In a new edition of Cato Out Loud, Daniel J. Ikenson explains why the federal government should not extend a financial bailout to the auto industry. Since November, Cato analysts have appeared on more than 50 radio and television programs discussing the bailout of “The Big Three.”

There’s an astonishing editorial in the Wall Street Journal today about the FISA amendments that were passed in July. As you might recall, that legislation granted retroactive, blanket immunity for companies that illegally participated in the government’s wiretapping programs and substantially weakened judicial oversight of government surveillance of domestic-to-foreign communications. Under the new law, the government is no longer required to obtain an individualized warrant if it wishes to spy on your communications with people overseas. Rather, it can submit a “certification” that describes the general parameters of a broad eavesdropping program. Judges are required to approve the requests without ever seeing specific information about who would be targeted. The legislation also lengthened the grace period during which the government can conduct surveillance without any judicial oversight at all. Whereas emergency warrants were previously required within three days of the start of eavesdropping, the new legislation allows the government to spy for as long as four months while the judicial branch deliberates about its legality.

With all that in mind, I’m surprised to learn that the Journal seems to believe that the new, watered-down version of FISA is still too restrictive:

The Attorney General is only allowed to pursue threats up to certain legalistic edges, which contracted under this year’s political compromise that greatly expanded the role of the courts in intelligence gathering. Commissioner Kelly is practically begging people to think about what this means in the real world.

FISA was passed before the advent of disposable cell phones, encrypted emails and high-speed fiber optic networks. Now we live in a world where terrorist communications that originate in, say, Peshawar happen to move through U.S. switching networks. The executive branch already possesses the Constitutional authority to monitor such communications, but Democrats and the political left claimed it was “illegal” under FISA.

Then the anti-antiterror bar filed multibillion-dollar lawsuits against the telecom companies whose good-faith assistance after 9/11 made such surveillance possible. The goal was to shut down the program, and the telcos made it clear they couldn’t cooperate without Congress’s blessing. Forced to choose between a Democratic deal that gave the companies legal immunity or giving up a key U.S. antiterror tool, President Bush chose the former. The price — the one Commissioner Kelly is paying — was narrowing the government’s antiterror wiretapping powers.

What Democrats have done, in essence, is to insert an unelected judiciary into the wartime chain of command. As Mr. Kelly notes, this is producing a “lack of accountability” and “the lack of transparency into the inner workings of the FISA process.” If some faceless FISA judge denies a surveillance request from Mr. Kelly and New Yorkers die as a result, that judge will answer to no one. Under current FISA rules, we won’t even know who that judge is.

If the Journal believes it’s problematic for a “faceless FISA judge” who “answers to no one” to deny surveillance requests, then its quarrel isn’t with liberals, Democrats, or trial lawyers, it’s with the Constitution itself. The whole point of the Fourth Amendment is that “unelected judges” oversee the activities of law enforcement.

Moreover, the FISA bill the Journal derides makes it crystal clear that the government can intercept purely foreign-to-foreign communications without any judicial oversight whatsoever. And if our hypothetical Peshawar terrorist is communicating with an American, the government can take advantage of the new “certification” process that involves only cursory judicial review and doesn’t require any showing that the target is involved in terrorism. Only in cases where both ends of the communication are in the United States does the government require an individual warrant.

The Journal appears to take the extreme viewpoint that there should be no judicial oversight of the government’s domestic antiterrorism activities at all. But we know what happens when the government engages in surveillance without judicial oversight. History tells us that when judicial oversight is absent, abuses are inevitable. And if we create a terrorism exception to the warrant requirement, it would steadily grow to swallow the rule. Fighting terrorism is important, but we can do it without sacrificing judicial oversight.

The President-elect’s Change​.gov Web site announced a new feature on Friday, called Your Seat at the Table: “The Obama-Biden Transition Team will be hearing from many groups over the next several weeks. On this page, you can track these meetings, view documents provided to the Transition, and leave comments for the team.”

Says a memo from transition head John Podesta, itself posted online, “[A]ny documents from official meetings with outside organizations will be posted on our website for people to review and comment on.”

This is a very good start at transparency. John Wonderlich at the Sunlight Foundation wonders what this might look like across the entire executive branch. If the default rule were online disclosure of documents submitted to government agencies, that would make a big change in the conduct of the public’s business.

There are many dimensions of transparency, of course. Along with openness in political and regulatory processes, we should also have openness in functional information, and in results. Where is the money going? What are we getting in return? Answers to these questions can validate or invalidate government programs in ways never before thought possible.

Wednesday at noon, we’ll be having a policy forum here at Cato entitled: Just Give Us the Data! Prospects for Putting Government Information to Revolutionary New Uses. Ed Felten, Gary Bass, and Jerry Brito will discuss how access to government data in useful formats might revolutionize public oversight.

Register here now.

The Department of the Interior has concluded its rulemaking and will allow those with state-issued concealed handgun permits to carry in national parks and wildlife refuges. This is a victory for self-defense nationwide. People find themselves victims of predators in state and national parks, of both the two-legged and four-legged varieties. The new rule should take effect in mid-January. 

In addition to providing for lawful self-defense, this new rule will prevent citizens from unknowingly breaking the law. Driving with a valid concealed carry permit becomes illegal if you turn on to a road on federal property such as the Blue Ridge Parkway. No notice that your state permit is invalid on this particular road? Too bad, you’re a criminal. Good riddance to bad law and bad policy. 

This comes in the wake of the invalidation of the District of Columbia’s gun ban with the Heller decision, detailed in Brian Doherty’s new book Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment. The Cato book forum is available in video and podcast formats here.

Bill Kristol points out the difference between small-government conservatives and big-government conservatives like him. Among other things:

• If you’re a small-government conservative, you’ll tend to oppose the bailouts, period. If you more or less accept big government, you’ll be open to the government’s stepping in to save the financial system, or the auto industry.
• Similarly, if you’re against big government, you’ll oppose a huge public works stimulus package. If you think some government action is inevitable, you might instead point out that the most unambiguous public good is national defense. You might then suggest spending a good chunk of the stimulus on national security.

Kristol goes on to claim that the Republican Revolution collapsed because the GOP tried to cut government (notably some minor Medicare cuts). President Bush, on the other hand, “seemed to learn the lesson.” Among his other successes, “he proposed and signed into law popular (and, it turned out, successful) legislation, opposed by small-government conservatives, adding a prescription drug benefit to Medicare.”

Undoubtedly, in Kristol’s world, it is President Bush’s commitment to bigger, more expensive, and more intrusive government that has brought about his soaring approval ratings. Meanwhile, Republicans in Congress were losing because they cut spending to the bone, abolished pork, turned down earmarks, and generally behaved like Barry Goldwater reincarnated. 

Those wondering what actually happened on planet earth, might check out my book, Leviathan on the Right: How Big-Government Conservatism Brought Down the Republican Revolution.

Half a century ago, Illinois Senator Everett Dirksen is supposed to have summed up the Federal government’s profligate ways with the comment that “a billion here, a billion there, and pretty soon you’re talking real money.” These days it’s “a trillion here, trillion there.” Unfortunately, many don’t believe it’s real money any more. And they may be right, which might explain the eagerness in Congress to shovel some of it to failing enterprises such as the Big 3. How long before it’s “a quadrillion here, a quadrillion there?” At the rate we are going, it will be a lot sooner than another half century.

Back in the days of the Cold War, pundits used to talk about how the conflict between capitalism and communism would end with the “convergence” of the two systems, “blending the personal freedom and profit motive of Western democracies with the Communist system’s government control of the economy.” Well, it didn’t happen, right? Instead, communism failed, and the communist countries moved rapidly toward capitalism.

And then came the Bush-Obama era, and today we read in the New York Times that “the Kremlin seems to be capitalizing on the economic crisis, exploiting the opportunity to establish more control over financially weakened industries that it has long coveted.” Ouch. That’s a little too close for comfort.