Cato: Criminal Law 2.0

Alex Kozinski, a federal appellate judge on the Ninth Circuit, has just published a powerful critique of the American criminal justice system in the Georgetown Law Journal (titled “Criminal Law 2.0”).  He begins, “much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has been undermined by experience, legal scholarship, and common sense.”

Here are the common myths that he goes on to persuasively debunk:

1. Eyewitnesses are highly reliable

2. Fingerprint evidence is foolproof

3. Other types of forensic evidence are scientifically proven and therefore infallible

4. DNA evidence is infallible

5. Human memories are reliable

6. Confessions are infallible because innocent people never confess

7. Juries follow instructions

8. Prosecutors play fair

9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt

10. Police are objective in their investigations

11. Guilty pleas are conclusive proof of guilt

12. Long sentences deter crime

Judge Kozinski continues: Because the items listed above are untrue, there are “reasons to doubt that our criminal justice system is fundamentally just….I think it’s fair to assume–though there is no way of knowing–that the number of exculpations in recent years understates the actual number of innocent prisoners by an order, and probably two orders, of magnitude.”

Read more at http://www.cato.org/blog/criminal-law-20

Cato: An Unnecessary Indictment of Dylann Roof

Today, the Justice Department indicted Dylann Roof on 33 federal hate crime charges for the killings of nine people at Emanuel A.M.E. church in Charleston last month. This indictment is entirely unnecessary.

Hard as it may be for some to imagine now, there was a long time in this country when racially and politically motivated violence against blacks was not prosecuted by state and local authorities. Or sometimes, as in the case of Emmett Till—the young boy from Chicago who was lynched in Mississippi for allegedly being too forward with a white woman—prosecution was a farce and the perpetrators were acquitted.

But in the present case, South Carolina authorities moved quickly and effectively to catch Roof and did not hesitate to charge him with nine counts of murder. This was South Carolina’s duty and their law enforcement officers have appeared to perform professionally and competently.

The Department of Justice should be more judicious with its funds and resources. The opportunity costs of a duplicative prosecution takes resources away from crimes that fall more appropriately in the federal purview, such as interstate criminal enterprises and government corruption. Today’s indictment is federal meddling in a case the state already has under control.

Read more at http://www.cato.org/blog/unnecessary-indictment-dylann-roof

Cato: Police Misconduct — The Worst Case in July

Over at Cato’s Police Misconduct web site, we have selected the worst case for the month of July.  It was the case involving Officer Eric Paull.

Paull worked as a sergeant for the Akron Police Department.  He also taught a course on criminal justice at the University of Akron.  One of his students was a single mom.  According to news reports, the woman (name withheld) says they started a romantic relationship.  But after a year or so, that relationship turned ugly and violent.  After he beat her up on a Thanksgiving holiday, Paull told her that he was legally “untouchable.”

She believed him–so she did not file a complaint right after the beating.  Instead, she just tried to avoid him.  But Paull stalked her and her boyfriends, using police databases to discover addresses, phone numbers, and vehicle information.  Paull would also text pictures of himself holding his gun and leave bullets on their automobiles.  There were threats to kill the woman and her boyfriend.  The woman did lodge complaints with the police and would later obtain a protective order, but the police department seemed indifferent.  Paull would not stop.

Read more at http://www.cato.org/blog/police-misconduct-worst-case-july-0

Cato: Loretta Lynch Confirmed as Attorney General

After one of the longest confirmation processes in the history of the Attorney General’s office, Loretta Lynch was confirmed by the Senate today as Eric Holder’s successor.

From a criminal justice perspective, whether Lynch will embrace or abandon Holder’s position on state-level drug legalization and his announced commitment to reforming civil asset forfeiture are two questions that spring immediately to mind.

Loretta Lynch zealously defended civil asset forfeiture during her confirmation hearings, and was a devoted practitioner of it as a U.S. Attorney in New York.  One of her seizure cases, that of the Hirsch brothers [$], garnered widespread attention and condemnation, and helped spur the nationwide calls for reform to which Eric Holder responded.

Read more at http://www.cato.org/blog/loretta-lynch-confirmed-attorney-general

Cato: Sec. Clinton’s Criminal Justice Reform Proposals

Today, presidential candidate Hillary Rodham Clinton addressed criminal justice reform in a speech at Columbia University. Earlier in the week, the Brennan Center released a book with chapters from politicians across the political spectrum discussing the need for criminal justice reform, and Secretary Clinton contributed one of them. Now that the Democratic front-runner has joined Republican presidential aspirants in addressing reform, criminal justice appears to be a significant 2016 campaign issue.

Three of Clinton’s policy suggestions are problematic.

First, and perhaps the one that will get the most headlines, she called for making police body cameras “the norm everywhere,” by using federal grants and matching funds. Putting aside the considerable price tag to subsidize the roughly 18,000 American law enforcement agencies to buy body cameras, how officers use those cameras and how law enforcement uses their data must be of utmost concern. As my colleague Matthew Feeney noted in a blogpost yesterday, the proposed body camera policy in Los Angeles would allow officers to review body camera footage before giving statements on use of force incidents. That policy would not serve transparency interests, but instead police officer self-interest.

Throwing money for cameras to local police departments as a solution to police transparency may sound good in theory, but making it work will be much more difficult in practice.

Read more at http://www.cato.org/blog/sec-clintons-criminal-justice-reform-proposals

Cato: Montana Reins in Civil Asset Forfeiture

It’s been a nice few weeks for civil liberties in Montana.  On the heels of the nation’s most comprehensive restrictions on police militarization, Montana Governor Steve Bullock (D) has signed a bill reforming civil asset forfeiture in the state.

HB463 requires a criminal conviction before seized property can be forfeited, requires that seized property be shown by “clear and convincing evidence” to be connected to the criminal activity, and bolsters the defenses for innocent owners by shifting the burden of proof to the government.

The effort was spearheaded by State Representative Kelly McCarthy (D), who credited the work of the Institute for Justice and other civil liberties organizations for bringing the abuses of civil asset forfeiture to light.

Read more at http://www.cato.org/blog/montana-reins-civil-asset-forfeiture

Cato: Fifth Time’s a Charm? Why the Court Should Strike Down the Armed Career Criminal Act as Unconstitutionally Vague

The Armed Career Criminal Act (ACCA) increases the minimum criminal penalty for defendants convicted of illegal firearm possession who also have three prior violent crime convictions. While the Act lists many crimes as qualifying as “violent”—such as burglary, arson, and extortion—it also contains a catch-all provision, a “residual clause,” that includes crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”

While that language may seem clear, its precise meaning has bedeviled courts for decades. In fact, Johnson v. United States represents the fifth time since 2007 that the Supreme Court has been asked to clarify what the residual clause means. For example, does drunk driving count? How about fleeing from officers in a high-speed chase? Even though the high court only hears about 75 cases per year—and it rarely revisits a law within such a short time-span—the ACCA’s residual clause keeps coming back. As Justice Antonin Scalia quipped in the last such case, “We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.” Justice Scalia’s comment came in a dissent in which he argued that the residual clause is unconstitutionally vague, and it seems that the rest of his colleagues paid attention. This is the second time this term that this case will be argued before the Court.

Last November, the issue was whether merely (illegally) possessing a short-barreled shotgun is a crime that fits into the residual clause. In January, however, the Court ordered that the case be re-argued on the larger question of whether the residual clause is itself unconstitutionally vague. Apparently, in discussing the law for the fifth time, the justices got tired of trying to answer questions that Congress should have addressed by writing a clearer law.

Read more at http://www.cato.org/blog/fifth-times-charm-why-court-should-strike-down-armed-career-criminal-act-unconstitutionally

Cato: Missouri Bill Would Keep Most Police Camera Footage From Public View

One week after it was reported that Ferguson, Missouri police officer Darren Wilson would not be indicted for killing of Michael Brown, President Obama announced that the federal government would spend $75 million on police body cameras. Wilson was not wearing a body camera when he shot Brown at least six times, and some have reasonably suggested that if Wilson had been wearing a body camera during his interaction with Brown that it would have been easier to determine if Brown’s killing was a justified or unjustified use of force.

Police in Missouri were in the news again after recently released dash camera footage revealed that an officer warned colleagues who were arresting a suspect that the camera was live before it was suddenly turned off. Both Brown’s killing in August and the footage of the April 2014 arrest highlight not only the fact that body cameras would provide investigators looking into allegations of police misconduct with valuable evidence, but also that there needs to be clear policies in place that relate to police and the cameras they use.

One lawmaker in Missouri proposed legislation that would make law enforcement camera footage policy clearer, but it should worry anyone concerned with law enforcement accountability and transparency.

Read more at http://www.cato.org/blog/missouri-bill-would-keep-most-police-camera-footage-public-view

Cato: Police Officers Must Keep the Cameras Rolling

Recently released dash camera footage of an arrest in St. Louis, Missouri offers an example of the disturbing flippancy with which cameras can be turned off during police interactions with the public.

According to a police report, on the evening of April 10, 2014, officers Nathaniel Burkemper and Michael Binz stopped a silver Ford Taurus after it made an illegal U-turn and “abruptly parked.” Only minutes earlier, 911 operators had received calls reporting shots fired. One of the calls mentioned a silver car with big rims.

Footage from the dash camera on Burkemper and Binz’s cruiser shows that shortly after the Ford Taurus pulls over, Binz moves to the passenger side of the vehicle, where he searches and handcuffs the passenger. Burkemper speaks to the driver, Cortez Bufford. Burkemper filed a report stating that he smelled marijuana and that both Bufford and his passenger did raise their hands when asked. However, Bufford reportedly “became agitated.”

Read more at http://www.cato.org/blog/police-officers-must-keep-cameras-rollings

Cato: Quiet Change Expands ATF Power to Seize Property

A quick glance at the Federal Register (Vol. 80, No. 37, p. 9987-88) today reveals that Attorney General Eric Holder, who earned cautious praise last month for a small reform to the federal equitable sharing program, has now delegated authority to the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to seize and “administratively forfeit” property involved in suspected drug offenses.  Holder temporarily delegated this authority to the ATF on a trial basis in 2013, and today made the delegation permanent while lauding the ATF for seizing more than $19.3 million from Americans during the trial period.

Historically, when the ATF uncovered contraband subject to forfeiture under drug statutes, it was required to either refer the property to the DEA for administrative forfeiture proceedings or to a U.S. Attorney in order to initiate a judicial forfeiture action.  Under today’s change, the ATF will now be authorized to seize property related to alleged drug offenses and initiate administrative forfeiture proceedings all on its own.

The DOJ claims this rule change doesn’t affect individual rights (and was thus exempt from the notice and comment requirements of the Administrative Procedure Act) and that the change is simply an effort to streamline the federal government’s forfeiture process.  Those who now stand more likely to have their property taken without even a criminal charge may beg to differ.

Read more at http://www.cato.org/blog/quiet-change-expands-atf-power-seize-property

Cato: Merely Saying “I Do” Multiple Times Shouldn’t Be a Crime

Saying “I do” and calling someone your spouse who legally isn’t shouldn’t be a crime, but it can be in Utah. While polygamy—being lawfully married to multiple people—isn’t legal in any state, due to its unique history, Utah has some of the strictest anti-bigamy laws in the country. Which probably makes starring in a reality TV show based on your plural marriage not the best idea for Utahns.

Nevertheless, TLC’s Sister Wives revolves around Kodi Brown, his four partners (Meri, Janelle, Christine, and Robyn), and their 17 children. While Kodi is only legally married to one of women, he claims he is in a “spiritual union” with each of the others, and describes all four as his wives—and that puts the Browns on the wrong side of Utah’s bigamy law. The day after the show premiered in 2010, local authorities announced they were investigating the family.

Because the potential sentences are quite severe (five years for each of the women, and up to 20 years for Kodi), the Browns took preemptive action, filing a federal lawsuit challenging the constitutionality of Utah’s law. The district court agreed. In granting the Brown’s motion for summary judgment, the court held that because the law criminalizes “spiritual cohabitation” (arrangements where the participants claim to be part of multiple religious marriages, but make no attempt to obtain state recognition), it violated the First and Fourteenth Amendments, and was “facially unconstitutional.” The state has appealed that ruling.

Read more at

Cato: Third Greek Bailout Is Not the Charm

Nearly a month ago Greek voters rejected more economic austerity as a condition of another European bailout. Today Athens is implementing an even more severe austerity program.

Few expect Greece to pay back the hundreds of billions of dollars it owes. Which means another economic crisis is inevitable, with possible Greek exit (“Grexit”) from the Eurozone.

Blame for the ongoing crisis is widely shared. Greece has created one of Europe’s most sclerotic economies. The Eurocrats, an elite including politicians, journalists, businessmen, and academics, determined to create a United States of Europe irrespective of the wishes of European peoples.

European leaders welcomed Athens into the Eurozone in 2001 even though everyone knew the Greek authorities were lying about the health of their economy. Economics was secondary.

Unfortunately, equalizing exchange rates cemented Greece’s lack of international competitiveness. Enjoying an inflated credit rating, Greece borrowed wildly and spent equally promiscuously on consumption.

Greece could have simply defaulted on its debts. However, Paris and Berlin, in particular, wanted to rescue their improvident banks which held Athens’ debt.

Thus, in return for tough loan conditions most of the Greek debt was shifted onto European taxpayers through two bail-outs costing roughly $265 billion. Greece’s economy has suffered, and the leftwing coalition party Syriza won Greece’s January election. Impasse resulted at the end of June as the second bailout expired.

Athens denounced its creditors for insisting on repayment. Prime Minister Alexis Tsipras criticized “ultimatums, blackmail and fearmongering.”

But writing off Greek debt would require European governments to confess their financial folly to their taxpayers. Restructuring Greek debt also would set off similar demands from other heavily indebted states.

Read more at http://www.cato.org/blog/third-greek-bailout-not-charm

Cato: Sugar and the TPP

How much Australian sugar should be allowed to enter the U.S. market?  That’s a key question the U.S. government must answer prior to concluding the Trans-Pacific Partnership (TPP) negotiations.  The United States is the largest sugar market in the TPP, consuming about 11 million metric tons (MMT) per year.  It also is the largest producer (7-8 MMT) and importer (3 MMT) in the group.  Australia generally is believed to be the most cost-competitive sugar producer among the12 TPP nations.  It also is the largest exporter, annually shipping 3-4 MMT to other countries.

To complicate matters further, sugar liberalization was explicitly excluded from the 2004 Australia-United States Free Trade Agreement (AUSFTA) due to U.S. political sensitivities.  Australian sugar producers understandably want to redress that omission.  Failure to obtain commercially meaningful access to the U.S. sugar market could lead to rejection of the pact by the Australian parliament.

The U.S. sugar program includes a price-support level for raw cane sugar of 22.25 cents per pound ($490/MT), with refined sugar supported at 26 cents.  Those levels effectively have been raised more than 10 percent to around 24.7 cents ($545/MT) and 30-32 cents, respectively, under the trade-restricting terms of the recent settlement agreement in the antidumping/countervailing-duty (AD/CVD) dispute involving imports from Mexico. (For more on U.S.-Mexico sugar issues, see here and here.)  Mexico is the largest supplier of U.S. sugar imports, generally providing between 1.0-1.5 MMT per year.  Suffice it to say that the agreement between the U.S. and Mexican governments will limit the amount of sugar Mexican producers can export to the United States, and also force that sugar to be sold at higher prices.

Read more at http://www.cato.org/blog/sugar-tpp

Cato: Wisconsin’s Unfair Sales Act and the Folly of Antidumping Laws

A Michigan-based supermarket trying to expand into Wisconsin has come up against an absurd law against selling products at “unfairly low” prices.  As reported by MLive, the Meijer grocery store chain is facing complaints that its grand opening sales violated Wisconsin law for offering products at prices below cost. Why is that bad?

The official rationale behind Wisconsin’s Unfair Sales Act of 1939 is revealing:

"The practice of selling certain items of merchandise below cost in order to attract patronage is generally a form of deceptive advertising and an unfair method of competition in commerce. Such practice causes commercial dislocations, misleads the consumer, works back against the farmer, directly burdens and obstructs commerce, and diverts business from dealers who maintain a fair price policy. Bankruptcies among merchants who fail because of the competition of those who use such methods result in unemployment, disruption of leases, and nonpayment of taxes and loans, and contribute to an inevitable train of undesirable consequences, including economic depression."

Some of these are simply a consequence of any market competition, a process that inevitably results in some companies failing.  But the idea that there is something uniquely harmful called “unfair competition” that occurs once a product is sold below cost is just false.  There are many reasons companies sell certain products at certain times for less than the cost of production.  For example, grand opening sales and seasonal sales are ordinary forms of competition.  It’s common in many retail sectors to use a low-priced “loss leader” product to draw customers into your store hoping they will buy other high-priced items as well.

Read more at http://www.cato.org/blog/wisconsins-unfair-sales-act-folly-antidumping-laws

Cato: Washington Arrests Foreign Soccer Officials as It Sanctions the World

It’s hard not to feel satisfaction at the indictment of soccer officials for apparently corrupting the globe’s Beautiful Game—soccer in America but football to most of the world. Yet emotional satisfaction is a bad basis for government policy. While the U.S. is not the only nation to assert extraterritorial jurisdiction, it does so more often and more broadly than anyone else.

Moreover, punishing foreigners creates future risks. Someday Americans might get indicted by other nations for “crimes” committed in the U.S.

How did Washington become the world’s policeman and prosecutor in the case of soccer? The sport remains a modest phenomenon in America. Most of the alleged crimes involve foreigners acting overseas.

The impact in the U.S. is less than that on almost every other nation on earth, since virtually everywhere the sport commands greater loyalty from a larger percentage of the population. Nevertheless, some of the criminal acts took place in America and the corruption affected interstate (and foreign) commerce, the boilerplate justification used by Uncle Sam for regulating most everything.

As American power has grown, so has Washington’s willingness to apply its laws to the rest of the world. Washington has routinely abducted foreigners overseas for drug offenses. Perhaps the most extreme example was the 1989 invasion of Panama, after which ousted dictator Manuel Noriega was transported to America and convicted of violating U.S. drug laws.

Even more problematic has been the Justice Department crusade to turn foreign banks into arms of the IRS. The U.S. has gone after Swiss banks with the greatest enthusiasm, paying informants, filing criminal prosecutions, and imposing multi-billion dollar fines for accepting deposits from Americans. Yet citizens of Switzerland and the rest of the world have no moral obligation to help fill Uncle Sam’s coffers to finance more waste and wars.

Read more at http://www.cato.org/blog/washington-arrests-foreign-soccer-officials-it-sanctions-world

Cato: African Free Trade Zone Is Good News - If Properly Implemented

According to the South African newspaper Mail and Guardian, “African leaders on Wednesday signed a potentially historic, 26-nation free-trade pact to create a common market spanning half the continent, from Cairo to Cape Town. The deal on the Tripartite Free Trade Area (TFTA) is the culmination of five years of negotiations to set up a framework for preferential tariffs easing the movement of goods in an area that is home to 625-million people…. The deal will integrate three existing trade blocs – the East African Community, the Southern African Development Community and the Common Market for Eastern and Southern Africa (Comesa) – whose countries have a combined gross domestic product (GDP) of more than $1-trillion.”

“Potentially historic” is the right term for what could be a greatly beneficial agreement. African parliaments will have two years to ratify the agreement – and that is the easy part. Proper implementation and enforcement will be much more difficult in countries with deeply underdeveloped institutions of rule of law and protection of private property. Still, the TFTA is a step in the right direction, for it signals an important ideological shift on the part of the African elite. Historically, African governments have been deeply skeptical of free trade and capitalism. Instead, they preferred protectionism and state-led development. To the extent that they were interested in trade, the African governments emphasized access to Western markets, while eschewing liberalization of their own. The consequences were catastrophic.

Read more at http://www.cato.org/blog/african-free-trade-zone-good-news-properly-implemented

Cato: Supreme Court to Consider Ending Forced Public-Sector Union Dues

Today, the U.S. Supreme Court announced that it would hear Friedrichs v. California Teachers Association, which asks the court to consider whether compulsory public-sector union dues violate the First Amendment right to free speech–which includes the right to be free from compulsory speech. The Cato Institute filed an amicus brief supporting the petitioners’ request that SCOTUS hear the case.

In 26 states, public-sector unions can force non-members to pay dues anyway. As I noted last year:

"The unions contend that these compulsory dues are necessary to overcome the free rider problem (non-union members may benefit from the collectively-bargained wages and benefits without contributing to the union), but plaintiffs in Friedrichs v. California Teachers Association point out that numerous organizations engage in activities (e.g. – lobbying) that benefit members and non-members alike without giving such organizations the right to coerce non-members to pay. That’s especially true when the individuals who supposedly benefit actually disagree with the position of the organization."


But even if unions could demonstrate that the dues were necessary to prevent freeriding, the U.S. Supreme Court held in Harris v. Quinn last year that “preventing nonmembers from freeriding on the union’s efforts” is a rationale “generally insufficient to overcome First Amendment objections.” Federal law allows dues-payers to opt out of the portion dedicated to express political activities (e.g. - lobbying), but the petitioners argue that public-sector collective bargaining itself is inherently political.

Read more at http://www.cato.org/blog/supreme-court-consider-ending-forced-public-sector-union-dues

Cato: Rand Paul’s “No” on Trade Promotion Authority Gets It Backwards

Not entirely unsurprisingly, the Senate failed to reach cloture on Tuesday, falling eight votes shy of the 60 needed to start the timer on debate over Trade Promotion Authority (TPA), which will be needed to conclude the Trans-Pacific Partnership (TPP) negotiations and bring it to a timely vote in Congress.  The cloture vote concerned two of four pieces of trade legislation voted out of the Finance Committee two weeks ago (TPA and Trade Adjustment Assistance).  Senate Majority Leader Mitch McConnell excluded the other two bills, which contain language that would attract Democratic support. So, while I wouldn’t bet the ranch on TPA’s passage, there’s still room for horse trading.

Read more at http://www.cato.org/blog/rand-pauls-no-trade-promotion-authority-gets-it-backwards

Cato: How a WTO Meat Labeling Dispute Could Prompt Congress to Change a Bad Law

After losing again at the World Trade Organization, U.S. regulations mandating country of origin labels (COOL) on meat may finally end.  Driven by the possibility that Canada and Mexico could retaliate with increased tariffs, Congress has already begun consideration of a bill to repeal the protectionist program.  If COOL regulations are indeed repealed, American consumers, meat packers, and retailers owe a debt to the WTO’s dispute settlement system.

In the latest WTO decision, the United States lost its appeal of a report originally issued last October.  At that time, I wrote about how the WTO process can help alter the political dynamics in ways that favor free market reform.

Read more at http://www.cato.org/blog/how-wto-meat-labeling-dispute-could-prompt-congress-change-bad-law

Cato: Is the TPP a Huge Deal or No Big Deal?

As more journalists and commentators discuss the Trans-Pacific Partnership, we’ve seen very conflicting descriptions of the agreement.  For some, the TPP isn’t about trade at all but about giving power to corporations and ending U.S. sovereignty, or about containing China and building U.S. influence in Asia.  When commentators do focus on the potential economic impact of the agreement, they either describe the TPP as a very big deal or as a very small one.  It all depends on your perspective.

My colleague Simon Lester has written about problems in how GDP gains from the TPP have been estimated.  I’d like to take issue with a different figure commonly cited to bolster the idea of the TPP’s hugeness—that the 12 countries involved account for almost 40% of global GDP.  This number is correct but highly misleading as a gauge of the TPP’s economic significance.

For one thing about 22.5% of global GDP comes from the United States.  So, one could claim accurately that the U.S.–Jordan Free Trade Agreement covers almost a quarter of the global economy.  Also, most of the remainder comes from Canada and Mexico, with whom the United States already has a free trade agreement.  In fact, the United States has free trade agreements with all but five countries in the TPP negotiations.

The only large economy country in the TPP that the United States doesn’t already have a free trade agreement with is Japan.  So, if you’re going to measure the “size” of the TPP, it would be best understood as a U.S.–Japan free trade agreement.  That’s a pretty big deal, actually, but it’s not two-fifths of the world.

Read more at http://www.cato.org/blog/tpp-huge-deal-or-no-big-deal

Cato: Congress Should Decide Whether Trade Agreements Abide the Terms of Trade Promotion Authority

Trade Promotion Authority (TPA or Fast-Track Negotiating Authority) is not an executive power grab.  It is a compact between the legislative and executive branches, which each have distinct authorities under the Constitution when it comes to conducting trade policy. The purpose of forging such a compact is that negotiations would be impracticable – and likely interminable – if each provision were subject to the whims of 535 legislators.

Opponents of trade liberalization have smeared TPA as a wholesale capitulation to the president, who allegedly is freed of any congressional oversight and given a blank check to negotiate unamendable trade deals in secret without any input from Congress – only the capacity to vote up or down on the final deal. In reality, though, TPA is the vehicle through which Congress conveys its trade policy objectives, conditions, and demands to the president, who negotiates with those parameters in mind. Provided the president concludes a negotiation that abides those congressional parameters, the deal is given fast track consideration, which means essentially that legislative procedures are streamlined and expedited.

The trade committees are reportedly close to introducing trade promotion authority legislation, although there remains some debate about what it should include. Enforceable provisions to discipline currency manipulation would be a bad idea, as would be including provisions to reauthorize the ineffective and misguided Trade Adjustment Assistance program (which is widely acknowledged to be a payoff to organized labor).

Read more at http://www.cato.org/blog/congress-should-decide-whether-trade-agreements-abide-terms-trade-promotion-authority

Cato: Hyperbole Aside, Elizabeth Warren Is Right About the Risk of Investor-State

Sen. Elizabeth Warren takes to the Washington Post op-ed pages today to warn about the dangers of the so-called Investor-State Dispute Mechanism, which is likely to be a part of the emerging Trans-Pacific Partnership deal.  In substance, if not style, Sen. Warren’s perspective on ISDS is one that libertarians and other free market advocates should share. At least, my colleague Simon Lester and I do.

ISDS grants foreign investors the right to sue host governments in third-party arbitration tribunals for treatment that allegedly fails to meet certain standards, such as new laws, regulations, or policies that might have a discriminatory effect on foreign investors that reduces the value of their assets. Certainly, investors – and in this context we’re talking mostly about multinational corporations (MNCs) – should have recourse to justice when these situations arise. But under ISDS, U.S. investors abroad and foreign investors in the United States can collect damages from the treasuries of their host governments by virtue of the judgments of arbitration panels that are entirely outside of the legal structure of the respective countries. This all raises serious questions about democratic accountability, sovereignty, checks and balances, and the separation of power.

An important pillar of trade agreements is the concept of “national treatment,” which says that imports and foreign companies will be afforded treatment no different from that afforded domestic products and companies. The principle is a commitment to nondiscrimination. But ISDS turns national treatment on its head, giving privileges to foreign companies that are not available to domestic companies. If a U.S. natural gas company believes that the value of its assets has suffered on account of a new subsidy for solar panel producers, judicial recourse is available in the U.S. court system only. But for foreign companies, ISDS provides an additional adjudicatory option.

Read more at http://www.cato.org/blog/hyperbole-aside-elizabeth-warren-right-about-risk-investor-state

Cato: New York Proposes Special Bitcoin Regulation, But Won’t Say Why

Yesterday, the New York Department of Financial Services (NYDFS) issued the second draft of its “BitLicense” proposal, a special, technology-specific regulation for digital currencies like Bitcoin. For a second time, the NYDFS claims to have a strong rationale for such regulation, but it has not revealed its rationale to the public, even though it is required to do so by New York’s Freedom of Information Law.

If you’re just joining the “BitLicense” saga, the NYDFS welcomed Bitcoin in August 2013 by subpoenaing every important person in the Bitcoin world. A few months later, New York’s Superintendent of Financial Services announced his plan for a special “BitLicense,” which would be required of anyone wanting to provide Bitcoin-based services in New York.

About a year later, Superintendent Lawsky released the first draft of the “BitLicense” proposal, to strongly negative reviews from the Bitcoin community. It didn’t help that after a year’s work the NYDFS offered the statutory minimum of 45 days to comment. Relenting to public demand, the NYDFS extended the comment period.

In announcing the regulation, the NYDFS cited “extensive research and analysis” that it said justifies placing unique regulatory burdens on Bitcoin businesses. On behalf of the Bitcoin Foundation, yours truly asked to see that “extensive research and analysis” under New York’s Freedom of Information Law. The agency quickly promised timely access, but in early September last year it reversed itself and said that it may not release its research until December.

December has come and gone, of course. It is now late February 2015, and the department’s “extensive research and analysis” has yet to see the light of day.

Read more at http://www.cato.org/blog/new-york-proposes-special-bitcoin-regulation-wont-say-why

Cato: Senate Conservatives Seek to Rein In the Court

Late last year, Reason magazine’s crack legal correspondent Damon Root chronicled the rise of the modern libertarian legal movement in his important new book, Overruled: The Long War for Control of the U.S. Supreme Court. In it, he focused especially on the struggle that some of us have been engaged in for more than four decades to recast the terms of the debate over the proper role of the courts from “judicial activism” and “judicial restraint” to “judicial engagement” and “judicial abdication.” That shift has been crucial because it refocused the debate from judicial behavior to where it should have been all along, namely, on the proper interpretation of the law before the court.

The struggle to bring about that shift, although much further along than when it began decades ago, is far from finished: Witness hearings just two days ago before the Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts. Called by Subcommittee Chairman Ted Cruz in the wake of last month’s Supreme Court decisions in King v. Burwell, upholding Obamacare’s subsidies for insurance purchased through exchanges established by the federal government, and Obergefell v. Hodges, which made same-sex marriage the law of the land, the hearings were titled “With Prejudice: Supreme Court Activism and Possible Solutions.”

As the title suggests, committee conservatives, in the majority, remain focused on what they see as the Court’s activism. Their witnesses were two professional friends of mine, former Chapman Law Dean and now Professor John Eastman and Ethics and Public Policy Center President Ed Whelan. Nominally representing the liberal activist side was Duke Law Professor Neil Siegel.

Read more at http://www.cato.org/blog/senate-conservatives-seek-rein-court

Cato: Finding Rights in the Constitution

Last month, when Justice Anthony Kennedy found that same-sex marriage was a “fundamental right,” did he and the four other justices for whom he wrote find a “new” constitutional right? Or is it rather, as some of us have long argued, that the Constitution protected that right for nearly a century and a half, like the right to same-sex sodomy (Lawrence v. Texas), to sell and use contraceptives (Griswold v. Connecticut), to educate one’s child in a parochial school (Pierce v. Society of Sisters), and, dare I say, to freedom of contract in employment (Lochner v. New York)?

I address those questions in a piece in today’s National Law Journal, defending Kennedy’s conclusion in Obergefell v. Hodges but taking exception to his reasoning. The fundamental right to same-sex marriage rests mainly, he argued, on the liberty interest that is protected under the Fourteenth Amendment’s Due Process Clause. Not so, said Justice Clarence Thomas in his dissent. Drawing extensively on John Locke’s state-of-nature approach to political legitimacy, which the Founders and Framers drew on as well, Thomas argued that the Obergefell plaintiffs were not denied the right to marry. They were perfectly free to go to any willing clergyman who would marry them—and the state would not have interfered with their liberty to do so. What they wanted, he saw, was a state license, the state’s positive recognition of the marriage, and the legal benefits that go with the state’s recognition.

Kennedy’s conclusion as against the state, therefore, belongs properly not under the Fourteenth Amendment’s Due Process but under its Equal Protection Clause. The state denied same-sex couples the same benefits it granted opposite-sex couples and thus discriminated against them. Thus, the right to marry someone of the same sex may be a natural right that anyone would enjoy in the state of nature; but once we leave that state, if an actual state we’re in grants the privileges of marriage, the denial of those privileges is properly litigated against the state under the Equal Protection Clause. Unfortunately, Thomas never developed those points—nor could he have without coming out for same-sex marriage—nor did Kennedy’s brief and gauzy discussion of equal protection get to the heart of the matter either.

Read more at http://www.cato.org/blog/finding-rights-constitution

Cato: Marriage Policy Is a Mess. Here’s How to Make Sense of It.

Give Rand Paul points for trying: His opinion piece about marriage policy in the wake of Obergefell did better than many other Republicans have done. He did not call for resurrecting the dead – and politically toxic – Federal Marriage Amendment. He would appear to be actually considering the issues at stake, which is a good start.

But contrary to the promise of the headline (which he probably didn’t write anyway), the measures that Senator Paul recommends would not get government “out of the marriage business altogether.” Judging by what he actually wrote, local government would still control entry and exit from civil marriage, and civil marriage itself would apparently still continue to exist. Many federal consequences, like Social Security survivorship and the ability to sponsor an immigrant spouse, would presumably continue to flow from marital status - and they’d still be unavailable in any other way.

This isn’t such a terrible thing, necessarily. Marriage policy is really, really complicated. As long as we have a government, and as long as it’s making important decisions about our families and property, at least some parts of civil marriage may actually be worth saving. Marriage can serve as a protection against the state, one that (among lots of other things) keeps families together and makes the Social Security system run marginally more justly: If anyone deserves to recoup some of what the government takes by way of the payroll tax, it’s the widow of the worker who “contributed.” And if anyone is competent to sponsor a new citizen, it must be that new citizen’s spouse.

Read more at http://www.cato.org/blog/marriage-policy-mess-heres-how-make-sense-it

Cato: Kennedy the Swing, Roberts Back on Reservation, Scalia Is Scalia

This morning I was on the steps of the Supreme Court, as I have been each of the decision days starting last Monday. It’s a real spectacle, with protestors and counter-protestors, interns running from the Court’s press office to give their media principals slip opinions, and phalanxes of TV cameras, bright lights, screens, and assorted technical accoutrements. For someone whose job includes digesting and commenting on legal opinions, this last week of the high court’s term is pretty much the Super Bowl.

Except today didn’t feel that way. After Obamacare on Thursday and same-sex marriage on Friday, today was the most anticlimactic “last day of school” since I’ve begun doing this.

That’s not to say that the three cases decided today were unimportant, either legally or politically. Indeed, until the Court took up King v. Burwell and Obergefell v. Hodges, each of them would’ve been considered among the “big ones” for what was, to that point, a low-key term. After all, we’re talking about the death penalty, redistricting, and major environmental regulations. (And also the Court announced that it will again take up Fisher v. UT-Austin, the racial-preferences case that is set to become one of next term’s blockbusters.)

Read more at http://www.cato.org/blog/kennedy-swing-roberts-back-reservation-scalia-scalia

Cato: King v. Burwell: How the Supreme Court Helped President Obama Disenfranchise His Political Opponents

Criticizing my recent post-mortem on King v. Burwell, Scott Lemieux kindly calls me “ObamaCare’s fiercest critic” for my role in that ObamaCare case. Other words he associates with my role include “defiant,” “ludicrous,” “farcical,” “dumber,” “snake oil,” “ludicrous” (again), “irrational,” “aggressive,” “comically transparent,” and “dishonest.”

Somewhere amid the deluge, Lemieux reaches his main claim, which is that (somehow) I admitted: “the King lawsuit wasn’t designed to uphold the statute passed by Congress in 2010. It was intended to ‘enfranchise’ the people who voted against the bill.” I’m not quite sure what Lemieux means. But perhaps Lemieux doesn’t understand my point about how the Supreme Court helped President Obama disenfranchise his political opponents.

As all nine Supreme Court justices acknowledged in King, “the most natural reading of the pertinent statutory phrase” is that Congress authorized the Affordable Care Act’s premium subsidies, employer mandate, and (to a large extent) individual mandate only in states that agreed to establish a health-insurance “Exchange.” That is, all nine justices agreed that the plain meaning of the operative statutory language allows states to veto key provisions of the ACA—sort of like the Medicaid veto that has existed for 50 years and lets states destroy health insurance for millions of poor Americans. The Exchange veto includes the power to shield millions of state residents from the ACA’s least-popular provisions: the individual mandate and the employer mandate.

Read more at http://www.cato.org/blog/king-v-burwell-how-supreme-court-helped-president-obama-disenfranchise-political-opponents

Cato: King v. Burwell: Six Humpty Dumptys Playing Calvinball

In King v. Burwell, all nine Supreme Court Justices agreed on one thing. The King challengers claimed the Patient Protection and Affordable Care Act (ACA) authorizes the Internal Revenue Service to issue tax credits and impose the related penalties only “through an Exchange established by the State,” and not through exchanges established by the federal government. “Petitioners’ arguments about the plain meaning of Section 36B are strong,” Chief Justice John Roberts wrote, and their interpretation is “the most natural reading of the pertinent statutory phrase.” Justice Antonin Scalia agreed, finding the meaning of that phrase “so obvious there would hardly be a need for the Supreme Court to hear a case about it.”

There was no dissent about the plain meaning of the phrase “through an Exchange established by the State.” All seven of the other Justices joined one of those two opinions. Nor was there dissent about the fact that that phrase, used repeatedly in the statute, is the only provision of the Act that speaks directly to the question presented. Not a single Justice lent credence to the government’s assertions that this was a meritless case, or one that the Court should never have accepted. Nor was there dissent about the consequences of that provision’s plain meaning in the face of broad state resistance to the ACA. All agreed that withholding tax credits in the thirty-four states with federal exchanges could lead to adverse selection in those states, with premiums climbing higher and higher in a “death spiral.”

Read more at http://www.cato.org/blog/king-v-burwell-six-humpty-dumptys-playing-calvinball

Cato: What Will Obama Do if He Loses King v. Burwell?

Rather than retread the ground Michael Cannon ably covered yesterday regarding President Obama’s healthcare speech – short version: we’re all in this together, so if you’re against Obamacare, you’re for letting people die in the streets – I want to look ahead to what our fearless leader will do if the government does indeed lose King v. Burwell.

We’ve famously been told that the Department of Health & Human Services has no Plan B. But what if the Supreme Court forces the executive branch’s hand? Yes, there’ll be plenty of finger-pointing and demagoguery as a high-stakes game of chicken unfolds among the White House, Congress, and various state governments. But what could Obama/HHS do? Remember, this is the president who has a pen and a phone, and “if Congress won’t act, I will.”

The running joke is that HHS/IRS will simply promulgate another rule deeming all federal exchanges to be state exchanges. But that couldn’t possibly be the answer, could it?

Read more at http://www.cato.org/blog/what-will-obama-do-he-loses-king-v-burwell

Cato: King v. Burwell: In 2013, Nelson Admitted He Didn’t Know if the ACA Offered Subsidies in Federal Exchanges

The plaintiffs in King v. Burwell claim the Patient Protection and Affordable Care Act only offers premium subsidies, as the statute says, “through an Exchange established by the State.” Members of Congress who voted for the PPACA – most recently Sen. Bob Casey (D-PA) and former Sen. Ben Nelson (D-NE) – now swear it was never their intent to condition Exchange subsidies on state cooperation.

Ironically, Casey’s and Nelson’s decision to wade into the King debate demonstrates why, when a statute is clear, courts traditionally assign no weight to what members of Congress claim they intended a law to say – especially if, as here, those claims come after a clear provision has proven problematic. While he claims he never intended to condition subsidies on states establishing Exchanges, Casey repeatedly voted to condition Exchange subsidies on state cooperation, has misrepresented what Congress intended the PPACA to do, and continues to misrepresent the PPACA on his Senate web site. Nelson’s claims about what Congress intended should likewise be taken with a grain of salt. In an unguarded moment in 2013, Nelson admitted that in 2009 he paid no attention to “details” such as whether the PPACA authorized subsidies in federal Exchanges.

Read more at http://www.cato.org/blog/king-v-burwell-2013-nelson-admitted-he-didnt-know-aca-offered-subsidies-fed-exchanges

Cato: Hayek vs. Government Health Care

In “The Use of Knowledge in Society,” economist F.A. Hayek described how markets take into account an array of local knowledge that governments do not possess. It is “knowledge of the particular circumstances of time and place,” which enters into everyday exchanges, but central authorities cannot access it. That’s because it “never exists in concentrated or integrated form but solely as the dispersed bits of incomplete and frequently contradictory knowledge which all the separate individuals possess.” This sort of knowledge is tacit and subjective, so “by its nature cannot enter into statistics and therefore cannot be conveyed to any central authority in statistical form.”

Cato adjunct scholar Jeff Singer is a surgeon practicing in Phoenix, and his op-ed today in the Wall Street Journal illustrates Hayek’s point. The federal government has mandated that health providers adopt electronic records to the specifications of the central planners in Washington. A theme in Jeff’s piece is that there is tacit and localized aspects of his practice that the government did not know about, and did not bother to find out about, before it imposed its top-down rules.

Read more at http://www.cato.org/blog/hayek-vs-government-health-care

Cato: End the Personal Bribes Members of Congress Are Getting Not to Reopen ObamaCare

The U.S. Constitution vests the legislative, executive, and judicial powers in separate branches of the government that are supposed to police each other. But what if one of those branches violates the law in a manner that personally benefits the members of another branch? That’s what has been happening since the day ObamaCare became law in 2010. For more than five years, the executive branch has been issuing illegal subsidies that personally benefit the most powerful interest group in the nation’s capital: members of Congress and their staffs. A decision today by the Senate Small Business & Entrepreneurship Committee not to investigate those illegal subsidies shows just how difficult it can be to prevent one branch of the government from corrupting members of another branch.

It is no secret that executive-branch agencies have broken the law, over and over, to protect ObamaCare. King v. Burwell challenges the IRS’s decision to offer illegal premium subsidies in states with federally established health-insurance Exchanges. University of Iowa law professor Andy Grewal recently revealed the IRS is illegally offering Exchange subsidies to at least two other ineligible groups: certain undocumented immigrants and people who incorrectly project their income to be above the poverty line. Treasury, Health and Human Services, and other executive-branch agencies have unilaterally modified or suspended so many parts of the ACA, it’s hard to keep count – and even harder to know what the law will look like tomorrow. Even some of the administration’s supporters acknowledge its actions have gone too far.

The longest-running and perhaps most significant way the administration has broken the law to protect ObamaCare is by issuing illegal subsidies to members of Congress.


When congressional Democrats passed the Patient Protection and Affordable Care Act (ACA), they were so desperate to pass a health care law that the ACA did not receive the scrutiny most bills do. Many members of Congress and their staffs were therefore surprised to learn that, as of the moment the president signed the ACA, that very law threw them out of their health plans. The ACA prohibits members of Congress and their staffs from receiving health coverage through the Federal Employees’ Health Benefits Program. They remained free to purchase health insurance on their own, but they would have to do so without the $10,000 or so the federal government “contributed” to their FEHBP premiums. In effect, the ACA gave members of Congress a pay cut of around $10,000.

Read more at http://www.cato.org/blog/those-other-illegal-obamacare-subsidies

Cato: Jailed for Pamphleteering?

Mark Iannicelli has been charged with 7 counts of jury tampering.  He did not pressure jurors in a case to vote one way or the other.  All he did was set up a booth near the courthouse and distribute pamphlets that contained information about jury nullification–the idea that jurors should be able vote according to their conscience.  Prosecutors were so outraged by this that they want Mr. Iannicelli imprisoned.  Free speech is nice, but they apparently think the supreme law does not apply as you approach the, er, courthouse.  Hmm.

Read more at http://www.cato.org/blog/jailed-pamphleteering

Cato: Should Prostitution Be Legalized?

Does three make a trend? I can’t recall hearing much discussion of legalizing prostitution in the recent past, and suddenly this week I’ve seen three significant reports in the media. Are they straws in the wind? Could the legalization of prostitution be the next social reform to come to the fore?

First, last Thursday the Telegraph reported on a new study from the venerable free-market think tank in London, the Institute for Economic Affairs:

"The sex trade should be fully decriminalised because feminism has left modern men starved of sex, one of Baroness Thatcher’s favourirte think-tanks claims.

A controversial new paper published by the Institute of Economic Affairs (IEA) calls for Britain’s prostitution laws to be scrapped, insisting it is “inevitable” that men will resort to paying for sex as women become more empowered through participation in the workplace."

Read more at http://www.cato.org/blog/should-prostitution-be-legalized

Cato: The Right to Pay for Your Own Lawyer

Criminal asset forfeiture has the taste of Old Testament justice: an eye for an eye, a tooth for a tooth. The bank robber stole $100,000, so the government takes $100,000 from him. That seems right and fair, but only if we know that the defendant’s guilty.

If the government took $100,000 from someone who was innocent, or whose guilt was ambiguous, it wouldn’t merely be an “unjust” forfeiture, it would be theft—or, to be more politic, an uncompensated and unwarranted taking.

Consider the case of Sila Luis. For several years, Luis ran a healthcare company that provided home nursing services to patients enrolled in Medicare. In 2012, the government accused Luis of fraud, claiming that her company billed Medicare for unnecessary services. In addition to criminal charges, the grand jury indictment included a forfeiture finding, stipulating that if Luis is convicted, up to $45 million of her personal assets would be forfeited, to make up for all of the money her company ever received from Medicare.


Leaving aside the validity of that number—the government hasn’t alleged that all, or even most, of the claims submitted to Medicare were false—the questionable fairness of holding an individual personally responsible for a company’s liabilities, and the fact the Luis doesn’t have anywhere near $45 million, the indictment got one thing right: the government should only be able to confiscate Luis’s property after she’s been convicted. Of course, the government found a loophole: a statute providing that when the government thinks a defendant is going to spend or hide assets before they can be forfeited, prosecutors can ask for a court order “freezing” the assets.

Read more at http://www.cato.org/blog/right-pay-own-lawyer

Cato: The Right to Anonymous Speech and Association

Since the Enlightenment, anonymous speech has been an integral component of social change, exemplified by Cato’s Letters, the Federalist Papers, and indeed the Anti-Federalist Papers. Accordingly, the Constitution provides a wide breath for the proper “breathing space” that “First Amendment freedoms need … to survive,” NAACP v. Button (1963), by protecting anonymous-speech rights and requiring judges to be skeptical regarding laws that compel disclosure of identifying information.

California’s attorney general, Kamala Harris, has broken with this tradition in demanding that the Center for Competitive Politics (CCP), an educational foundation and public-interest law firm specializing in the First Amendment and political law, disclose its principal donors to the state. The federal district court determined that the demand for this information in the name of “investigative efficiency” was a valid use of state power, and the U.S. Court of Appeals for the Ninth Circuit affirmed that ruling. Importantly, this rule applies to all nonprofit organizations soliciting donations or otherwise operating in California, so the associational chill reaches into the ability of every nonprofit to exist in California while preserving privacy through anonymity.

Cato, joined by the Competitive Enterprise Institute, has filed a brief supporting CCP’s request that the Supreme Court review the case. The Ninth Circuit failed to give proper solicitude to CCP’s constitutional rights here by not applying what lawyers call “heightened scrutiny” at each turn of its analysis. Instead, the lower court applied a party-specific, “as-applied” exception to the general rule that’s only relevant if the compelled disclosure has already survived a broader, “facial” challenge—and it collapsed the clear distinction between the importance of the government interest in disclosure and the extent of the nexus between the disclosure and the asserted interest.

Read more at http://www.cato.org/blog/right-anonymous-speech-association

Cato: Too Much Money Going to the Wrong Places

It appears that the Amtrak crash that killed seven people Tuesday resulted from speeding, but big-government advocates are already using this accident to make their case for more infrastructure spending. In fact, the problem is not too little money, but too much money going to the wrong places.

In 2008, President George Bush signed a law mandating that most railroads, including Amtrak, install positive train control (PTC) by December of 2015. PTC would force trains to slow or stop if the operator ignored signals or speed limits.

In 2009 and 2010, President Obama asked a Democratic Congress to give him $10 billion to spend on high-speed trains, and Congress agreed. Not one cent of that money went to installing PTC in Amtrak’s Northeast Corridor.

PTC would have prevented this accident. There was plenty of money available to install it, but the Obama administration, in its infinite wisdom, chose to spend it elsewhere. Two days ago, it would have been embarrassing to think that the government-run Amtrak hadn’t yet completed installation of PTC on its highest-speed corridor. Today, it’s a tragedy. But how is it the fault of fiscal conservatives?

This accident is just one more example of a political fact of life: Politicians are more likely to put dollars into new construction, such as high-speed rail, than to spend them on safety and maintenance of existing infrastructure. As John Nolte says on Breitbart, “Amtrak is not underfunded; it is criminally mismanaged.”

Read more at http://www.cato.org/blog/too-much-money-going-wrong-places

Cato: When Battling the Government In Court, What Are You Free To Say in the Press?

Readers who follow the battles over forfeiture law may recall the recent case in which a North Carolina convenience store owner from whom the government had seized $107,000 without any showing of wrongdoing decided to fight the case in the press as well as in court, backed by the Institute for Justice. Lyndon McLellan’s decision to go public with the dispute drew a menacing letter from a federal prosecutor about the publicity the case had been getting:

"“Your client needs to resolve this or litigate it,” Mr. West wrote. “But publicity about it doesn’t help. It just ratchets up feelings in the agency.” He concluded with a settlement offer in which the government would keep half the money."

That case ended happily, but the problem is much broader: many individuals and businesses fear that if they seek out favorable media coverage about their battle with the government, the government will find a way to retaliate, either informally in settlement negotiations or by finding new charges to throw against them.

Read more at http://www.cato.org/blog/what-can-target-government-legal-action-say-press

Cato: As Racists Return to the Mainstream, Be Sure to Deprive Them of Power

I hope I’m wrong to see it as racism returning to the mainstream. Indeed, I hope that the long, agonizingly slow erosion of racial fixations from our society will continue. But I found it interesting to see a Washington Post blog post explaining a recently minted epithet—“cuckservative”—chiefly with reference to the president of a “white nationalist” organization.

Apparently, we have such things in the United States, credible enough to get online ink from a major newspaper. I’m not against reporter Dave Weigel’s use of the source. I take it as confirmation that some of our ugliest politicians have even uglier supporters.

Read more at http://www.cato.org/blog/racists-returns-mainstream-be-sure-deprive-them-power

Cato: Defending the Right to Offend

Between 1861 and 1865, Texas was in a state of rebellion, waging war against the United States under the flag of the Confederacy. Texas has never offered any indication that it’s ashamed of this history. Indeed, the state recognizes April as Confederate History Month and spends January 19 celebrating Confederate Heroes Day. Yet now Texas is before the Supreme Court, arguing that its citizens’ sensibilities must be spared the sight of the Confederate flag in one particular context.

The case involves a state agency that knows well what it is to cause universal offense: the Department of Motor Vehicles. Texas’s DMV, like that of many states, runs a program that allows private organizations such as charities, universities, and businesses to design their own “specialty” license plates—not to be confused with “vanity” plates, where the vehicle owner chooses the letters/numbers on her plate—which can then be purchased through the DMV. The current range of customized plates on offer in the Lone Star State include messages that are patriotic (“God Bless America”), fannish (“Dallas Cowboys”), socially conscious (“Be a Blood Donor”), commercial (“Dr. Pepper”), and completely immoral (“Young Lawyers”).

These custom plates include a near-limitless variety of slogans, symbols, logos, and color patterns—something for everyone’s taste. Except the Sons of Confederate Veterans. Their design, which included a miniature depiction of the Confederate battle flag, was rejected by the DMV on the grounds that some members of the public would find it offensive.

It’s certainly right about that—and the relevant statute authorizes the DMV to reject any design that “might be offensive to any member of the public”—but do we really want the government determining what’s “too offensive”?

Read more at http://www.cato.org/blog/defending-right-offend

Cato: China Should Respect Religious Liberty

Christianity is thriving in China. There may be more religious believers than Communist Party members.

Beijing’s sensitivities to religion are well-known.  Religion offers a competitive worldview to the Party.  The latter fears many Christians, especially Catholics, have loyalties beyond China’s borders.  Religion brings people together in ways that might eventually influence politics.

In its early days, the People’s Republic of China responded harshly to religious activity, but official policy has moderated over time.  There is an increasing amount of reluctant toleration of religious belief.

Beijing appears to have a more relaxed policy.  Last year, I visited a church of around 800 in the capital.  It operated openly, attracted many young people, and hosted dozens of baptisms on the Sunday I attended.  I saw a car in traffic that sported the traditional Christian “fish.”

Ironically, the lesson of the West’s experience with religion is that the best way for a government to avoid conflict between religious believers and political authorities is to provide the greatest freedom possible.  Obviously, there have been many strains of Christianity throughout the centuries.  However, the faith emphasizes a transcendent commitment to God while accommodating many different political perspectives.

The Apostle Paul, whose ministry benefited from the order imposed by the Roman Empire, urged submission to the ruling authorities.  There were exceptions, however, most obviously when secular rulers sought to impede the exercise of faith.

For instance, when the Jewish leadership in the Sanhedrin instructed the Apostles Peter and John to no longer preach about Jesus’s death and resurrection, they responded that they had to obey God rather than men.  The original disciples and their followers persevered despite episodic persecution.

Read more at http://www.cato.org/blog/china-should-respect-religious-liberty

Cato: The 4th Amendment Is Another Victim of the Drug War

Over at the Washington Post, Radley Balko details a recent Fourth Circuit ruling overturning an award for a father whose son was shot and killed in a military-style SWAT raid after marijuana residue was found in an outside garbage bag. A jury awarded the father $250,000 after it was shown that the police failed to comply with their obligation to knock and announce their presence before barging in and that they lied about several aspects of the raid.

Without repeating the entirety of Balko’s excellent analysis, a particularly troubling aspect of the ruling is the nonchalant way in which the Fourth Circuit judges, even in dissent, treat the militarized raid over marijuana residue and dispense with any suggestion that such escalated violence is constitutionally questionable.

Read more at http://www.cato.org/blog/4th-amendment-another-victim-drug-war

Cato: End America’s Defense Dole for South Korea

South Korean President Park Geun-hye postponed her trip to the U.S. because of a public health emergency at home. Unfortunately, the delay won’t make a future Park trip any more useful.

There is much on which the two nations should cooperate. But the military alliance is outdated. Despite having surged past the North, enjoying a 40-to-1 economic advantage and 2-to-1 population edge, Seoul continues to play the helpless dependent, unable even to command its own forces in a war.

South Korea eventually took off economically and adopted democracy. Yet through it all South Korea’s defense dependency on America persisted.

The South Korean government isn’t even willing to take over operational control, or OPCON, of its own forces in wartime. It isn’t ready, it insists. Yet North Korea commands its forces.

Of course, some South Koreans admit that they most fear shifting command would encourage Washington to withdraw its troops. Thus, their objective is to appear as helpless as possible as long as possible to retain the U.S. troop tripwire.

The present arrangement obviously is bad for America. Protecting South Korea isn’t cheap.

The more potential wars, the bigger the military needed. That the ROK helps pay for occupation costs ignores the more basic expense, the cost of raising, equipping, and maintaining the units themselves.

Today the peninsula is militarily inconsequential. A North Korean victory would not be the first leg of an exorable march toward global Communist domination.

No question, it would be an awful outcome. But that doesn’t warrant a permanent “alliance” entangling the U.S. in one of the most heavily militarized and unstable regions on earth.

Read more at http://www.cato.org/blog/end-americas-defense-dole-south-korea

Cato: Mission Creep in Syria

This week, the United States and Turkey agreed on a deal to expand cooperation in the fight against ISIS, in part through the creation of an ‘ISIS-free zone’ in Northern Syria. The scope of the agreement is unclear, not least because Turkish officials are hailing it as a ‘safe zone’ and a possible area for refugees, while U.S. officials deny most of these claims. U.S. officials are also explicit that the agreement will not include a no-fly zone, long a demand of U.S. allies in the region.

But what’s not in doubt is that the United States and Turkey plan to use airstrikes to clear ISIS fighters from a 68-mile zone near the Turkish border. The zone would then be run by moderate Syrian rebels, although exactly who this would include remains undefined.

Read more at http://www.cato.org/blog/mission-creep-syria

Cato: Washington Is Too Cozy with Certain Dictators

U.S. leaders routinely emphasize that America’s foreign policy is based on support for the expansion of freedom around the world.  But as I point out in a recent article in the National Interest Online, Washington’s behavior frequently does not match the idealistic rhetoric.  Too often, U.S. policymakers seem to favor even brutal and corrupt authoritarian allies over boisterous, unpredictable democratic regimes.

During the Cold War, U.S. administrations enthusiastically embraced “friendly” autocratic governments in such places as South Korea and the Philippines—even when there were viable democratic alternatives.  Because it was uncertain whether democratic governments would be as cooperative with U.S. foreign policy aims, officials preferred dealing with more compliant autocrats.  Worse, U.S. leaders repeatedly misrepresented such allies to the American people as noble members of the “free world.”

The tendency was especially pronounced in the Middle East, and that cynical policy has persisted longer there than in other regions.  It began early, as the U.S. Central Intelligence Agency helped overthrow Iran’s elected prime minister, Mohammed Mossadegh, in 1953 and restore the Shah to power as an unconstrained monarch.  The Shah became America’s chosen Persian Gulf gendarme for the next quarter century, despite the regime’s appalling human rights record and pervasive corruption.  Elsewhere in the region, Washington developed a cozy relationship with Egyptian leader Hosni Mubarak that lasted three decades, even as he and his military cronies looted and brutalized that unhappy country.

Read more at http://www.cato.org/blog/washington-too-cozy-certain-dictators

Cato: Tokyo’s New Military Guidelines Leave U.S. Defending Japan

When Prime Minister Shinzo Abe visited Washington he brought plans for a more expansive international role for his country. But the military burden of defending Japan will continue to fall disproportionately on America.

As occupying power, the U.S. imposed the “peace constitution” on Tokyo, with Article Nine banning possession of a military. As the Cold War developed, however, Washington recognized that a rearmed Japan could play an important security role.

However, Japan’s governments hid between the amendment to cap military outlays and limit the Self-Defense Forces’ role, ensuring American protection. That approach also suited Tokyo’s neighbors, which had suffered under Imperial Japan’s brutal occupation.

In recent years Japanese sentiment has shifted toward a more vigorous role out of fear of North Korea and China. This changing environment generated new bilateral defense “guidelines.”

Yet the focus is Japanese, not American security. In essence, the new standards affirm what should have been obvious all along—Japan will help America defend Japan. In contrast, there is nothing about Tokyo supporting U.S. defense other than as part of “cooperation for regional and global peace and security.”

This approach was evident in the Prime Minister Abe’s speech to Congress, when he emphasized that Tokyo’s responsibility is to “fortify the U.S.-Japan alliance.” He said Japan would “take yet more responsibility for the peace and stability in the world,” but as examples mostly cited humanitarian and peace-keeping operations.

Read more at http://www.cato.org/blog/tokyos-new-military-guidelines-leave-us-defending-japan

Cato: America’s NATO Liabilities

Washington’s collection of European security dependents (aka, the NATO allies) seek an even stronger U.S. commitment to their defense.  That desire has clearly been on the rise since Russia’s annexation of Crimea in 2014 and the subsequent escalation of the Ukraine crisis.  Not surprisingly, Moscow’s smaller neighbors, especially the three Baltic republics, worry about the Kremlin’s intentions and want to take cover behind the shield of America’s military power.  Their latest ploy is to seek the permanent deployment of a NATO brigade (some 3,000 to 5,000 troops) on their territory.  It is a safe bet that they will want U.S. forces to be part of that unit.  Indeed, the United States already keeps more than 150 troops (along with military aircraft) in those countries as part of a continuing rotation of forces.

It is not hard to understand why small, weak nations would seek maximum protection from a distant power against a large, powerful neighbor that has displayed worrisome intentions.  It is much harder to understand, though, why undertaking such a risk would be in the best interest of the United States.  Allies are only beneficial when they augment a nation’s strength, and the potential benefits of defending them significantly outweigh the potential costs and risks. The Baltic republics (and most NATO members, for that matter) spectacularly fail that basic test.  They do next to nothing to augment America’s already vast military power, while (being on bad terms with their powerful neighbor) they create the risk of a U.S.-Russia confrontation where none would otherwise exist.  In short, they are strategic liabilities, not strategic assets.

Making matters even worse, the Baltic countries and the other European members of NATO don’t seem terribly serious about their own defense, even as they sound alarm bells about Russia’s behavior.  As I note in a new article in Aspenia Online, their defense spending continues to be woeful.  Despite a commitment following the 2006 NATO summit, only the United States, Britain, Greece, and Estonia currently spend at least two percent of annual GDP on defense.  What is especially frustrating is that several major NATO powers, including Germany, Italy, and Spain, have spending levels far below the two percent target.  By comparison, just the U.S. base military budget is more than four percent of a much larger GDP, and if overseas contingency spending for supposed emergency missions (like the ongoing wars in Iraq and Afghanistan) is included, Washington’s defense outlays reach nearly five percent.

Read more at http://www.cato.org/blog/americas-nato-liabilities

Cato: Excluding China from Military Exercises Would be Short-Sighted

Last year China joined the U.S.-led Rim of the Pacific Exercise for the first time. However, Beijing’s role in RIMPAC has become controversial. Senate Armed Services Committee Chairman John McCain recently opined: “I would not have invited them this time because of their bad behavior.”

The Obama administration is conflicted. Bloomberg’s Josh Rogin worried that “so far, China is paying no price for its aggression.” Bonnie Glaser of CSIS suggested using the exercises to threaten the PRC. Patrick Cronin of the Center for a New American Security was less certain, acknowledging benefits of China’s inclusion: “It all depends on what you think RIMPAC should be.”

That is the key question. In part the exercise is about mutually beneficial cooperation for non-military purposes. With the simultaneous growth in commercial traffic and national navies, there likely will be increasing need and opportunity for joint search and rescue, operational safety, anti-piracy patrols, and humanitarian relief.

The question also involves military-military cooperation. Contacts between the Chinese and U.S. navies are few; those between the PRC’s forces and those of countries at odds with Beijing’s territorial claims, such as Japan and the Philippines, are even fewer.

There is value in allowing potential opponents a better assessment of one’s capabilities. Chinese expectations may be more realistic if they have a better sense of what and who they might face, especially the navies of their neighbors, which are expanding and becoming more competent.

Read more at http://www.cato.org/blog/excluding-china-military-exercises-would-be-short-sighted

Cato: American People Must Tell Politicians No More War

American foreign policy is a bipartisan failure. The U.S. must intervene everywhere all the time, irrespective of consequences?

No matter how disastrous the outcome, promiscuous interventionists insist that the idea was sound. Any problems obviously result from execution, a matter of doing too little:  too few troops engaged, too few foreigners killed, too few nations bombed, too few societies transformed, too few countries occupied, too few years involved, too few dollars spent.

As new conflicts rage across the Middle East, the interventionist caucus’ dismal record has become increasingly embarrassing. Anne-Marie Slaughter, a cheerleader for war in Libya, recently defended her actions after being chided on Twitter for being a war-monger. She had authored a celebratory Financial Times article entitled “Why Libya skeptics were proved badly wrong.” Alas, Slaughter’s Mediterranean adventure looks increasingly foolish.

Slightly more abashed is Samantha Power, one of the Obama administration’s chief Sirens of War. She recently pleaded with the public not to let constant failure get in the way of future wars:  “I think there is too much of, ‘Oh, look, this is what intervention has wrought’ … one has to be careful about overdrawing lessons.” Just because the policy of constant war had been a constant bust, people shouldn’t be more skeptical about a military “solution” for future international problems.

President Barack Obama also appears to be a bit embarrassed by his behavior. The Nobel Peace Prize winner has been as active militarily as his much-maligned predecessor.

Read more at http://www.cato.org/blog/american-people-must-tell-politicians-no-more-war

Cato: United States Should not Confront China over Other Nations’ Territorial Disputes

The Asian order is under strain as the People’s Republic of China has become an economic colossus with growing military might and diplomatic influence. The PRC is asserting territorial claims once considered impractical or worthless. Brunei, Japan, Malaysia, Philippines, and Vietnam all stand opposed to these claims.

Washington is not a claimant, but has sparred with the PRC over the U.S. Navy’s legal right to engage in intelligence gathering in Chinese waters. More important, America has a formal military alliance with Japan which, the president declared, covers disputed territories. Washington’s military relationship with Manila is looser, but Philippine officials are seeking a similar territorial guarantee.

The Obama administration has escalated U.S. involvement by sending American aircraft over islands reclaimed by China and discussing joint patrols with the Japanese.

Most of the islands are intrinsically worthless and provide little security value. Maritime rights are affected but, in peacetime, the difference wouldn’t matter so much. In wartime, everything would depend on the capabilities of the contending navies.

The economic benefits from control are real but still relatively small compared to the economies of most of the claimants. For most of the countries, national ego is the primary issue.

What should the United States do? American interests are few and of middling importance. Washington primarily seeks to uphold global norms, in this case, navigational freedom and peaceful conflict resolution.

Read more at http://www.cato.org/blog/us-should-not-confront-china-over-other-nations-territorial-disputes

Cato: Long Range Bomber’s Big Bill

Over the next several months the Pentagon will award the contract for the Long Range Strike Bomber. If the Department of Defense’s history repeats itself, cost overruns on the project seem likely.

According to 2010 estimates each new plane is officially expected to cost $550 million. More recent estimates are higher. A 2014 report from the Congressional Research Service included estimates of up to $810 million per bomber. The Air Force is expected to buy 100 planes, which would cost a total of $55 billion even if the low official estimate per plane panned out.

Read more at http://www.cato.org/blog/long-range-bombers-big-bill

Cato: Good Precedents against NSA Spying

With debate about NSA spying continuing in the Senate, it’s worth looking at some of the historical and modern precedents for protecting our communications and communications data. A few highlights:

* The earliest precedent for protection of communications in the United States is the treatment of mail. The founders used postal mail to communicate their revolutionary ideas and even to plan their insurrection against the tyranny of King George, so they prioritized protecting the privacy of the mail. In the Act of Feb. 20, 1792, passed a few short years after ratification of the Constitution, the U.S. Congress enshrined protections for mail in the law, creating heavy fines for opening or delaying mail.

* The Supreme Court confirmed the existence of constitutional protection for postal communications in Ex Parte Jackson. In that 1877 case, the Court described the Fourth Amendment’s guarantees in very interesting and clear language: “Letters and sealed packages … are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.” Though we place mail in the hands of government agents, the Fourth Amendment protects it like it’s inside our homes.

* The year Ex Parte Jackson case was decided, both Western Union and the Bell Company began providing voice telephone service. The Supreme Court addressed constitutional protection for phone calls some decades later in 1928. The Olmstead case was wrongly decided, we now know. It found that telephone communications weren’t protected by the Constitution. So the dissents are where to look for precedential language. Justice Brandeis’s famous dissent spoke of the “right to be let alone,” but Justice Butler provided thinking and language that should have more lasting value: “The contracts between telephone companies and users contemplate the private use of the facilities employed in the service,” he wrote. “The communications belong to the parties between whom they pass.” The communications belong to the parties. That’s a fascinating and important way to think about our communications, as property that we own.

Read more at http://www.cato.org/blog/good-precedents-against-nsa-spying

Cato: Should NSA Be Immune from Constitutional Scrutiny?

Today the Court of Appeals for the DC Circuit issued a ruling in NSA v. Klayman that has almost no practical effect, but is a potent illustration of how excessive secrecy and stringent standing requirements effectively immunize intelligence programs from meaningful, adversarial constitutional review.

Contrary to some breathless headlines, today’s opinion does not “uphold” the NSA’s illicit bulk collection of telephone records—which, thanks to the recent passage of the USA Freedom Act, must end by November in any event. Rather, the court overturned an injunction that only ever applied specifically to the phone records of the plaintiffs. And they did so, not because the judges found the program substantially lawful, but because the plaintiff could not specifically prove that his telephone records had been swept into the database, even though the ultimate aim of the program was to collect nearly all such records.

Read more at http://www.cato.org/blog/should-nsa-be-immune-constitutional-scrutiny

Cato: With “Friends” Like Saudi Arabia, the United States Doesn’t Need Enemies

One striking feature of the first debate featuring the top tier GOP presidential candidates was how many of them described Saudi Arabia and its allies in the Persian Gulf as “friends” of the United States.  And clearly that is a bipartisan attitude.  Obama administration officials routinely refer to Saudi Arabia as a friend and ally, and one need only recall the infamous photo of President Obama bowing to Saudi King Abdullah to confirm Washington’s devotion to the relationship with Riyadh.

It is a spectacularly unwise attitude.  As Cato adjunct scholar Malou Innocent and I document in our new book, Perilous Partners: The Benefits and Pitfalls of America’s Alliances with Authoritarian Regimes, Saudi Arabia is not only an odious, totalitarian power, it has repeatedly undermined America’s security interests.

Saudi Arabia’s domestic behavior alone should probably disqualify the country as a friend of the United States.  Riyadh’s reputation as a chronic abuser of human rights is well deserved. Indeed, even as Americans and other civilized populations justifiably condemned ISIS for its barbaric practice of beheadings, America’s Saudi ally executed 83 people in 2014 by decapitation.

Read more at http://www.cato.org/blog/friends-saudi-arabia-united-states-doesnt-need-enemies

Cato: TSA’s Classified “Risk-Reduction Analysis”

Last month, our friends at the Competitive Enterprise Institute filed suit against the TSA because the agency failed to follow basic administrative procedures when it deployed its notorious “strip-search machines” for use in primary screening at our nation’s airports. Four years after being ordered to do so by the U.S. Court of Appeals for the D.C. Circuit, TSA still hasn’t completed the process of taking comments from the public and finalizing a regulation setting this policy. Here’s hoping CEI’s effort helps make TSA obey the law.

The reason why federal law requires agencies to hear from the public is so that they can craft the best possible rules. Nobody believes in agency omniscience. Public input is essential to gathering the information for setting good policies.

But an agency can’t get good information if it doesn’t share the evidence, facts, and inferences that underlie its proposals and rules. That’s why this week I’ve sent TSA a request for mandatory declassification review relating to a study that it says supports its strip-search machine policy. The TSA is keeping its study secret.

Read more at http://www.cato.org/blog/tsas-classified-risk-reduction-analysis

Cato: After Another Failure, Time to Privatize TSA

The Transportation Security Administration (TSA) has another failure on its hands. In recent tests, undercover investigators smuggled mock explosives and banned weapons through U.S. airport checkpoints 96 percent of the time. According to ABC, “In one case, agents failed to detect a fake explosive taped to an agent’s back, even after performing a pat down that was prompted after the agent set off the magnetometer alarm.”

The unionized TSA has a history of inept management. Reports in 2012 by various House committees found that TSA operations are “costly, counterintuitive, and poorly executed,” and the agency “suffers from bureaucratic morass and mismanagement.” Former TSA chief Kip Hawley argued in an op-ed that the agency is “hopelessly bureaucratic.” And in 2014, former acting TSA chief Kenneth Kaspirin said that TSA has “a toxic culture” with “terrible” morale.

TSA has a penchant for wasting money on useless activities, leaving it less to spend on things that benefit travelers, such as more screening stations. A GAO report, for example, found that TSA continues to spend $200 million a year on a program to spot terrorists by their suspicious behaviors — yet the program does not work.

Read more at http://www.cato.org/blog/after-another-failure-time-privatize-tsa

Cato: Event Monday: Is the FBI Creating Terrorist Plots to Stop Them?

This Monday at noon, Cato hosts “The Newburgh Sting and the FBI’s Production of the Domestic Terrorism Threat.” The event will consider how the FBI and others elements of our domestic security apparatus now generate a sense of the terrorist danger that they combat. David Heilbroner will show clips from his 2014 documentary on the Newburgh four terrorist case, which aired on HBO. Naureen Shah of Amnesty International and John Mueller of Cato and Ohio State will comment. RSVP here.

You can get a sense of the issue from this 2007 headline, from The Onion: “U.S. Counter-Counterterrorism Unit Successfully Destroys Washington Monument.” The counter-counterterrorism unit, the satirical article says, was “created in 2004 in response to the lack of terror activity since the Sept. 11 attacks,” and tasked with “raising awareness among the American public of the ‘myriad unknown threats’ that still face the country,” by demonstrating vulnerability to terrorism.

That’s make-believe, of course. No U.S. government agency has been bombing monuments, or anything else on U.S. soil. But still, like other good satire, the article gets at truth more effectively than conventional rendering of facts.

Read more at http://www.cato.org/blog/event-monday-fbi-creating-terrorist-plots-stop-them-0

Cato: In Holding NSA Spying Illegal, the Second Circuit Treats Data as Property

The U.S. Court of Appeals for the Second Circuit has ruled that section 215 of the USA-PATRIOT Act never authorized the National Security Agency’s collection of all Americans’ phone calling records. It’s pleasing to see the opinion parallel arguments that Randy Barnett and I put forward over the last couple of years.

Two points from different parts of the opinion can help structure our thinking about constitutional protection for communications data and other digital information. Data is property, which can be unconstitutionally seized.

As cases like this often do, the decision spends much time on niceties like standing to sue. In that discussion—finding that the ACLU indeed has legal standing to challenge government collection of its calling data—the court parried the government’s argument that the ACLU suffers no offense until its data is searched.

“The Fourth Amendment protects against unreasonable searches and seizures,” the court emphasized. Data is a thing that can be owned, and when the government takes someone’s data, it is seized.

Read more at http://www.cato.org/blog/holding-nsa-spying-illegal-second-circuit-treats-data-property

Cato: Second Circuit Declares NSA’s Telephone Dragnet Unlawful

In a ruling certain to profoundly shape the ongoing debate over surveillance reform in Congress, the U.S. Court of Appeals for the Second Circuit today held that the National Security Agency’s indiscriminate collection of Americans’ telephone calling records exceeds the legal authority granted by the Patriot Act’s controversial section 215, which is set to expire at the end of this month.  Legislation to reform and constrain that authority, the USA Freedom Act, has drawn broad bipartisan support, but Senate Majority Leader Mitch McConnell has stubbornly pressed ahead with a bill to reauthorize §215 without any changes.  But the Second Circuit ruling gives even defenders of the NSA program powerful reasons to support reform.

McConnell and other reform opponents have consistently insisted, in defiance of overwhelming evidence, that the NSA program is an essential tool in the fight against terrorism, and that any reform would hinder efforts to keep Americans safe—a claim rejected even by the leaders of the intelligence community. (Talk about being more Catholic than the Pope!)  Now, however, a federal appellate court has clearly said that no amount of contortion can stretch the language of §215 into a justification for NSA’s massive database—which means it’s no longer clear that a simple reauthorization would preserve the program. Ironically, if McConnell is determined to salvage some version of this ineffective program, his best hope may now be… the USA Freedom Act!

The Freedom Act would, in line with the Second Circuit opinion, bar the use of §215 and related authorities to indiscriminately collect records in bulk, requiring that a “specific selection term,” like a phone number, be used to identify the records sought by the government.  It also, however, creates a separate streamlined process that would allow call records databases already retained by telephone companies to be rapidly searched and cross-referenced, allowing NSA to more quickly obtain the specific information it seeks about terror suspects and their associates without placing everyone’s phone records in the government’s hands.  If the Second Circuit’s ruling is upheld, NSA will likely have to cease bulk collection even if Congress does reauthorize §215.  That makes passage of the Freedom Act the best way to guarantee preservation of the rapid search capability McConnell seems to think is so important—though, of course, the government will retain the ability to obtain specific phone records (albeit less quickly) under either scenario.  With this ruling, in short, the arguments against reform have gone from feeble to completely unsustainable.

Read more at http://www.cato.org/blog/second-circuit-declares-nsas-telephone-dragnet-unlawful

Cato: Japan’s Defense Budget Is Still Inadequate

The Japanese government and Western news outlets are highlighting Tokyo’s commitment to increase its military spending for the third straight year.  Pundits and policy experts see the boost as a response to the spike in bilateral tensions with China—especially the bitter dispute concerning sovereignty over the Senkaku Islands in the East China Sea.  But as with similar moves by the Baltic republics and Washington’s other NATO allies that reflect worries about Russia’s recent behavior, there is more symbolism than substance in Prime Minister Shinzo Abe’s decision.

Japan’s defense budget for the fiscal year beginning in April will be 4.98 trillion yen ($42 billion). The increase is quite modest—up from 4.84 trillion yen in the current year. Moreover, even the larger sum is less than half of China’s official military budget and less than one-third of what the Pentagon and most independent experts believe is Beijing’s actual level of spending. Although Japan’s “Self Defense Forces” already can deploy a significant amount of modern weaponry, such a large disparity in spending is cause for concern.

That is especially true since Abe’s government has adopted an increasingly assertive posture toward China on a range of issues. In one sense, U.S. officials have reason to be gratified by that move and Tokyo’s greater overall interest in East Asia’s security. Japan finally seems to be taking steps to become a normal great power regarding military matters instead of clinging to pacifism and relying on the United States to protect important Japanese interests. Abe’s efforts to “reinterpret” Article Nine of the country’s constitution, which officially places draconian restraints on the military, also reflect the shift in thinking.

Read more at http://www.cato.org/blog/japans-defense-budget-still-inadequate

Cato: President Proposes More War: Congress Should Say “No”

The Islamic State is evil. But that’s no reason for America to go to war again in the Middle East or for Congress to approve more years of conflict.

The president requested formal legal authority to war against ISIL—more than six months after dropping the first bomb on the self-proclaimed caliphate. The United States is defending a gaggle of frenemies from a far weaker foe unable to seriously threaten America.

The Obama administration long ignored the group’s gains, recognizing that ISIL was more about insurgency than terrorism, and was targeting Middle Eastern countries, not the United States.

The administration reversed course when the group’s advances threatened Kurdistan’s capital of Erbil and Iraq’s Yazidi community. Then the beheading of two American hostages transformed administration policy.

Now President Obama claims the Islamic State threatens “U.S. national security.” But how? How can a few thousand insurgents, locked in bitter combat with several Middle Eastern nations endanger the globe’s superpower?

The administration created yet another pseudo-coalition, with U.S. forces responsible for over 90 percent of the airstrikes, as of last week. “ISIL is going to lose,” declared the president. But Washington gave the group a recruiting bonanza. The Associated Press reported that foreign fighters continue to join “in unprecedented numbers.”

In seeking congressional authority, the administration is playing on emotions. Hostage Kayla Mueller’s killing “fueled congressional outrage and renewed calls to defeat” the organization, reported USA Today.

Yet her tragic fate demonstrates ISIL’s limited reach. The only U.S. citizens harmed by the Islamic State are those who voluntarily traveled to a war zone.

Read more at http://www.cato.org/blog/president-proposes-more-war-congress-should-say-nopresident-proposes-more-war-congress-should

Cato: How the NSA Stole the Keys to Your Phone

A blockbuster story at The Intercept Thursday revealed that a joint team of hackers from the National Security Agency and its British counterpart, the Government Communications Headquarters (GCHQ), broke into the systems of one of the world’s largest manufacturers of cell phone SIM cards in order to steal the encryption keys that secure wireless communications for hundreds of mobile carriers—including companies like AT&T, T-Mobile, Verizon, and Sprint.  To effect the heist, the agencies targeted employees of the Dutch company Gemalto, scouring e-mails and Facebook messages for information that would enable them to compromise the SIM manufacturer’s networks in order to make surreptitious copies of the keys before they were transmitted to the carriers. Many aspects of this ought to be extremely disturbing.

First, this is a concrete reminder that, as former NSA director Michael Hayden recently acknowledged, intelligence agencies don’t spy on “bad people”; they spy on “interesting people.”  In this case, they spied extensively on law-abiding technicians employed by a law-abiding foreign corporation, then hacked that corporation in apparent  violation of Dutch law. We know this was hardly a unique case—one NSA hacker boasted in Snowden documents diclosed nearly a year ago about “hunting sysadmins”—but it seems particularly poetic coming on the heels of the recent Sony hack, properly condemned by the U.S. government.  Dutch legislators quoted in the story are outraged, as well they should be.  Peaceful private citizens and companies in allied nations, engaged in no wrongdoing, should not have to worry that the United States is trying to break into their computers.

Read more at http://www.cato.org/blog/how-nsa-stole-keys-phone