Stalking the Secret Patriot Act
Since this spring’s blink-and-you-missed-it debate over reauthorization of several controversial provisions of the Patriot Act, Senators Ron Wyden (D-OR) and Mark Udall (D-CO) have been complaining to anyone who’d listen about a “Secret Patriot Act“—an interpretation of one of the law’s provisions by the classified Foreign Intelligence Surveillance Court granting surveillance powers exceeding those an ordinary person would understand to be conferred from the text of the statute itself. As I argued at the time, there is an enormous amount of strong circumstantial evidence suggesting that this referred to a “sensitive collection program” involving cell phone location tracking—potentially on a mass scale—using Patriot’s “Section 215″ or “business records” authority.
Lest anyone think they’d let the issue drop, Wyden and Udall last week released a sharply-worded letter to Attorney General Eric Holder, blasting the Justice Department for misleading the public about the scope of the government’s surveillance authority. The real audience for an open letter of this sort, of course, is not the nominal recipient, but rather the press and the public. Beyond simply reminding us that the issue exists, the letter confirms for the first time that the “secret law” of which the senators had complained does indeed involve Section 215. But there are some additional intriguing morsels for the attentive surveillance wonk.
The letter focuses particularly on “highly misleading” statements by Justice Department officials analogizing Section 215 powers to grand jury subpoenas. “As you know,” Wyden and Udall write, “Section 215 authorities are not interpreted in the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are ‘analogous’ they provide the public with a false understanding of how surveillance law is interpreted in practice.”
Now, this is a little curious on its face. Ever since the original debate over the passage of the Patriot Act, its defenders have tried to claim that a variety of provisions allowing the FBI to more easily obtain sensitive records and documents were no big deal, because grand juries have long enjoyed similarly broad subpoena powers. The comparison has been specious all along: grand juries are an arm of the judicial branch designed (at leas in theory) to serve as a buffer between the power of prosecutors and the citizenry. It exists for the specific purpose of determining whether grounds for a criminal indictment exist, and is granted those broad subpoena powers precisely on the premise that it is not just another executive branch investigative agency. To argue, then, that it would make no difference if the FBI or the police could secretly exercise the same type of authority is to miss the point of how our system of government is meant to work in a pretty stunning way. It’s akin to suggesting that, since juries can sentence people to life in prison, it would be no big deal to give the president or the director of the FBI the same power.
Wyden Pressing Intel Officials on Domestic Location Tracking
Back in May, during the debates over reauthorization of the Patriot Act, Sens. Ron Wyden (D-OR) and Mark Udall (D-CO) began raising a fuss about a secret interpretation of the law’s so-called “business records” authority, known to wonks as Section 215, arguing that intelligence agencies had twisted the statute to give themselves domestic surveillance powers Congress had not anticipated or intended. At the time, I marshaled a fair amount of circumstantial evidence that, I thought, suggested that the “secret authority” involved location tracking of cell phones. Wyden backed off after being promised a secret hearing to address his concerns—but indicated he’d be returning to the issue if he remained unsatisfied. The hearing occurred early last month. Now I suspect we’re seeing the other shoe dropping.
At a confirmation hearing this morning for Matthew Olsen, who’s been tapped to head the National Counterterrorism Center, Wyden repeatedly asked the nominee whether the intelligence community “use[s] cell site data to track the location of Americans inside the country.” This comes on the heels of a letter Wyden and Udall sent to Director of National Intelligence James Clapper demanding an answer to the same question. Olsen was unsurprisingly vague, calling it a “complicated question” but allowing that there were “certain circumstances where that authority may exist.” The committee was promised a memo explaining those “circumstances” by September. That means that just about ten years after Congress approved the Patriot Act, a handful of legislators may get the privilege of learning what it does. Ah, democracy.
On a related note, one of the data points I cited in my previous post was that Wyden’s Geolocation Privacy and Surveillance Act had, somewhat unusually, been structured primarily as a reform to the Foreign Intelligence Surveillance Act (FISA), which governs intelligence spying, only later incorporating the same protections into the statutes governing ordinary criminal investigations. Especially striking was the inclusion of a specific prohibition on the use of Section 215 for location tracking, above and beyond the general warrant requirement. Since that writing, however, the bill gained Republican co-sponsorship, and dropped the changes to FISA that had previously been the bill’s centerpiece. Instead, the bill now contains an explicit exception for FISA “electronic surveillance,” in addition to the section providing for location tracking authorized by either a criminal or a FISA warrant. I’m not privy to whatever negotiations necessitated that change, but it’s hard to imagine anyone would have insisted on such a substantial restructuring if the intelligence community weren’t doing at least some location tracking pursuant to a lower standard than probable cause.
It’s not entirely clear exactly what the current version of the bill would permit, however. FISA is mentioned twice in the draft: once as part of a vague general exemption for “electronic surveillance,” and then again as one of the sources of authority for a “warrant” to do geolocation tracking. At a first pass, though, those two definitions ought to overlap, because FISA requires a secret intelligence court to issue a warrant based on probable cause (to believe the target is an “agent of a foreign power”) for government monitoring that falls within the FISA’s definition of “electronic surveillance,” in contrast with the far laxer standards that apply to the use of Section 215. It’s therefore an interesting puzzle what, exactly, that exception is meant to permit. Possibly the idea is to permit the (otherwise prohibited) “use” and “disclosure” of geolocation information already obtained without a warrant in order to target future judicially authorized “electronic surveillance,” but it’s hard to be sure. What does seem increasingly sure, however, is that location tracking is connected to the controversy over Section 215—and that Congress owes the American people a debate over the proper use and scope of that power, which it has thus far refused to have.
No Time to Debate Patriot
Back in February, Democratic leader Harry Reid promised fellow senator Rand Paul that—after years of kicking the can down the road—there would be at least a week reserved for full and open debate over three controversial provisions of the Patriot Act slated to expire this weekend, with an opportunity to propose reforms and offer amendments to any reauthorization bill. And since, as we know, politicians always keep their promises, we can look forward to a robust and enlightening discussion of how to modify the Patriot Act to better safeguard civil liberties without sacrificing our counterterror capabilities.
Ha! No, I’m joking, of course. Having already cut the legs out from under his own party’s reformers by making a deal with GOP leaders for a four-year extension without reform, Reid used some clever procedural maneuvering to circumvent Rand Paul’s pledged obstruction, slipping the Patriot extension into an unrelated small-business bill that’s privileged against filibusters. All this just to prevent any debate on amendments—the most prominent of which, the Leahy-Paul amendment, is frankly so mild that it ought to be uncontroversial. (Among other things, it modifies some portions of the statute already found constitutionally defective by the courts, and codifies some recordkeeping and data use guidelines the Justice Department has already agreed to implement voluntarily.) Apparently it’s too much to even allow these proposals to be debated and voted on.
One reason may be that a growing number of senators—most recently Ron Wyden and Mark Udall—have been raising concerns about a classified “sensitive collection program” that makes use of the sunsetting “business records provision,” also known as Section 215. They’ve joined Dick Durbin and (former Senator) Russ Feingold in hinting that there may be abuses linked to this program the public is unaware of, and that, moreover, the secret Foreign Intelligence Surveillance Court has interpreted this provision (in a classified ruling, of course) in a way that the general public would find surprising, and which goes beyond the law’s apparent intent. Intelligence operations, of course, must remain secret, but this means we are now governed by a body of secret law, potentially at odds with citizens’ understanding of the public statute—with the result that we cannot even know the true reason that common sense reforms, once endorsed unanimously by the Senate Judiciary Committee, cannot be adopted. This is—to put it very mildly—not how a democracy is supposed to function. Equally troubling, there’s strong circumstantial evidence (which I’ll outline in a separate post) that the program in question may involve large-scale cell phone location tracking and data mining—a conclusion shared by several other analysts who’ve followed the issue closely.
The one silver lining here is that, while press may not have the patience for a complicated policy debate involving byzantine intelligence law—especially now that many Democrats have decided that powers which raised the specter of tyranny under George W. Bush are unobjectionable under an Obama administration—they are always happy to cover a legislative boxing match. Perhaps, thanks to Sen. Paul’s intransigence, we’ll finally see a little sunlight shed on these potent and secret surveillance powers.
Obama Offers States ‘Flexibility’ to Adopt Single-Payer instead of ObamaCare
The New York Times reports:
Seeking to appease disgruntled governors, President Obama plans to announce on Monday that he supports amending the 2010 health care law to allow states to opt out of its most burdensome requirements three years earlier than currently permitted.
It’s significant that the president is finally acknowledging that ObamaCare is unworkable and will impose enormous burdens on the states. Or is he?
A closer look shows that the president is not lifting the burdensome requirements ObamaCare imposes on states. All he’s doing is proposing to move up, from 2017 to 2014, the date on which states can apply for federal permission to impose a different but equivalently or more coercive plan to expand health insurance coverage. Here’s what the Times says about the legislation Obama will reportedly endorse, which was introduced by Sens. Ron Wyden (D-OR) and Scott Brown (R-MA):
The legislation would allow states to opt out earlier from various requirements if they could demonstrate that other methods would allow them to cover as many people, with insurance that is as comprehensive and affordable, as provided by the new law. The changes also must not increase the federal deficit.
If states can meet those standards, they can ask to circumvent minimum benefit levels, structural requirements for insurance exchanges and the mandates that most individuals obtain coverage and that employers provide it. Washington would then help finance a state’s individualized health care system with federal money that would otherwise be spent there on insurance subsidies and tax credits.
So states can “opt out” of ObamaCare’s individual mandate if they cover as many people, with as many benefits, and as many government subsidies, as ObamaCare would. The Times quotes “administration officials” on how states might do that:
The administration officials said the so-called state innovation waivers in the Wyden-Brown bill might allow a state to experiment with ways to entice people to obtain insurance rather than requiring them to buy policies. It also might allow interested states to establish a single-payer system in which the government is the sole insurer. Gov. Peter Shumlin, a newly elected Democrat in Vermont, is pursuing such a proposal.
No such state plan can make a dent in the federal laws that are fueling the relentless growth in the cost of health care (see Medicare, the federal tax treatment of health care, etc.). Therefore, the only way that states could cover as many people as ObamaCare does is by using ObamaCare’s tactic of forcing people to buy exorbitantly costly health insurance. And if they’re not going to use an individual mandate, the only remaining option is a single-payer health care system.
President Obama’s move is not about giving states more flexibility. It’s about moving the nation even faster toward his ideal of a Canadian- or British-style single-payer health care system.
‘Geolocation’? ‘Geotagging’? What is This Stuff?
If the Army is educating recruits about “geolocation,” maybe you should know about it too. In fact, the U.S. Army primer entitled “Geotags and Location-Based Social Networking” is a pretty good basic resource. Check it out.
Understand this: Your mobile phone sends out signals to cell towers, creating records of where you go throughout your day. If it is enabled with GPS, it can produce even more precise location information.
Law enforcement and intelligence agencies are rushing to exploit the potential of geolocation data, acquiring details of people’s movements and activities that once required costly, 24/7 surveillance. Uses of these data range from tracking fugitives, to reconstructing suspects’ travels, to analyzing the movements of whole populations in search of “suspicious” behavior patterns.
Senator Ron Wyden (D-OR) is drafting legislation to set standards for government access to geolocation data under both criminal law and the Foreign Intelligence Surveillance Act. On Wednesday, January 26th, Cato will host him at an event we’ve titled “Location-Tracking Technology and Privacy.”
We’ll ask you to silence your cell phone when the program starts. You might consider turning it off on the way here…
Bennett’s Ouster: a Sign That Conservatives Have Started Paying Attention to Health Care?
Utah Republicans will not be re-nominating U.S. Senator Bob Bennett (R-UT) for another term. A principal reason appears to be their displeasure over a health care bill that Bennett teamed with Sen. Ron Wyden (D-OR) to sponsor.
Some commentators decry how Bennett’s ouster demonstrates that the Republican party has lurched to the right. That’s a reasonable interpretation if you believe, as conservative Washington Post columnist Kathleen Parker does, that Wyden-Bennett was a moderate, “market-driven” bill.
Rather than a moderate, market-driven bill, Wyden-Bennett would have created “Medicare Advantage for All.” It would have made health insurance compulsory for all Americans, and imposed stringent government controls on what type of coverage Americans must purchase. It would have imposed federal price controls on health insurance. As I explain elsewhere, once you have those elements in place, you’ve got socialized medicine.
Wyden-Bennett went further. It would have created a new government entitlement to insurance subsidies. Yes, the legislation would have given workers more insurance choices — at first. But it would have set in motion economic and political dynamics that would reduce choice and innovation, forcing all Americans into a narrow range of health plans. It effectively would have prohibited employer-sponsored health insurance, forcing even more Americans to give up their current coverage than ObamaCare would.
Wyden-Bennett was more honest than ObamaCare, in that it would have forced workers to pay their premiums to the IRS. That would have made it explicit that the mandatory premium payments are indeed a tax. Those tax payments would have appeared in the federal budget, and the American people would have been able to evaluate the law based on its actual cost. In contrast, ObamaCare’s authors assiduously worked to keep those mandatory (read: tax) payments out of the federal budget.
But on policy grounds, as National Review notes, Wyden-Bennett is more radical than ObamaCare — which itself was so radical that a majority of voters oppose it, and Democrats could just barely corral enough members to pass it.
“Okay, Cannon,” you might object, “but if Wyden-Bennett is even further to the left than ObamaCare, then why do its cosponsors include not just Bennett, but other conservative Republican senators like Lamar Alexander (TN), Mike Crapo (ID), and Judd Gregg (NH)?” Good question.
The answer: conservatives and Republicans just don’t pay as much attention to health care as they should. (Ask any leftist or free-market health policy wonk; they’ll agree.) As a result, the health care industry and the Left can easily seduce them into supporting legislation that violates their limited-government principles. Sen. Wyden pulled it off by dangling the words “choice” and “health savings accounts” in front of his Republican colleagues. Even when Republicans do pay attention to health care, it’s often after someone convinces them that a left-wing goal like universal coverage can be done in a free-market way. (Exhibit A: Mitt Romney.)
Viewed from this perspective, Bennett’s ouster is not evidence that the GOP has lurched rightward. It is a sign that conservative voters may be starting to pay attention to health care. And it gives hope that conservative politicians will do the same.
Earmark Horse Hockey
I’ve been poring over the earmark request data collected in WashingtonWatch.com’s big earmark hunting contest, and correlating it to the earmarks that made it into bills. It’s slow going, so far . . .
But the excitement level sure builds when you take a look at what the money’s going to!
Do you have your tickets to the Pendleton (Ore.) Round-Up rodeo yet? It’s going on right now!
And you stand to contribute $500,000 to Pendleton Round-Up Foundation, which puts it on, thanks to an earmark in the Senate version of H.R. 3288, The Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2010.
Senator Wyden (D-OR) requested $3.5 million for the facility where the rodeo is held. Senator Merkley (D-OR) requested a more modest $365,000.
The report for the bill has the federal government sending $500,000 to the Pendleton Round-Up Foundation for “reconstruction and construction needs of facilities which are critical to the local economy.” That’s right: The folks in Pendleton, Oregon want you to send them a half-million bucks for their “critical-to-the-local-economy” rodeo ring.
The people in Pendleton probably love their rodeo, and they’re entitled to! But it’s an open question whether they should be entitled to use your money in putting it on. For my part, I say horse hockey!
Cato on Facebook
Cato on Twitter
Cato on Google+
Cato on YouTube
