Archive for April, 2010
Accountability for ‘Exigent Letter’ Abuse At Last?
It is more than three years since the Office of the Inspector General first brought public attention to the FBI’s systematic misuse of the National Security Letter statutes to issue fictitious “exigent letters” and obtain telecommunications records without due process. Nobody at the Bureau has been fined, or even disciplined, for this systematic lawbreaking and the efforts to conceal it. But the bipartisan outrage expressed at a subcommittee hearing of the House Judiciary Committee this morning hints that Congress may be running out of patience—and looking for some highly-placed heads to roll. Just to refresh, Committee Chairman John Conyers summarized the main abuses in an opening statement:
The IG found that more than 700 times, such information was obtained about more than 2,000 phone numbers by so-called“exigent letters” from FBI personnel. In some cases, the IG concluded, FBI agents sent the letters even though they believed that factual information in the letters was false. For more than 3,500 phone numbers, the call information was extracted without even a letter, but instead by e‐mail, requests on a post‐it note, or “sneak peaks” of telephone company computer screens or other records…. In one case, the FBI actually obtained phone records of Washington Post and New York Times reporters and kept them in a database, leading to an IG conclusion of “serious abuse” of FBI authority and an FBI public apology.
It’s probably actually worse than that: Since these letters often requested a “community of interest” analysis for targeted numbers, the privacy of many people beyond the nominal targets may have been implicated—though it’s hard to be sure, since the IG report redacts almost all details about this CoI mapping.
Waking Up at Last
Tony Blankley, former press secretary to Speaker of the House Newt Gingrich, exults in the Washington Times that Americans are waking up “to our heritage of freedom” and to the abuse of the Constitution:
All the following acts have suddenly awakened Americans to their Constitution: (1) The nationalization of car companies and banks; (2) the subordination of the car companies’ legal bondholders to union bosses; (3) the creation of trillion-dollar slush funds (the stimulus package) used for, among other purposes, the corrupt purchase of congressional votes; (4) the mandating of individual health insurance purchase against the will of Americans; (5) the attempt to have Obamacare “deemed” to have been enacted, rather than actually publicly voted on by Congress.
Amazingly, spontaneously, Americans are educating themselves about the details of our Constitution.
He’s absolutely right. All those actions do raise serious questions about whether there are still any constitutional limitations on government, which is to say, whether the Constitution is still in effect, questions that Roger Pilon also raised this week in the Christian Science Monitor. But it would be even better if Americans had noticed the threats to constitutional government a bit earlier, if not during the New Deal or the Great Society, then perhaps during the past decade when, as Gene Healy and Tim Lynch wrote in 2006:
Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes
- a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;
- a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;
- a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as “enemy combatants,” strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and
- a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.
President Bush’s constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.
But better late than never, and we join Tony Blankley in hoping that the Constitution’s limits on the powers of the federal government will once again be an issue in American politics and governance.
“Stimulus” = Education Funding Floor?
We were warned.
When Washington passed the so-called “stimulus” bill, with its tens-of-billions for K-12 education, we were warned that the money wouldn’t just provide a one-time infusion of supposedly economy-saving cash. No, it would furnish a towering new spending floor for already super-funded government schools and numerous other beneficiaries.
Well here come the sky lifts again. According to Education Week, Senator Tom Harkin (D-IA) is pushing legislation that would pile $23 billion in new federal funding into education once the stimulus cash dries up. And this money — which, of course, we don’t actually have – is intended not only to protect the jobs of teachers and other staff, but add even more employees to the obscene jobs program that is public schooling.
Would this be a good time to mention that the Constitution gives the federal government zero authority to fund or control education? Oh, who cares about that?
Restrictive Immigration Policies Confound Security
CEI’s Alex Nowrasteh has a commentary on Townhall.com illustrating how restrictive immigration policies confound security. Twenty-three Somalis with suspected ties to an Islamist group were mistakenly released from a Mexican prison last January, and their whereabouts now are unknown. He continues:
Forcing immigrants underground creates an enormous black market where terrorist activities and serious crimes can continue undetected. If legal immigration were much easier, the American government would know who was entering the country and do a better job in screening out criminals and suspected terrorists.
I’m leery of touting terror threats for any reason beyond alerting the public to information they can use for national and self-protection. A small group of possible terrorists in Mexico is far from doing any significant harm and not particularly worrisome.
But this story illustrates how the border security that matters gets harder—and how much tax money gets wasted—when our policies make legal immigration difficult or impossible. The government is preoccupies with workers made minor criminals by their extraordinary efforts to improve their and their families’ circumstances.
Felony Charges for Recording a Plainclothes Officer
Yesterday I wrote about the University of Maryland student beaten by police and falsely charged with assault during a post-game celebration. I concluded with a warning that a law barring citizens from taking photos or videos of law enforcement officers (such as those in force in Great Britain) would have prevented the false charges and beating from coming to light.
I did not know that Maryland was already heading that direction. Video:
Anthony Graber was riding his motorcycle on I-95 in Maryland, speeding and popping wheelies and recording the experience with a helmet cam. An unmarked car cuts him off as he slows for traffic, and a man in a hoodie and jeans jumps out with a gun in his hand. Five seconds after the armed man has exited his vehicle and approached Graber, he identifies himself as a Maryland State Trooper. Graber accepts a speeding ticket and posts video of the experience on YouTube. (HT Armed Liberal)
If that were the end of it – a law enforcement officer recklessly creates a situation that could prompt a firefight by provoking a law-abiding citizen with a concealed carry permit (because the officer’s outward appearance suggested a criminal attack was underway) – I wouldn’t be writing this. But the Maryland State’s Attorneys are now charging Graber with unlawfully recording the incident. Police have seized his computer and he faces felony charges.
Maryland is working hard to justify its status as least-free state in the union. Find your state’s ranking here.
Obama Proposes Further Delay on Fannie & Freddie
President Obama seems to be slowly waking up to the fact that the American public has grown tired of the endless bailout of Fannie Mae and Freddie Mac. The public has also rejected the talking point that Fannie and Freddie were simply victims of a 100 year storm in the housing market. So what’s Obama’s response? To ask for public comment and have public forums.
This strategy is clearly one of delaying and avoiding any reform of Fannie and Freddie while pretending to care about the issue. Where was the public comment and forums on the Volcker rule? Seemingly the standard is that fixing the real causes of the financial crisis should be delayed and debated while efforts like the Dodd bill, which do nothing to avoid future financial crises, should be rushed without debate or comment.
Even more disingenious is couching reform of Fannie and Freddie under the rubic of “fixing mortgage finance”. This is no more than an attempt to take the focus away from Fannie and Freddie and shift it to “abusive lending” and other non-causes of the crisis.
This isn’t rocket science. The role of Fannie and Freddie in the financial crisis is well understood. The only thing missing is the willingness of Obama and Congress to stand up to the special interests and protect the taxpayer against future bailouts.
Congress to Skip the Budget Process—a Transparency Problem at the Very Least
You are required by law to file your taxes by the end of the day tomorrow, and you get penalized if you don’t. Meanwhile, Congress will not meet its April 15 requirement to pass a budget resolution. The budget resolution is the plan for FY 2011 revenue and spending that dictates the amounts in forthcoming annual spending bills.
It’s an understatement to say that skipping the annual budgeting process is a transparency problem. It’s a management problem, a spending problem, a leadership problem, a responsibility problem . . .
More commentary and a timetable of the congressional budget process is on the WashingtonWatch.com blog. Politico broke the story (so far as I can tell). Reuters quotes Senate Budget Committee Chairman Kent Conrad (D-ND) saying, “We’re going to go full speed ahead” with the budget.
You have until the end of the day tomorrow, senator.
Media Coverage of the Health Care Overhaul
Over the course of the health care debate, the media often reported and editorialized — and sometimes it was impossible to tell the difference — quite favorably on the Democratic proposals running through Congress. While some upheld their journalistic responsibility to scrutinize and offer objective analysis of the legislation, many did not.
It was not surprising to read stories almost daily about how Obamacare would lift millions of poor, elderly, sick, and generally down-trodden Americans out of financial and medical crisis, and even go so far as to singlehandedly save the lives of hundreds of thousands of Americans over the course of the next decade. (It would even provide one free turkey for Thanksgiving to every family living 400 percent below the poverty level.)
This morning, however, the headlines read something like this:
- “Rasmussen: Public Favors Repeal 58%-38%” (Rasmussen Polls)
- “Lawmakers, Staff May Lose Coverage” (New York Times): Adds the Times, “The confusion raises the inevitable question: If they did not know exactly what they were doing to themselves, did lawmakers who wrote and passed the bill fully grasp the details of how it would influence the lives of other Americans?”
- “Healthcare Law Could Boost Costs For Less Healthy Americans” (New York Times)
- “Healthcare Law Unlikely To Curb Premium Increases” (Los Angeles Times)
My question is this: where were these reporters before the passage of the health care bill?
A Response to Intel Abuses at Last?
As I explain in yesterday’s BloggingHeads dialogue with Eli Lake, I’m chary of relying too much on legislative “sunset” provisions to check abuse of power, especially in the shadowy world of intelligence. (For the fleshed-out version of the argument, see Chris Mooney’s 2004 piece in Legal Affairs.) After all, in January, the Office of the Inspector General had released an absolutely damning report showing that for years, FBI agents systematically manipulated their incredibly broad National Security Letter authorities to get information about Americans telephone usage without following any legitimate legal process at all. To cover those abuses, officials compounded their crimes by lying to federal courts and refusing to use an auditable computer system for their information requests. The report was released amid debate over what reforms should be included in the reauthorization of several controversial Patriot Act provisions, with proposed changes to the NSL statutes front and center—not least because several courts had found constitutional problems with the gag orders accompanying NSLs. Yet just a month later, Congress consented to an extension of those Patriot provisions without implementing any of the various rather mild changes that had won approval in the House or Senate Judiciary Committees. If a sunset-inspired review didn’t yield any real consequences then, I thought, what would it take?
Today, however, I see a there are glimmers of interest in something more closely resembling serious oversight. In a letter to Attorney General Eric Holder, sent last month but released yesterday, Senate Judiciary Committee Chair Patrick Leahy (D-VT) urges DOJ to implement many of the reforms in the SJC’s bill voluntarily—above all procedures to guarantee a detailed record of the grounds on which various types of information sought, and to govern the retention, use, and distribution of information obtained. Leahy also signals his intent to ask department watchdogs to conduct audits of the use of Patriot authorities, as the Senate’s bill had stipulated. These are all, needless to say, good ideas—provided we don’t accept voluntary and mutable internal guidelines as a substitute for statutory limits with teeth.
Meanwhile, Rep. Jerry Nadler (D-NY) is holding Wednesday morning hearings on the abuses detailed in the Inspector General’s report. FBI General Counsel Valerie Caproni and IG Glenn Fine are slated to testify. (There are links to their prepared testimony already, though the documents themselves aren’t there yet as I write.) Extrapolating from past performances, I predict Caproni will allow that the abuses described were Very Serious Indeed (though, really, perhaps not quite as serious as all that…) but all cleaned up now. Nobody should be satisfied with this, and if Fine doesn’t broach the subject himself, somebody really ought to ask Caproni about some minimization procedures for the 25,000–50,000 National Security Letters the department issues annually. As Fine noted in recent testimony, the Bureau has been promising this for years now:
In August 2007, the NSL Working Group sent the Attorney General its report and proposed minimization procedures. However, we had several concerns with the findings and recommendations of the Working Group’s report, which we discussed in our March 2008 NSL report. In particular, we disagreed with the Working Group about the sufficiency of existing privacy safeguards and measures for minimizing the retention of NSL-derived information. We disagreed because the controls the Working Group cited as providing safeguards predated our NSL reviews, yet we found serious abuses of the NSL authorities.
As a result, the Acting Privacy Officer decided to reconsider the recommendations and withdrew them. The Working Group has subsequently developed new recommendations for NSL minimization procedures, which are still being considered within the Department and have not yet been issued. We believe that the Department should promptly consider the Working Group’s proposal and issue final minimization procedures for NSLs that address the collection of information through NSLs, how the FBI can upload NSL information in FBI databases, the dissemination of NSL information, the appropriate tagging and tracking of NSL derived information in FBI databases and files, and the time period for retention of NSL obtained information. At this point, more than 2 years have elapsed since after our first report was issued, and final guidance is needed and overdue.
Way, way overdue—much like some kind of serious congressional response to the Bureau’s NSL Calvinball.
Essay Contest: Win Free Tickets to the Friedman Prize Dinner
In partnership with Students for Liberty, Cato is holding a contest for two tickets to the Friedman Prize biennial dinner and award presentation, which will be held at the Hilton Washington Hotel in Washington, D.C, on May 13, 2010. The winners of the contest will each receive a free ticket to the event, regularly sold for $500 each.
To apply for the essay contest, reply to the following questions in 500 words or less:
In light of the selection of Akbar Ganji for the receipt of the 2010 Friedman Prize for Advancing Liberty, who would you nominate for a second prize this year and why?
Submissions should be both attached in an MS Word (or compatible) document and included in the body of an e-mail, along with the contestant’s name, school, graduation year, and major. E-mail all submissions to CatoOnCampus@cato.org
Tuesday Links
- Iranian journalist Akbar Ganji awarded the $500,000 Milton Friedman Prize for Advancing Liberty.
- New rules for your taxes: Pretend your way to tax freedom — just like Congress!
- Americans this year will spend more on taxes than on clothing, food, and shelter combined.
- Is federal power now unlimited? To defend the nominee President Obama chooses to replace the liberal Justice Stevens, Democrats will be forced to say what they really believe about the Constitution.
- Podcast: “Stevens’ Undue Deference” featuring John Samples
University of Maryland Beating Prompts Investigations
Following the home basketball victory against Duke, University of Maryland students took to the streets to celebrate. Prince George’s County Police, along with mounted officers from the Maryland-National Capital Park Police, responded to disperse an unruly crowd. One student skipped for joy toward police in riot gear, then stopped as he neared two mounted officers. Prince George’s officers rushed the student, beating him with clubs until he fell to the ground, and then continuing to deliver blows as he lay on the pavement. Video of the incident:
The student, John McKenna, was charged with felonies on suspicion of assaulting officers on horseback and their mounts. The charges against McKenna were dropped yesterday without comment, and now the officers responsible for the beating are under scrutiny. One of the three officers who beat McKenna has been suspended, and as soon as the other two are identified they face parallel sanction. Prince George’s prosecutors have opened a criminal investigation as well.
While this story is moving in the right direction, the video contradicting the charges against McKenna and putting police brutality on record made all the difference. Good reason to be wary of laws prohibiting photography or video of police officers.
Cato on Facebook
Cato on Twitter
Cato on Google+
Cato on YouTube
