Tag Archives: George W. Bush
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Fixing the problem of NSA spying

There’s been lots of talk about the problem of NSA spying the last few days, and some partisan braying about it.  But the real question is: what do we do now?  The reality is that the majority of Congress stands overwhelmingly in favor of these programs, and Presidents of both parties have supported these programs, which makes it highly unlikely that they’re going to be stopped completely.  What are practical things that can be done to ensure that the privacy impacts of these programs are limited while still giving the government the data it needs to investigate potential terrorist plots?

Realistic policy options fall into two categories:  1.) reduce what data can be collected and 2.) improve transparency.

Reducing the data the NSA can collect

Changing the data the NSA can collect would require Congressional action to modify the relevant statutes in place (principally Section 215 of the PATRIOT Act), and three primary ideas for accomplishing this have come forward:

  1. Allow the data collection to continue but require a warrant based on probable cause to access any of the records for a U.S. citizen.  This approach was introduced as legislation by Sen. Rand Paul (R-Kentucky), and would raise the legal standard for accessing the collected data.
  2. Limit data collection to eliminate purely domestic calls.  Raised as an alternative to the 2008 FISA Amendments Act, this would limit the collection of data to calls where at least one of the callers was foreign, except in cases where a definitive connection to terrorist activity could result in a warrant to acquire that data.
  3. Limit data collection to a suspicion-based standard.  Instead of doing a dragnet of all calls made, data collection could only occur records based on a reasonable suspicion of terrorist activity — of someone suspected of being a terrorist or spy, someone called by a terrorist suspect, or potentially somewhat broader searches, such as calls made from a building where terrorist activity is suspected of taking place.

Improve transparency of current programs

If none of the options above are taken to limit the data collected, perhaps the least we could expect is a better understanding of what sort of data collection is being done in our name.  Here are some of the options available to accomplish this:

  1. Declassify Foreign Intelligence Surveillance Court (FISC) decisions interpreting Section 215 of the PATRIOT Act.  Introduced today as a bill in the Senate by a bipartisan group of eight Senators, including Minnesota Sen. Al Franken, this bill would compel the release of these decisions, so the legal logic could be evaluated and debated.  President Obama could also choose to do this via executive order.
  2. Release more details about how these programs work.  Can the NSA listen in on calls?  If so, when and why?  What is the standard for accessing the collected call metadata?  How long is the data stored?  Has the data ever been accessed for “routine” police work, or is it access limited to solely terrorism/national security related issues?  How are the programs audited for potential abuse?
  3. Permit court challenges towards these programs to move forward.  Multiple lawsuits have been filed against the government over warrantless wiretapping and data collection, but all have failed to reach the trial phase.  This is because the government (under both the Bush and Obama Administrations) have fought these cases on a standing issue.  What this means is that the government has alleged that the persons bringing the lawsuit can’t prove that their data was collected or their calls listened to, so they can’t prove they were harmed by the activity.  With no harm, they don’t have standing to sue in court.  The Verizon allegations — which cover millions of Americans — may make it impossible for the Department of Justice to continue these sorts of claims going forward.  If the Administration feels they are on solid legal ground with these programs, they should allow these cases to go to trial and win them definitively.

None of these six ideas provide a definitive firewall between government and your personal data, but they are practical approaches that could work incrementally to improve the current situation.  Getting them accomplished, though, will require application of political pressure on politicians in both parties.  Calls and e-mails to your Senators and Representatives will help keep the ball moving forward.

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Congress, take back the wheel: NSA collection of phone numbers isn’t new

The news headlines are all aflutter this morning about the Guardian UK’s publication of a Foreign Intelligence Surveillance Court order requiring Verizon to turn over on an ongoing basis the metadata (phone numbers, time and length of calls, location, etc. — but no subscriber information) of all calls where at least one party was in the United States.

The practical impact of such a request is that the federal government has a record of every phone call made on the Verizon network, with enough information to identify who the caller is in at least 95% of the cases.  (Based on the metadata, it’s rather easy to figure out the identity of the caller.)

The court order in this case was signed by U.S. District Court Judge Roger Vinson, a Reagan appointee.

The sad reality, though, is that these programs that collect huge amounts of data aren’t new. They’ve just been largely ignored by the media — in both the Bush and Obama Administrations.  We know, for instance, that the federal government began similar activities shortly after 9/11 and the program in its current form has been ongoing since 2006.  The government’s ongoing efforts to keep such programs as secret as possible have thwarted attempts by the media and civil liberties groups to get to the bottom of the story.

What we see today is the result of a sad bipartisan abdication of responsibility by the United States Congress.  In the wake of 9/11, they passed the PATRIOT Act, which gave the executive branch broad powers to conduct such surveillance.  The PATRIOT Act passed Congress with broad bipartisan support in 2001 (Senate vote was 98-1, House vote was 357-66.), and was reauthorized in 2005, 2009, and 2011.

(As an aside, the powers in the PATRIOT Act were far broader than those requested by President Clinton in the wake of the Oklahoma City bombing.  Congressional Republicans were nearly universally opposed to Clinton’s plan and never let it out of committee.  Six years later, Republicans represented just two of the 67 Congressional “no” votes for the PATRIOT Act.)

Section 215 of the PATRIOT Act gives the federal government broad powers to ask for such information.  Unlike a traditional warrant where the standard is probable cause that the target was involved in a crime, the government only needs to show “reasonable grounds” that the requested information was “relevant to an authorized investigation . . . to obtain foreign intelligence information. . . or to protect against international terrorism or clandestine intelligence activities.”

Once the 2006 revelations of the first iteration of this data collection program came out, Congress did take action:  to make it perfectly clear that they saw the program as fully legal.  In 2007 and 2008, Congress passed bills that placed the program under the supervision of the Foreign Intelligence Surveillance Act, expanded its reach to cover purely domestic calls, and gave telecom companies retroactive immunity from damages resulting from the breach of privacy.  Reauthorized in 2011, these powers are now scheduled to sunset in 2017 if no Congressional action was taken.

After 9/11, a terrorism act of unprecedented boldness and effectiveness, it may have made some sense to give the executive branch the expansive powers of the PATRIOT Act to collect information to adequately respond to the Al-Qaeda threat.  Nearly 12 years later, though, we have a clearer picture of the threats we face and the tools we need to respond to them.  We also have gained perspective on what we may be giving up in order to secure the notion of security.

It’s time for Congress — politicians on both sides of the aisle need to work together on this one — to take back the wheel from the executive branch on these sorts of issues and craft some reasonable limits that prevent wholesale collection of data from individuals of the nature seen in this example.  This is Congress’s job, and we should expect them to get it done.

And while we’re at it, let’s not also forget who else has this data in question:  Verizon.  Now, there’s little we can do to prevent them from collecting said information other than not use their service or talk to someone who does, but what we can do is make sure that they — and other telecom companies — have to follow strict standards about how it is used.  Companies are using this information already, selling it to other companies and using it to market their own products to you.  Congress should be vigilant to make sure your data is not abused and your privacy not encroached upon.

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The certainty myth

The recent fight over the debt ceiling has featured a lot of talk about “certainty”.  Specifically, how a lack of certainty about government regulation and the perceived excess spending by the federal government.

This has been a favorite line of conservatives to explain the economy’s weak performance.  How can companies grow with health care reform ramping up and Dodd-Frank waiting to get implemented and the Obama Administration advocating expiration of some of the Bush tax cuts?

And — if you don’t really think about it too deeply — it all sounds perfectly logical.  But, in fact, it’s not how business really operates.  Sure — all other things being equal — a stable regulatory environment is better for business than not.

But when in American history have businesses been assured of stability?  Business is not, nor has it ever been stable or predictable.  And it should never be.

Besides, we know that the real uncertainty that is causing businesses not to hire and not to expand is uncertainty of demand — not of government regulation.  Consumers have retrenched since the 2008 housing crisis and subsequent recession — doubling their personal savings.

When you have an economy that is 70% driven by consumer demand, a 2-3% reduction in spending is significant.  In fact, we see that the economy is still about $1 trillion in demand behind pre-recession levels, and some economists peg the total lost demand since 2008 at nearly $6 trillion.  You see now why a $800 billion stimulus package didn’t make everything sunshine-and-roses — it was far too small to turn the economy around on its own.

At a time when we’re fighting three wars and are still recovering from the worst recession in 70 years — one that was largely caused by bad actors in our corporate community — it’s foolish to be a business and assume stability and even more foolish to be a citizen or a legislator and take steps to immunize business from the aftereffects of problems that they helped to create.

The Clean Air Act and Clean Water Act — instituted in its modern form by Republican Richard Nixon — were a response to corporate failures to be good citizens.  Sarbanes-Oxley, instituted in 2002 by Republican George W. Bush, was a response to numerous failures of corporations to live by the normal rules of the market.  These were bipartisan reforms designed to protect Americans from corporate malfeasance.

Today, such normal logic has been turned on its head.

The Dodd-Frank bill, a relatively mild response to the Wall Street meltdown that tanked the economy languished in Congress for nearly two years before being passed on essentially a party-line vote.  Banks that were “too big to fail” before are now bigger thanks to federal action that allowed them to vacuum up the other banks of similar size.

Modest consumer protections — such as the establishment of the Consumer Financial Protection Bureau — that would require such radical steps as simplifying mortgage disclosure forms so you don’t have to be an attorney to understand them, improving transparency of credit card agreements, and trying to provide deeper understanding to consumers of how credit scores work are attacked as “big government” trying to control your life.

The one surefire way to get this economy up and running again is to stop putting the needs of corporations and the wealthiest among us ahead of the needs of the larger population.  We need to stimulate demand among the working classes.  How do we do that?  Investment in education.  Investment in infrastructure.  Investment in health care.  Investment in new technology.

This is not the time for forced austerity.  We are never going to solve our current fiscal problems without growing this economy.

Now is the time for selected and targeted investment in those things that will drive growth in the future and protect the vulnerable in our society, while aggressively weeding out and cutting other programs.  We can’t allow special interests to go to the front of the line and cripple our economic recovery at the expense of the American people.

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Republicans driving the car over a cliff

When he was White House Chief of Staff, Rahm Emanuel famously said “Never allow a crisis to go to waste.”  Republicans in Washington D.C. have certainly learned that rule, and learned it well.  So much so that they are in the process of manufacturing a crisis in order to create the opportunity to get reforms they feel are necessary.

Let’s leave aside for the purposes of this post the sheer absurdity of the notion that after having passed a budget that increases the amount of the national debt over the debt ceiling that Congress then has to re-approve spending to that level.  What Congressional Republicans are doing right now is even more reckless than how Minnesota Republicans handled budget negotiations over the last few months.

President Obama has offered significant spending cuts and pared back his tax increases to the bare minimum.  In fact, what President Obama has offered as part of these negotiations is well to the right of Alan Simpson-Erskine Bowles Bipartisan Deficit Commission, the Senate  “Gang of Six”,  and the Alice Rivlin-Pete Domenici Deficit Commission.

President Obama has offered a plan that is almost 4:1 spending cuts to revenue increases.  The revenue increases consist of eliminating loopholes, subsidies, and deductions — many of which Republicans have supported in the past.  The tax code should not be used to pick winners and losers, but rather to ensure a level playing field and to provide the necessary resources for government to perform its functions.  They would be accompanied by a lowering of rates overall to make the changes generate far less revenue than they otherwise would.  This used to be a core Republican value.

Normal people would jump at such a deal — a chance for real entitlement reform ($650 billion in savings over the next 10 years), real cuts in discretionary spending ($1 trillion over the next 10 years, taking such spending back to pre-WWII levels), and rational tax reform that generates about 20% of the overall solution.

But today’s Republicans aren’t normal.  They are devoted to “no new tax” ideology at any cost.  They are willing to drive the car off the cliff as opposed to forcing their wealthy and corporate patrons — who have benefitted the most over the past decade while the labor market and median incomes for the rest of us have stagnated — to chip in just a little bit more.

If Congressional Republicans can’t come to an agreement on the debt ceiling and the country goes into default, they will effectively raise the taxes of every American through increased interest rates.  Our stock market will feel the impact of lost confidence of investors.  There could even be a run on the banks.  This is not a risk we should even be considering, but Republicans are still — even at this late date — still holding out for complete capitulation from the President.

We shouldn’t also fail to point the rank hypocrisy of many of the Congressional Republicans at the heart of this crisis today.  During the Bush Administration, these same leaders voted seven times to raise the debt ceiling — from $5.95 trillion to $11.315 trillion.  They also voted for policies that destroyed our financial future.  As the New York Times pointed out over the weekend, if you take out the impacts of the recession and only look at policy changes, what happened in the Bush Administration caused far more damage than anything that has happened under President Obama (even extending out the impacts of the Obama policy changes to 2017).  Note that the cost of the Bush tax cuts alone is more than all of the policy changes under President Obama combined.

It’s time to stop the false equivalency.  There is a very real difference between Democrats and Republicans — both in Washington D.C. and in St. Paul.  Democrats aren’t willing to put their partisan goals ahead of the well-being of the American people.  Republicans are seemingly content to “take hostages” — including the American economy — to fulfill their ideological goals.

Compromise isn’t a dirty word.  Compromise isn’t weakness.  Compromise is necessary in a divided government, and it’s time Republicans started getting back to doing the serious work of the people instead of being led around by their special interest groups.


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