$98 Billion in Improper Payments
The Obama administration and its allies in Congress want the federal government to expand its role in subsidizing health care. We are told that this expansion will restrain rising health care costs. But an OMB report yesterday that the government made $98 billion in improper payments last year — $55 billion of which came from Medicare and Medicaid — ought to raise suspicions about that claim.
According to Reuters, OMB Director Peter Orszag told reporters that the embarrassing figures from Medicare and Medicaid demonstrate the need for health care reform. I would concur if “reform” meant reducing the government’s role in health care. However, he means the opposite, which raises the question of how giving more money to an already waste-prone and bureaucratic federal health system can possibly make sense for the economy.
The administration has promised to cut down on improper payments with the aid of a new executive order. According to the Associated Press:
Under the executive order, every federal agency would have to maintain a Web site that tracks improper payments, error rates and outstanding payments. If an agency doesn’t meet targets for reducing error rates for two years in a row, the agency director and responsible official will have to directly report to OMB to explain the delinquency and new actions they will take.
Somehow I doubt this will amount to much of a deterrent. The AP also said the administration plans to impose penalties on government contractors who receive improper payments. But last month it was reported that “the Department of Defense awarded nearly $30 million in stimulus contracts to six companies while they were under federal criminal investigation on suspicion of defrauding the government.”
Democrat Tom Carper, chairman of the Senate subcommittee on federal financial management, seemed to partly understand the broader meaning of the improper payment estimates:
It goes without saying that these results would be completely unacceptable in the private sector, as they should be in government, especially at a time of record deficits…Unfortunately, these numbers may still be just the tip of the iceberg since they don’t even include estimates for several major programs, including the Medicare prescription drug plan.
Yes, Senator, which is precisely why bigger government – be it stimulus, bail outs, or health care reform – is an inferior option to letting the marketplace provide for our wants and needs.
Carper is also right about the $98 billion figure being the “tip of the iceberg.” As has been noted here before:
The Government Accountability Office estimates that the two major government health programs are currently losing a combined $50 billion annually to such payments. But that estimate probably low-balls the actual losses. Harvard’s Malcolm Sparrow, a top specialist in health care fraud, estimates that 20 percent of federal health program budgets are consumed by improper payments, which would be a staggering $150 billion a year for Medicare and Medicaid.
See this essay for more on fraud and abuse in government programs.
PATRIOT Powers: Roving Wiretaps
Last week, I wrote a piece for Reason in which I took a close look at the USA PATRIOT Act’s “lone wolf” provision—set to expire at the end of the year, though almost certain to be renewed—and argued that it should be allowed to lapse. Originally, I’d planned to survey the whole array of authorities that are either sunsetting or candidates for reform, but ultimately decided it made more sense to give a thorough treatment to one than trying to squeeze an inevitably shallow gloss on four or five complex areas of law into the same space. But the Internets are infinite, so I’ve decided I’d turn the Reason piece into Part I of a continuing series on PATRIOT powers. In this edition: Section 206, roving wiretap authority.
The idea behind a roving wiretap should be familiar if you’ve ever watched The Wire, where dealers used disposable “burner” cell phones to evade police eavesdropping. A roving wiretap is used when a target is thought to be employing such measures to frustrate investigators, and allows the eavesdropper to quickly begin listening on whatever new phone line or Internet account his quarry may be using, without having to go back to a judge for a new warrant every time. Such authority has long existed for criminal investigations—that’s “Title III” wiretaps if you want to sound clever at cocktail parties—and pretty much everyone, including the staunchest civil liberties advocates, seems to agree that it also ought to be available for terror investigations under the Foreign Intelligence Surveillance Act. So what’s the problem here?
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Anti-Sex School for Johns?
In a novel approach to punishing men who attempt to hire prostitutes, Nashville and other cities are sending first-time offenders to a one-day class where they learn from former prostitutes, health experts, psychologists and law enforcement officers about “the risks of hiring a prostitute.”
This is a waste of time.
Prostitution is “the oldest profession” for a reason: sex is a biological imperative. A day of anti-sex school will have no effect on the demand for prostitution.
The better approach is to legalize.
Under legalization, the vast majority of men would patronize legal establishments. This would also allow quality control, since competition would encourage prostitution services to certify their employees as free from STDs and above the age of consent. Legalization would help the women who serve as prostitutes by reducing the violence they suffer from johns and pimps. In particular, legalization would mainly eliminate forced prostitution.
The claim that prostitution encourages sexual assault does not pass the sniff test. Many countries, plus Nevada and Rhode Island, allow legal prostitution to varying degrees, but no evidence suggests they have a higher incidence of violence toward women.
C/P Libertarianism, from A to Z
Hate Crimes Bill Becomes an Amendment
Unsure about prospects on passing the Local Law Enforcement Hate Crimes Prevention Act as a stand-alone bill, proponents intend to attach it as an amendment to the Department of Defense Authorization bill. As I have said previously, this bill is an affront to federalism and counterproductive hater-aid.
Federal Criminal Law Power Grab
This legislation awards grants to jurisdictions for the purpose of combating hate crimes. It also creates a substantive federal crime of violent acts motivated by the “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.”
This is a federalization of a huge number of intrastate crimes. It is hard to imagine a rape case where the sex of the victim is not an issue. The same goes for robbery – why grab a wallet from someone who can fight back on equal terms when you can pick a victim who is smaller and weaker than you are?
This would be different if this were a tweak to sentencing factors.
If this were a sentence enhancement on crimes motivated by racial animus – a practice sanctioned by the Supreme Court in Wisconsin v. Mitchell – then it would be less objectionable if there were independent federal jurisdiction.
Thing is, the federal government has already done this, with the exception of gender identity, with the Federal Sentencing Guidelines (scroll to page 334 at the link):
If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.
The contrast between a sentence enhancement and a substantive crime gives us an honest assessment of what Congress is doing – federalizing intrastate acts of violence.
If Congress were to pass a law prohibiting the use of a firearm or any object that has passed in interstate commerce to commit a violent crime, it would clearly be an unconstitutional abuse of the Commerce Clause.
Minus the hate crime window dressing, that is exactly what this law purports to do.
A Terrorist We Should Have Prosecuted
Andy McCarthy makes a good point over at The Corner about Laith al-Khazali, a member of a Shiite militant group responsible for the deaths of American troops in Iraq. Al-Khazali has been released, allegedly as part of negotiations with terrorists holding British hostages. Senators Sessions and Kyl have questioned this action in a letter to President Obama.
McCarthy lays out the facts on al-Khazali here. Al-Khazali participated in a sophisticated attack on American troops in Karbala. The militants wore American uniforms and took American soldiers hostage. After leaving the site of the attack, the militants executed their prisoners.
Though I have disagreed with McCarthy on other issues, he makes a valid point here.
Al-Khazali is guilty of honest-to-goodness war crimes.
Wearing an enemy’s uniform for infiltration is permissible. Wearing an enemy’s uniform while shooting at them is perfidy, a prosecutable war crime.
Otto Skorzeny, head Nazi commando, was acquitted of perfidy after World War II. Skorzeny’s men had infiltrated American lines during the Battle of the Bulge while wearing American uniforms. They avoided firing at American troops while in our uniforms, though in two instances fired at American troops in self-defense. British commando Forest Frederick Edward Yeo-Thomas testified for the defense, saying that he had infiltrated German lines in a German uniform. W. Hays Parks provides an excellent discussion of special operations soldiers’ use of non-standard uniform and the legal boundaries of this issue here. Al-Khazali crossed the line by wearing an American uniform while firing at our soldiers.
Killing enemy soldiers after they are in your custody is also a prosecutable war crime. We prosecuted German soldiers for doing this in the Malmedy Massacre, and have prosecuted our own soldiers for killing prisoners. We have even prosecuted contractors for killing prisoners on the battlefield and during interrogation.
Al-Khazali deserves to be brought to justice. It is a shame we did not provide it.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
. . . But What Is “Cyber”?
Cyberwar. Cyberdefense. Cyberattack. Cybercommand.
You run across these four words before you finish the first paragraph of this New York Times story (as reposted on msnbc.com). It’s about government plans to secure our technical infrastructure.
When you reach the end of the story, though, you still don’t know what it’s about. But you do get a sense of coming inroads against Americans’ online privacy.
The problem, which the federal government has assumed to tackle, is the nominal insecurity of networks, computers, and data. And the approach the federal government has assumed is the most self-gratifying: “Cyber” is a “strategic national asset.” It’s up to the defense, intelligence, and homeland security bureaucracies to protect it.
But what is “cyber”?
With the Internet and other technologies, we are creating a new communications and commerce “space.” And just like the real spaces we are so accustomed to, there are security issues. Some of the houses have flimsy locks on the front doors. Some of the stores leave merchandise on the loading docks unattended. Some office managers don’t lock the desk drawers that hold personnel files. Some of the streets can be too easily flooded with water. Some of the power lines can be too easily snapped.
These are problems that should be corrected, but we don’t call on the federal government to lock up our homes, merchandise, and personnel files. We don’t call on the federal government to fix roads and power lines (deficit “stimulus” spending aside). The federal government secures its own assets, but that doesn’t make all assets a federal responsibility or a military problem.
As yet, I haven’t seen an explanation of how an opponent of U.S. power would use “cyberattack” to advance any of its aims. If it’s even possible, which I doubt, taking down our banking system for a few days would not “soften up” the country for a military attack. Knocking out the electrical system in one region of the country for a day wouldn’t let Russia take control of the Bering Strait. Shutting down Americans’ access to Google Calendar wouldn’t advance Islamists’ plans for a worldwide Muslim caliphate.
This is why President Obama’s speech on cybersecurity retreated to a contrived threat he called “weapons of mass disruption.” Fearsome inconvenience!
The story quotes one government official as follows:
“How do you understand sovereignty in the cyberdomain?” General Cartwright asked. “It doesn’t tend to pay a lot of attention to geographic boundaries.”
That’s correct. “Cyber” is not a problem that affects our sovereignty or the integrity of our national boundaries. Thus, it’s not a problem for the defense or intelligence establishments to handle.
The benefits of the online world vastly outstrip the risks – sorry Senator Rockefeller. With those benefits come a variety of problems akin to graffiti, house fires, street closures, petit theft, and organized crime. Those are not best handled by centralized bureaucracies, but by the decentralized systems we use to secure the real world: property rights, contract and tort liability, private enterprise, and innovation.
Filed under: Foreign Policy and National Security; Telecom, Internet & Information Policy
Pirates as Proto-Governments? You Bet!
I have to confess I don’t understand why Roger Pilon and Ilya Shapiro are criticizing our colleagues Ben Friedman and Peter Van Doren below. At the risk of being cast as yet another cog in the insidious piratofascist fifth column, I’d like to defend Ben and Peter.
Roger and Ilya reproach Ben and Peter for likening pirates to “pseudo-governments” and mount an impassioned defense of the nation-state as deserving a place in a different category from pirates.
On the distinction between the two, they write: “A tax, at least in principle, and most often in practice, is a charge for a service rendered –- not necessarily a wanted or an evenly distributed service, to be sure…” To be sure, indeed! There’s a term for charging people for an unevenly distributed and unwanted service. It’s called racketeering. Their description of taxation could apply quite well to a mafia.
Roger and Ilya would prefer to keep pirates and governments in two discrete categories but provide little reason why other than the above. But if they dislike the analogy, their problem is not with Ben or Peter or Noam Chomsky or St. Augustine, but rather with a body of well-developed academic literature. In particular, one of the preeminent scholars of the formation of national states, the late Charles Tilly, wrote a famous book titled Coercion, Capital, and European States that would help color in the gaps for them. The short version is that European elites came to form national states as a means for protecting their fiefdoms from other proto-states, which frequently had predatory aims, and that this process sometimes had the incidental effect of protecting the populaces that lived under state jurisdiction and could be used as means for making war against the neighbors.
Tilly also wrote a well-known essay titled “War Making and State Making As Organized Crime” that makes the following claim: “Banditry, piracy, gangland rivalry, policing, and war making all belong on the same continuum.” Tilly went on:
In retrospect, the pacification, cooptation, or elimination of fractious rivals to the sovereign seems an awesome, noble, prescient enterprise, destined to bring peace to a people; yet it followed almost ineluctably from the logic of expanding power. If a power holder was to gain from the provision of protection, his competitors had to yield. As economic historian Frederic Lane put it twenty-five years ago, governments are in the business of selling protection … whether people want it or not.
Governments and pirates both “put the victim to a choice between two of his entitlements — his freedom and his property.” In the literature on state formation, this isn’t a controversial point. I’m really surprised to see that it is for two libertarians.
Cato on Facebook
Cato on Twitter
Cato on YouTube
Cato Tweets