Posted By Julian Sanchez On March 9, 2010 (7:20 pm) In Voices and Choices

Here’s how it was supposed to be. Under his administration, candidate Barack Obama explained in 2007, America would abandon the “false choice between the liberties we cherish and the security we provide.” There would be “no more National Security Letters to spy on citizens who are not suspected of a crime” because “that is not who we are, and it is not what is necessary to defeat the terrorists.”

Even after his disappointing vote for the execrable FISA Amendments Act of 2008, which expanded government surveillance power while retroactively immunizing telecoms for their role in George W. Bush’s warrantless wiretapping, civil libertarians held out hope that the erstwhile professor of constitutional law would begin to restore some of the checks on government surveillance power that had been demolished in the panicked aftermath of the September 11 attacks.

The serial betrayal of that hope reached its culmination last week, when a Democratic-controlled Congress quietly voted to reauthorize three controversial provisions of the USA Patriot Act without implementing a single one of the additional safeguards that had been under consideration — among them, more stringent limits on the national security letters (NSLs) Obama had once decried. Worse yet, the vote came on the heels of the revelation, in a blistering inspector general’s report, that Obama’s Office of Legal Counsel (OLC) had issued a secret opinion, once again granting retroactive immunity for systematic lawbreaking — and opening the door for the FBI to ignore even the current feeble limits on its power to vacuum up sensitive telecommunications records.

NSLs have been around for decades, but their scope was radically expanded by the Patriot Act and subsequent intelligence bills. They allow investigators to obtain a wide array of financial records and telecommunications transaction data without a court order — revealing the phone numbers, e-mail accounts, and Web addresses with which their targets have been in contact.

But as a detailed report released last month by the office of the inspector general (OIG) revealed, between 2003 and 2006, the FBI sought to stretch its NSL powers beyond even these ample boundaries. Investigators obtained thousands of records from telecommunications providers using a made-up process called an “exigent letter” — which essentially promised that a proper NSL would be along shortly. Among those whose records were obtained in this way were reporters for The Washington Post and The New York Times — in violation of both the law and internal regulations requiring that the attorney general approve such requests.

Still more incredibly, investigators sought records pertaining to more than 3,500 telephone numbers without any process at all, simply requesting records verbally or via scrawled Post-It notes. Many of those data requests were either unrelated to any authorized investigation or had to do with domestic criminal investigations — meaning they could not legally have been made via NSLs. Despite this, the letters would routinely, and falsely, claim that an NSL or subpoena was already being sought.

When the OIG interviewed the agents responsible, it found that “no one could satisfactorily explain their actions,” instead offering only “unpersuasive excuses.” When supervisors attempted to implement a database to track these requests, agents revolted, refusing to use the new system “because they did not want the responsibility for inputting the data,” which suggests either an extreme aversion to clerical work or an awareness that something not quite Hoyle was afoot. When information obtained by these extralegal means was later cited in warrant applications to the secret Foreign Intelligence Surveillance Court, the applicants falsely claimed that legitimate NSLs or subpoenas had been used.

All of this, the OIG report noted, constituted a gross violation of the Electronic Communications Privacy Act (ECPA), which clearly stipulates that subscriber records may only be turned over to the government pursuant to legal process. There’s an exception for genuine emergencies, as when an attack is believed to be imminent, but that exception was not invoked and would not have applied to only a tiny fraction of the putatively “exigent” cases.

Following standard practice, the OIG sent a draft copy of its report to the FBI for comment before publication. Understandably distressed by the watchdog’s finding that analysts had broken the law repeatedly and systematically over a period of years, FBI attorneys scrambled for retroactive cover. As a heavily redacted section of the report explains, they hatched a novel theory, according to which some broad class of records was actually exempt from the requirements of the ECPA, and therefore eligible to be handed over “voluntarily” by the telecoms. Even in the freewheeling days of the Bush administration, apparently, nobody had come up with this particular rationalization for evading federal privacy statutes — but it would still serve as a retroactive excuse if Obama’s Office of Legal Counsel could be persuaded to bless the new reasoning.

Shamefully, the OLC appears to have done just that in a secret opinion issued in January, just weeks before the publication of the OIG report. While it’s impossible to know the precise scope of this novel legal loophole — sufficiently clever parsing of the statutory definition of “subscriber” or “record” might generate a good deal of wiggle room — the OIG stressed that this freshly discovered power “has significant policy implications that need to be considered by the FBI, the Department, and the Congress.” It was a page straight from the John Yoo playbook: When intelligence agencies are discovered to have broken the law, simply reinterpret the law!

Though the NSL provisions were not among those slated to expire, previous OIG reports documenting widespread abuse of NSL authority had placed them at the center of the reauthorization debate, even before this latest bombshell. The Justice Department, meanwhile, had declared its openness to “modifications” of the Patriot Act to better protect civil liberties but took no overt position on the competing proposals.

Indeed, by the time the House Judiciary Committee took up the question of reauthorization in early November, legislators of both parties were venting their frustration about the scant guidance they’d gotten from the administration.

Behind closed doors, however, the administration was anything but silent. Instead of openly opposing civil-liberties reforms that had been under consideration in the Senate, The New York Times reported in October, the Obama administration opted for a kind of political ventriloquist’s routine. The Justice Department wrote a series of amendments diluting or stripping away the new protections, then laundered them through Republicans on the Judiciary Committee, who offered them up verbatim.

It’s worth taking a closer look at one such reform proposal — again, predating the latest and most damning OIG report — to get a sense of the disconnect between the administration’s public and private stances. Some legislators had wanted to require the FBI to develop “minimization procedures” for NSLs, as they do when full-blown wiretaps are employed, to ensure that information about innocents is not circulated indiscriminately and that irrelevant records are ultimately discarded. This would only bring NSLs in line with other Patriot provisions compelling production of business records, where minimization is already required, and in principle, the Justice Department is already on board with this plan: As Inspector General Glenn Fine noted in his testimony before the Senate in September, the department’s NSL working group was already laboring to develop such procedures in response to the abuses documented in previous OIG reports — but the working group had been dragging their heels for more than two years.

The task of blocking any legal requirement that the Justice Department pick up the pace fell to Rep. Dan Lungren, a Republican from California. At a House markup session in November, Lungren offered up an amendment that would strip away the minimization mandate and even argued, bizarrely, that the very concept of “minimization” was inapplicable in the NSL context. He was visibly confused when Judiciary Committee Chair John Conyers, after making a point of praising Lungren’s “scrupulous study” of the issue, pointed out that the Justice Department itself had publicly accepted the need for such procedures.

“This is the first I had heard that the Justice Department was either considering it or had not raised any objections to this,” a visibly perplexed Lungren stammered, “because it was my understanding they felt this was an inappropriate transfer of a process that is used in the electronic surveillance arena.” The talking points with which Lundgren had been supplied, it seems, had not been checked against the official assurances the department had been providing.

It seems the administration need not have troubled itself with torpedoing civil-liberties reforms one at a time. Despite the publication of the OIG’s blistering January report — which warned that the OLC’s new secret opinion “creates a significant gap in FBI accountability and oversight,” making it “critical for the Department and Congress to consider appropriate controls” — even the flaccid reforms approved by the Senate Judiciary Committee appear to have fallen by the wayside for the time being. The only silver lining for civil libertarians is that the expiring Patriot provisions have only been reauthorized for one year, meaning Congress will have to take up these issues again relatively soon.

The question, given the muted public reaction to the abuses that have already been disclosed, is why we should hope legislators will be any more willing to expend political capital resisting the intelligence community’s demands a year from now. The “choice between the liberties we cherish and the security we provide” may be a false one, but in the current political climate, it appears to be an easy one as well.

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Just say snow – saving taxpayers millions
Posted By Doug Bandow On February 15, 2010 (7:43 pm) In Featured, Voices and Choices

For the first time in memory, the federal government has closed for three straight days. “Snowmaggedon” has shut down Washington, D.C. and its suburbs. With the third storm within a week hitting the region, causing white-out conditions, even Uncle Sam can’t function.

In theory the government closure is costing all of us. Some 230,000 D.C. area employees stayed home, costing an estimated $300 million “in lost productivity per day,” according to federal officials. But is the shutdown really hurting the public?

Using the term “productivity” in the same sentence as “federal government” is a dubious exercise. No doubt, in the sense of performing a task efficiently, the Feds can be productive. Just watch how quickly and completely the IRS attempts to clean out the average taxpayer. That explains the joke about Washington’s preferred tax form of just two lines: “How much do you earn? Send it in.”

But government efficiency doesn’t mean productivity in a larger sense. That is, does government activity yield a better life for Americans? On net, the answer is no. The only problem with Snowmaggedon is that it has not affected the 85 percent of federal employees who work outside of the D.C. area.

About two million people, excluding the postal service and armed forces, work for the federal government. Most are engaged in counterproductive activity.

Start with the 652,000 work for the Defense Department. Overall, their mission is vital, one of the few necessary tasks of government. But much of what they actually do has nothing to do with protecting America.

Many U.S. troops — and the civilian employees who back up the armed forces — are tasked with defending America’s prosperous and populous allies throughout Asia and Europe. Why? The European Union has ten times the GDP of Russia; South Korea has 40 times the GDP of the North. Military personnel also engage in nation-building and other forms of what Michael Mandelbaum called foreign policy as social work. Idling employees supporting these tasks would reduce subsidies for the international welfare queens now leeching off of U.S. taxpayers and military personnel.

The Department of Veterans Affairs employs 280,000 people. Give this department its due: it may not be the most efficient bureaucracy available, but Uncle Sam has an obligation to care for America’s veterans. The number of employees could be pared by integrating the treatment of veterans into the private health system, but the special needs of vets will always require special services.

Homeland Security comes next with 171,000 personnel. It’s an important function, but does anyone believe the department, a bizarre mix of everything from customs to immigration to disaster relief, actually is keeping us safe? Are we better off because of the geniuses who decided that terrorists would surrender by forbidding people from going to the bathroom and using blankets? Who benefits when personnel dole out “emergency” aid hither and yon even to the improvident and foolish? It’s hard to know how many of this department’s employees actually do useful work.

Another 108,000 people work for the Justice Department. The agency is theoretically essential. But the bureaucracy of justice — laws, police, prosecutors, courts — should rest primarily at the state and local level. One of most significant and most dangerous expansions of national power in recent years has been the increasing federalization of the criminal law. Now you can go to federal prison if you dump fill dirt on dry land that has been defined as a “wetland.”

The department also is filled with social engineers, dedicated to using the law to reorder American society along more collectivist and multi-cultural lines. An entire division promotes the federal government’s racial spoils system and its extension to the rest of society. Then there are all of the department attorneys who spend taxpayer money defending the worst depredations of government, often in contravention of the Constitution.

Some 88,000 people work at the Treasury Department. A few folks are necessary to mind the Treasury, but most of the agency’s employees are busy supporting the outrageously lavish $3.7 trillion budget approved by Congress this year. Cut back the spending and the $2.2 trillion in taxes to be collected, and the department would shrink substantially. Reduce the Treasury bureaucracy’s other threats to liberty — foreign economic sanctions, domestic financial spying — and the workforce would shrink still further.

The Agriculture Department comes in at 82,000 employees. There may be one or two people there who perform a useful and constitutional function, but it’s hard to believe there are many more. This agency’s job is to pay off special interests and manipulate food markets. This Department should be permanently snowed in.

Next is the Interior Department with 67,000 employees. There’s no reason for Uncle Sam to own hundreds of millions of acres of land. Sell off the grazing range and timberland (technically the latter resides with the Agriculture Department, but the same principle applies). Open up nonessential park areas to energy exploration and development. Keep at most a few sensitive parklands of enormous symbolic significance — such as Yellowstone and Yosemite — in federal hands or, better yet, turn them over to environmental groups. The number of people needed in their current roles at the department is very few.

Health and Human Services is a spending behemoth, but employs “only” 64,000 people. Social services, like justice, should primarily be dispensed at the state and local level. Anyway, whatever the legitimate role of the federal government, HHS should not survive in current form. The agency incorporates a multitude of ineffective, duplicative, and overlapping programs. In general, Congress never shuts down a bad program; legislators simply add new ones. Shift back functions and revenue sources to the states, as Ronald Reagan proposed, and there’d be no need for this department.

Some 55,000 people work for the Transportation Department. There are some interstate transportation issues, but the federal government shouldn’t be funding roads and bridges in communities across America. Indeed, the agency has become one of the worst sources of political pork at the national level. If local folks want a new left hand turn lane or park bike trail, let them pay for it. Most of this department’s employees are anything but essential.

The Commerce Department employs 39,000. Another 16,000 people work at the Labor Department. Both of these agencies are special interest bureaucracies, dedicated to subsidizing businesses and labor unions. Neither should exist. There are a few legitimate functions buried within the two bureaucracies — keeping economic statistics and conducting a census for the purpose of congressional apportionment, for instance. But most of these 55,000 employees should be working at useful jobs in the private sector.

Equally useless is the Energy Department and its 15,000 workers. The department is largely a forum for dispensing subsidies to favored energy interests. It also regulates the energy industry, usually to the detriment to consumers. Politicians love to dispense favors and micromanage the economy. The Energy Department is a vehicle for doing both.

The State Department also employs 15,000 people. The agency is legitimate, but many of its functions are not. There’s no cause for foreign aid: the U.S. has spent hundreds of billions of dollars on “foreign aid” programs which have turned out to be mostly “foreign hindrance” to the recipients. State should eliminate financial transfers other than limited, emergency disaster relief. Moreover, the department should cut back oversize embassies around the world. Washington should not be attempting to sell U.S. products or micro-manage other societies. There’s no reason for full-service embassies in many nations; small consulates would do just fine.

The Departments of Housing and Urban Development and Education have 9,000 and 4,000 employees, respectively. Neither of these agencies has a legitimate federal role. Housing and education should be state and local responsibilities to the extent that government is involved at all. There certainly is no reason for the federal government to create vast systems of wealth transfer from federal taxpayers to builders, local governments, developers, universities, federal bureaucrats, home buyers, students, renters, and everyone else involved in the housing and education industries. Indeed, the financial crisis, which started from an overheated housing market, demonstrates that federal involvement can be not just wasteful, but disastrously counterproductive.

A potpourri of independent agencies employs 180,000 people. The largest single bureaucracy is the Social Security Administration, which shouldn’t exist. People should be allowed to keep their own money to invest for their own retirement. Impoverished seniors should be helped because of their need, not their age. Most of the other agencies could be similarly eliminated or streamlined.

Finally, shrink government, and cut back the 33,000 people who work for the judicial branch and 30,000 who work for Congress. These two overgrown bureaucracies demonstrate how government has grown far too large. Indeed, their expansion has helped fuel government’s overall growth. More legislators, judges, aides, and clerks all want to do more. Which means an ever bigger government.

If you believe the official estimates, the three day federal shut-down cost Americans nearly a billion dollars. But don’t worry. Although Snowmaggedon has been awful for those of us who live in the region, it likely has saved the American people billions of dollars by slowing down the waste of tax dollars and limiting the harm of regulations.

Now if we could only shut down Washington permanently.


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