Archive for May, 2011
Waterboarding, Again
I have an article in today’s Los Angeles Times pointing out that waterboarding is dead as a tool for U.S. interrogators. So get over it. I also make the point that it died under Bush’s watch, so the next time Dick Cheney trots out a proposal to bring back waterboarding, he’s quarreling mostly with his old boss and not the current commander-in-chief. Over at the Washington Post, Allen McDuffee thinks this is unfair:
It may well be the case that Cheney has unfinished business with Bush over dropping the so-called enhanced interrogation techniques, but it is at least a selective reading for Rittgers to suggest that Cheney’s words are not directed at Obama with the hope that they carry political consequences for the administration. It is unlikely that even Cheney himself would make such a suggestion.
Of course Cheney’s comments are directed at Obama, as a rearguard action intended to make it politically impossible to prosecute those that made waterboarding and other coercive interrogation techniques our policy. Mission accomplished.
Waterboarding died in 2004 when the Office of Legal Counsel withdrew the memoranda supporting it, with other nails in the coffin provided by the Detainee Treatment Act and the Hamdan decision. Bush didn’t make these changes by himself. The OLC withdrawal was Jack Goldsmith’s doing, and a signing statement on the DTA showed Bush’s reluctance to accept limits on his power. But accept them he did. On the same day that Bush issued an executive order finessing the Geneva Conventions Common Article 3 as applied to the CIA, his OLC issued legal advice on what enhanced interrogation techniques are still on the table. It’s no human rights wishlist (sleep deprivation, reduced calorie diet, and four slapping/holding techniques), but waterboarding is nowhere to be found.
Yes, Obama restricted the intelligence community to the Army Field Manual. Waterboarding was long gone by that point. It has been resurrected as a talking point in defiance of legal reality, good policy, and core principles, but will not and should not be American policy. Again, get over it.
The “I-Told-You-So” Blog Post about the Completely Predictable Failure of the Greek Bailout
Way back in February of 2010, I wrote that a Greek bailout would be a failure. Not surprisingly, the bureaucrats at the International Monetary Fund and the political elite from other European nations ignored my advice and gave tens of billions of dollars to Greece’s corrupt politicians.
The bailout happened in part because politicians and international bureaucrats (when they’re not getting arrested for molesting hotel maids) have a compulsion to squander other people’s money. But it also should be noted that the Greek bailout was a way of indirectly bailing out the big European banks that recklessly lent money to a profligate government (as explained here).
At the risk of sounding smug, let’s look at my four predictions from February 2010 and see how I did.
1. The first prediction was that “Bailing out Greece will reward over-spending politicians and make future fiscal crises more likely.” That certainly seems to be the case since Europe is in even worse shape, so I’ll give myself a gold star.
2. The second prediction was that “Bailing out Greece will reward greedy and short-sighted interest groups, particularly overpaid government workers.” Given the refusal of Greek politicians to follow through with promised cuts and privatizations, largely because of domestic resistance, it seems I was right again. As such, I’ll give myself another pat on the back.
3. My third prediction was that “Bailing out Greece will encourage profligacy in Spain, Italy, and other nations.” Again, events certainly seem to confirm what I warned about last year, so let’s put this one in the win column as well.
4. Last but not least, my fourth prediction was that “Bailing out Greece is not necessary to save the euro.” Well, since everybody is now talking about two possible non-bailout options—either a Greek default (a “restructuring” in PC terms) or a Greek return to using the drachma—and acknowledging that neither is a threat to the euro, it seems I batted 4-4 in my predictions.
But there’s no reward for being right. Especially when making such obvious predictions about the failure of big-government policies. So now we’re back where we were early last year, with Greece looking for another pile of money. Here’s a brief blurb from Reuters.
The European Union is racing to draft a second bailout package for Greece to release vital loans next month and avert the risk of the euro zone country defaulting, EU officials said on Monday.
If this second bailout happens (and it probably will), then I will make four new predictions. But I don’t need to spell them out because they’ll be the same ones I made last year.
We’ve reached the lather-rinse-repeat stage of fiscal collapse for the welfare state.
Senate Vote on Rand Paul’s Budget
Last week, a motion to proceed on a budget resolution introduced by Sen. Rand Paul (R-KY) was decisively defeated in the Senate (7 in favor, 90 opposed). Paul’s proposal would have balanced the budget in five years (fiscal year 2016) through spending cuts and no tax increases. Social Security and Medicare would not have been altered. Instead, the proposal merely instructed relevant congressional committees to enact reforms that would achieve “solvency” over a 75-year window.
That’s hardly radical.
Paul’s proposed spending cuts were certainly bold by Washington’s standards, but they weren’t radical either. For example, military spending would have been cut, in part, by reducing the government’s bootprint abroad. From the Paul proposal:
The ability to utilize our immense air and sea power, to be anywhere in the world in a relatively short amount of time, no longer justifies our expanded presence in the world. This budget would require the Department of Defense to begin realigning the over 750 confirmed military installations around the world. It would also require the countries that we assist to begin providing more funding to their own defense. European, Asian, and Middle Eastern countries have little incentive to increase their own military budgets, or take control of regional security, when the U.S. has consistently subsidized their protection.
Over 750 confirmed military installations around the world. That’s enough to make a Roman emperor blush. Isn’t continuing to go deeper into debt to subsidize the defense of rich allies the more “radical” position? (See these Cato essays for more on downsizing the Department of Defense.)
Other cuts included eliminating the Department of Housing & Urban Development, the Department of Energy, and most of the Department of Education. But unlike most Republicans, Paul didn’t apologize for the cuts or use the debt dilemma as a cop out. Instead, he explains in his plan why these federal activities are counterproductive and should be devolved to the states or left to the private sector.
It’s disappointing that Paul could only get seven Republicans and no Democrats to support his budget. For all the bluster about needing to cut spending, not raise taxes, and stop the Obama administration’s big government agenda, most Republican senators said “no dice” when given the chance to vote in favor of a plan that would accomplish all three objectives and balance the budget in five years.
E-Verify and Common Sense
This weekend, New York Times op-ed columnist Ross Douthat wrote a piece full of common sense thinking about immigration control and the E-Verify federal background check system.
“Common sense”—or “what most people think”—is an interesting thing: When generations of direct experience accumulate, common sense becomes one of the soundest guides to action. Think of common law, its source deep in history, molded in tiny increments over hundreds of years. Common law rules against fraud, theft, and violence strike a brilliant balance between harm avoidance and freedom.
When most people lack first-hand knowledge of a topic, though, common sense can go quite wrong. Such is the case with ”common sense” in the immigration area, which is not a product of experience but collective surmise. Douthat, who has the unenviable task of leaping from issue to issue weekly, indulges such surmise and gets it wrong.
Take, for example, the premise that American workers lose when immigration rates are high: “Amnesty,” says Douthat, would “be folly (and a political nonstarter) in this economic climate, which has left Americans without high school diplomas (who tend to lose out from low-skilled immigration) facing a 15 percent unemployment rate.”
On the whole, American workers do not lose out in the face of immigration. To the extent some do, it is penny-wise and pound foolish to retard our economy (in which displaced workers participate) and overall well-being (which affects displaced workers, too) in the name of protecting status quo jobs for a small number of native-borns.
Full immigration reform that includes generous opportunities for new low-skill workers is not folly, whatever its political prospects may be.
But I want to focus on Douthat’s conclusion that E-Verify is the way forward for immigration control. He cites a study finding that Arizona’s adoption of an E-Verify mandate caused the non-citizen Hispanic population of Arizona to fall by roughly 92,000 persons, or 17 percent, over the 2008–2009 period, and concludes:
[M]aybe — just maybe — America’s immigration rate isn’t determined by forces beyond any lawmaker’s control. Maybe public policy can make a difference after all. Maybe we could have an immigration system that looked as if it were designed on purpose, not embraced in a fit of absence of mind.
Though tentative, his implication is that a national E-Verify mandate is the solution. Everything that came before was the product of fevered impulses. Maybe E-Verify is the most practical solution. Douthat’s calm tone sounds like common sense.
Ah, but neither Douhtat or the authors of the study have thought that problem all the way through (and the study doesn’t claim to): The decline in Arizona was not produced simply by moving illegal immigrants from Arizona back to Mexico and Central America. They went to Washington state and other places in the United States that are less inhospitable to immigrants. A national E-Verify mandate would offer no similar refuge, and the move to underground (or “informal”) employment would occur in larger proportion than it did in Arizona.
The report also cautions that the honeymoon in Arizona may not hold:
[T]he initial effects of the legislation are unlikely to persist if actors in the labor market learn that there are no consequences from violating these laws. Hence, for long-term effectiveness, policymakers should also consider the role of employer sanctions, which have not played a large role in Arizona’s results so far. However, policymakers must weigh the sought-after drop in unauthorized employment against the costs associated with shifting workers into informal employment.
That’s antiseptic language for: investigations of employers, raids on workers, heavy penalties on both, and growth in black markets and a criminal underground. “Balmy” is a way of describing the temperature potatoes pass through in a pressure cooker.
It’s hard, on analysis, to see Arizona’s experience being replicated or improved upon by an E-Verify mandate that’s national in scale without a great deal of discomfort and cost. I surveyed the demerits of electronic employment eligibility verification in “Franz Kafka’s Solution to Illegal Immigration.”
Hoenig for FDIC
On July 8th, Sheila Bair will step down as Chair of the Federal Deposit Insurance Corporation (FDIC). While I believe she’s gotten a lot wrong (such as not preparing the fund for the coming crisis), she has been about the only voice among senior bank regulators for actually ending too-big-to-fail. With her departure, we might lose that one voice. Later this year, Kansas City Fed President Tom Hoenig is also scheduled to leave his current position.
Hoenig has actually gone beyond Bair in trying to address too-big-to-fail, having called for the largest banks to be broken up. While I don’t believe that should be our first approach, having an advocate for both the taxpayer and the overall economy at the helm of the FDIC could make a significant difference.
Given that Section 2 of the Federal Deposit Insurance Act requires the FDIC to have a bipartisan board, President Obama is faced with the choice of either appointing a non-Democrat or asking Vice-Chair Marty Gruenberg to leave. While I have no idea as to Hoenig’s politics, he’d likely be able to pass that test.
Hoenig has also been willing to publicly challenge Bernanke on a number of issues. Given the narrow group-think among regulators that contributed to the crisis, having a loud, credible, independent voice among bank regulators is solely needed. Hoenig again fits that bill. His appointment would also offer Obama a chance to show that he is not completely beholden to the Geithner “never seen a bailout I didn’t like” worldview.
Perhaps with Hoenig at the helm, we can actually begin a debate about reducing the moral hazard created by the Federal Reserve. While Bair was all too willing to see both insurance coverage and regulatory powers of the FDIC expanded, Hoenig strikes me as open-minded to the very real excess bank risk-taking that is encouraged by the existence of the FDIC.
Antidumping Reform Crucial to U.S. Competitiveness
The Cato Institute today published its 13th policy paper on the topic of antidumping. “Economic Self-Flagellation: How U.S. Antidumping Policy Subverts the National Export Initiative” describes with compelling anecdotes and data how the outdated assumptions of a 90-year-old law—one purported to “level the playing field” and protect U.S. companies from “unfair” foreign competition—conspire with its overzealous application to erode the competitiveness of U.S. firms.
During the decade from January 2000 through December 2009, the U.S. government imposed 164 antidumping measures on a variety of products from dozens of countries. A total of 130 of those 164 measures restricted (and in most cases, still restrict) imports of intermediate goods and raw materials used by downstream U.S. producers in the production of their final products. Those restrictions raise the costs of production for the downstream firms, weakening their capacity to compete with foreign producers in the United States and abroad.
In all of those cases, trade-restricting antidumping measures were imposed without any of the downstream companies first having been afforded opportunities to demonstrate the likely adverse impact on their own business operations. This is by design. The antidumping statute forbids the administering authorities from considering the impact of prospective duties on consuming industries—or on the economy more broadly—when weighing whether or not to impose duties.
That asymmetry has always been insane, but given the emergence and proliferation of transnational production and supply chains and cross-border investment (i.e., globalization)—evidenced by the fact that 55% of all U.S. import value consists of raw materials, intermediate goods, and capital equipment (the purchases of U.S. producers)—it is now nothing short of self-flagellation.
Most of those import-consuming, downstream producers—those domestic victims of the U.S. antidumping law—are also struggling U.S. exporters. In fact those downstream companies are much more likely to export and create new jobs than are the firms that turn to the antidumping law to restrict trade. Antidumping duties on magnesium, polyvinyl chloride, and hot-rolled steel, for example, may please upstream, petitioning domestic producers, who can subsequently raise their prices and reap greater profits. But those same “protective” duties are extremely costly to U.S. producers of auto parts, paint, and appliances, who require those inputs for their own manufacturing processes.
President Obama acknowledges as much. On August 11, 2010, at a White House signing ceremony, the president offered the following rationale for a bill that he was about to sign into law:
The Manufacturing Enhancement Act of 2010 will create jobs, help American companies compete, and strengthen manufacturing as a key driver of our economic recovery. And here’s how it works. To make their products, manufacturers—some of whom are represented here today—often have to import certain materials from other countries and pay tariffs on those materials. This legislation will reduce or eliminate some of those tariffs, which will significantly lower costs for American companies across the manufacturing landscape—from cars to chemicals; medical devices to sporting goods. And that will boost output, support good jobs here at home, and lower prices for American consumers.
Higher input prices stemming from antidumping measures are only the first assault on these downstream firms. The next wave usually takes the form of stiffer competition from firms in countries where there are no antidumping duties on the critical input. As a result, the foreign competition often operates at a cost advantage in the United States and in other markets that enables it to sell profitably at lower prices than U.S. firms can charge.
Presidents Should Obey the Law
In Star Wars III: Revenge of the Sith, when Chancellor Palpatine transforms the republic into an empire, Senator Amidala remarks:
So this is how liberty dies . . . with thunderous applause.
But it can also happen in silent acquiescence. For decades now, successive Congresses have evaded their responsibility to make decisions about the deployment of U.S. armed forces abroad. I write about the latest instance of this, in Libya, in today’s Britannica column:
Presidents have an obligation to obey the Constitution and the law. But one of the ways that separation of powers works is that each branch of government is supposed to jealously guard its prerogatives from usurpation by the other branches. Too often Congress ducks that responsibility, preferring to let presidents make decisions, make law, and make war without the involvement of Congress. As Arthur M. Schlesinger, Jr., explained in his book The Imperial Presidency, the expansion of presidential war-making power has been “as much a matter of congressional abdication as of presidential usurpation.”
The president is derelict in his duty to obey the Constitution and the War Powers Resolution. And Congress is derelict in its duty to assert its constitutional authority. And I’m still wondering what’s happened to the antiwar movement, which ought to be loudly protesting not just the continuing wars in Iraq and Afghanistan but the newborn war in Libya.
As George Will said last week, “even if you think the War Powers Resolution is an unwise law—it is a law.” And a former law professor who is now the president of the United States should obey the law. Will expanded on that point in his Sunday column, titled “Obama’s Illegal War,” in the old-fashioned print edition of the Washington Post.
Full Britannica column here.
How Fannie and Fed Caused the Crash
Economist John B. Taylor reviews Reckless Endangerment by Gretchen Morgenson and Joshua Rosner:
The book focuses on two agencies of government, Fannie Mae and the Federal Reserve. The mutual support system is better explained and documented in the case of Fannie, the government-sponsored enterprise that supported the home mortgage market by buying mortgages and packaging them into marketable securities which it then guaranteed and sold to investors. The federal government supported Fannie Mae — and the other large government-sponsored enterprise, Freddie Mac — by implicitly backing up those guarantees and by providing favorable regulatory treatment and protection from competition. These benefits enabled Fannie to rake in excess profits — $2 billion in excess, according to a 1995 study by the Congressional Budget Office.
The book then gives examples where Fannie’s executives — Jim Johnson, CEO from 1991 to 1998 [and also top aide to Vice President Walter Mondale, campaign manager for Mondale, head of vice presidential selection for both John F. Kerry and Barack Obama, and chairman of both the Kennedy Center and the Brookings Institution], is singled out more than anyone else — used the excess profits to support government officials in a variety of ways with plenty left over for large bonuses: They got jobs for friends and relatives of elected officials, including Rep. Barney Frank, who is tagged as “a perpetual protector of Fannie,” and they set up partnership offices around the country which provided more jobs. They financed publications in which writers argued that Fannie’s role in promoting homeownership justified federal support. They commissioned work by famous economists, such as Nobel Prize-winner Joseph Stiglitz, which argued that Fannie was not a serious risk to the taxpayer, countering “critics who argued that both Fannie and Freddie posed significant risks to the taxpayer.” They made campaign contributions and charitable donations to co-opt groups like the community action organization ACORN, which “had been agitating for tighter regulations on Fannie Mae.” They persuaded executive branch officials — such as then Deputy Treasury Secretary Larry Summers — to ask their staffs to rewrite reports critical of Fannie. In the meantime, Countrywide, the mortgage firm led by Angelo Mozilo, partnered with Fannie in originating many of the mortgages Fannie packaged (26 percent in 2004) and gave “sweetheart” loans to politicians with power to affect Fannie, such as Sen. Chris Dodd of Connecticut. The authors write that “Countrywide and Fannie Mae were inextricably bound.”
But don’t ignore the role of the Fed:
Early on the authors take on the Boston Fed, and in particular its research director Alicia Munnell, for using a study documenting racial discrimination in mortgage lending to justify the relaxation of credit standards, even though the study’s findings were found to be flawed by other researchers. And they criticize the very low interest rate set by the Fed when Alan Greenspan was chairman and Ben Bernanke was a Fed governor, saying it “contributed mightily to the mortgage lending craze,” adding that “with the Fed on a rate-cutting rampage, demand for adjustable-rate mortgages with relatively low initial interest costs had become incendiary.”
If you watched the HBO movie Too Big to Fail, you wouldn’t get much sense that government actions — easy money, the homeownership mania, HUD and Fannie’s push to lend to non-creditworthy borrowers — played a major role in the housing bubble and subsequent financial crisis. Sounds like this book would make good supplemental reading for viewers, along with Johan Norberg’s Financial Fiasco.
Obama as Reluctant Deregulator: Four Months Later
When President Obama, following his midterm “shellacking” at the polls, announced his belated conversion to the cause of regulatory relief, I was skeptical. I noted that, despite the reputation of OIRA chief Cass Sunstein as a brilliant scholar with an openness to cost-benefit analysis rare on the Left, the first two years of the Obama administration had been marked by a tremendous ramping up of regulatory burdens on the economy, both in areas of new legislation (ObamaCare, Dodd-Frank) and in new agency rulemakings gearing up from the “ultras” — ardently pro-regulatory appointees like Margaret Hamburg at FDA, Lisa Jackson at EPA, and David Michaels at OSHA. I also observed that in boasting of its deregulatory accomplishments, the administration chose an exceedingly minor example (saccharin’s reclassification as not being a hazardous waste) in which no one important seemed to have been pushing on the opposite side. That suggested that the Obama White House might lack the stomach to press deregulation when doing so might actually offend pro-regulation constituencies.
Yesterday the administration announced the results of its comprehensive review in which more than two dozen agencies looked at existing regulations to identify areas where burdens could be reduced [WaPo, AEI Enterprise, Wayne Crews/CEI]. As Cary Coglianese notes at the Penn Program on Regulation’s RegBlog,
[M]any of the initial rules agencies have proposed to put under the microscope seem underwhelming. Frequently they are what might be considered “paperwork” rules, with agencies hoping to find ways to streamline reporting and make more information available online. The Treasury Department, for example, plans to review an Internal Revenue Service regulation so as to correct instructions about where to file for a tax refund or credit. The Commerce Department’s plan identifies, among other things, the rule governing the “application number” and “filing date” for patents.
There’s nothing wrong with streamlining paperwork, of course, but it’s a cause that even “ultras” can get behind. Indeed, one of the largest line-item claims of savings comes from an OSHA plan “to finalize a proposed rule that would harmonize U.S. hazard classifications and labels with those used by other nations, which is expected to result in an annualized $585 million in estimated savings for employers.” As Coglianese notes, “few of the rules listed in the plans as targets for review are the salient regulatory issues of the day.” Tellingly, one of the most significant retreats on a regulatory issue in recent weeks — the EPA’s decision to pull back expensive new regulations on boiler emissions — is not boasted about, perhaps because the retreat is intended to be only temporary.
I do note with a ripple of “great minds think alike” satisfaction that Sunstein did advance, as one of his central examples of a new administration accomplishment, the EPA’s very belated recognition that spills of milk on dairy farms are not “oil spills” requiring elaborate containment and remediation measures. I had been writing about that one in this space for a while, and had specifically cited it in January as an example of the sort of craziness the Obamanauts should be trying to address if they want to be taken seriously on the issue of deregulation.
Raw Onions Served As Snack in D.C. Schools
Fifty-three elementary schools in the District of Columbia take part in the federal government’s Fresh Fruit and Vegetable Program, a recently ramped-up federal initiative that dishes out millions to local schools to get them to use raw produce as snacks. According to the Washington Examiner, it was by inadvertence that students at Turner Elementary School were given raw green onions (scallions) as a snack the other day when they were supposed to be given zucchini slices instead. Children were observed making “yuck” faces before throwing the offerings in the trash or, in some cases, resourcefully tucking them into their bags to take home for their parents to cook.
Are we sure this is the best way to keep students from sneaking Doritos into the building?
On a less tear-inducing note, the school board in the town of Darien, Conn. has unanimously voted to pull out of the federal school lunch program. Finance director Richard Huot cited current and forthcoming federal mandates that, among other things, ban chocolate milk, discourage reliance on refillable sports water bottles, and require schools to push salads in preference to longtime favorites such as fruit. The regulations also drive up labor costs, Huot said, and make the lunch program more complex to run generally. “The children in this town are savvy consumers,” Huot said. “You put a lousy product on the table; they are not going to buy it.”
As a famously affluent suburb, Darien can afford to turn down the bribes — sorry, subsidies — that come with doing it Washington’s way. Isn’t it a shame so many other communities feel they have no real financial choice but to go along?
“If He Approve, He Shall Sign It…”
The Patriot Act extension passed by Congress this week did not become the law of the land. It is void and without effect.
So may argue some future defendant whose conviction rests on evidence gotten under Patriot Act powers during the extended period Congress sought to establish in the bill it passed this week.
President Obama is at a meeting in Europe, so he had the bill signed by auto-pen. Representative Tom Graves (R-GA) has written a letter inquiring of the president whether he was presented the bill and truly intended to sign it.
Article I, Section 7 of the Constitution says:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it…
Is presentment and signing a quaint formality? Something to put aside in light of modern technology and time-constraints? Or is it an important step in the law-making process, to be executed quite literally without deviation from past practice?
The answer lies mostly in consideration of what a signature is, and what it does. I looked into signatures, among many other identifiers and security techniques in my book, Identity Crisis.
Wikipedia has a definition of “signature” that’s good enough: “A signature is a handwritten (and sometimes stylized) depiction of someone’s name, nickname, or even a simple ‘X’ that a person writes on documents as a proof of identity and intent.” Key words: identity and intent.
Atlas Bugged: Why the “Secret Law” of the Patriot Act Is Probably About Location Tracking
Barack Obama’s AutoPen has signed another four-year extension of three Patriot Act powers, but one silver lining of this week’s lopsided battle over the law is that mainstream papers like The New York Times have finally started to take note of the growing number of senators who have raised an alarm over a “secret interpretation” of Patriot’s “business records” authority (aka Section 215). It would appear to be linked to a “sensitive collection program” referenced by a Justice Department official at hearings during the previous reauthorization debate—one that would be disrupted if 215 orders were restricted to the records of suspected terrorists, their associates, or their “activities” (e.g., large purchases of chemicals used to make bombs). Naturally, lots of people are starting to wonder just what this program, and the secret interpretation of the law that may be associated with it, are all about.
All we can do is speculate, of course: only a handful of legislators and people with top-secret clearances know for sure. But a few of us who closely monitor national security and surveillance issues have come to the same conclusion: it probably involves some form of cellular phone geolocation tracking, potentially on a large scale. The evidence for this is necessarily circumstantial, but I think it’s fairly persuasive when you add it all up.
First, a bit of background. The recent fiery floor speeches from Sens. Wyden and Udall are the first time widespread attention has been drawn to this issue—but it was actually first broached over a year ago, by Sen. Richard Durbin and then-Sen. Russ Feingold, as I point out in my new paper on Patriot surveillance. Back in 2005, language that would have required Section 215 business record orders to pertain to terror suspects, or their associates, or the “activities” of a terror group won the unanimous support of the Senate Judiciary Committee, though was not ultimately included in the final reauthorization bill. Four years later, however, the Justice Department was warning that such a requirement would interfere with that “sensitive collection program.” As Durbin complained at the time:
The real reason for resisting this obvious, common-sense modification of Section 215 is unfortunately cloaked in secrecy. Some day that cloak will be lifted, and future generations will ask whether our actions today meet the test of a democratic society: transparency, accountability, and fidelity to the rule of law and our Constitution.
Those are three pretty broad categories of information—and it should raise a few eyebrows to learn that the Justice Department believes it routinely needs to get information outside its scope for counterterror investigations. Currently, any record asserted to be “relevant” to an investigation (a standard so low it’s barely a standard) is subject to Section 215, and records falling within those three categories enjoy a “presumption of relevance.” That means the judges on the secret Foreign Intelligence Surveillance Court lack discretion to evaluate for themselves whether such records are really relevant to an investigation; they must presume their relevance. With that in mind, consider that the most recent report to Congress on the use of these powers shows a record 96 uses of Section 215 in 2010, up from 22 the previous year. Perhaps most surprisingly though, the FISC saw fit to “modify” (which almost certainly means “narrow the scope of”) 42 of those orders. Since the court’s discretion is limited with respect to records of suspected terrorists and their associates, it seems probable that those “modifications” involved applications for orders that sweep more broadly. But why would such records be needed? Hold that thought.
Fast forward to this week. We hear Sen. Wyden warning that “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry,” a warning echoed by Sen. Udall. We know that this surprising and disturbing interpretation concerns one of the three provisions that had been slated for sunset. Lone Wolf remains unused, so that’s out, leaving roving wiretaps and Section 215. In the context of remarks by Sens. Feingold and Durbin, and the emphasis recently placed on concerns about Section 215 by Sen. Udall, the business records provision seems like a safe bet. By its explicit terms, that authority is already quite broad: What strained secret interpretation of it could be surprising to both legislators and the general public, but also meet with the approval of the FISC and the Office of Legal Counsel?
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