Update

Reading and watching interviews with the man's grief-stricken parents.

• The man was clearly mentally ill and was angry at the police for taking his son from him.
• He was white.  
• His father is moderately right-wing, blaming "liberal people" for allowing his son to be taken from him and saying that there is no help available for white males.
• His mother says he was obsessed with the news, but not in any ideological way.  Every time a bad thing happened, he would say that he had a precognitive warning of it and tried to warn people but no one listened.  She was also emphatic that he did not have any advance knowledge of any of these bad things.  And she had no doubt that he was mentally ill.
• It was, in fact, his mother who took custody of his son, presumably because of his mental illness.  She feared that he would violently retaliate against her.
• There is some suggestion that his parents are divorced.  They have different last names, and apparently the father was not involved in the custody dispute.  (Interestingly enough, at least in the part we saw, he neither defends nor criticizes her actions).
• Naturally, both parents are devastated.

So, all in all, this looks like a personal feud without political motive.  At least so far, there is nothing to link the shooter to any political movement whatever.

Initial Hunch on Another Shooting

Wow!  I note that so far the Dallas police have not disclosed the man's picture or given any real details on him.  That means, among other things, that we don't know the man's race, religion, or political background.  (Although we can be sure that he is mentally unstable).

My gut reaction, though, is that this doesn't look like a guy from the black community angry over some police shooting or lesser incident.  Those usually just aren't this premeditated.  Nor does it look like Islamic terrorists.  The motives are just too personal.

To me, this has very much the look and feel of someone close to the "Patriot" movement.  Who else would own a semi-military van or be so eager to attack the core symbols of the state?

I guess we will find out soon enough if my hunch is right.

A Quick Note on John Kasich, Obamacare, and the Christian Coalition

My latest post is inspired by this column on John Kasich.  Kasich is a Republican politician of moderate prominence.  He served in the U.S. House of Representatives in the 1980's and '90's and was noted for his integrity and for taking the deficit seriously.  In 2010 he was elected Governor of Ohio as a Tea Party candidate and attempted to bust the unions (make Ohio a right-to-work state) but failed.  After that he turned moderate and accepted the Medicaid expansion in Obamacare.  Naturally, that makes him radioactive with the Republican base.  He is nonetheless making an utterly futile bid for the Republican nomination.

But, the column points out, what makes him doubly toxic is that he not only accepted the Medicaid expansion but his reason for doing so.  He saw providing healthcare to poor people as a moral issue. Even a religious issue.  As he put it:

Now, when you die and get to the, get to the, uh, to the meeting with St. Peter, he’s probably not gonna ask you much about what you did about keeping government small, but he’s going to ask you what you did for the poor. Better have a good answer.

Pardon my saying, but in this Kasich reveals himself to be a Catholic.*   No Evangelical Protestant would ever fall for such a line.

First of all, every Evangelical Christian knows that when you knock on the Pearly Gates, St. Peter won't ask what you did at all.  He will ask just one question -- have you taken Jesus Christ as your personal savior.  Whether you get in depends on how you answer.  What you have done is completely irrelevant.

Nonetheless, you have to do something between taking Jesus Christ as your personal savior and going to heaven, so you might as well put the time to good use.  And doing something for the poor is definitely putting your time to good use.  In fact, Evangelical Christians are generous in their donations to charity and proud of it.  But here is the thing.  They regard what you have done for the poor only as a matter of what you have personally done out of your own pocket.  Supporting government programs for the poor counts for nothing at all and is most likely seen as downright evil.

The reason is best explained, as I have before by a comment by a rabbi I recall reading.  The rabbi said that charity has two purposes, to provide for the poor, and to teach us to be generous.  The Jewish approach focuses more on providing for the poor and the Christian approach more on teaching us to be generous.  Or put differently, balancing the rights of the giver and the needs of the recipient is a difficult and delicate task.  The Jewish approach, perhaps, leans too far to the needs of the recipient and ends up with the schnorrer -- the beggar with an obnoxious sense of entitlement.  Too much focus on the rights of the giver can lead to some godawful condescension and a lot of unmet needs.  Drawing the right balance is difficult.

But Evangelical Christians aren't interested in drawing the balance at all.  They see charitable giving as exclusively about the rights of the giver and about teaching us to be generous.  The needs of the recipient simply do not enter the moral equation.

Or perhaps I am being overly harsh.  The matter is one of priority.  The top priority is ending any sort of government programs for the poor and ensuring that charity is strictly private.  If the goal is to teach us to be generous, then only voluntary giving counts.  Using taxpayer money defeats the whole purpose.  That is primary.

How much people give is secondary.  Clearly if the purpose of charitable giving is to teach us to be generous, then it isn't much good unless people are actually learning to be generous.  Evangelical Christians are, indeed, generous and proud of it.  I have no doubt that if there were too communities which we will call Community A and Community B, and if both had no taxpayer-supported service for the poor, Evangelical Christians would have no hesitation in preferring the community that gave more generously.

The needs of the recipient could fit in next, after first ensuring that all giving is voluntary and second teaching people to be generous.  Suppose that Community A and Community B both have ended taxpayer financed aid to the poor and are both equally generous in their voluntary donations.  But in Community A the voluntary programs are poorly administered and the recipients benefit very little from them, while in Community B voluntary programs are well administered an really know how to get the most bang for the buck.  Presumably Evangelical Christians would agree with most people that Community B is preferable.  But that is at best a tertiary concern.

And that it presumably the honest answer that you would get if you really pressed on the issue of accepting the Medicaid expansion.


*According to Wikipedia, although Kasich was born and raised Catholic, he has since become an Anglican.  Close enough.

Tax Cuts and Fiscal Crisis: A Feature, Not a Bug

I assume that this article was what has inspired a whole spate of blog posts on the subject.  My response to all this is the same as it was before.  Republicans and their tax breaks have an elaborate shell game of "heads I win, tails you lose" going.  Tax cuts are always good for one of two reasons:

1. Supply side economics. Tax cuts will spur such growth that revenue will increase and on spending cuts will be necessary.
2. Starve the beast. Tax cuts will choke off revenue, precipitate a fiscal crisis, and finally force spending cuts.

Now obviously, tax cuts cannot simultaneous increase and decrease revenue, avoid the need for spending cuts and force them.  But ultimately for Republicans either option is acceptable.  If tax cuts increase revenue and avoid the need for spending cuts, then you can avoid having to make hard decisions, with the same amount of services for less.  If tax cuts reduce revenue, then you have to cut spending, which is the real goal anyhow.

Starve the beast did not work on the federal level because the federal government has an essentially unlimited capacity to borrow and, if worst comes to worst (which it hasn't so far) can inflate its way out of debt.  But states and municipalities can't print their own money, so their borrowing capacity is limited and most are required by law to run balanced budgets.  And in a number of them, the beast is beginning to starve.  It is pointless being shocked or complaining.  This was the goal from the start.  Fiscal crises were always a feature, not a bug in this system.  

The real problem was that fiscal crises were supposed to take some time to materialize. They were supposed to happen when the authors of the tax cuts were safely out of office so someone else could take the blame.

The Politics of Ending Bulk Record Collection

So what can we learn from Congress' first real attempt since 9-11 to reign in our intelligence agencies?  One obvious place to start is by comparison with the Church Committee, the Senate Committee that investigated abuses by intelligence agencies in the 1970's and exposed extensive abuses.

First and foremost, the Church Committee clearly had only limited success.  It exposed serious past abuses and imposed some restraints to reign in out of control intelligence agencies (internal and external).  Forty years later, surveillance capacity has grown beyond what anyone in the 1970's could have imagined and intelligence agencies continue to be out-of-control rogues.  But there does not appear to have been the sort of corrupt use this time as before.  At least so far as we know, this massive surveillance has not been abused to suppress dissent or to advance personal or partisan goals. So to that extent, the Church Committee has had lasting achievements.  But an immense, impersonal agency swallowing up all your information and doing who-knows-what with it is scary enough even if not abused to advance private goals.

This time around, Congress has not shown any interest in the sort of serious investigation that the Church Committee undertook.  Only when Edward Snowden forced their hand did Congress act.  But they did act some, however inadequately.  Maybe they will act again sometime.

But looking at the Church Committee and the actions taken by Congress today, I can reach at least three conclusions as to what political conditions will facilitate reigning in the intelligence agencies.

Divided government encourages oversight.  This is not exactly a new concept.  When the same party controls the Presidency and Congress, it tends to defer to the President.  When opposing parties control opposing branches, they clash.  And yes, these clashes have been destructive lately, sometimes to the point of bringing about complete paralysis.  But when it comes to reigning in an out-of-control executive and out-of-control agencies, it is really helpful if Congress does not trust the President.  A healthy measure of distrust is entirely in order here.

A change in who holds the White House can trigger oversight.  The Church Committee only started really investigating after the Republican Nixon took over and especially after Watergate. Many Republicans accused them of partisan motives and said that Nixon was not doing anything difference than what his Democratic predecessors had done.  And in fact, there was ample evidence of serious abuses going all the way back to Roosevelt and the New Deal.  So, yes, partisan motives were probably present and the fact that a Republican had taken over no doubt had a lot to do with triggering the investigation.  But in the end, so what?  There really was a serious and escalating pattern of abuses that needed addressing.*  If it took a certain amount of hypocritical partisanship to make Congress act to reign in the abuses, then so be it.

The same applies today.  Yes, Republicans were all for giving the President unlimited power so long as he said "War on Terror" so long he was a Republican.  And yes, they are a bunch of fools and hypocrites to make such an about-face on executive power based on which party holds the White House.  But if it reigns in our out-of-control intelligence agencies, it is a small price to pay.

At present, a Democratic President and Republican Congress are the best bet to protect privacy.  I am well aware that it was the opposite combination at the time of the Church Committee, but times have changed.  In particular, the Church Committee operated during a relative thaw in the Cold War, so Democrats did not have to fear looking soft on Communism as much as they would either before or after the 1970's.  Right now, I see no hope of any Congress reigning in a Republican President.  Democrats are all deathly afraid of looking soft on terrorism and Republicans will all fall in line.  Nor do I see much hope of a Democratic Congress reigning in a Democratic President.  Fear of looking soft on terrorism and the tendency to line up behind the President are simply too strong. But Republicans have a strong faction that tends to panic at the sight of a Democrat in the White House and see all federal power as dangerous.  They are not likely to accept reassurances that really, these powers are intended to protect us from terrorists.  Some even think that a Democratic President is in cahoots with the terrorists.  On the Democratic side there are some strong civil libertarians who want to reign in surveillance regardless of who controls the White House.  These two groups amount to the left wing of the Democratic Party and the right wing of the Republican Party.  They are an odd set of bedfellows, but if they get the job done, who cares?  And the minute a Republican takes the White House, they will part ways.

___________________________________________
*On the subject of escalating abuses, I am not an expert on the subject and do not know if that meant that Truman was worse than Roosevelt or Eisenhower worse than Truman.  But certainly Kennedy was worse than Eisenhower, Johnson was worse than Kennedy, and Nixon was the worst of all.

Bulk Phone Records Collection

The Foreign Intelligence Surveillance Act (FISA) was passed in the 1970's in response to revelations of serious abuses by the Nation Security Agency (NSA).  FISA required the NSA to get a warrant to gather electronic information and established a secret court to issue such warrants in foreign intelligence and international terrorism cases.  To obtain a warrant the NSA had to prove probable cause that the target was the agent of a foreign power.  From the very start, international terrorists as well as foreign spies were permitted as targets.  FISA as originally written required individual suspicion for a warrant and limited the duration of the warrant to 90 days.  In some cases, presumably including specific plots by spies or terrorists, the investigation could be finished in that amount of time.  Other targets, such as foreign embassies, had continually renewed warrants issued.

Following 9-11, George Bush requested and received increased surveillance -- the PATRIOT Act, passed in 2002.  When Bush found the PATRIOT Act was not giving him all he wanted, he did some intelligence gathering illegally.  In 2008, Congress passed yet another modification to FISA expanding its powers still further, but denying the President a blank check.  Among the members voting for was a freshman Senator by the name of Barrack Obama.  It was not clear at the time and is still not clear what they were approving.  Did the new law require individual suspicion as in the past, or did it allow "basket" warrants to wiretap a general group?  What degree of surveillance did it allow over international calls?  And what of e-mails, texts, and tweets?

So far as I can tell, many if not most of those questions remain unanswered.  But one thing did become clear from Edward Snowden's revelations.  The NSA was using these provisions to gather metadata (numbers, dates, times, lengths of call, etc) every call made in the country.  Over 90 day increments only, because that was still the limit in duration of a FISA warrant.  But each such warrant was automatically rolled over into a new one 90 days later.  This may not have been exactly breaking the law, since the court was issuing warrants, after all.  But it was definitely stretching the law beyond all possible recognition.  And because the FISA Court operates in complete secrecy, no one outside of certain inside circles knew that it had placed such an expansive interpretation on the law. It had been known for a long time that the FISA Court almost never refused requests for a warrant, but no one really knew whether that was because the court was a rubber stamp or because requests were so cautiously made.  Snowden's revelations answered the question -- the court was a rubber stamp.

How long this state of affairs would have continued is anyone's guess but two things conspired to place at least some limits on it.  First, all these provisions have an automatic sunset provision, although Congress has always renewed it as purely a matter of form.  The other is that Second Circuit Court of Appeals issued an opinion an opinion that not even the new version of FISA authorized such extensive record keeping.

As a lawyer, I will give a brief rundown of the opinion.  It first addressed the issue of standing, since no one who is not personally affected by a law has standing to challenge it.  This was easily addressed.  When it was first revealed that the Bush Administration was listening to international phone calls without a warrant, it was extremely difficult to establish who had standing because no one knew who as being listened to.  In this case, nothing could be easier.  Since the government was collecting all telephone metadata, anyone with a telephone (at least a land line) has standing.  The ACLU did not even need a front party; it could sue in its own name.  Somewhat more delicate was the issue of whether FISA warrants (or any warrants, really) can be challenged, since a warrant is supposed to be secret and the target is not supposed to know about it.  But the court held that nothing in the statute expressly disallowed review, even if the opportunity was not anticipated.

The ACLU challenged the metadata program on both constitutional and statutory grounds.  It is a court rule not to address a constitutional challenge if a practice is forbidden by statute.  The court therefore begins with the statute, which authorizes collection of "tangible things" that are "relevant to an authorized investigation."  The government likened "relevance" under FISA to relevance in issuing a grand jury subpoena.  "Relevant" records may, indeed, be broad and include a considerable volume from which ones directly related to the investigation may be gleaned.  But no grand jury has ever subpoenaed anything so sweeping as all phone record in the entire US!  At least records subpoenaed by a grand jury are constrained by the subject of the investigation.  In other words, give us all your haystacks; we think there may be some needles in them simply does not cut it. Furthermore, the court points out, subpoenas are normally limited not only by the subject of the investigation, but by some particular target at some particular time.  The government, in offering very broad subpoenas that had been approved, mentioned one for all Western Union money order applications for over $1,000 in Kansas City for two years; and all of a particular doctor's records on Medicare and Medicaid patients for at least seven years.  But neither approached the breadth of all telephone records in the country, indefinitely.  Furthermore, the court says, the information cannot just be "relevant" to fighting the war on terror or to anything the government might want to know.  It must be relevant to an authorized investigation.  This means a particular investigation, not to all possible investigations of terrorism, present and future.  An "investigation" is contrasted to a "threat assessment," which does not allow for FISA orders.  Nor would the court accept the fact that Congress reauthorized the act after such sweeping data collections were underway, given that most of Congress was not aware of them.

In short, the court held that the statute did not authorize such sweeping data collection.  It then declined to rule on the constitutional issue on the grounds that it had already struck down the data collection on statutory grounds.  It further declined to enjoin the data collection on the grounds that the statute would expire soon and Congress would have the opportunity to address the issue.

And now Congress has acted.  It passed the USA FREEDOM Act (some sort of acronym, probably better not to ask) and Obama has signed.  So what do I think of it?

Well, Obama endorsed it from the start.  As if to prove that not everything he endorses is automatically poison to Republicans, it passed the House 388-88.  It passed the Senate 67-32. Even the intelligence community has said it can live with it.  All of which makes me deeply distrustful and suspect that if it is getting that much mainstream support, it must be a purely cosmetic reform that doesn't change the real meat of what is going on.

But that is a dangerously cynical attitude.  It amounts to a belief that anything that is politically feasible to do must therefore not be worth doing.  Talk about defeatism!

A better way to assess the Act is to see that it does and does not change.  This summary says that it goes somewhat beyond just limiting bulk collection of phone records.

What it does:

• Bans bulk collection of telephone or e-mail metadata
• Requires something more specific that bulk collection of an area, time, or provider
• Allows government to subpoena phone companies for information up to two degrees of separation from a suspect
• Allows private companies to report how many FISA requests they receive
• Requires FISA to disclose legally significant opinions (such as the opinion that "relevant to an ongoing investigation" included all phone records in the country!)
• Allows someone to argue against the warrant in legally significant cases
• Extends other PATRIOT Act provisions, such as roving wiretap and "lone wolf" surveillance

Others emphasize the power that the new law still allows:

• It continues bulk collection, but by the phone companies instead of by the NSA
• It allows search of the metadata by a "specific selection term," which can sweep in immense amounts of information
• It continues to allow mass subpoena of other types of records
• It does not interfere with mass records collection by other agencies (mostly international calls by the DEA)
• It does not interfere with massive collections of foreign data which (probably deliberately) sweeps in many US persons
• It does not strengthen minimization requirements

So I suppose this should not be surprising.  It does some but not enough.  It could be better and it could be worse.  But this is (so far as I can tell) the first real attempt since 9-11 to scale back surveillance.  The real question is, will this be some minor changes to put a better face on the old system?  Or will it be the first of many measures to reign in a rogue agency?

Time alone will tell.

Back to the Present

Now it is definitely time to give Ancient Greece a break!  A lot will be happening this coming month. Modern Greece will be back in the headlines soon as its few months of negotiating room expire.  The Supreme Court will reach its decision on Obamacare.  The deadline for negotiations with Iran is coming up fast.  Not to mention other, less predictable things that can happen.  ISIS is on the march!  Prime riot season is coming up!  More Presidential candidates are throwing their hats into the ring!  That should keep me quite busy for a while.

When I return to Greece, Athens will experience a coup and a narrow and tight, but short-lived, oligarchy.

But in the meantime, the Second Circuit has struck down the telephone metadata gathering program and Congress is struggling to respond.  That will be my next post.