“The Scandal Is In What’s Legal”: Holding Congress Accountable For National Security Agency Excesses
It didn’t generate much attention at the time, but in the closing days of 2012, while most of the political world was focused on the so-called “fiscal cliff,” Congress also had to take the time to reauthorize the government’s warrantless surveillance program. A handful of senators — Ron Wyden (D-Ore.), Jeff Merkley (D-Ore.), Pat Leahy (D-Vt.), Rand Paul (R-Ky.) — proposed straightforward amendments to promote NSA disclosure and add layers of accountability, but as Adam Serwer reported at the time, bipartisan majorities rejected each of their ideas.
In effect, every senator was aware of dubious NSA surveillance — some had been briefed on the programs in great detail — but a bipartisan majority was comfortable with an enormous amount of secrecy and minimal oversight. Even the most basic of proposed reforms — having the NSA explain how surveillance works in practice — were seen as overly intrusive. The vast majority of Congress was comfortable with NSA operating under what are effectively secret laws.
With this in mind, Jonathan Bernstein asked a compelling question over the weekend and provided a persuasive answer: “If you don’t like the revelations this week about what the NSA has been up to regarding your phone and Internet data, whom should you blame?”
There is, to be sure, plenty of blame to go around. The NSA has pushed the limits; federal courts approved the surveillance programs; George W. Bush got this ball rolling; President Obama kept this ball rolling; and telecoms have clearly participated in the efforts.
But save plenty of your blame — perhaps most of your blame — for Congress.
Did you notice the word I used in each of the other cases? The key word: law. As far as we know, everything that happened here was fully within the law. So if something was allowed that shouldn’t have been allowed, the problem is, in the first place, the laws. And that means Congress.
It’s worth pausing to note that there is some debate about the legality of the exposed surveillance programs. Based on what we know at this point, most of the legal analyses I’ve seen suggest the NSA’s actions were within the law, though we’re still dealing with an incomplete picture, and there are certainly some legal experts who question whether the NSA crossed legal lines.
But if the preliminary information is accurate, it’s hard to overstate how correct Bernstein is about congressional culpability.
Towards the end of the Bush/Cheney era, there was a two-pronged debate about surveillance. On the one hand, there were questions about warrantless wiretaps and NSA data mining. On the other, there was the issue of the law: the original FISA law approved in 1978 was deemed by the Bush administration to be out of date, so officials chose to circumvent it, on purpose, to meet their perceived counter-terrorism needs.
In time, bipartisan majorities in Congress decided not to hold Bush/Cheney accountable, and ultimately expanded the law to give the executive branch extraordinary and unprecedented surveillance powers.
In theory, Obama could have chosen a different path after taking office in 2009, but the historical pattern is clear: if Congress gives a war-time president vast powers related to national security, that president is going to use those powers. The wiser course of action would be the legislative branch acting to keep those powers in check — limiting how far a White House can go — but our contemporary Congress has chosen to do the opposite.
This is, by the way, a bipartisan phenomenon — lawmakers in both parties gave Bush expansive authority in this area, and lawmakers in both parties agreed to keep these powers in Obama’s hands. What’s more, they not only passed these measures into law, they chose not to do much in the way of oversight as the surveillance programs grew.
OK, but now that the NSA programs are causing national controversies again, perhaps Congress will reconsider these expansive presidential powers? Probably not — on the Sunday shows, we heard from a variety of lawmakers, some of whom expressed concern about the surveillance, but most of whom are prepared to allow the programs continue untouched.
Indeed, for many lawmakers on the right, the intended focus going forward won’t be on scaling back NSA efforts, but rather, will be on targeting the leaks that exposed the NSA efforts.
Conservatives, in particular, seem especially eager to leave these powers in the president’s hands — even though they have nothing but disdain for this particular president. And as Jon Chait explained, support for the NSA programs from the right will matter a great deal: “The Republican response is crucial, because it determines whether the news media treats the story as a ‘scandal’ or as a ‘policy dispute.’”
Michael Kinsley, referencing campaign-finance laws, once argued that in Washington, the scandal isn’t what’s illegal; the scandal is what’s legal. I’ve been thinking a lot about this adage in recent days.
If the reports are accurate and the NSA is acting within the law, but you nevertheless consider the surveillance programs outrageous, there is one remedy: Congress needs to redraw the legal lines. At least for now, the appetite for changes among lawmakers appears limited, which only helps reinforce the thesis about who’s ultimately responsible for this mess.
By: Steve Benen, The Maddow Blog, June 10, 2013
“Obamacare Is Killing The GOP”: Republicans’ Opiate Obsession With The Law Will Be The Party’s Undoing
It’s not an exaggeration to say Republicans have bet their future on the disaster they expect from Obamacare. “The implementation of the law over the next year is going to reveal a lot of kinks, a lot of red tape, a lot of taxes, a lot of price increases,” RNC spokesman Brad Dayspring told The New York Times last month. “It’s going to be an issue that’s front and center [in 2014].” GOP intellectuals see Obamacare as the centerpiece of the party’s strategy even well beyond then. “Republicans are likely to seize on every sad [implementation] story as justification for dramatic changes—and in 2016, mount campaigns designed to replace the system in whole or in part with plenty of material to use in their cause,” the conservative wonk Ben Domenech wrote approvingly in March.
And, of course, the party’s base is completely, unremittingly, obsessed with the issue. The mere anticipation of an implementation quagmire is “reinvigorating the movement,” Jenny Beth Martin, a national Tea Party official, told The Hill in early May. “We’re doing street rallies and protests over the next month to three months, initially. We’re working to recruit candidates that can talk about this.”
I happen to be agnostic about whether health care implementation will help the GOP in 2014. On the one hand, anything that energizes conservatives in a low-turnout election should benefit Republicans, much as it did on 2010. On the other hand, as The Washington Post’s Greg Sargent points out, much of the public antipathy toward Obamacare is already baked into the polls. The people who disapprove haven’t liked it from the get-go; similarly for the people who approve. It’s possible that a series of implementation snafus will move those numbers at the margins—a new poll suggests public opinion has soured a bit lately, perhaps as a result of all the “train wreck” chatter. On the other hand, it’s also possible that implementation will go relatively smoothly and people will embrace the program, netting Democrats a few more votes.
What I do know is that the GOP’s health care preoccupation is absolutely destroying its long-term prospects. However well the issue may work in the midterms, when an uptick in conservative turnout can flip a few dozen House seats, 2012 proved that it’s at best a wash in a presidential election, when Democrats can swamp that turnout with their demographic edge, and when the GOP’s challenge is to win moderates and independents as a result. Conservatives argue that the only reason health care didn’t work in 2012 is that Romney was a flawed messenger, given his patrimonial link to Obamacare. But with the Supreme Court largely blessing the law last June, the issue was mostly settled in the public mind, making it at best a non-factor among swing voters.
Even if implementation goes terribly, it isn’t likely to rekindle widespread angst. Most people will be untouched by implementation—even a disastrous implementation—for the simple reason that they won’t be relying on Obamacare. As Bloomberg’s Josh Barro has explained, 78 percent of us get coverage through Medicare, Medicaid, or our employers, a figure isn’t likely to change very much, or at least very quickly. Meanwhile, my colleague Jonathan Cohn points out that life for many people who do end up on Obamacare will improve, however flawed the program is, because it translates into insurance they didn’t have before.
Having said all that, the real problem with conservatives’ Obamacare strategy isn’t that it won’t work. It’s that the Obamacare obsession is actively sabotaging the GOP. Earlier this week The Washington Post ran an article about the ongoing dysfunction among House Republicans. Easily the most telling anecdote had to do with a largely symbolic measure called the Helping Sick Americans Now Act, concocted by Majority Leader Eric Cantor to help Republicans look like they care about the problems of ordinary people. (The bill feinted at easing the lot of the uninsured.) That, apparently, is where Cantor erred. As the Post explains:
A few dozen Republicans opposed the modest Helping Sick Americans legislation because they said it came from nowhere. Instead, Cantor pulled the bill and held another vote to repeal Obamacare — their 37th attempt to repeal part or all of the landmark health-care law — to appease conservatives.
To put the problem in Marxian terms, Obamacare has become the opiate of the GOP. By its own admission, the party must broaden its appeal to Latinos, gays, and young voters. It needs an economic agenda that encompasses more than tax cuts for the rich and brutal spending cuts. It has to persuade voters it’s more than just a nihilistic force bent on triggering global financial apocalypse if it doesn’t get its way in Washington. And yet, when party leaders so much as broach these liabilities, conservatives revolt and the leadership caves, appeasing them with an issue whose political utility peaked two-and-a-half years ago. (Suffice it to say, after the last few years, the words “reinvigorating the Tea Party movement” won’t exactly help Cantor and Boehner sleep at night.)
If you want to appreciate how truly incorrigible conservatives are on the subject, I recommend watching them grapple with the early news about Obamacare implementation, which has suggested the program could work better than anticipated. It’s a bit like watching a speculator learn he’s bet his life savings on a failing company—which is to say, chock full of denial and elaborate self-delusion.
For example, in late May, when the head of California’s insurance exchange announced that insurers were submitting cheaper bids than the state expected (and cheaper than many critics predicted), the conservative columnist Avik Roy tried to disprove the claims by visiting an online clearinghouse for private insurance plans. Roy solicited bids for a healthy 25-year-old male and a healthy 40-year old male, then pointed out that they came in far below what coverage would cost through the Obamacare exchange. All fine and good, except that Roy’s hypothetical bids were neither here nor there. The point of Obamacare is to provide affordable insurance to people who may be sick or older.
Alas, the fact that Roy basically affirmed the rationale for a program he set out to discredit—healthy, affluent young people are the one group that will do worse under Obamacare; everyone else will do better; no one has ever disputed this—didn’t stop every conservative outlet on the Internet from trumpeting his analysis. “Obamacare drives up insurance premiums by up to 146 percent in California,” screamed The Daily Caller. Even after a succession of wonks highlighted the glaring flaws, the editorialists at The Wall Street Journal leaned on Roy to declare an “ObamaCare Bait and Switch.”
The desperation here is palpable, but also understandable. If, instead of trying to fix your party’s deepest pathologies you wagered its entire future on a high-risk strategy that was starting to turn bad, you’d be a little desperate, too. Perhaps it’s a subset of Obama Derangement Syndrome that afflicts conservatives when they talk about health care—call it Obamacare Derangement Syndrome. Maybe one day, once the dust has settled, it’ll be covered under Obamacare, too.
By: Norm Scheiber, Senior Editor, The New Republic, June 7, 2013
In the wake of the party’s election setbacks last year, the Republican National Committee has focused on outreach to a variety of constituencies that have been turning towards Democrats: Latinos, African Americans, younger voters, women, etc.
But it’s against this backdrop that we also see the RNC boosting its outreach efforts to a group of voters that ostensibly represents the party’s existing base.
The Republican National Committee has brought on a director of evangelical outreach to massage the party’s complicated relationship with religious conservatives, GOP sources told CNN on Saturday.
The party organization has hired Chad Connelly, a consultant and motivational speaker who, until this weekend, was the chairman of the South Carolina Republican Party.
Connelly resigned from that job Saturday and informed members of the state party’s executive committee that he will be taking a job at the RNC…. Connelly, a Baptist, has told multiple South Carolina Republicans that he will be steering the national party’s outreach to faith-based groups.
There are two broad questions to consider. The first is, who’s Chad Connelly? The Republican is far better known for his work leading the South Carolina GOP than engaging in faith-based activism. Upon taking over the state party two years ago, Connelly vowed to become President Obama’s “worst nightmare,” and then largely faded from the national scene.
That said, Connelly wrote an 80-page book in 2002, called “Freedom Tide,” which made a series of ridiculous claims about the United States being founded as a “Christian nation.” The book was panned for its inaccuracies and wasn’t exactly a best-seller
But the other question is, why in the world would the Republican National Committee have to focus on evangelical outreach right now?
The answer, I suspect, has something to do with the fact that the religious right movement isn’t nearly as pleased with its RNC allies as one might assume. As we discussed in April, many of the movement’s most prominent leaders and activists publicly threatened to abandon the Republican Party altogether unless it continues to push — enthusiastically — a far-right culture war agenda.
The threats coincided with a call from Tony Perkins, president of the right-wing Family Research Council, that social conservatives stop contributing to the RNC until the party starts “defending core principles.”
That might help explain why the RNC hired Connelly, but as we talked about at the time, it’s not at all clear what more the religious right community seriously expects of the party.
After all, Republican policymakers are banning abortion and targeting reproductive rights at a breathtaking clip, pursuing official state religions, eliminating sex-ed, going after Planned Parenthood, and restricting contraception. Heck, we even have a state A.G. and gubernatorial candidate fighting to protect an anti-sodomy law.
And social conservatives are outraged that Republicans haven’t pushed the culture war enough? Why, because the RNC hasn’t officially declared its support for a theocracy yet?
Presumably, it’s now up to Connelly to help make this clearer to the party’s evangelical base.
By: Steve Benen, The Maddow Blog, June 10, 2013
Conservative Republicans in our nation’s capital have managed to accomplish something they only dreamed of when Tea Partiers streamed into Congress at the start of 2011: They’ve basically shut Congress down. Their refusal to compromise is working just as they hoped: No jobs agenda. No budget. No grand bargain on the deficit. No background checks on guns. Nothing on climate change. No tax reform. No hike in the minimum wage. Nothing so far on immigration reform.
It’s as if an entire branch of the federal government — the branch that’s supposed to deal directly with the nation’s problems, not just execute the law or interpret the law but make the law — has gone out of business, leaving behind only a so-called “sequester” that’s cutting deeper and deeper into education, infrastructure, programs for the nation’s poor, and national defense.
The window of opportunity for the President to get anything done is closing rapidly. Even in less partisan times, new initiatives rarely occur after the first year of a second term, when a president inexorably slides toward lame duck status.
But the nation’s work doesn’t stop even if Washington does. By default, more and more of it is shifting to the states, which are far less gridlocked than Washington. Last November’s elections resulted in one-party control of both the legislatures and governor’s offices in all but 13 states — the most single-party dominance in decades.
This means many blue states are moving further left, while red states are heading rightward. In effect, America is splitting apart without going through all the trouble of a civil war.
Minnesota’s Democratic-Farmer-Labor Party, for example, now controls both legislative chambers and the governor’s office for the first time in more than two decades. The legislative session that ended a few weeks ago resulted in a hike in the top income tax rate to 9.85%, an increased cigarette tax, and the elimination of several corporate tax loopholes. The added revenues will be used to expand early-childhood education, freeze tuitions at state universities, fund jobs and economic development, and reduce the state budget deficit. Along the way, Minnesota also legalized same-sex marriage and expanded the power of trade unions to organize.
California and Maryland passed similar tax hikes on top earners last year. The governor of Colorado has just signed legislation boosting taxes by $925 million for early-childhood education and K-12 (the tax hike will go into effect only if residents agree, in a vote is likely in November).
On the other hand, the biggest controversy in Kansas is between Governor Sam Brownback, who wants to shift taxes away from the wealthy and onto the middle class and poor by repealing the state’s income tax and substituting an increase in the sales tax, and Kansas legislators who want to cut the sales tax as well, thereby reducing the state’s already paltry spending for basic services. Kansas recently cut its budget for higher education by almost 5 percent.
Other rightward-moving states are heading in the same direction. North Carolina millionaires are on the verge of saving $12,500 a year, on average, from a pending income-tax cut even as sales taxes are raised on the electricity and services that lower-income depend residents depend on. Missouri’s transportation budget is half what it was five years ago, but lawmakers refuse to raise taxes to pay for improvements.
The states are splitting as dramatically on social issues. Gay marriages are now recognized in twelve states and the District of Columbia. Colorado and Washington state permit the sale of marijuana, even for non-medical uses. California is expanding a pilot program to allow nurse practitioners to perform abortions.
Meanwhile, other states are enacting laws restricting access to abortions so tightly as to arguably violate the Supreme Court’s 1973 decision in Roe v. Wade. In Alabama, the mandated waiting period for an abortion is longer than it is for buying a gun.
Speaking of which, gun laws are moving in opposite directions as well. Connecticut, California, and New York are making it harder to buy guns. Yet if you want to use a gun to kill someone who’s, say, spray-painting a highway underpass at night, you might want to go to Texas, where it’s legal to shoot someone who’s committing a “public nuisance” under the cover of dark. Or you might want to live in Kansas, which recently enacted a law allowing anyone to carry a concealed firearm onto a college campus.
The states are diverging sharply on almost every issue you can imagine. If you’re an undocumented young person, you’re eligible for in-state tuition at public universities in fourteen states (including Texas). But you might want to avoid driving in Arizona, where state police are allowed to investigate the immigration status of anyone they suspect is here illegally.
And if you’re poor and lack health insurance you might want to avoid a state like Wisconsin that’s refusing to expand Medicaid under the Affordable Care Act, even though the federal government will be picking up almost the entire tab.
Federalism is as old as the Republic, but not since the real Civil War have we witnessed such a clear divide between the states on central issues affecting Americans.
Some might say this is a good thing. It allows more of us to live under governments and laws we approve of. And it permits experimentation: Better to learn that a policy doesn’t work at the state level, where it’s affected only a fraction of the population, than after it’s harmed the entire nation. As the jurist Louis Brandies once said, our states are “laboratories of democracy.”
But the trend raises three troubling issues.
First, it leads to a race to bottom. Over time, middle-class citizens of states with more generous safety nets and higher taxes on the wealthy will become disproportionately burdened as the wealthy move out and the poor move in, forcing such states to reverse course. If the idea of “one nation” means anything, it stands for us widely sharing the burdens and responsibilities of citizenship.
Second, it doesn’t take account of spillovers — positive as well as negative. Semi-automatic pistols purchased without background checks in one state can easily find their way easily to another state where gun purchases are restricted. By the same token, a young person who receives an excellent public education courtesy of the citizens of one states is likely to move to another state where job opportunity are better. We are interdependent. No single state can easily contain or limit the benefits or problems it creates for other states.
Finally, it can reduce the power of minorities. For more than a century “states rights” has been a euphemism for the efforts of some whites to repress or deny the votes of black Americans. Now that minorities are gaining substantial political strength nationally, devolution of government to the states could play into the hands of modern-day white supremacists.
A great nation requires a great, or at least functional, national government. The Tea Partiers and other government-haters who have caused Washington to all but close because they refuse to compromise are threatening all that we aspire to be together.
By: Robert Reich, The Robert Reich Blog, June 8, 2013
In politics, we often skip past the simple questions. This is why inquiries about the fundamentals can sometimes catch everyone short.
Michael Lind, the independent-minded scholar, posed one such question last week about libertarianism that I hope will shake up the political world. It’s important because many in the new generation of conservative politicians declare libertarianism as their core political philosophy.
It’s true that since nearly all Americans favor limits on government, most of us have found libertarians to be helpful allies at one point or another. Libertarians have the virtue, in principle at least, of a very clear creed: They believe in the smallest government possible, longing for what the late philosopher Robert Nozick, in his classic book “Anarchy, State, and Utopia,” called “the night-watchman state.” Anything government does beyond protecting people from violence or theft and enforcing contracts is seen as illegitimate.
If you start there, taking a stand on the issues of the day is easy. All efforts to cut back on government functions — public schools, Medicare, environmental regulation, food stamps — should be supported. Anything that increases government activity (Obamacare, for example) should be opposed.
In his bracing 1970s libertarian manifesto “For a New Liberty,” the economist Murray Rothbard promised a nation that would be characterized by “individual liberty, a peaceful foreign policy, minimal government and a free-market economy.”
Rothbard’s book concludes with boldness: “Liberty has never been fully tried in the modern world; libertarians now propose to fulfill the American dream and the world dream of liberty and prosperity for all mankind.”
This is where Lind’s question comes in. Note that Rothbard freely acknowledges that “liberty has never been fully tried,” at least by the libertarians’ exacting definition. In an essay in Salon, Lind asks:
“If libertarians are correct in claiming that they understand how best to organize a modern society, how is it that not a single country in the world in the early 21st century is organized along libertarian lines?”
In other words, “Why are there no libertarian countries?”
The ideas of the center-left — based on welfare states conjoined with market economies — have been deployed all over the democratic world, most extensively in the social democratic Scandinavian countries. We also have had deadly experiments with communism, a.k.a Marxism-Leninism.
From this, Lind asks another question: “If socialism is discredited by the failure of communist regimes in the real world, why isn’t libertarianism discredited by the absence of any libertarian regimes in the real world?”
The answer lies in a kind of circular logic: Libertarians can keep holding up their dream of perfection because, as a practical matter, it will never be tried in full. Even many who say they are libertarians reject the idea when it gets too close to home.
The strongest political support for a broad anti-statist libertarianism now comes from the tea party. Yet tea party members, as the polls show, are older than the country as a whole. They say they want to shrink government in a big way but are uneasy about embracing this concept when reducing Social Security and Medicare comes up. Thus do the proposals to cut these programs being pushed by Republicans in Congress exempt the current generation of recipients. There’s no way Republicans are going to attack their own base.
But this inconsistency (or hypocrisy) contains a truth: We had something close to a small-government libertarian utopia in the late 19th century and we decided it didn’t work. We realized that many Americans would never be able to save enough for retirement and, later, that most of them would be unable to afford health insurance when they were old. Smaller government meant that too many people were poor and that monopolies were formed too easily.
And when the Great Depression engulfed us, government was helpless, largely handcuffed by this anti-government ideology until Franklin D. Roosevelt came along.
In fact, as Lind points out, most countries that we typically see as “free” and prosperous have governments that consume around 40 percent of their gross domestic product. They are better off for it. “Libertarians,” he writes, “seem to have persuaded themselves that there is no significant trade-off between less government and more national insecurity, more crime, more illiteracy and more infant and maternal mortality . . . .”
This matters to our current politics because too many politicians are making decisions on the basis of a grand, utopian theory that they never can — or will — put into practice. They then use this theory to avoid a candid conversation about the messy choices governance requires. And this is why we have gridlock.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, June 9, 2013