14 November 2009

14 November 2009

Today’s Tabbloid PERSONAL NEWS FOR [email protected]

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‘Has Any of This Made Us Safer?’ [‘Cato at Liberty]

The FISA Amendments: Behind the Scenes [Cato at Liberty]

NOV 13, 2009 08:40P.M.

NOV 13, 2009 04:53P.M.

In the November 6th Washington Post, Petula Dvorak lamented the effect of REAL ID compliance on women who have changed their names. The Department of Homeland Security is about to give out blanket waivers to states across the country who have not complied with REAL ID requirements — again. But some states have been making it harder to get licenses because of the national ID standards they still think are coming.

I’ve been poring over the trove of documents the Electronic Frontier Foundation has obtained detailing the long process by which the FISA Amendments Act—which substantially expanded executive power to conduct sweeping surveillance with little oversight—was hammered out between Hill staffers and lawyers at the Department of Justice and intelligence agencies. The really interesting stuff, of course, is mostly redacted, and I’m only partway though the stacks, but there are a few interesting tidbits so far. As Wired has already reported, one e-mail shows Bush officials feared that if the attorney general was given too much discretion over retroactive immunity for telecoms that aided in warrantless wiretapping, the next administration might refuse to provide it. A couple other things stuck out for me.

“I doubt the most notorious terrorists of our time — the Sept. 11 hijackers, Timothy McVeigh — would have been stopped by these new DMV requirements,” Dvorak writes. ”All these laws have done is make us more harried, more paranoid and more red-faced than ever.”

First, while it’s possible they’ve been released before and simply not crossed my desk, there are a series of position papers—so rife with underlining that they look like some breathless magazine subscription pitch—circulated to Congress explaining the Bush Administration’s opposition to various proposed amendments to the FAA. Among these was a proposal by Sen. Russ Feingold (D-WI) that would have barred “bulk collection” of international traffic and required that the broad new intelligence authorizations specify (though not necessarily by name) individual targets. The idea here was that if there were particular suspected terrorists (for instance) being monitored overseas, it would be fine to keep monitoring their communications if they began talking with Americans without pausing to get a full-blown warrant—but you didn’t want to give NSA carte blanche to just indiscriminately sweep in traffic between the U.S. and anyone abroad. The position paper included in these documents is more explicit than the others that I’ve seen about the motive for objecting to the bulk collection amendment. Which was, predictably, that they wanted to do bulk collection:

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ATR Supports H.R. 3905, “The Estate Tax Relief Act of 2009” [Americans for Tax Reform] NOV 13, 2009 05:43P.M. Americans for Tax Reform sent the following letter today to Congressman Kevin Brady (R-TX): On behalf of Americans for Tax Reform, I am pleased to support H.R. 3905, “The Estate Tax Reli...

• It also would prevent the intelligence community from conducting the types of intelligence collection necessary to track terrorits and develop new targets. • For example, this amendment could prevent the intelligence community from targeting a particular group of buildings or a geographic area abroad to collect foreign intelligence prior to operations by our armed forces.

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So to be clear: Contra the rhetoric we heard at the time, the concern was not simply that NSA would be able to keep monitoring a suspected terrorist when he began calling up Americans. It was to permit the “targeting” of entire regions, scooping all communications between the United States and the chosen area.

14 November 2009

The latter would certainly fit a pattern we saw again and again under the Bush administration: Break the law, inducing a legal crisis, then threaten bloody mayhem if the unlawful program is forced to abruptly halt—at which point a nervous Congress grants its blessing.

One other exchange at least raises an eyebrow. If you were following the battle in Congress at the time, you may recall that there was a period when the stopgap Protect America Act had expired—though surveillance authorized pursuant to the law could continue for many months—and before Congress approved the FAA. A week into that period, on February 22, 2008, the Attorney General and Director of National Intelligence sent a letter warning Congress that they were now losing intelligence because providers were refusing to comply with new requests under existing PAA authorizations. A day later, they had to roll that back, and some of the correspondence from the EFF FOIA record makes clear that there was an issue with a single recalcitrant provider who decided to go along shortly after the letter was sent.

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The Week in Government Failure [Cato at Liberty] NOV 13, 2009 03:28P.M. Over at Downsizing Government, we focused on failures in the following departments and agencies this week: • Export-Import Bank: Call it the “Boeing Bank”

But there’s another wrinkle. A week prior to this, just before the PAA was set to expire, Jeremy Bash, the chief counsel for the House Permanent Select Committee on Intelligence sent an email to “Ken and Ben,” about a recent press conference call. It’s clear from context that he’s writing to Assistant Attorney General Kenneth Wainstein and General Counsel for the Director of National Intelligence Ben Powell about this press call, where both men fairly clearly suggest that telecoms are balking for fear that they’ll no longer be immune from liability for participation in PAA surveillance after the statute lapses. Bash wants to confirm whether they really said that “private sector entities have refused to comply with PAA certifications because they were concerned that the law was temporary.” In particular, he wants to know whether this is actually true, because “the briefs I read provided a very different rationale.” In other words, Bash—who we know was cleared for the most sensitive information about NSA surveillance—was aware of some service providers being reluctant to comply with “new taskings” under the law, but not because of the looming expiration of the statute. One of his correspondents—whether Wainstein or Powell is unclear—shoots back denying having said any such thing (read the transcript yourself) and concluding with a terse:

• HUD: Federal Housing Administration woes continue and housing subsidies for the dead • Transportation: High-speed rail lobbyists squabble over taxpayer loot Also, in addition to losing more money, Fannie Mae and Freddie Mac lose their inspector general.

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The Missing Leg of Immigration Reform [Cato at Liberty] NOV 13, 2009 03:16P.M. In a speech this morning in Washington, Homeland Security Secretary Janet Napolitano said the Obama administration remains committed to enacting real immigration reform. In a key passage in her remarks, she said reform must contain three essential components:

Not addressing what is in fact the situation on both those issues (compliance and threat to halt) on this email.

Let me be clear: when I talk about “immigration reform,” I’m referring to what I call the “three-legged stool” that includes a commitment to serious and effective enforcement, improved legal flows for families and workers, and a firm but fair way to deal with those who are already here. That’s the way that this problem has to be solved, because we need all three aspects to build a successful system.

In other words, the actual compliance issues they were encountering would have to be discussed over a more secure channel. If the issue wasn’t the expiration, though, what would the issue have been? The obvious alternative possibility is that NSA (or another agency) was attempting to get them to carry out surveillance that they thought might fall outside the scope of either the PAA or a particular authorization. Given how sweeping these were, that should certainly give us pause. It should also raise some questions as to whether, even before that one holdout fell into compliance, the warning letter from the AG and the DNI was misleading. Was there really ever a “gap” resulting from the statute’s sunset, or was it a matter of telecoms balking at an attempt by the intelligence community to stretch the bounds of their legal authority?

The phrase “improved legal flows” is rather vague, but it points toward some kind of expanded visa program to allow future workers to enter the country legally. Our current immigration system offers no legal channel for anywhere near a sufficient number of foreign-born workers to enter the country legally to fill the lower-skilled jobs our economy creates in

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14 November 2009

times of normal growth.

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I’ve made the argument for expanded legal immigration in a recent oped, and in a Free Trade Bulletin when the Senate last debated reform in 2007.

Who Will Protect the Women? [Cato at Liberty] NOV 13, 2009 02:34P.M.

After a promising start, Secretary Napolitano spent most of the rest of her speech touting how much has been done on the enforcement side, and almost nothing about how we can expand opportunities in the future for legal immigration as an alternative to illegal immigration.

As I mentioned here yesterday: [W]hen some people in Washington hear that nationbuilding in Afghanistan is not a precondition to making America safer, or that prolonging our presence undermines America’s security, the argument for remaining then shifts to preserving the security and human rights of the people of Afghanistan.

Without that crucial third leg, Congress will just be repeating the twolegged failure of the 1986 Immigration Reform and Control Act.

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For example, Sen. Barbara Mikulski, (D-MD), a member of the Appropriations Subcommittee on Foreign Aid and Dean of the Senate Women, said last April, “The United States should do everything it can to encourage Afghanistan to respect the basic rights and welfare of women and children.”

The Hypocrisy of “Well-Fed Activists” [Cato at Liberty“WellFed Activists”]

But Malalai Joya, an Afghan woman elected to her country’s Parliament, says in yesterday’s Mercury News (via GG):

NOV 13, 2009 02:41P.M. Speaking at a food security conference in Milan, Nestlé chairman Peter Brabeck-Letmathe today criticized “well-fed activists” whose protests and lobbying activities have, in his opinion, held back the adoption of food technologies that could help the starving poor:

As an Afghan woman who was elected to Parliament, I am in the United States to ask President Barack Obama to immediately end the occupation of my country. Eight years ago, women’s rights were used as one of the excuses to start this war. But today, Afghanistan is still facing a women’s rights catastrophe. Life for most Afghan women resembles a type of hell that is never reflected in the Western mainstream media.

It is disheartening to see how easily a group of wellintentioned and well-fed activists can decide about new technologies at the expense of those who are starving. Nestlé has been subject to intense criticism in recent years, primarily over its strategies to sell infant formula in developing countries, but I think Mr. Brabeck-Letmathe is spot-on here.

In 2001, the U.S. helped return to power the worst misogynist criminals, such as the Northern Alliance warlords and druglords. These men ought to be considered a photocopy of the Taliban. The only difference is that the Northern Alliance warlords wear suits and ties and cover their faces with the mask of democracy while they occupy government positions. But they are responsible for much of the disaster today in

Penn & Teller made a similar, if more forcefully put, point in the last few seconds of this excellent video (warning: language may be offensive to some).

Afghanistan, thanks to the U.S. support they enjoy.

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14 November 2009

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Gitmo Prisoners to NY for Trial [Cato at Liberty]

The Odd Couple [Cato at Liberty]

NOV 13, 2009 01:27P.M.

NOV 13, 2009 01:04P.M.

Today, Attorney General Eric Holder announced that he plans to move five prisoners from Guantanamo to New York for a civilian trial. Holder says the prisoners masterminded the 9/11 attacks and will now face the death penalty.

Well, here’s an interesting pair. Today’s Washington Post contains an op-ed on climate change and trade, written jointly by Fred Bergsten, director of the Peterson Institute of International Economics, and Lori Wallach, director of Global Trade Watch at Public Citizen.

Some journalists and commentators are calling this move a wholesale repudiation of the Bush policy. Actually, no. Holder also announced that five other Gitmo prisoners will soon be put on trial before a military commission. Thus, the Bush framework essentially remains in place. The Executive will decide on a case-by-case basis who will be held prisoner (overseas, Gitmo, here in the USA), and who will be tried in civilian court, and who will be tried before a military commission.

The authors readily admit, quite early in the piece, that they are usually on opposing sides of the trade debate. The Peterson Institute scholars are well-known and well-respected advocates of freer international trade. Global Trade Watch, and Wallach in particular? Not so much. She has called NAFTA a “disastrous experiment” and has a special section on her website calling on people to Take Action! on trade (example: by hosting a house party to celebrate the tenth anniversary of ” the historic 1999 Seattle protest victory of people power over corporate rule.”)

By way of background, these prisoner controversies (habeas corpus, waterboarding, trial by commissions) fall into three basic categories: (1) detention/imprisonment; (2) treatment (including interrogation practices); and (3) trial issues. Today’s announcement concerns trials.

Yet here they are, claiming to agree on “a suprising number of aspects of the climate change debate and on the related need to overhaul global trade negotiations.” I am still trying to make sense of the op-ed, because it lurches around a bit, and to work out exactly how deep the agreement of these strange bedfellows really is. But for now, let me comment briefly on what I think is the main thrust of their op-ed: a proposal for launching a new round of trade talks.

If there is to be a trial for persons accused of terrorism, it ought to be in civilian court. Courts martial are for persons actually in the U.S. military (the Fort Hood shooter). Military “commissions” are a hybrid that is nowhere mentioned in the Constitution. It is mistake for Obama to retain the commission system because it is (a) dubious to begin with, and (b) can be whimsical with respect to the people that end up there. Even the former Gitmo prosecutor has voiced his objections to the system!

The authors point out that a new treaty on global warming would “require new trade rules in intellectual property, services, government procurement and product standards.” So, hey, why not combine that into trade talks?The Obama Round (as if Obama-worship has not gone far enough) “would include, as a centerpiece, addressing these potential commercial and climate trade-offs and updating the negotiating agenda.”

Bin Laden and his cohorts murdered some 3,000 people on 9/11. It is lamentable that they did not all go down fighting at Tora Bora. But we do have to have policies in place for captures. Boiled down, the U.S. should follow the Geneva Convention for prisoners and, for trials, the procedures set out in the Constitution.

That, quite frankly, would be fatal for the World Trade Organization. Developing countries, now in the majority in the WTO, are in general very resistant to the idea of bringing extraneous issues into its agenda (witness constant struggles over linking trade to labor and environment issues, to name just two). More to the point, we already have a round in progress. The Doha round has been struggling over old-fashioned trade concerns like tariffs and subsidies (remember them?) since launching in 2001. The risks of overburdening the WTO agenda are, in my opinion, far greater than the possible benefits. It’s fairly clear to me why Wallach would advocate a new round full of poison pills, but not so clear why Bergsten would put his name to such a suggestion.

For additional Cato work on this subject, go here and here.

It’s not even clear to me that such an approach would “help the environment.” Why the optimism about the possibility of agreement under the auspices of the WTO when negotiations in forums designed explicitly and solely for the purpose of halting climate change have been unsuccessful? ( Speaking of which, expectations for a breakthrough at the

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upcoming Copenhagen conference on climate change are being rapidly scaled back, with talk of an “interim” agreement — likely some anodyne political statement — rather than the final deal that environmental groups had hoped for. The international diplomacy circus rolls on, though: conferences are planned for Mexico and South Africa — talk about a carbon footprint! — next year.)

14 November 2009

federal stimulus bill. “If Floridians aren’t sure what Charlie Crist believes, it’s okay - he’s not either,” said Club President Chris Chocola. “In February, Crist campaigned for the stimulus, signed letters of support, gave speeches at rallies, and gave President Obama a hug on national television to show the world how much he loved the $787 billion dollar debt bomb Congress dropped on our children.”

For my take on the climate change and trade debate, the solution to which does not involve launching an Obama Round, see here.

For months now, Crist’s opponent in next year’s Republican Senate primary election, former Florida House Speaker Marco Rubio, has criticized Crist’s stimulus stumping, offering Floridians a real alternative to meddling, big government schemes like those that created the recession in the first place. Rubio’s message of economic freedom and limited government is resonating in Florida, and polls show the race has been narrowing all year.

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We’re Looking for a Few Good Geeks [Cato at Liberty] NOV 13, 2009 12:09P.M. Take comfort, college and grad students: No longer need you settle for spending next summer backpacking around Europe having adventures. Instead, apply for a Google Policy Fellowship, and come work on tech policy issues with Jim Harper and myself in scenic Washington, DC.

In response, Governor Crist last week told CNN he “didn’t endorse” the stimulus, but the ploy backfired, as Crist’s enthusiastic support for the bill was in the public record. So yesterday Crist re-clarified his position on the stimulus, again, telling the Palm Beach Post, “I support it … it’s helping our economy.”

The extremely competitive ten-week program comes with a $7,000 stipend, and is a chance to do serious policy work on issues like privacy and surveillance, telecommunications regulation, and other things you read about on Slashdot. Applications are due December 28, so get

In fact, since the $787 billion spending bill was passed, the national unemployment rate has risen to 10.2 percent, despite the president’s promise that the bill would keep unemployment below 8 percent. Three million jobs have been lost, including almost 200,000 in Florida alone.

cracking!

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“Marco Rubio understands that big government doesn’t solve economic problems, it creates them, and he will bring real change to the United States Senate. Charlie Crist in the Senate won’t change anything, except his mind… apparently several times.”

Crist and the Stimulus: For, Against, For [The Club for Growth]

PAID FOR BY CLUB FOR GROWTH PAC AND NOT AUTHORIZED BY ANY CANDIDATE OR CANDIDATE’S

NOV 13, 2009 12:07P.M.

COMMITTEE. 202-955-5500.

Crist: For the Stimulus Before He Was Against It… Now For it Again A week after telling CNN he “didn’t endorse” $787B bill, Fla. Gov. admits, “I support it”

WASHINGTON - Club for Growth PAC today responded to Florida Governor Charlie Crist’s second (in as many weeks) re-clarification of his position on February’s $787 billion

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14 November 2009

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On CNBC’s Kudlow Report Tonight [Larry Kudlow’s Money Politic$]

The Hubris of the TrillionDollar Man [Cato at Liberty]

NOV 13, 2009 11:45A.M.

Former President George W. Bush

NOV 13, 2009 10:49A.M.

said Thursday that America must resist the “temptation” to allow the government to take over the private sector, taking a subtle shot at his Democratic successor by warning that too much state intervention and protectionism will squelch the economic recovery… “As the world recovers, we will face a temptation to replace the risk-and-reward model of the private sector with the blunt instruments of government spending and control. History shows that the greater threat to prosperity is not too little government involvement, but too much,” said Mr. Bush.

This evening at 7pm ET: OBAMA GOES TO CHINA NBC’s Steve Handelsman reports.

Um, what? The president who • expanded federal spending by more than a trillion dollars a year, before his disastrous last hundred days

IS THE U.S. MESSING UP THE WORLD’S MONETARY SYSTEM? An in-depth look at the message of the dollar, gold prices and stocks.

• federalized education

Panel:

• laid out “a smorgasbord of handouts and subsidies for virtually every energy lobby in Washington.”

*Zachary Karabell, CNBC Contributor/River Twice Research President *Andy Busch, BMO Capital Markets; CNBC Contributor *Steve Moore, Sr Economics Writer for the Wall Street Journal Editorial Board; “The End of Prosperity” Co-Author

• protected the steel, agriculture, and textile industries from foreign competition • backed farm bills with lavish subsidies for producers

IS OBAMA REALLY GOING TO LOWER DEFICIT?

• created the biggest new entitlement since Lyndon Johnson

*Keith Boykin, CNBC Contributor; Former Clinton White House Aide *Tony Fratto, CNBC Contributor; Fmr. White House Deputy Press Secretary

• bailed out Bear Stearns, Fannie Mae, Freddie Mac, AIG, Bank of America, Citigroup, and dozens of other banks

MADOFF PROGRAMMERS ARRESTED CNBC’s Scott Cohn reports.

• provided government support for mortgages, credit cards, auto loans and other consumer debt, and

9/11 MASTERMIND TO BE TRIED IN NYC Tim Brown, 9/11 Firefighter Survivor will join us.

• bailed out Chrysler and General Motors in direct defiance of Congress’s refusal to do so

SHOULD GITMO BE CLOSED?

now says that his successor is about to “replace the risk-and-reward model of the private sector” with “too much government involvement”? Shouldn’t President Bush be doing penance in a monastery somewhere, rather than embarrass the free-market cause by pretending that he

*Ann Coulter, Syndicated Columnist; “Guilty” Author *Christopher Amolsch, Criminal Defense Lawyer

wasn’t the biggest-government president in decades?

Please join us. The Kudlow Report. 7pm ET. CNBC.

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14 November 2009

Ryan Grim at Huffington Post reports that the Federal Housing Finance Agency, which is in charge of Fannie and Freddie, has used a legal technicality to rid itself of its inspector general:

ATR and CFA Support the “Protect Taxpayers from ACORN Act” [Americans for Tax Reform]

There is no independent auditor overseeing the federal agency responsible for some $6 trillion in home mortgages, because the Department of Justice’s Office of Legal Counsel ruled that the agency’s inspector general didn’t have authority to operate, according to internal memos obtained by the Huffington Post. The ruling came in response to a request from the Federal Housing Finance Agency itself — which means that a federal agency essentially succeeded in getting rid of its own inspector general.

NOV 13, 2009 10:33A.M. Earlier this week, CFA and ATR sent a letter in support of the “Protect Taxpayers from ACORN Act” to Sen. Johanns, and are urging all Members of the Senate to co-sponsor and otherwise suppor...

The timing is curious: Fannie and Freddie are burning through cash at a staggering rate. Fannie reported a loss of $18.9 billion in the third quarter of 2009, four billion more than it lost in the second quarter. FHFA requested $15 billion from Treasury to plug the hole. What’s it spending money on? “The company continued to concentrate on preventing foreclosures and providing liquidity to the mortgage market during the third quarter of 2009, with much of our effort focused on the Making Home Affordable Program,” boasts the press release accompanying the announcement of the massive loss. “As of September 30, 2009, approximately 189,000 Fannie Mae loans were in a trial period or a completed modification under the Home Affordable Modification Program.” Those are the precise programs that Kelley was looking into when his own agency shut him down.

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Government Housing Adventures [Cato at Liberty] NOV 13, 2009 10:06A.M. The Wall Street Journal is reporting that Fannie Mae and Freddie Mac, which have already consumed $112 billion in taxpayer bailouts, may have additional losses if they can’t recoup claims from struggling private mortgage insurers. From the Journal: Fannie Mae has about $109.5 billion of mortgage-insurance coverage in force, which represents 4 percent of all singlefamily home loans it owns or guarantees. Freddie Mac had $63.4 billion in mortgage insurance and $12.2 billion in bond insurance. Private mortgage insurance is required for any home loan with less than a 20 percent down payment, and the policies typically cover 12 percent to 35 percent of losses in the event of a default, according to HSH Associates, a financial publisher. Mortgage insurers have been forced to pay up as loan defaults escalate.

See here for essays on the problems associated with the federal government’s housing market interventions. Also check out Johan Norberg’s book, Financial Fiasco: How America’s Infatuation with Homeownership and Easy Money Created the Economic Crisis.

Escalating loan defaults are also likely to bite taxpayers through the Federal Housing Administration, which covers 100 percent of losses. The FHA is in deep trouble: The reduction in private insurance coverage has contributed to the rise in the volume of loans backed by the Federal Housing Administration, a government mortgage insurer that backs loans with as little as 3.5 percent down payments. It could be required to ask for a federal subsidy for the first time in its 75-year history if the housing market deteriorates further. Who is looking out for taxpayers here?

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Kudlow Jobs Summit [Larry Kudlow’s Money Politic$] NOV 13, 2009 09:55A.M. We debated President Obama’s jobs summit plans on last night’s Kudlow Report. Joining me were Robert Reich, former Labor Secretary and Casey Mulligan, University of Chicago economics professor.

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14 November 2009