Fixing FISA

Congress is beginning to have a debate about surveillance, oversight and secrecy – the one good thing to come out of  Edward Snowden’s continuing adventure.  Of course, it is hard to debate when you can’t talk about a lot of things in public or even to your fellow members, so I was very interesting in reading Judge James G. Carr’s op-ed in yesterday’s New York Times.  His suggestion is one that Congress and the Obama Administration should be able to debate and legislate without revealing anything that needs to be kept secret.  Judge Carr is identified as a senior federal judge for the Northern District of Ohio,[who] served on the Foreign Intelligence Surveillance Court from 2002 to 2008.

CONGRESS created the Foreign Intelligence Surveillance Court in 1978 as a check on executive authority. Recent disclosures about vast data-gathering by the government have raised concerns about the legitimacy of the court’s actions. Congress can take a simple step to restore confidence in the court’s impartiality and integrity: authorizing its judges to appoint lawyers to serve the public interest when novel legal issues come before it.

The court is designed to protect individual liberties as the government protects us from foreign dangers. In 1972, the Supreme Court ruled that the Nixon administration had violated the Fourth Amendment by conducting warrantless surveillance on a radical domestic group, the White Panthers, who were suspected of bombing a C.I.A. recruiting office in Ann Arbor, Mich. In 1975 and 1976, the Church Committee, a Senate panel, produced a series of reports about foreign and domestic intelligence operations, including surveillance by the F.B.I. of suspected communists, radicals and other activists — including, notoriously, the Rev. Dr. Martin Luther King Jr.

The Foreign Intelligence Service Act set up the FISA Court in response. To obtain authority to intercept the phone and electronic communications of American citizens and permanent residents, the government must only show probable cause that the target has a connection to a foreign government or entity or a foreign terrorist group. It does not have to show, as with an ordinary search warrant, probable cause that the target is suspected of a crime.

The problem is that the court only hears from one side.  I wrote recently that the real danger to our civil liberties is the FISA Court and I hoped that people will come up with ways to try to fix it.  Judge Carr has one suggestion at which Congress should take a serious look.

Critics note that the court has approved almost all of the government’s surveillance requests. Some say the court is virtually creating a secret new body of law governing privacy, secrecy and surveillance. Others have called for declassified summaries of all of the court’s secret rulings.

James Robertson, a retired federal judge who served with me on the FISA court, recently called for greater transparency of the court’s proceedings. He has proposed the naming of an advocate, with high-level security clearance, to argue against the government’s filings. He suggested that the Privacy and Civil Liberties Oversight Board, which oversees surveillance activities, could also provide a check. I would go even further.

In an ordinary criminal case, the adversarial process assures legal representation of the defendant. Clearly, in top-secret cases involving potential surveillance targets, a lawyer cannot, in the conventional sense, represent the target.

Congress could, however, authorize the FISA judges to appoint, from time to time, independent lawyers with security clearances to serve “pro bono publico” — for the public’s good — to challenge the government when an application for a FISA order raises new legal issues.

Having lawyers challenge novel legal assertions in these secret proceedings would result in better judicial outcomes. Even if the government got its way all or most of the time, the court would have more fully developed its reasons for letting it do so. Of equal importance, the appointed lawyer could appeal a decision in the government’s favor to the Foreign Intelligence Surveillance Court of Review — and then to the Supreme Court. No opportunity for such review exists today, because only the government can appeal a FISA court ruling.

A combination of a people’s advocate and public release of decision summaries would remove some of the mystery and secrecy.

One obvious objection: judges considering whether to issue an ordinary search warrant hear only from the government. Why should this not be the same when the government goes to the Foreign Intelligence Surveillance Court?

My answer: the court is unique among judicial institutions in balancing the right to privacy against the president’s duty to protect the public, and it encounters issues of statutory and constitutional interpretation that no other court does or can.

For an ordinary search warrant, the judge has a large and well-developed body of precedent. When a warrant has been issued and executed, the subject knows immediately. If indicted, he can challenge the warrant. He can also move to have property returned or sue for damages. These protections are not afforded to FISA surveillance targets. Even where a target is indicted, laws like the Classified Information Procedures Act almost always preclude the target from learning about the order or challenging the evidence. This situation puts basic constitutional protections at risk and creates doubts about the legitimacy of the court’s work and the independence and integrity of its judges. To avert these dangers, Congress should amend FISA to give the court’s judges the discretion to appoint lawyers to serve not just the interests of the target and the public — but those of the court as well.

079 Capitol Hill United States Congress 1993

079 Capitol Hill United States Congress 1993 (Photo credit: David Holt London)

We are already deep in uncharted waters and we need to take steps to try to protect ourselves.  It serves no purpose if we lose our civil liberties while protecting them.  I don’t have a great deal of hope that Congress can actually get itself together enough to act, but there has been some glimmer of bipartisanship about this issue.  Let us hope someone writes Judge Carr’s ideas into a bill so it can be introduced.

The Lord of the Coin or another take on the trillion dollar coin.

Ruben Bolling’s take on the magic coin.

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And so, once again Joe Biden causes trouble.

Petitions: Serious and not

The Obama administration created a place where people can petition for actions they want the government to take.  This is in a great American tradition as the Declaration of Independence was in a very real sense a petition to the British monarchy listing all the issues the founding fathers had with the King.  There are petitions for secession, for and against gun control (there has been a response to those), building a Death Star – you name it there is probably a petition.  When the process was started, I doubt that anyone expected so many and varied petitions.  So what happens to them?

Donovan Slack explains on Politico

So what happens to such petitions and will they actually get a response from the White House?

A quick look at program statistics on the White House web site shows that there are 159 open petitions, 45 of which that have reached the 25,000-signature threshold required for response.

Some of those have been waiting several months since reaching the threshold, including two asking about required labeling on genetically modified foods (created in September 2011 and April 2012), two asking the administration to denounce support of former Japanese “comfort women” (created in May and June), one asking that access to journal articles based on taxpayer-funded research be free (created in May) and another asking that foreign aid be pulled from Vietnam unless it returns land to former owners (created in August).

Some petitions don’t receive a response at all. The White House reserves the right to remove petitions that do not fall within its guidelines, for example those that ask for actions outside the power of the federal government. (A petition asking for the removal of Dallas Cowboys owner Jerry Jones was removed in December.)

The White House has responded to 87 petitions since the program’s inception in September 2011, according to the site. Many of the responses read like dry talking points, others are basically a “no comment.” But a few appear to have had some impact. For example, the White House issued its response to petitions on Internet privacy (SOPA and PIPA) at the same time the House was considering legislation on the issue. The White House came out against legislation, helping lead to its demise. And there was of course the one that prompted the release of the White House beer recipe.

While the White House has yet to comment on the various petitions for secession, Calvin Trillin has made his comment.

A Short Message to Those Who Have Signed Petitions Asking to Secede From the Union

We do respect your point of view.
We’re glad to see the back of you.

Two recent petitions have caught my attention.  The first is a serious one about Westboro Church; the second, is the matching set of petitions to deport or not CNN’s Piers Morgan.  Lets look at Morgan first.

British Citizen and CNN television host Piers Morgan is engaged in a hostile attack against the U.S. Constitution by targeting the Second Amendment,” the authors write. “We demand that Mr. Morgan be deported immediately for his effort to undermine the Bill of Rights and for exploiting his position as a national network television host to stage attacks against the rights of American citizens.”

Last Tuesday, Morgan interviewed Larry Pratt, executive director of Gun Owners for America, and called him “dangerous,” “stupid,” and “an idiot.” The next night he told John Lott, the author of More Guns, Less Crime that he needed “to stop repeating a blatant lie about what happens in other countries.”

This prompted a petition to deport Morgan and a counter petition by some British Citizens requesting that we keep him because they don’t want him.  I’m sure the White House response will involve a discussion of the First Amendment.  The counter petition doesn’t have many signatures so maybe when I finish writing this, I’ll log in and sign it.

The Westboro Chuch petition, however, is a serious matter.

Members of the Westboro Baptist Church chant anti-Marine Corps slogans and stand on American flags during their protest. | AP Photo

The church is composed mostly of members of one extended family who believe that every event is caused by tolerance for homosexuality.  Politico reports

More than 260,000 people have signed a petition to the White House asking for  it to label the notorious Westboro Baptist Church a hate group.

The petition aimed at the church best known for picketing military funerals  and other events with signs declaring “GOD HATES FAGS,” is believed to be the  most popular cause ever on the White House’s “We the People” petition site. Four  other petitions targeting the church’s tax-exempt status have attracted nearly  200,000 additional signatures. All five petitions have passed the number  required for a response from President Barack Obama’s administration.

“This group has been recognized as a hate group by organizations, such as The  Southern Poverty Law  Center, and has repeatedly displayed the actions typical of hate  groups,” the petition reads. “Their actions have been directed at many groups,  including homosexuals, military, Jewish people and even other Christians. They  pose a threat to the welfare and treatment of others and will not improve  without some form of imposed regulation.”

Westboro Church picketed funerals in Sandy Hook probably for no reason other than wanting publicity.  I thing that getting the IRS to look at tax exemption is a good way to go.  They, like Piers Morgan, have the right to free speech but they don’t have to be tax exempt.  I wonder if they claim travel expenses as a business deduction.

English: We the People, White House petition p...

English: We the People, White House petition platform logo (Photo credit: Wikipedia)

Photograph of Westboro Church member:  AP

The Recession Effect

Two stories in today’s papers, one in the Boston Globe and the other in the New York Times, combined with a sudden flurry of foreclosure activity at the office reminds me that the lagging  job creation numbers are not just statistics for economists and government agencies to toss around.  The effects are real and are clearly taking their tolls.

This from the Boston Globe this morning

Requests for reduced alimony and child support payments have surged, and the emotional toll of lost jobs, slashed pay, and uncertain futures appears to be driving an increase in other family problems.

“People are increasingly agitated, and it’s incredibly emotional,’’ said Paula M. Carey, chief justice of the Probate and Family Court. “They are out of work, struggling to keep their homes, and all of that takes a toll. Every day, in every court, you can see it.’’

The same economic turmoil that has prompted more families to seek judicial relief has also made courts less equipped to provide it. Steep budget cuts have left the family courts roughly 40 percent understaffed. There have been cutbacks in court-appointed guardians and probation officers who try to mediate disputes before they are brought to judges, increasing judges’ caseloads and creating delays. Financial constraints have forced more clients to represent themselves, which has tended to further slow proceedings.

You have to worry about the impact on children and teenagers.

One day last week in Courtroom 2 of Boston’s Edward W. Brooke Courthouse, more than 50 cases came before Judge Joan Armstrong – an unrelenting succession of single mothers pleading for more support, some fathers saying they can’t pay, and couples grimly agreeing their marriages were beyond repair. Some had lawyers with expensive suits and leather briefcases by their side; others stood alone. Most traded accusations. Few found common ground.

Looming over nearly every case was the heavy weight of financial distress, and parent after parent described for the judge an economic situation hanging by a thread. As the day began, stacks of thick folders were piled high on the judge’s desk, and in quick succession a mother won permanent guardianship of her daughter, a 19-year-old with Down syndrome; an elderly woman in a shawl, after gazing imploringly at the ceiling as though for guidance, won her motion to extend by a year a restraining order against her former husband; a woman requested a hearing on reducing her child support payment.

What I really fail to comprehend is the Republican position that we can’t increase the deficit to create jobs and to fund a jobs program.  Don’t they understand that putting people back to work not only helps reduce the stress on them, but also means that they help support the economy by paying taxes?  Putting funds into the Highway Trust Fund and other transportation projects as my congressman, Mike Capuano, has proposed would allow states to proceed with infrastructure programs and hire people.  The current stimulus programs are a start, but much more is needed.

More than half of the nation’s unemployed workers have borrowed money from friends or relatives since losing their jobs. An equal number have cut back on doctor visits or medical treatments because they are out of work.

Almost half have suffered from depression or anxiety. About 4 in 10 parents have noticed behavioral changes in their children that they attribute to their difficulties in finding work.

Joblessness has wreaked financial and emotional havoc on the lives of many of those out of work, according to a New York Times/CBS News poll of unemployed adults, causing major life changes, mental health issues and trouble maintaining even basic necessities.

These are the results of a new poll announced today in the New York Times.

With unemployment driving foreclosures nationwide, a quarter of those polled said they had either lost their home or been threatened with foreclosure or eviction for not paying their mortgage or rent. About a quarter, like Ms. Newton, have received food stamps. More than half said they had cut back on both luxuries and necessities in their spending. Seven in 10 rated their family’s financial situation as fairly bad or very bad.

But the impact on their lives was not limited to the difficulty in paying bills. Almost half said unemployment had led to more conflicts or arguments with family members and friends; 55 percent have suffered from insomnia.

This graphic illustrates some of the results.

And of course many of the long term unemployed can’t afford health insurance – even the COBRA payments – so they are unable to take care of the health issues resulting from the stress and anxiety creating even more stress. 

Nearly half of respondents said they did not have health insurance, with the vast majority citing job loss as a reason, a notable finding given the tug of war in Congress over a health care overhaul. The poll offered a glimpse of the potential ripple effect of having no coverage. More than half characterized the cost of basic medical care as a hardship.

I realize that the Obama administration is trying to talk banks into lending to small businesses which create jobs, but without a real public jobs program to put people to work so they can begin spending and paying taxes I am afraid that foreclosures will continue increase, domestic violence will rise,  and the overall level of violence will continue to increase.

One very interesting result of the poll was who got the blame.

In terms of casting blame for the high unemployment rate, 26 percent of unemployed adults cited former President George W. Bush; 12 percent pointed the finger at banks; 8 percent highlighted jobs going overseas and the same number blamed politicians. Only 3 percent blamed President Obama.

Those out of work were split, however, on the president’s handling of job creation, with 47 percent expressing approval and 44 percent disapproval.

The Republicans may seem to have forgotten who allowed the economic crisis to happen, but it appears that the unemployed have not.  But clearly, the Obama administration and Congress need to act quickly.

Jobs and the Recovery

Very interesting blog entry today from Floyd Norris, Chief Financial Editor of the New York Times.   We all know that the last unemployment figures showed a rise to 10.2% and that President Obama keeps trying to explain that jobs are the last thing to return after a recession.  But Norris argues that maybe things have already started to turn.

The economic reactions over the weekend to Friday’s employment report all started from the assumption that things grew much worse in October. The unemployment rate leaped to 10.2 percent from 9.8 percent. Another 190,000 jobs vanished.

Actually, none of that happened.

In reality, the government report says unemployment rates remained steady at 9.5 percent. And the number of jobs actually rose, by 80,000. And the number of jobs for college-educated Americans rose more than in any month in the last six years.

If those were the numbers in the articles, we would hear about the economy stabilizing, and talk about the Obama stimulus plan starting to have the intended effect.

Why the disparity in numbers?  Because of something called “seasonal adjustment”.

…For some reason, October is the month with the largest seasonal adjustment down in jobs. So the increase in the unemployment rate does not reflect people actually losing jobs. It reflects the belief that seasonal factors should have added more jobs than they did.

So if there were no seasonal adjustment factor, jobs would have actually increased.

Studying the unadjusted numbers provides some indication that the hiring is starting to improve for better jobs. The number of jobs for college graduates, according to the household survey, rose 755,000 in October, before seasonal adjustments. That is the third-largest increase since the government started counting those figures, in 1992. (It trails increases of 895,000 in February 2002 and 755,000 in October 2003.)

On the other hand, the number of jobs fell for those with less education. If this report does indicate that the job recession is ending, it is an end that is providing immediate benefits for the educated, not for many of the people who most need help.

So when the stimulus funding really gets out on the street, probably in the spring, employment for construction jobs should increase.  In the meanwhile, we need to make sure unemployment benefits remain available.

 

Obama reversal on Defense of Marriage Act?

I have written about several of the lawsuits filed asking for repeal of the Defense of Marriage Act or DOMA.  One was filed by Massachusetts Attorney General Martha Coakley.  Then Bill Clinton came out and said it was time for repeal.  Now it appears that the Obama administration is taking some positive steps toward repeal. 

According to stories by Josh Gerstein for Politico.com and the Washington Post, the newest brief filed by the Obama Justice Department contains language that makes opposition explicit.

President Obama made clear Monday that he favors the repeal of the Defense of Marriage Act, and intends to ask Congress to repeal the 13-year-old law that denies benefits to domestic partners of federal employees and allows states to reject same-sex marriages performed in other states.

Obama has long opposed the law, which he has called discriminatory. But his Justice Department has angered the gay community, which favored Obama by a wide margin in last year’s election, by defending the law in court. The administration has said it is standard practice for the Justice Department to do so, even for laws that it does not agree with.

The Justice Department did so again Monday in its response in Smelt v. United States, a case before a U.S. District Court in California. But, for the first time, the filing itself made clear that the administration “does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.”

According to Gerstein

In a brief filed Monday morning in a lawsuit challenging the validity of DOMA, the Justice Department put on the record that the administration favors repeal of the statute — a position that was omitted from a controversial legal filing the department made in June. DOJ also explicitly rejected arguments put forward by conservative groups that the importance of marriage for child rearing is a legitimate justification for DOMA’s ban on federal recognition of same-sex unions.

On the child-rearing issue, Simpson wrote:

The government does not contend that there are legitimate government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman. … Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. … The United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to  defend DOMA’s constitutionality 

This is a great development.  I hope that Obama does not wait too long for Congress to act before he issues a repeal by Executive Order.

Some Thoughts on President Obama’s First Month

I realize I’ve been neglecting my blog recently, but my excuse is that I had the flu last week.  I know that having a flu shot is supposed to prevent this, but as the nurse practitioner said, “It probably made a 5 to 7 day event into a 3 to 5 day one.”  Didn’t make me feel better, but at least I only missed 3 days of work.  Have to be there to help the City of Boston spend the stimulus bucks, you know.

So, how is the new President – and he is new even though it seems forever already – doing?  As Eugene Robinson wrote in the Washington Post on February 17

This is a presidency on steroids. Barack Obama’s executive actions alone would be enough for any new administration’s first month: decreeing an end to torture and the Guantanamo prison, extending health insurance to more children, reversing Bush-era policies on family planning. That the White House also managed to push through Congress a spending bill of unprecedented size and scope — designed both to provide an economic stimulus and reorder the nation’s priorities — is little short of astonishing.

I do wish that the Recovery Act (aka Stimulus Bill) had fewer tax cuts and more infrastruture, education, and arts money, but as Chris Hayes wrote in The Nation

Whatever its shortcomings, there is a lot of good stuff in the bill. As just one example: my parents were visiting this weekend and the whole time my dad, who works in public health in poor neighborhoods, was receiving promising updates on  his blackberry about just how much potential funding there would be for some of their programs.

As I said, there is money to spend.  So what of the Republican argument that taking the money means that there will be the expectation that programs – which the states can’t afford – will continue after the two years of the Recovery Act?  The main point of contention seems to be extention of unemployment benefits.  I’m afraid I don’t undertand the argument.  Hopefully in two years, other parts of the Recovery Act will have created jobs and there will no longer be a need to have massive unemployment benefits.

I have to admit that I worry about the Obama administration’s reluctance to consider prosecuting Bush administration officials.  I worry that we will somehow backslide on things like extraordinary rendition and the right of the prisoners to come to trial.  But then I am reassured by articles like Alexander Zaitchik’s recent post on AlterNet titled 5 Great Progressive Moves by Obama You Might Have Missed.  Zaitchik lists high speed rail funding, arms control, review of faith-based initiatives, broadband, and a reform minded drug czar.

Beyond all these concrete actions is political savvy.  I believe that Obama’s getting out of Washington to sell the Recovery Act and explain it to ordinary people in a setting where people were not pre-screened for their political views, was a smart move and may have saved it as Congress saw the reactions of those in the audience.  While it didn’t get any Republican votes, I think it helped with some of the Blue Dog Democrats.  We also saw his attempts to be bipartisan which were rebuffed by the Republicans.  As Chris Hayes points out

On the politics side of the ledger, Ben Smith notes Obama’s emphasis on the tax cuts in the bill. I’m not necessarily a fan, though politically it’s true that every single Republican member of congress can now be accused of “Voting against the biggest tax cut in history” come next election.” Clearly, this hasn’t escaped the White House’s notice.