Archive for September, 2009
Supremes to Hear PATRIOT ‘Material Support’ Challenge
As I mentioned in passing in my post yesterday, one of the reforms in Russ Feingold’s JUSTICE Act involves tweaking the USA PATRIOT Act’s definition of “material support” for terrorism to ensure that it doesn’t cover things like humanitarian aid or legal assistance. Today, the Supreme Court agreed to hear a case concerning that very issue:
The key plaintiff in the current appeal is the Humanitarian Law Project, a Los Angeles, California-based non-profit that says its mission is to advocate “for the peaceful resolution of armed conflicts and for worldwide compliance with humanitarian law and human rights law.” HLP sought to help the Kurdistan Workers’ Party, a group active in Turkey. Known as PKK, the party was founded in the mid-1970s and has been labeled a terror organization by the United States and the European Union. Its leaders have previously called for militancy to create a separate Kurdish state in parts of Turkey, Iraq, Syria and Iran, where Kurds comprise a population majority. [...]
Another plaintiff is an American physician who wanted to help ethnic Tamils in his native Sri Lanka. Much of the island nation is controlled by the rebel Liberation Tigers of Tamil Eelam, which has also fought for decades to carve an independent state. The government claims the Tamil Tigers have “used suicide bombings and political assassinations in its campaign for independence, killing hundreds of civilians in the process.”
HLP and a group of Tamil doctors say they merely wanted “to provide their expert medical advice on how to address the shortage of medical facilities and trained physicians” in the region but “they are afraid to do so because they fear prosecution for providing material support.”
A federal appeals court agreed with the groups that the statute as written is unconstitutionally vague; the government wants to preserve the current broad language. Arguments won’t take place until early next year, but if you can’t wait for a preview, check out this exchange between David Cole and Paul Rosenzweig on PATRIOT’s material support provision, part of a highly illuminating series of debates on aspects of the law (as originally written) hosted by the American Bar Association.
Wednesday Links
- More policymakers coming around to the idea that it is wrong to jail drug users as criminals.
- How Obama’s protectionist policies are hurting the poor.
- “Checks and balances” be damned: “In a democratic country, you’d think that before the executive branch could regulate CO2–a ubiquitous substance essential to life–the legislature would have to vote on the issue. But you’d be wrong.” Somewhere, Thomas Friedman is smiling.
- Podcast: Next week marks eight years since the U.S. invaded Afghanistan. It’s time to get out. Read the exit strategy.
Contempt of (Secret) Court?
At last week’s House Judiciary Committee hearing on the PATRIOT Act, Rep. Hank Johnson (D-GA) raised an interesting question I haven’t seen discussed much: What happens to someone who willfully violates an order of the highly secretive Foreign Intelligence Surveillance Court? (FISA)
Generally, courts have the right to enforce their own orders by finding those who disobey in contempt, and a line from a rare public version of an opinion issued by the Foreign Intelligence Surveillance Court of Review suggests that the same holds here, noting that a service provider who challenged the (now superseded) Protect America Act “began compliance under threat of civil contempt.” (There is, interestingly, some redacted text immediately following that.) Contempt proceedings normally fall to the court that issued the original order.
A finding of civil contempt will typically result in the incarceration of the offending party until they agree to comply—and on the theory that the person “holds the keys to their own cell,” because they’ll be released as soon as they fall in line, normal due process rules don’t apply here. Of course, there are ways of violating the order that make it impossible to comply after the fact, such as breaching the gag rule that prevents people from disclosing that they’ve been served with orders, or (getting extreme now) destroying the records or “tangible things” sought via a Section 215 order. In those cases, presumably, the only recourse would be criminal contempt, for which you’re supposed to be entitled to a jury trial if the penalty is “serious” and involves more than six months incarceration.
That obviously raises some interesting problems given the extraordinarily secret nature of the FISA Court. In the public version of the opinion I linked above, the name of the petitioner and all identifying details are redacted, even the ruling was released six months after it was handed down, so as to avoid tipping off targets about specific providers that have received orders.
Now, I’m going to take a leap of faith and assume we’re not at the point of “disappearing” folks off our own streets, but it is a puzzle how you’d actually carry out enforcement and penalty, if it ever came to that, consistent with the secrecy demanded in these investigations.
Supremes Take Gun Rights Issue Nationwide
With its decision today to hear the case of McDonald v. Chicago, the Supreme Court should settle the question of whether states must recognize the Second Amendment right to keep and bear arms. In June of 2008, in District of Columbia v. Heller, the Court found, for the first time, that the federal government must recognize the Second Amendment right of individuals, quite apart from their belonging to a militia, to have an operational firearm in their home. But the decision left open the question whether states were similarly bound.
Thus, the so-called incorporation doctrine will be at issue in this case – the question of whether the Fourteenth Amendment “incorporates” the guarantees of the Bill of Rights against the states. The Bill of Rights applied originally only against the federal government. But the Fourteenth Amendment, ratified in 1868, left open the question of which rights states were bound to recognize. The modern Court has incorporated most of the rights found in the Bill of Rights, but the Second Amendment’s guarantees have yet to be incorporated.
Moreover, a question that will arise in this case is whether the Court, if it does decide that the states are bound by the Second Amendment, will reach that conclusion under the Fourteenth Amendment’s Due Process Clause or under its Privileges or Immunities Clause, which has been moribund since the infamous Slaughterhouse Cases of 1873. In its brief urging the Court to hear the McDonald petition, the Cato Institute urged the Court to revive the Privileges or Immunities Clause.
Inflation Warning
In the last few days, we have witnessed an almost unprecedented chorus of warnings about inflation prospects by senior Fed officials. Dallas Fed President Richard Fisher said the Fed must be prepared to tighten monetary policy by raising short-term interest rates with “alacrity.” President Charles Plosser of Philadelphia had spoken of the need to raise interest rates before unemployment returns to normal in order “to prevent the Second Great Inflation.” The comments of the two Reserve Bank presidents reinforce those made by Fed Governor Kevin Warsh.
Financial markets are confused because the Fed’s policy-making committee (the Federal Open Market Committee) had just indicated its intention to keep interest rates low for an extended period. The inflation warnings represent an internal debate that has gone public. Formal dissents from the FOMCs policy directive have reportedly been discouraged. So Fed officials are in effect offering up virtual dissents in public speeches. Confidence in Chairman Bernanke’s policy is waning.
Most economic forecasters profess to see little inflation risk. They need to reconsider their forecasts in light of the inflation warnings from within the central bank.
Filed under: Finance, Banking & Monetary Policy; General
Democrats Favor Trade Sanctions on Americans
Scott Lincicome sharpens his pencil today and calculates that Congressional failure to ratify the U.S.-Colombia Free Trade Agreement–a deal that was signed almost three full years ago–has so far cost American exporters $2 billion. That tally increases $1.9 million each and every day.
Since that time [the trade agreement signing], American exporters have paid approximately $1.9 million per day in Colombian tariffs that they wouldn’t have paid if the Democrat-controlled Congress had just passed the FTA back then and thus allowed it to enter into force. By my math, that means that Congress’ and (now) the President’s partisan stalling has resulted in a pointless tax on American businesses of almost $2 billion ($1.9798 billion = 1042 days times $1.9 million) and counting.
My colleague Dan Griswold explained yesterday how U.S. trade policy punishes poorer people abroad, and amounts to a regressive tax here at home:
America’s highest remaining trade barriers are aimed at products mostly grown and made by poor people abroad and disproportionately consumed by poor people at home. While industrial goods and luxury products typically enter under low or zero tariffs, the U.S. government imposes duties of 30 pecent or more on food and lower-end clothing and shoes — staple goods that loom large in the budgets of poor families.
The Obama administration and Congress could easily remove the sanctions that burden America’s exporters and lower-income consumers. But until they’re convinced that they can make up the revenues lost by crossing Big Labor, the Democratic Party playbook counsels more of the same disingenuous rhetoric of fraternity with the common man and more exaggerations about evil foreign labor practices.
“Keep Your Subsidies off My Ovaries”
In my recent Cato paper, “All the President’s Mandates: Compulsory Health Insurance Is a Government Takeover,” I explain that if Congress compels Americans to purchase health insurance, it would “inevitably and unnecessarily open a new front in the abortion debate, one where either side—and possibly both sides—could lose.”
Slate’s William Saletan explains how the pro-choice side could lose:
This week, the Senate finance committee is considering amendments that would bar coverage of abortions under federally subsidized health insurance. Pro-choice groups are up in arms. After all, says NARAL Pro-Choice America, “In the current insurance marketplace, private plans can choose whether to cover abortion care—and most do.” If Congress enacts subsidies that exclude abortion, “women could lose coverage for abortion care, even if their private health-insurance plan already covers it!“…
The argument these groups make is perfectly logical: If you standardize health insurance through federal subsidies and coverage requirements, people might lose benefits they used to enjoy in the private sector. But that’s more than an argument against excluding abortion. It’s an argument against health care reform altogether.
Saletan also explains why pro-life and pro-choice positions on Obama’s health plan are irreconcilable:
To get what they consider neutrality, pro-choicers have to make pro-lifers pay indirectly for abortions. And to keep what they consider clean hands, pro-lifers have to make abortion coverage federally unsupportable and therefore, in a subsidy-dependent system, commercially nonviable.
Rather than an argument against all health care reform, I’d say this is an argument against reforms that expand government subsidies or otherwise give government the power to choose what kind of insurance you purchase. Fortunately, there are better ways to reform health care.
Filed under: Cato Publications; General; Health, Welfare & Entitlements
Chart of the Day — Federal Ed Spending
The debate over No Child Left Behind re-authorization is upon us.
Except it isn’t.
In his recent speech kicking off the discussion, education secretary Arne Duncan asked not whether the central federal education law should be reauthorized, he merely asked how.
Let’s step back a bit, and examine why we should end federal intervention in (and spending on) our nation’s schools… in one thousand words or less:
While the flat trend lines for overall achievement at the end of high school mask slight upticks for minority students (black students’ scores, for instance, rose by 3-5 percent of the 500 point NAEP score scale), even those modest gains aren’t attributable to federal spending. Almost that entire gain happened between 1980 and 1988, when federal spending per pupil declined.
And, in the twenty years since, the scores of African American students have drifted downard while federal spending has risen stratospherically.
Senator Bennett, Rubbing His Temples Over, and Over, and Over, and Over Again
Nancy Scola at TechPresident has a pretty hilarious write-up of a Senate hearing Tuesday on the transparency and accessibility of government contracting databases. Guess what? It’s a mess.
And on the TechLiberationFront blog, I expressed my dismay with industry association “TechAmerica” dragging its heels on transparency in service to its government-contractor membership.
President Obama’s Trade War on the Poor
A Wall Street Journal story yesterday reports the rising level of poverty in America caused by the steep and lingering recession. As I point out in a Washington Times column that also ran yesterday, one unintended consequence of President Obama’s trade policies so far has been to make the growing number of poor even poorer.
As I explained in the “Economic Watch” column:
America’s highest remaining trade barriers are aimed at products mostly grown and made by poor people abroad and disproportionately consumed by poor people at home. While industrial goods and luxury products typically enter under low or zero tariffs, the U.S. government imposes duties of 30 percent or more on food and lower-end clothing and shoes – staple goods that loom large in the budgets of poor families.
To win favor with organized labor and other opponents of trade liberalization, Mr. Obama has either defended or actually raised barriers on precisely those products of most interest to poor households. …
The $25 billion in revenue raised each year from import duties represent by far the most regressive tax the federal government imposes. Yet the Obama administration and the Democratic Congress have refused to move forward with trade agreements that would lower trade taxes that fall most heavily on the poor. By supporting the farm bill, but not new trade agreements, the president has embraced the status quo rather than change.
Read the full article.
On Notice
I’m delighted that Julian Sanchez has joined us at Cato. He’s as smart as they come. I’m equally pleased that I’ll have an intellectual sparring partner here on some of my issues from time to time. I encouraged Julian to share here some of what we had been discussing about privacy notices via email.
There are lots of dimensions to our conversation, but I’ll summarize it as follows: Can federal statutes protect Web surfers’ privacy? (We’re talking about privacy from other private actors, not privacy from government. Government self-control expressed in federal statutes could obviously improve privacy from government.)
Julian can see a couple of statutes helping: a requirement that third-party trackers provide a link explaining what they do, and a requirement that privacy policies be enforceable.
I think the former is a fine thing if people want it. I’m dubious about its benefits, though, and wouldn’t mandate it. The latter is the outcome I prefer—strongly!—but a federal statute is the wrong way to get there.
As you read Julian’s comment and mine, I think the divide you’ll see is a common one among libertarians. Some of us love efficiency and wealth creation, which is such a delightful product of free markets. And some of us love freedom for its own sake, not just for free markets, efficiency, and wealth creation. We’ll give up a little efficiency and wealth (in the short term) to protect liberty.
I’ll discuss the topic in the order I would as a legislative staffer (which I was), treating first the subject Julian left to last: whether the federal government has a constitutional role.
A Preliminary Assessment of PATRIOT Reform Bills
Hearings were held on both sides of the Hill last week to consider a trio of surveillance powers set to expire under PATRIOT Act sunset rules. But the stage is set for a much broader fight over the sweeping expansion of search and surveillance authority seen over the past eight years; the chairmen of both the House and Senate Judiciary Committees have announced their intention to use the occasion to revisit the entire edifice of post-9/11 surveillance law. Two major reform bills have already been introduced: Sen. Russ Feingold’s JUSTICE Act and Sen. Patrick Leahy’s USA PATRIOT Sunset Extension Act. Both would preserve the core of most of the new intelligence tools while strengthening oversight and introducing more robust checks against abuse or overreach. The JUSTICE Act, however, is both significantly broader in scope and frequently establishes more stringent and precisely crafted civil liberties safeguards. Most observers expect the Leahy bill to provide the basis for the legislation ultimately reported out of Judiciary, the central question being how much of JUSTICE will be incorporated into that legislation during markup later this week. While the surveillance authorities and oversight measures covered in each bill are varied and complex, it’s worth examining the differences in some detail.
Read the rest of this post »
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Cyberbullying Bill on the March
Federal prosecutors moved to criminalize internet harassment last year by prosecuting Lori Drew. Lori Drew, as you may recall, is a Missouri woman who created a fictional MySpace profile named “Josh” and started an online relationship with Megan Meier, a teenage girl who may have spread gossip about Drew’s daughter at the local high school. After “Josh” broke up with her, Megan Meier killed herself.
While this is despicable conduct, Missouri prosecutors found that Drew had broken no criminal statute and could not be prosecuted.
Enter Thomas O’Brien, U.S. Attorney for the Central District of California. O’Brien filed charges against Drew based on alleged violations of the Computer Fraud and Abuse Act (CFAA). O’Brien alleged that by violating MySpace’s policy requiring factual information in the user profile and affirming the click-to-agree contract, Lori Drew had committed a crime akin to hacking or unauthorized access of computer data. Because of MySpace’s ties to the Central District of California, Lori Drew was haled into court halfway across the country.
Though the jury convicted Drew and reduced the felony charges to misdemeanors, District Judge George Wu threw out the conviction because the statute would allow the prosecution of nearly anyone on the internet. The decision is available here. The government has since filed a notice of appeal. Orin Kerr notes that the appeal may face additional hurdles – the line of cases that the government used to interpret the statute so broadly has been overturned by the Ninth Circuit.
Several members of Congress have since jumped on the Named Victim Act bandwagon, sponsoring the Megan Meier Cyberbullying Prevention Act. The Act goes far beyond the issue of unauthorized access, criminalizing any rude speech delivered via the internet, cell phone, or text message:
‘(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.
‘(b) As used in this section–
‘(1) the term ‘communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and
‘(2) the term ‘electronic means’ means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.’.
The scope of this law is breathtaking. Had a rough breakup with your significant other? Engaged in a flame war on a website’s comment section? We’ve got a law against that, you know.
The House Judiciary Committee will be holding a hearing on this law tomorrow. Cato Adjunct Scholar Harvey Silverglate, author of Three Felonies a Day: How the Feds Target the Innocent, will be testifying. Silverglate will also be at a book forum on Thursday at Cato, which can be watched live here.
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
Tuesday Links
- Twenty inaccurate claims in Obama’s speech to Congress on health care. “If [members of Congress] yelled out every time President Obama said something untrue about health care, they would quickly find themselves growing hoarse.”
- Political tensions decreasing between Taiwan and China.
- How Americans misunderstand war: “America’s biggest mistake in Afghanistan and Iraq was to think its modern military would make winning easy.”
- Always read the fine print: There is a dangerous provision in the Senate Finance Committee’s health care bill that could deny crucial health treatments for Medicare patients.
- Will the FDIC start borrowing from healthy banks to continue to provide relief to banks teetering on the edge?
- Podcast: Justin Logan explains why even the best policy toward Iran’s nuclear ambitions may not yield a positive outcome.
The REAL ID Deadline Is Fake
Some state governments have claimed that a pending compliance deadline for REAL ID requires them to tighten up their driver’s licensing procedures consistent with the 2005 national ID law. (But see this.)
In fact, REAL ID is dead and the deadline is fake. More than a dozen states have statutorily barred themselves from complying, and in a rule published Monday the Department of Homeland Security extended the deadline again. This is the same thing it did last May and could easily do indefinitely.
The republic survives, and will survive quite nicely without this or any national ID law.
Filed under: Telecom, Internet & Information Policy; Trade and Immigration
Three Felonies a Day
Harvey Silverglate’s new book, Three Felonies a Day: How the Feds Target the Innocent, is receiving a good bit of press. L. Gordon Crovitz has a good piece up at the Wall Street Journal discussing federal overcriminalization and how it impacts information technology. National Review Online has an audio interview with Silverglate discussing how federal law often strays from traditional notions of criminal intent, making innocent activity potentially criminal.
Silverglate will be speaking at Cato on Thursday at a book forum with Tim Lynch. Tim’s recent book In the Name of Justice looks at the evolution of strict liability statutes and other developments in criminal law with chapters from prominent legal thinkers. Washington Times columnist Tony Blankley will be serving as guest moderator. Admission is free; registration information is available here, and the event can be watched live at the link.
Finally, a Pro-Trade Proposal on Climate Change
One of the main recommendations in my recent paper on climate change and trade was to reduce trade barriers on “environmental goods and services.” Trade liberalization in this area is slated for special attention in the Doha round of multilateral trade negotiations, but progress there is decidedly unimpressive.
I’m under no illusion that this development had anything to do with my recommendations, but it seems that the 30 member countries of the Organization for Economic Cooperation and Development are attempting a trade deal amongst themselves and China to expedite tariff reductions in “climate friendly” goods (more here). Apparently it is designed to be an incentive to get Beijing on board for a global climate deal, but of course American consumers and businesses would gain from cheaper and better access to green technology, too.
I would, of course, prefer that U.S. lawmakers see the value in reducing tariffs on all goods without waiting for the other OECD members to catch on, but surely this development is better than the alternative.
Filed under: Energy and Environment; Trade and Immigration
Who Will Fill the Gap Left by Don Fisher?
Don Fisher, co-founder of the The Gap chain, passed away on Sunday. Not only was Fisher a partner in the construction of a vast retail empire that would make any entrepreneur proud, he was also a partner in funding the expansion of the KIPP chain of charter schools — something that would make any philanthropist proud.
Thanks to the $60 million that he and his wife Doris committed to KIPP’s growth, it now serves 20,000 students in 82 schools across America. In k-12 education, public or private, that level of growth is unusual.
But how can it be sustained? How can those who share Mr. Fisher’s commitment to bringing excellent educational options within reach of all children ensure that his efforts are not simply maintained but expanded? And how can we ensure that not just KIPP but any similarly excellent school can scale up to serve a mass audience? These are questions that the education policy community desperately needs to answer.
Could the U.S. Stop Israel from Bombing Iran?
Last night, Chris Matthews presided over an odd, staccato interview with AEI’s Michael Rubin and Time magazine’s Bob Baer that was enough to make one feel sorry for the interviewees. Matthews was wildly whipping questions at Rubin and Baer, but they both did an admirable job returning Matthews’ volleys.
One interesting topic that came up was whether the Obama administration should discourage Israel from attacking Iran. Rubin and Baer agreed that at this point an Israeli attack would be unhelpful and should be discouraged, but Baer noted that our ability to prevent such an attack is “zero.” They agreed that the likelihood of an Israeli strike in the next year was “greater than 50-50″ and Rubin suggested that the Israeli timeline for an attack was “months if not weeks.”
More Fear-Mongering Claptrap from Max Boot
Max Boot, fellow for National Security Studies at the Council on Foreign Relations and perhaps one of America’s most radical neo-imperialists, eight years ago this month likened the Afghan mission to British colonial rule:
Afghanistan and other troubled lands today cry out for the sort of enlightened foreign administration once provided by self-confident Englishmen in jodhpurs and pith helmets…This was supposed to be ‘for the good of the natives,’ a phrase that once made progressives snort in derision, but may be taken more seriously after the left’s conversion (or, rather, reversion) in the 1990s to the cause of ‘humanitarian’ interventions. [emphasis mine]
Just yesterday, this “stay-the-course” proponent said President Obama should fight on in Afghanistan and properly resource the counterinsurgency mission. Sadly, Boot’s arguments are so faulty and disjointed that it is difficult to decide where to begin first. Here I go…
Boot believes that the coalition should properly resource the war effort. What does that even mean? What Boot neglects to tell his readers is that our current policy requires more troops than we could ever send. The metric for successful counterinsurgency missions suggested by the U.S. Army and Marine Corps would require 200,000 counterinsurgents in southern Afghanistan alone, and upwards of 650,000 in the country as a whole, for upwards of 12 to 14 years—not including the last eight. The time and resources required for assisting Afghanistan would not be accomplished within costs acceptable to American and NATO publics.
Another critical point that Boot fails to disclose is how recklessly ambitious the current mission is. The cost in blood and treasure that we would have to incur—coming on top of what we have already paid—far outweighs any possible benefits, even accepting the most optimistic estimates for the likelihood of success. The United States does not have the patience, cultural knowledge, or legitimacy to transform what is a deeply divided, poverty stricken, tribal-based society into a self-sufficient, non-corrupt, and stable electoral democracy. And even if Americans did commit several hundred thousand troops and decades of armed nation-building, success would hardly be guaranteed, especially in a country notoriously suspicious of outsiders and largely devoid of central authority. Western powers could invest hundreds of thousands of troops and twice or three times the materiel and money and still not create a functioning state. Even in the unlikely event that we forged a stable Afghanistan, al Qaeda might simply reposition its presence into other regions of the world.
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