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The Virgin Birth of Obama’s Wonk Core

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There’s a telling paragraph in this post from Ezra Klein, one of a series of posts written lately by self-described “wonks” defending the electoral and political approach Hillary Clinton embraces.

It’s a vision that is intuitively plausible to many liberals because it resonates with their own experience. They remember being excited by the promise of Obama’s agenda and then disappointed by the compromises he made, the fights he backed away from, the deals he cut with industry. They remember being organized in 2008 and demoralized in 2010. They remember feeling like they could accomplish anything, only to be told they needed to stop hoping for so much.

The argument is that something about the first years of Obama’s Administration led people to be more realistic in their political expectations. It comes after two more paragraphs characterizing Sanders’ vision of his own break with Obama: mobilization of voters.

“The major political, strategic difference I have with Obama,” Sanders told Vox’s Andrew Prokop in 2014, “is it’s too late to do anything inside the Beltway. You gotta take your case to the American people, mobilize them, and organize them at the grassroots level in a way that we have never done before.”

This is the vision Sanders is selling in Iowa. It’s a vision that is hopeful both in its diagnosis of the problems in American politics and in its prescription. It’s a vision that says liberals were right all along, and the American people have always been with them, and it’s the corrosive influence of corporate donors that has snapped that bond and confused the country.

But Ezra then turns that vision of mobilization into something with a very short history: just back to 2008, when Obama mobilized voters to get elected but then disappointed them in 2010.

Curiously, Ezra doesn’t describe what demoralized liberals in 2010 — I’m not actually sure whether he means the final shape of the health insurance reform or the electoral losses that year (the size of which were exacerbated by the politics of the health insurance reform). That, of  course, is critical to any consideration of the efficacy of pragmatism, because if making pragmatic choices ends up losing historic majorities in Congress, pragmatism will always be a loser for liberals.

But it’s the assumptions Ezra makes in the paragraph that really strike me (they seem, in part, to be based on a story Norm Scheiber wrote in 2014 about former Obama precinct captains from Iowa, which is crazy in that the story and Ezra’s interview based on it were entirely premised on Hillary being unstoppable this time around): that something about Obama’s campaign was uniquely exciting, uniquely promising to liberals and therefore his compromises in office were newly disappointing. That assumption that Obama’s campaign was uniquely exciting really puzzles me. After all, presidential candidates have been exciting voters, including newly active voters, since at least JFK (or, in Hillary’s case, Goldwater). And while those inspired by Kennedy are unique (in that he didn’t live long enough to disappoint them), for all others, there’s always a hangover, after which people take many different paths: disillusionment, integration within the larger party, or excitement by some other candidate in some future race. So why would Obama be different (aside from the fact he’s black, which is important, but certainly not the main thing that inspired even black voters)?

I was so puzzled I actually double checked Ezra’s age because it seemed like something someone who had never voted before 2008 might say, but (as I vaguely recall), even Young Ezra was not only old enough, but quite active, in the 2004 campaign, where a guy named Howard Dean lost in Iowa, but went on to dedicate four years to mobilizing Democratic voters across the country, until Obama replaced the man whose efforts helped to get him elected.

Those years that came before are critically important, too, because they represent a period when the decline of unions — the Democrats’ former method of mass mobilization and still very much a crutch for the party — and the rise of the mobilized Christian right made Republicans newly competitive in presidential elections. And while Hillary’s husband definitely inspired his own share of newly excited voters, the response to the decline of Democrats’ natural mobilized base led to a new kind of Democratic politics, reliant on big donations and lots of TV. We needed Dean to refocus on organizing because the Democratic party had led local organizing to atrophy, which was all the more devastating given the rise of ALEC and with it a machine to help conservatives dominate legislative elections at the state level.

Which brings me to the other curious admission in Ezra’s piece: that even as Hillary-favoring “wonks” beat up on Bernie supporters for their foolish idealism, Hillary herself doesn’t have a plan to challenge Republican dominance.

The problem for Clinton is that the immediate future looks grim for the progressive agenda, and she knows it. Republicans are likely to hold both the House and the Senate. They have a 5-4 majority on the Supreme Court and, at least for the moment, huge majorities in governorships and state legislatures. Americans are, if anything, growing more divided. Money is an ever more powerful force in American politics. The fact that voters don’t want a fight doesn’t mean they’re not going to have one.

Clinton doesn’t have an easy answer for any of this, and, perhaps to her credit, she’s refused to pretend otherwise. Democrats were bitterly disappointed by the compromises Obama made when he had huge Democratic majorities. The compromises the next Democratic president will have to make, given the likely Republican dominance of Congress, are going to be even more brutal for liberals — and if they’re not, it will likely be because nothing of importance gets done in the first place.

Let me clear: there’s not an easy answer to reverse the work Republicans have been doing since Reagan “changed the rules.” There’s definitely not a quick answer. But if liberals don’t start doing the work now, the apparent blind faith among some in the Democratic party that 2020’s census will magically reverse the political order will fail (if the country doesn’t fail worse before then). Though, as I note, Trump’s candidacy is itself changing the rules, in ways Democrats could well capitalize on if they stopped ignoring it.

The thing is, it’s no secret how to change things: it does remain organizing, and outside of some pre-existing institution of civil society (whether that be unions or evangelical churches), that organizing is going to require both inspiration and a commitment to issues that will benefit the masses of ordinary people.

Pessimism about how much the current Congress will get done may be realistic, but it is no more realistic than the assessment that mobilizing the people who’ve gotten screwed by Republican policies is a necessary antidote.

Mr. President: Trump’s Voters Are Changing Reagan’s Terms of Debate

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A lot of people are talking about this comment from Barack Obama on the Democratic primary.

GLENN THRUSH: I mean, when you watch this, what do you — do you see any elements of what you were able to accomplish in what Sanders is doing?

PRESIDENT OBAMA: Well, there’s no doubt that Bernie has tapped into a running thread in Democratic politics that says: Why are we still constrained by the terms of the debate that were set by Ronald Reagan 30 years ago? You know, why is it that we should be scared to challenge conventional wisdom and talk bluntly about inequality and, you know, be full-throated in our progressivism? And, you know, that has an appeal and I understand that.

I think that what Hillary presents is a recognition that translating values into governance and delivering the goods is ultimately the job of politics, making a real-life difference to people in their day-to-day lives. I don’t want to exaggerate those differences, though, because Hillary is really idealistic and progressive. You’d have to be to be in, you know, the position she’s in now, having fought all the battles she’s fought and, you know, taken so many, you know, slings and arrows from the other side. And Bernie, you know, is somebody who was a senator and served on the Veterans’ Committee and got bills done. And so the—

For example, Greg Sargent argues this represents Obama siding with Hillary’s more “realistic” approach to policy.

Obama is basically trying to pour cold water on the loftiness of Sanders’ argument, by nodding to the “appeal” of promising another transformative moment, while suggesting that Clinton’s more constrained view of what can be “delivered” is more realistic, and that this is actually an attribute that recommends her for the presidency.

I’m struck, though, by Obama’s description of what makes Hillary more “realistic:” the terms of debate that Reagan set 35 years ago.

He’s making that argument, of course, in a year where Reagan’s party has utterly failed to sell its voters on any of the insider candidates for the president: especially not the son of Reagan’s Vice President. This is a year when what once got called Reagan Democrats are supporting a loudly racist protectionist, Donald Trump.

A lot of people are ignoring this fact, and failing to consider what it means for this election and potentially even for “reality” in its aftermath. Indeed, a lot of Republicans are rationalizing supporting Trump over Ted Cruz based on their claim that Trump doesn’t have any ideology, ignoring that Trump espouses economic views that largely conflict with the neoliberal doctrine of both mainstream Republicans and Democrats.

The growing likelihood that Trump will win the nomination and run on his protectionist policies won’t change what incumbents get reelected in the House — and therefore the likelihood that, if a Democrat does win, any legislative agenda will be bottled up in the Congress. But it will change what the Republican party claims to support, and the expectations its voters have of it.

Indeed, one of the only times anyone in this race was able to get Trump to change his public stance came when Bernie Sanders called him on his claim that wages were too low in this country.

Donald Trump, billionaire Republican presidential frontrunner, has changed his mind about wages: Americans aren’t earning enough. He’s also not keen on Wall Street. The shift has Trump on a collision course with Democrat Bernie Sanders – while oddly agreeing with many of his points.

“Wages in are [sic] country are too low, good jobs are too few, and people have lost faith in our leaders. We need smart and strong leadership now!” Trump tweeted on Monday.

[snip]

“[T]axes too high, wages too high, we’re not going to be able to compete against the world. I hate to say it, but we have to leave [the minimum wage] the way it is,” Trump said at the time. “People have to go out, they have to work really hard and have to get into that upper stratum. But we cannot do this if we are going to compete with the rest of the world. We just can’t do it.”

Sanders, a senator from Vermont and self-described socialist, used those comments to criticize Trump while appearing on CBS Face the Nation on Sunday.

“This is a guy who does not want to raise minimum wage,” he said of Trump. “In fact, he has said that wages in America are too high.”

Trump lashed back at Sanders, tweeting: “[Bernie Sanders]–who blew his campaign when he gave Hillary a pass on her e-mail crime, said that I feel wages in America are too high. Lie!”

There’s a reason Bernie’s attack worked and the feeble attacks launched thus far at Trump from the right have not: because Trump needs to promise the non-college educated white voters who are the key to his popularity that he will improve their lives, and while they may not be college educated they’re not so dumb as to believe they need a pay cut.

Of course, the same dynamic that has made Trump such a strong candidate also drives the willingness of voters to support a socialist. Bernie just offers a different solution to the economic woes that 35 years of cuts have brought.

A substantial and very motivated part of the electorate, on both the right and left, is telling pollsters Reagan’s rules have failed. Particularly in the face of a Trump candidacy, Democrats will have to decide whether they want to use that as an opportunity to free themselves of those terms of debate, or take ownership of them moving forward.

Mankiw’s Ten Principles of Economics Part 11: Conclusions

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The introduction to this series is here.
Part 1 is here.
Part 2 is here.
Part 3 is here.
Part 4 is here.
Part 5 is here.
Part 6 is here.
Part 7 is here.
Part 8 is here.
Part 9 is here.
Part 10 is here.

This series is an outgrowth of a series of short essays [links here] on Thomas Kuhn’s The Structure of Scientific Change. Economists desperately want people to think they are scientists, so much so that they will put on lab coats as in this delightful story.

Donning customized white lab coats, University of Delaware officials cut the ribbon on the new Center for Experimental and Applied Economics at UD’s College of Agriculture and Natural Resources last week.
…
“Our experiments pay people cash to analyze their decisions,” said Kent Messer, a professor … .

Chapter 2 of Mankiw’s introductory textbook has a section titled “The Economist as Scientist”. He claims that just like physical scientists, economists “… devise theories, collect data, and then analyze these data in an attempt to verify or refute their theories.” P. 22. Based on this section, I thought he was saying that the 10 principles I’ve discussed in this series were in the nature of scientific principles. I suggested that with the addition of methodological ideas and some basic assumptions about the goals of a society, they could be treated as a paradigm in the sense Kuhn describes.

The goals of this series were: 1. to examine that possibility; 2. to see if these principles served as a structure for neoliberal economic theory, and 3. to see if there were other ways of looking at these principles that would be enlightening.

The first goal seemed perfectly reasonable. According to Kuhn, you don’t write a physical science textbook unless the community of scientists who study that area agree on a paradigm of the discipline. But my brief looks at these principles makes me think that they are either vacuously true, reductive to the point of absurdity, or hotly contested by other economists. I think I have shown that these principles do not operate as a statement of agreed-upon ideas about the way the economy works. They barely describe individual activity in any useful way.

Consider Principle 4, People Respond to Incentives. Of course they do sometimes, and sometimes not. And sometimes they respond in wildly disparate but perfectly reasonable ways. You see a car advertisement offering a price break for buying right now. Does Principle 4 help you understand how I might respond? Here’s a harder example. Interest rates go up. That creates an incentive to do what? Buy a house before rates go up further? Wait to see if higher interest rates cool off the housing market so houses are cheaper, so maybe even with higher interest rates your mortgage payment will be lower? Consume less and save more money? Wait for the stock market to go down and buy stocks? What conclusions can be drawn from this principle? How is it useful? Any time you might want to apply it, you have to look at the specifics of the situation, including the people who are supposedly going to respond to the incentives. Also, lacking data, there is a strong tendency to assume other people think like you do.

The function of the paradigm for Kuhn is to provide a platform for further research in what he calls normal science. There is an economics example in Part 10, the effort to figure out the relation between inflation and employment. People like Laurence Ball and Sandeep Mazumder of the International Fund, whose work I quote, can make a living working on ways to find an historical relationship, regardless of whether it says anything about the future. But surely if the relationship cannot actually be specified usefully after years of effort, it isn’t a real principle, and it doesn’t form the basis for a sensible research program. Morgenerally, Mankiw admits that in this blog post that there is much about macroeconomics that people don’t know.

Kuhn says that there is a difference between physics and chemistry textbooks and social sciences textbooks.

In history, philosophy, and the social sciences … the elementary college course employs parallel readings in original sources, some of them the “classics” of the field, others the contemporary research reports that practitioners write for each other. As a result, the student in any one of these disciplines is constantly made aware of the immense variety of problems that the members of his future group have, in the course of time, attempted to solve. Even more important, he has constantly before him a number of competing and incommensurable solutions to these problems, solutions that he must ultimately evaluate for himself. P 164

That does not describe Mankiw’s textbook which reads just like the physics and chemistry textbooks Kuhn describes. There are summary remarks about historical figures in the field, and the discipline is presented as a cumulative result of a steady progress of understanding. There is no question about the truth content of a single statement in Mankiw’s text, no hint that respectable economists reject his conclusions. Any student who only takes intro to economics using Mankiw’s textbook will never learn about the massive differences among schools of economics, will never learn that there are alternatives to the monetarist/neoliberal views implicit in the book, and will never have a way to examine economic policy problems from any perspective other than Mankiw’s.

That is what makes this textbook approach so dangerous. Mankiw presents a finished survey of the field, with the imprimatur of authority, when there is no consensus. It’s a fair reading of this book to call Introduction to Neoliberal Economics. It’s not fair to call it a balanced presentation of a discipline shot through with contested assertions.

I think I’ve shown that the discipline of economics has not reached the stage at which it is possible to create universal principles. That is a waste of time, and I will not spend any more time thinking about it. But it isn’t just that there aren’t any universal principles. As Kuhn would point out, with so many schools of economics there is no platform from which to evaluate any principle. The various schools conflict with each other on every possible level, and there is no way to test any theory that will satisfy the proponents of the exact opposite theory.

The worst part is that the rich have a death grip on economic policy. They choose to support policies that benefit them at the expense of the rest of us, and they hide behind a veneer of economics professionals who say the things that they want to hear. Those people teach economics using textbooks like Mankiw’s and that of Samuelson and Nordhaus. They control policy, because they have taught the leaders of today.

This and the preceding series have been really depressing to me. There is a tiny ray of hope. Bernie Sanders is the ranking minority member of the Senate Budget Committee. He appointed Stephanie Kelton as Chief Economist. She is the brilliant economist who chaired the Economics Department at the University of Missouri-Kansas City, and she is a noted scholar in the field of modern money theory. That is a completely different way forward, and one that works for progressives and frightens conservatives. That’s got to be a good thing.

Bernie Sanders Warns of the Rise of Nazis if the Fed Helps ECB Further Destabilize Greece

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Bernie Sanders just wrote a letter to Fed Chair Janet Yellen asking why she is doing nothing as the European Central Bank destabilizes Greece’s newly elected Syriza government.

Several weeks ago the Greek people voted for a new government. This government canceled the privatization of key public assets, raised the minimum wage, and restored electricity to the needy. This government is seeking to restructure its relationship with the European Union to encourage economic growth in Greece and to escape from a deflationary cycle.

Recently, the European Central Bank (ECB) announced that it will no longer accept Greek official debt as collateral for loans to financial institutions in that country on the grounds that the new government is not following the dictates of the previous, failed policies. This move had an immediate destabilizing effect on the U.S. and world markets, and further moves could provoke a run on the Greek banking system in the days or weeks ahead.

The United States cannot stand idly by while the European Central Bank undermines the new democratically elected government of Greece, induces deflation and risks financial instability.  President Barack Obama was right when he recently noted, with regard to Greece: “You cannot keep on squeezing countries that are in the midst of a depression.  At some point, there has to be a growth strategy in order for them to pay off their debts to eliminate some of their deficits.”

It would be a terrible mistake for the world to forget what happens when a democratically-elected government, as was the case in Germany in the 1920s, is unable to relieve the severe economic suffering of its people.  We must remember that waiting in the wings should this recently elected Greek government fail is the neo-Nazi Golden Dawn party.  We cannot allow fascism to come to power in a European country due to our unwillingness to reverse harmful austerity policies.

I doubt it’ll do much good — Yves Smith has more on how the biases of the Fed make its tacit support for ECB unsurprising.

But I love that Sanders wrote such a letter and laid out the stakes so clearly. In both Greece and Ukraine, the US seems intent on pursuing counterproductive approaches, as if it can manage any unintended consequences. Except both countries are proof that the US and its allies have failed to be able to do so.

Austerity policies have failed in Europe, as they fail almost everywhere. And yet the elite seems intent on doubling down, as if their ideological beliefs can create a reality that has thus far failed to materialize.

Every Senator Who Supports USA Freedom May Be Affirmatively Ratifying a Financial Dragnet

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Now that I’ve finally got around to reading the so-called transparency provisions in Patrick Leahy’s USA Freedom Act, I understand that one purpose of the bill, from James Clapper’s perspective, is to get Congress to ratify some kind of financial dragnet conducted under Section 215.

As I’ve laid out in detail before, there’s absolutely no reason to believe USA Freedom Act does anything to affect non-communications collection programs.

That’s because the definition of “specific selection term” permits (corporate) persons to be used as a selector, so long as they aren’t communications companies. So Visa, Western Union, and Bank of America could all be used as the selector; Amazon could be for anything not cloud or communications-related. Even if the government obtained all the records from these companies — as reports say it does with Western Union, at least — that would not be considered “bulk” because the government defines “bulk” as collection without a selector. Here, the selector would be the company.

And as I just figured out yesterday, the bill requires absolutely no individualized reporting on traditional Section 215 orders that don’t obtain communications. Here’s what the bill requires DNI to report on traditional 215 collection.

(D) the total number of orders issued pursuant to applications made under section 501(b)(2)(B) and a good faith estimate of—
(i) the number of targets of such orders;
(ii) the number of individuals whose communications were collected pursuant to such orders; and
(iii) the number of individuals whose communications were collected pursuant to such orders who are reasonably believed to have been located in the United States at the time of collection;

The bill defines “individuals whose communications were collected” this way:

(3) INDIVIDUAL WHOSE COMMUNICATIONS WERE COLLECTED.—The term ‘individual whose communications were collected’ means any individual—
(A) who was a party to an electronic communication or a wire communication the contents or noncontents of which was collected; or
(B)(i) who was a subscriber or customer of an electronic communication service or remote computing service; and
(ii) whose records, as described in subparagraph (A), (B), (D), (E), or (F) of section 2703(c)(2) of title 18, United States Code, were collected.

Thus, the 215 reporting only requires the DNI to provide individualized reporting on communications related orders. It requires no individualized reporting at all on actual tangible things (in the tangible things provision!). A dragnet order collecting every American’s Visa bill would be reported as 1 order targeting the 4 or so terrorist groups specifically named in the primary order. It would not show that the order produced the records of 310 million Americans.

I’m guessing this is not a mistake, which is why I’m so certain there’s a financial dragnet the government is trying to hide.

Under the bill, of course, Visa and Western Union could decide they wanted to issue a privacy report. But I’m guessing if it would show 310 million to 310,000,500 of its customers’ privacy was being compromised, they would be unlikely to do that.

So the bill would permit the collection of all of Visa’s records (assuming the government could or has convinced the FISC to rubber stamp that, of course), and it would hide the extent of that collection because DNI is not required to report individualized collection numbers.

But it’s not just the language in the bill that amounts to ratification of such a dragnet.

As the government has argued over and over and over, every time Congress passes Section 215’s “relevant to” language unchanged, it serves as a ratification of the FISA Court’s crazy interpretation of it to mean “all.” That argument was pretty dodgy for reauthorizations that happened before Edward Snowden came along (though its dodginess did not prevent Clare Eagan, Mary McLaughlin, and William Pauley from buying it). But it is not dodgy now: Senators need to know that after they pass this bill, the government will argue to courts that it ratifies the legal interpretations publicly known about the program.

While the bill changes a great deal of language in Section 215, it still includes the “relevant to” language that now means “all.” So every Senator who votes for USAF will make it clear to judges that it is the intent of Congress for “relevant to” to mean “all.”

And it’s not just that! In voting for USAF, Senators would be ratifying all the other legal interpretations about dragnets that have been publicly released since Snowden’s leaks started.

That includes the horrible John Bates opinion from February 19, 2013 that authorized the government to use Section 215 to investigate Americans for their First Amendment protected activities so long as the larger investigation is targeted at people whose activities aren’t protected under the First Amendment. So Senators would be making it clear to judges their intent is to allow the government to conduct investigations into Americans for their speech or politics or religion in some cases (which cases those are is not entirely clear).

That also includes the John Bates opinion from November 23, 2010 that concluded that, “the Right to Financial Privacy Act, … does not preclude the issuance of an order requiring the production of financial records to the Federal Bureau of Investigation (FBI) pursuant to the FISA business records provision.” Given that Senators know (or should — and certainly have the ability to — know) about this before they support USAF, judges would be correct in concluding that it was the intent of Congress to permit the government to collect financial records under Section 215.

So Senators supporting this bill must realize that supporting the bill means they are supporting the following:

  • The interpretation of “relevant to” to permit the government to collect all of a given kind of record in the name of a standing FBI terrorism investigation.
  • The use of non-communication company corporate person names, like Visa or Western Union, as the selector “limiting” collection.
  • The use of Section 215 to collect financial records.
  • Not requiring the government to report how many Americans get sucked up in any financial (or any non-communications) dragnet.

That is, Senators supporting this bill are not only supporting a possible financial dragnet, but they are helping the government hide the existence of it.

I can’t tell you what the dragnet entails. Perhaps it’s “only” the Western Union tracking reported by both the NYT and WSJ. Perhaps James Cole’s two discussions of being able to collect credit card records under this provision means they are. Though when Leahy asked him if they could collect credit card records to track fertilizer purchases, Cole suggested they might not need everyone’s credit cards to do that.

Leahy: But if our phone records are relevant, why wouldn’t our credit card records? Wouldn’t you like to know if somebody’s buying, um, what is the fertilizer used in bombs?

Cole: I may not need to collect everybody’s credit card records in order to do that.

[snip]

If somebody’s buying things that could be used to make bombs of course we would like to know that but we may not need to do it in this fashion.

We don’t know what the financial dragnet is. But we know that it is permitted — and deliberately hidden — under this bill.

Below the rule I’ve put the names of the 18 Senators who have thus far co-sponsored this bill. If one happens to be your Senator, it might be a good time to urge them to reconsider that support.

Patrick Leahy (202) 224-4242

Mike Lee (202) 224-5444

Dick Durbin (202) 224-2152

Dean Heller (202) 224-6244

Al Franken (202) 224-5641

Ted Cruz (202) 224-5922

Richard Blumenthal (202) 224-2823

Tom Udall (202) 224-6621

Chris Coons (202) 224-5042

Martin Heinrich (202) 224-5521

Ed Markey (202) 224-2742

Mazie Hirono (202) 224-6361

Amy Klobuchar (202) 224-3244

Sheldon Whitehouse (202) 224-2921

Chuck Schumer (202) 224-6542

Bernie Sanders (202) 224-5141

Cory Booker (202) 224-3224

Bob Menendez (202) 224-4744

Sherrod Brown (202) 224-2315

 

 

Congress Currently Has Access to the Phone Dragnet Query Results

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When Bernie Sanders asked the NSA whether it spied on Members of Congress, Keith Alexander responded, in part,

Among those protections is the condition that NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups. For that reason, NSA cannot lawfully search to determine if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without that predicate.

Alexander’s response was dated January 10, 2014, one week after the current dragnet order was signed.

It’s an interesting response, because one of the changes made to the dragnet access rules with the January 3 order was to provide Congress access to the data for oversight reasons. Paragraph 3D reads, in part,

Notwithstanding the above requirements, NSA may share the results from intelligence analysis queries of the BR metadata, including United States person information, with Legislative Branch personnel to facilitate lawful oversight functions.

This doesn’t actually mean Sanders (and Darrell Issa, Jerrold Nadler, and Jim Sensenbrenner, who sent a letter on just this issue yesterday) can just query up the database to find out if their records are in there. The legislature can only get query results — it can’t perform queries. And as of last week, all query identifiers have to be approved by the FISC.

Still, they might legitimately ask to see what is in the corporate store, the database including some or all past query results, which may include hundreds of millions of Americans’ call records. And Nadler and Sensenbrenner — as members of the Judiciary Committee — can legitimately claim to play an oversight role over the dragnet.

So why don’t they just ask to shop the corporate store, complete with all the US person data, as permitted by this dragnet order? While they’re at it, why not check to see if the 6 McClatchy journalists whose FOIA NSA just rejected have been dumped into the corporate store? (No, I don’t think giving Congress this access is wise, but since they have it, why not use it?)

Incidentally, this access for legislative personnel is not unprecedented. Starting on February 25, 2010 and lasting through 3 orders (so until October 29, 2010, though someone should check my work on this point) the dragnet orders included even broader language.

Notwithstanding the above requirements, NSA may share certain information, as appropriate, derived from the BR metadata, including U.S. person identifying information, with Executive Branch and Legislative Branch personnel in order to enable them to fulfill their lawful oversight functions…

Of course at that point, most of Congress had no real understanding of what the dragnet is.

Now that they do, Nadler and Sensenbrenner should use the clear provision of the dragnet order as an opportunity to develop a better understanding of what happens to query results and how broadly they implicate average Americans’ privacy.

Update: Added short explanation of corporate store.

Dragnet at Bernie’s: On Spying on Congress

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Bernie SandersIt turns out that Mark Kirk — not Bernie Sanders — was the first member of Congress to raise concerns about the NSA spying on Senators after Edward Snowden’s leaks started being published. Kirk did so less than a day after the Guardian published the Verizon order from the phone dragnet, in an Appropriations Committee hearing on the Department of Justice’s budget (see at 2:00). After Susan Collins raised the report in the context of drone killing, Kirk asked for assurances that members of Congress weren’t included in the dragnet.

Kirk: I want to just ask, could you assure to us that no phones inside the Capitol were monitored, of members of Congress, that would give a future Executive Branch if they started pulling this kind of thing up, would give them unique leverage over the legislature?

Holder: With all due respect, Senator, I don’t think this is an appropriate setting for me to discuss that issue–I’d be more than glad to come back in an appropriate setting to discuss the issues that you’ve raised but in this open forum–

Kirk: I’m going to interrupt you and say, the correct answer would say, no, we stayed within our lane and I’m assuring you we did not spy on members of Congress.

The first substantive question Congress asked about the dragnet was whether they were included in it.

After that, a few moments of chaos broke out, as other Senators — including NSA’s representative on the Senate Intelligence Committee, Barb Mikulski — joined in Kirk’s concerns, while suggesting the need for a full classified Senate briefing with the AG and NSA. Richard Shelby jumped in to say Mikulski should create the appropriate hearing, but repeated that what Senator Kirk asked was a very important question. Mikulski agreed that it’s the kind of question she’d like to ask herself. Kirk jumped in to raise further separation of powers concerns, given the possibility that SCOTUS had their data collected.

The very first concern members of Congress raised about the dragnet was how it would affect their power.

And then there was a classified briefing and …

… All that noble concern about separation of power melted away. And some of the same people who professed to have real concern became quite comfortable with the dragnet after all.

It’s in light of that sequence of events (along with Snowden’s claim that Members of Congress are exempt, and details about how data integrity analysts strip certain numbers out of the phone dragnet before anyone contact-chains on it) that led me to believe that NSA gave some assurances to Congress they need not worry that their power was threatened by the phone dragnet.

The best explanation from external appearances was that Congress got told their numbers got protection the average citizen’s did not, perhaps stripped out with all the pizza joints and telemarketers (that shouldn’t have alleviated their concerns, as some of that data has been found sitting on wayward servers with no explanation, but members of Congress can be dumb when they want to be).

And they were happy with the dragnet.

Then, 7 months later, Bernie Sanders started asking similar — but not the same –questions. In a letter to Keith Alexander, he raised several issues:

  • Phone calls made
  • Emails sent
  • Websites visited
  • Foreign leaders wiretapped

He even defined what he meant by spying.

“Spying” would include gathering metadata on calls made from official or personal phones, content from websites visited or emails sent, or collecting any other data from a third party not made available to the general public in the regular course of business.

In response, Alexander rejected Sanders’ definition of spying (implicitly suggesting it wasn’t fair), while using a dodge he repeatedly has: the Americans in question are not being targeted, even while they might be collected “incidentally.”

Nothing NSA does can fairly be characterized as “spying on Members of Congress or other American elected officials.”

[snip]

NSA may not target any American for foreign intelligence collection without a finding of probable cause that the proposed target of collection is a foreign power or an agent of a foreign power. Moreover, as you are aware, whenever an NSA activity results in the incidental collection of information about Americans, that information is handled pursuant to the very robust procedures designed to protect privacy interests — procedures that must be approved by the Attorney general or the Foreign Intelligence Surveillance Court, as appropriate. All those protections apply to members of Congress, as they do to all Americans.

Alexander then addressed just one of the three kinds of spying Sanders raised: phone data (which, if I’m right that NSA strips Congressional numbers at the data integrity stage, is the one place Alexander can be fairly sure Sanders’ contacts won’t be found).

Your letter focuses on NSA’s acquisition of telephone metadata…

And used the controls imposed on the raw data of the phone dragnet as an excuse for not answering Sanders’ question.

Among those protections is the condition that NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups. For that reason, NSA cannot lawfully search to determine if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without that predicate.

Alexander totally ignored Sanders’ two other specified concerns: emails sent and websites visited.

Which is mighty convenient, because for a very large segment of that collection (the internet metadata collected under EO 12333 and via PRISM, though not the data collected domestically before 2011 or domestic upstream collection), NSA believes it doesn’t even need Reasonable Articulable Suspicion to search on US person identifiers. Read more →

Did the Hospital Confrontation Shut Down an Illegal Dragnet against Iraq War Critics?

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Screen shot 2014-01-06 at 1.03.11 PM

Several days ago I wrote,

Both Goldsmith’s memo (see PDF 14) and the Draft NSA IG Report (PDF 10) make it clear that, in addition to temporarily shutting down the Internet dragnet, the March 19, 2004 modifications to the program narrowed the program’s focus to exclude the Iraqi Intelligence figures who had previously been included, suggesting that Goldsmith only felt he could approve the program for terrorists.

Wait, what?

I’ve known — and written — about this detail in the past. But I hadn’t really put together what it means.

Post-hospital confrontation changes include the exclusion of Iraqi-related targets

Here’s what the two passages say. Goldsmith’s (still heavily redacted) memo reveals that, along with other modifications George Bush made on March 19, 2004 in response to the DOJ resignation threats (notably, temporarily shutting down the Internet dragnet) he also “clarified” the scope of the program.

In the March 19, 2004 Modification, the President also clarified the scope of the authorization [redacted]. He made clear that the Authorization applied where there were reasonable grounds to believe that a communicant was an agent of an international terrorist group [redacted]

The NSA IG Report explains that “clarification” halted using the Presidential Surveillance Program authority against the Iraqi Intelligence Service.

(TS//SI//NF) Iraqi Intelligence Service. For a limited period of time surrounding the 2003 invasion of lraq, the President authorized the use of PSP authority against the Iraqi Intelligence Service. On 28 March 2003, the DCI determined that, based on then current intelligence, the Iraqi Intelligence service was engaged in terrorist activities and presented a threat to U.S. interests in the United States and abroad. Through the Deputy DCI, Mr. Tenet received the President’s concurrence that PSP authorities could be used against the Iraqi Intelligence Service. NSA ceased using the Authority for this purpose in March 2004. [my emphasis]

There may be a perfectly innocent explanation for this.

At precisely that time, Goldsmith was trying to rein in the government’s rendition program to prevent the rendition of Iraqis protected under international law governing occupation. And, at what appears to have been the same time, DOD was for the first time making a distinction between between Iraqis detained and interrogated as former regime officials and Iraqis detained and interrogated as leaders of the insurgency. Clearly, up until that point, Bush had been using the rules invented to hunt terrorists in his Iraq War, creating all sorts of legal problems. So it would be unsurprising if Goldsmith used the resignation threats to force Bush to stop targeting Iraqi officials as terrorists when they were really legal opponents in a war.

The Iraqi-related illegal wiretapping targets must include US-based collection

Except that doesn’t make sense.

That’s because, whatever violations of international law Bush was committing in Iraq, illegal spying on Iraqis was almost certainly not one of them. Nothing prevented the government from spying on Iraqis, and very little spying on Iraqis in Iraq would involve the kind of US collection that implicated his illegal wiretap program.

Which is why the IG Report’s description of an Iraqi intelligence “threat to U.S. interests in the United States” gives me pause.

The illegal program, after all, was focused on US metadata and content collection to find threats (what it called “terrorists”) in the United States. Both the method and location of collection only make sense if you’re hunting communications with at least one, if not both, sides in the US.

There was no real known threat posed by Iraqi governmental interests in the US, in part because the US military chased the Iraqi government underground so quickly. And yet, for it to be something tied into the resignation threats, some significant spying must have been going on.

The obvious guess — and at this point it is just a guess — would be they used the illegal wiretap program to hunt down people Cheney’s minions claimed helped Iraq’s cause here in the US.

You know? Iraqi intelligence assets? Like anti-war activists?

Some data points that might support Bush’s use of his illegal program against anti-war activists

Again, at this point, this is just a guess, one that would be thoroughly unsurprising but is not supported by hard facts.

But it’s worth remembering that Bush did roll out a domestic spying program to track anti-war activities, CIFA, the database for which was destroyed just weeks before NYT initially exposed Bush’s illegal program. We know there were ties between that program and heavy FBI investigations in the US. Then there’s the Antiwar investigation, started just weeks after the hospital confrontation, that used a counterterrorism purpose (a watchlist Antiwar posted) as the predicate to call for further investigation of Antiwar’s online publications, conducted in multiple cities. The Bush Administration was clearly conducting aggressive spying on anti-war activists, so it would be unsurprising to learn it used the threat of Iraqi involvement in the US to conduct illegal electronic surveillance.

Then there’s the suggestion in this NSA training program (from which the two slides above come — see this post for background) that NSA had a “present example” (in 2009) of an abuse akin to Project Minaret, in which a watchlist of citizens –largely critics of the Vietnam War — were surveilled in the name of tracking any foreign influence on them. Here’s Matthew Aid’s description of recent disclosures about that program.

As the Vietnam War escalated during Lyndon B. Johnson’s presidency, domestic criticism and protest movements abounded. Protesters surrounded the Pentagon in the fall of 1967 and two years later organized demonstrations and the Moratorium to End the War in Vietnam. The scale of the dissent angered Johnson as well as his successor, Richard Nixon. As fervent anti-communists, they wondered whether domestic protests were linked to hostile foreign powers, and they wanted answers from the intelligence community. The CIA responded with Operation Chaos, while the NSA worked with other intelligence agencies to compile watch lists of prominent anti-war critics in order to monitor their overseas communications. By 1969, this program became formally known as “Minaret.”

While the NSA slide describes the present example as “unauthorized targeting of suspected terrorists in the U.S.,” not targeting of anti-war activists, we know the collection shut down in March 2004 must have involved the targeting of people in the US based on a claim that some tie to Iraqi interests made them terrorists. Moreover, such targeting would be an exact parallel with Minaret (and while I haven’t discussed it yet, I am cognizant of Bernie Sanders’ recent questions about the targeting of members of Congress, as happened under Minaret and, for reasons explained in my earlier post, as the training program may allude to).

Again, I want to emphasize: this is just a wildarsed guess. though one consistent with what we know about Bush’s illegal program and his surveillance of anti-war activists generally.

Whatever it was, it was part of the package that almost led a bunch of DOJ officials to quit.

Senate Passes Defense Authorization

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The final vote was 86-13. No votes were Lee, Paul, DeMint, Risch, Crapo, and Coburn (the last three not on civil liberties grounds), and Cardin, Wyden, Sanders, Durbin, Franken, Harkin, and Merkley.

I’m sure Obama will sign this in time for us all to be indefinitely detained this weekend.

Update: Senator Franken sent out a statement explaining his no vote. It ends, “Today is the anniversary of the ratification of the Bill of Rights, and this wasn’t the way to mark its birthday.”

Why Push Elizabeth Warren to Join America’s Most Ineffective Body?

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The news reports in the lead-up to this weekend’s announcement that Obama was ending the career of yet another prescient female bank regulator, this time even before it started, prepped the progressive community to champion an Elizabeth Warren run for Ted Kennedy’s MA Senate seat.

And so the usual suspects are out in force arguing that Warren would be better off running for Senate than she would be shaming Republicans for trying to kill off the CFPB.

Whoever is nominated to lead the CFPB is going to spend the next year of his life being filibustered by Republicans. The very best he can hope for is a recess appointment, in which case his tenure in the position would be relatively swift. So the question isn’t who you want leading the CFPB for the foreseeable future. It’s who you want spending his or her time being stopped from leading the CFPB for the foreseeable future. And it’s not clear that the answer to that question is “Elizabeth Warren.”

Warren, after all, has another option that she appears to be taking seriously: challenging Scott Brown in the 2012 election. For reasons I’ve outlined here and Bob Kuttner elaborates on here, there’s reason to think she would be a very effective candidate. But if she wants to do that, she can’t spend the next year being blocked from leading the Consumer Financial Protection Bureau. She has to spend at least part of it preparing for her candidacy.

Now, I don’t think there’s any doubt that Warren would prefer to lead the agency she’s built than launch a Senate campaign that may or may not succeed. But launching a Senate campaign that may or may not succeed seems like a clearly more effective way to protect her agency and further her ideas than being blocked from leading the agency she’s built.

Not only does this view not even consider whether Warren–or a relatively unknown midwestern politician–would be more effective making the public case for the bureau.

But it also seems to confuse the value of running for Senate with actually serving in the Senate.

What the people hailing a possible Warren run are arguing, effectively, is that the consolation prize for the banks having beat her on CFPB should be junior membership in a body that–as Dick Durbin has told us–the banks own.

Even putting aside the power of the banking lobby in the Senate, under what model would Senator Warren be effective championing progressive values, or even just “protect[ing] the agency she’s built”? Even assuming the Democrats kept the same number of seats they currently have on the Senate Banking Committee, even assuming Democratic leadership has already promised her the seat that Herb Kohl’s retirement will open up, that will still make her one of just three progressives (the other two being Jeff Merkley and Sherrod Brown) on a committee that has long been actively working against her CFPB candidacy. Even assuming Democrats keep the Senate, how amenable is Chairman Tim Johnson–a bank-owned hack–going to be to Warren’s ideas? If Richard Shelby were Chair, it’d be even worse.

And what about Warren’s effectiveness in the Senate as a whole–that body, under Democratic leadership, where good ideas go to die? Name a progressive Senator who has been able to do much to champion progressive ideas there? Sanders? Franken? Whitehouse? Sherrod Brown? I love all those guys, and like Sanders and especially Franken, Warren would presumably be able to leverage her public support to push some ideas through. But are any of them more effective at championing progressive values than Warren was before her White House gig, when she regularly appeared on the media and excoriated the banks in terms that made sense to real people? Just as an example, Byron Dorgan used to be effective before his progressive, deficit-cutting ideas were killed by the leader of his party. Similarly, Ted Kaufman turned out to be a surprisingly effective check on the banks, but that was partly because he came in knowing he’d never run for election (and he also knew, coming in, the tricks a lifetime of service as a Senate aide teaches).

Don’t get me wrong. I understand why the Democratic Party would like to have Warren in the Senate. I even understand how Warren might consider a Senate seat to be similar to her earlier public position, with the added benefit of having one vote to push progressive issues. I don’t dismiss the likelihood that Elizabeth Warren might be able to prevent a sixth corporatist judge from getting a lifetime seat on the Supreme Court.

I don’t think a Senator Elizabeth Warren would be a bad thing–I just think folks are far overselling what good it would bring.

It really seems the push for a Warren Senate candidacy ignores what a Booby Prize membership in the Senate has become of late.