephone calls,” and facts on Thursday, when the story was about monitoring all “email and other online activity.”

The Washington Post could have fairly gone with a story that a majority of Americans do not agree that the federal government should monitor everyone’s email and online communication, even if it might prevent future terrorist attacks.

Unfortunately, that’s not the story that the Washington Post went with. Subsequent media coverage of the Post-Pew poll has neglected this nuance and cemented this misinterpretation of what “majority of Americans” believe.

A more reasonable interpretation of the Post-Pew poll is that citizens’ views seem to be changing as more details are revealed about the massive extent of the NSA snooping program. Indeed, most citizens have not been following this story as closely with only 48 percent report following thing “very closely” or “fairly closely.”

I’ll be watching eagerly to see what the next polls find out about that ever elusive “majority of Americans.”

Cato Senior Fellow Nat Hentoff turns 88 today. 

John Whitehead, president of the Rutherford Institute, recently had some high praise for our colleague:

I’ve had the privilege of working with some remarkable individuals in my lifetime—celebrities, politicians, writers, artists, musicians, journalists, people whose names are legendary and others whose impact, no less significant, was only felt by a small few—yet for sheer nerve, integrity, tenacity, vision and a love of America that has weathered the best and worst this nation has had to offer, no one can match Nat Hentoff.

Even at the ripe age of 88, Hentoff is a radical in the best sense of the word, a feisty, fiercely loyal, inveterate freedom fighter and warrior journalist with a deep-seated intolerance of injustice and a well-deserved reputation for being one of the nation’s most respected, controversial and uncompromising writers.

Armed with a keen understanding of the law and an enviable way with words, brandishing a rapier wit and teeming with moral outrage, Nat has never been one to back down from a fight, and there have been many over the course of his lifetime—one marked by controversy and fueled by his passion for the protection of civil liberties and human rights. …

A self-described uncategorizable libertarian, Hentoff adds he is also a “Jewish atheist, civil libertarian, pro-lifer.” Born in Boston on June 10, 1925, Hentoff received a B.A. with honors from Northeastern University and did graduate work at Harvard. From 1953 to 1957, he was associate editor of Down Beat magazine. He went on to write many books on jazz, biographies and novels, including children’s books. His articles have appeared in the Wall Street Journal, New York Times, Commonwealth, the New Republic, the Atlantic and the New Yorker, where he was a staff writer for more than 25 years. In 1980, he was awarded a Guggenheim Fellowship in Education and an American Bar Association Silver Gavel Award for his coverage of the law and criminal justice in his columns. In 1985, he was awarded an Honorary Doctorate of Laws by Northeastern University. For 50 years, Hentoff wrote a weekly column for the Village Voice. When that position was terminated on December 31, 2008, Hentoff joined the Cato Institute as a Senior Fellow.

Read the whole thing.

Just a few days before Glenn Greenwald broke the explosive story about NSA surveillance, Hentoff was already complimenting Greenwald for his work defending free speech and a free press:

What all of this comes down to, as it may affect future administrations as well as generations of Americans, has been precisely underlined by Glenn Greenwald, an incisive journalist who would have given James Madison hope for the First Amendment’s future.

Writing about how “media outlets and journalists have finally awakened to the serious threat posed by the Obama administration to press freedoms, whistle blowing and transparency,” the question now, Greenwald demands, is:

“What, if anything, will they (journalists) do to defend the press freedoms they claim to value? … Thwarting government attacks like these … requires a real adversary posture, renouncing their subservience to government interests and fear of alienating official sources.

Hentoff discusses the NSA story here.

And beyond his work on civil liberties, Hentoff still finds time to review jazz music for the Wall Street Journal. Last month, Hentoff had this article about Joe Alterman.

Yet again the unanimous Supreme Court has slapped down a government attempt to deprive property owners of their civil rights. What was at stake in Horne v. Dept. of Agriculture wasn’t even the property — raisins! — but the mere ability to challenge the government’s desire to take that property without meaningful judicial review.

Nobody should have to suffer a needless, Rube Goldberg-style litigation process to vindicate their constitutional rights. Yet that’s exactly what the U.S. Department of Agriculture sought to impose on raisin farmers Marvin and Laura Horne when they protested the enforcement of a USDA “marketing order” that demanded that the Hornes turn over 47% of their crop without compensation.

These New Deal-era regulations are bad enough — forcing raisin “handlers” to turn over some of their crop to the government so it can control raisin supply and price — but here the government kept throwing up obstacles to the Hornes’ attempts to assert that they shouldn’t legally be subject to them. The government demanded about $650,000 from the Hornes and didn’t want to give them a day in court until they paid the money and jumped through assorted administrative hoops.

The Supreme Court correctly rejected that absurd position and reversed the California-based U.S. Court of Appeals for the Ninth Circuit that upheld it, reinforcing the line drawn by five other circuit courts. “In the case of an administrative enforcement proceeding,” Justice Thomas wrote on all his colleagues’ behalf, “when a party raises a constitutional defense to an assessed fine, it would make little sense to require the party to pay the fine in one proceeding and then turn around and sue for recovery of that same money in another.”

Indeed, there’s no reason to treat Fifth Amendment takings claims any differently than lawsuits against government violations of other constitutional provisions.

Here’s more background on the case and Cato’s amicus brief.

Rep. Jim Sensenbrenner (R‑WI) is nothing if not a security hawk, and this weekend he decried the NSA’s collection of all Americans’ phone calling records in a Guardian post entitled, “This Abuse of the Patriot Act Must End.” On Thursday last week, he sent a letter to Attorney General Eric Holder demanding answers by Wednesday.

It also became apparent over the weekend that the National Security Agency’s program to collect records of every phone call made in the United States is not for the purpose of data mining. (A Wall Street Journal editorial entitled “Thank You for Data Mining” was not only wrong on the merits, but also misplaced.) Rather, the program seizes data about all of our telephone communications and stores that data so it can aid investigations of any American who comes under suspicion in the future.

Details of this program will continue to emerge–and perhaps new shocks. The self-disclosed leaker–currently holed up in a Hong Kong hotel room waiting to learn his fate–is fascinating to watch as he explains his thinking.

The court order requiring Verizon to turn over records of every call “on an ongoing daily basis” is a general warrant.

The Framers adopted the Fourth Amendment to the Constitution in order to bar general warrants. The Fourth Amendment requires warrants 1) to be based upon probable cause and 2) to particularly describe the place to be searched and the persons or things to be seized. The leaked warrant has neither of these qualities.

A warrant like this would never be adopted in an open court system. With arguments and decisions available to the public and appeals going to public courts, common sense and simple shame would foreclose suspicionless data-gathering about every American for the benefit of future potential investigations. 

Alas, many people don’t believe all that deeply in the Constitution and the rule of law when facile promises of national security are on offer. It is thus worthwhile to discuss whether this is unconstitutional law enforcement and security practice would work. President Obama said last week, “I welcome this debate and I think it’s healthy for our democracy.”

A starting point would be to know how much it costs to collect and store the data for these purposes, but that’s secret. The controls on access to data as it’s held would also be good to understand intimately so that we can gauge the risk of abuse. Nope–secret.

If costs like these could be tallied, detailing each investigative success would be a way to predict and compare benefits. Advocates of this mass surveillance have summarily concluded that it worked in a few cases. That’s not enough information. The rest is secret.

All this secrecy would require us to accept the assurances of a few members of Congress and the intelligence community that this program works and that everything will be fine. Doing so would be libertarian and constitutional malpractice.

It has become increasingly clear that officials in the national security community have equivocated about what their programs do. In March, for example, Senator Ron Wyden (D‑OR) asked Director of National Intelligence James Clapper: “Does the NSA collect any type of data on millions or hundreds of millions of Americans?”

“No, sir,” Clapper replied. “Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly.”

At an American Enterprise Institute event last July, General Keith Alexander was asked point blank whether the National Security Agency’s new, billion-dollar Utah installation would hold the data of American citizens. He responded flatly: “No. … [W]e don’t hold data on U.S. citizens.”

These statements, which are untrue in the open world, suggest to me a number of self-deceptions that the closed world of the intelligence community seems to have allowed itself.

‘Telephone numbers are not information about U.S. citizens’ is one. In fact, telephone numbers are better identifiers than names because names are reused while phone numbers are distinct.

‘We don’t “collect” information until we access it’ (and variants thereof). One senses that rules for accessing the calling data are strict, so these officials have permitted themselves to say that they don’t collect it or hold it.

These self-deceiving thoughts are consistent with signs over years that the intelligence community’s internal discussions about privacy have been self-deceiving. Last week, for example, a statement issued by the Director of National Intelligence defending massive, nationwide surveillance of American’s phone calling appealed to “numerous safeguards that protect privacy and civil liberties.” That appeal is as earnest as it is off the point. Privacy is not produced by installing some suite of protections around information that has been seized by the government to be maintained forever in secret databases.

We’ve glimpsed the thinking inside the bubble before. In October 2007, Principal Deputy Director of National Intelligence Dr. Donald Kerr spoke about privacy at the Geospatial Intelligence (GEOINT) Symposium in San Antonio, Texas.

“Too often,” he said, “privacy has been equated with anonymity; and it’s an idea that is deeply rooted in American culture.… But in our interconnected and wireless world, anonymity–or the appearance of anonymity–is quickly becoming a thing of the past.”

Instead, he proposed to think of privacy as “a system of laws, rules, and customs with an infrastructure of Inspectors General, oversight committees, and privacy boards on which our intelligence community commitment is based and measured.”

‘Give us the data. We’ll be really careful with it. That’s your privacy protection.’ Kerr’s audience may have found that jumbled logic appealing, but it’s wrong.

Alan Westin passed away in February after a sterling life of privacy research, advocacy, and advisement. In his seminal 1967 book, Privacy and Freedom, he defined privacy as the claim of individuals “to determine for themselves when, how, and to what extent information about them is communicated to others.” This is the heart of privacy: control over personal information.

Imagine a water conservation program in which the government would monitor the showering habits of all Americans. A tiny camera in each American bathroom would collect imagery of what goes on within, but by law and emphatically stated policy that imagery would never be accessed except under a secret court’s order.

Privacy problem? You bet. Because Americans’ control of information about their lives would be taken from them. Instead, it would rest with a government body, operating under rules that could change and personnel that could violate those rules–a lesson of the recent IRS scandal.

Data seized by the government and held in secret data warehouses according to secret rules is not within the control of the American people. It is not private.

“Secrecy is for losers. For people who do not know how important the information really is,” Daniel Patrick Moynihan wrote. The national security bureaucracy and the Foreign Intelligence Surveillance Court are in a secrecy bubble that has undercut their ability collectively to protect the country in all its values. The secret court that Congress created–issuing secret, essentially unreviewable rulings–has allowed DNI Clapper, General Alexander, and others to deeply misconstrue privacy, substituting a version they like. But their version is nothing like our version and nothing like the version protected by the Constitution’s Fourth Amendment.