NSA defies constitutional limits

Since the Al Qaeda attacks on the United States on September 11, 2001, the country has been struggling with protecting individual liberties while combating terrorism.

Most people have supported tougher anti-terrorism moves, even if that meant some invasion of their privacy.

But one purpose of protecting against terrorists is to allow the American system of personal freedom to survive, so new measures should not go so far as to endanger the very rights they are supposed to protect.

That principle is proving difficult to follow.

Edward Snowden, the American intelligence consultant now in Russia who has leaked secret data, revealed the National Security Agency was collecting huge amounts of information about Americans.

Last week, a U.S. District Court judge in Washington, D.C. ruled on a massive NSA data collection scheme, raising the issues of national security and personal liberty to a new level.

Judge Richard Leon ruled that NSA mass collection of data on all telephone calls made in the United States violates the Constitution’s Fourth Amendment prohibition of “unreasonable searches.”

He is a conservative appointed by President George W. Bush.  In his decision, like many of his conservative colleagues, he went back to the origins of the Constitution itself.

The Constitution was the result of a compromise between those who wanted a strong national government and others who worried that such a government would endanger individual rights.

The deal was that the Constitution would be adopted but immediately amended by the Bill of Rights, intended to limit the ability of the government to override personal liberties.

The question for Leon was to determine if the collection of data on just about everybody, almost none of whom is a terrorist, violated the constitutional deal by tilting too much in favor of the government.

There are supposed to be limits on how far the NSA can go. But one federal judge had already found “systematic non-compliance” with those limits. 

Another judge found the government had three times made “a substantial misrepresentation regarding the scope of a major collection program.”  In other words, it lied.

On a recent “60 Minutes” broadcast, top NSA officials acted as though they were pure and never mentioned the previous court rebukes.

The NSA stresses that it does not collect names or the content of calls.  But, once it has a number, it would have little trouble, without needing a court order, finding out the person listed for the line.

The specific issue before the judge was whether collecting data about virtually everybody all the time is an “unreasonable” search.

Courts have found that it is not unreasonable to tap a single person’s phone or track their travels for a limit period.  A recent Supreme Court decision said the government tracking somebody for 30 days was not reasonable.

In defending the NSA, the government relied on a 30 year-old case that allowed the police to tap the phone of a single person for less than two weeks to see if he was making threatening calls. The court had said then that the man had no right to expect that his phone records were private.

Leon rejected the government position, saying that collecting one person’s records for a few days, based on real suspicion, was not the same as collecting everybody’s records for five years with no suspicion.

The way Congress has authorized surveillance allows the NSA to act after getting approval from a secret court in which neither the phone companies nor their customers have a say.

Of course, the NSA should not tip off people under suspicion.  But it also should avoid fishing expeditions.  That means there has to be better control of NSA and fewer one-sided court hearings.

Last week, a presidential panel recommended reining in the NSA.  Like the judge, it highlighted the protection the Fourth Amendment is supposed to give Americans.

It proposed that phone companies and internet providers could continue to collect usage data, but that the NSA could only get access it under a specific court order.

It also said that the secret intelligence court system should include a “Public Interest Advocate,” responsible for representing Americans whose data the NSA wanted.  Security could be maintained, because the individuals themselves would still be excluded.

After both the court decision and the panel’s recommendations, President Obama, once opposed to mass surveillance, tried to block further judicial review of the NSA.

James Madison, the principal drafter of the Constitution, worried about a powerful government abridging “freedom of the people.” Judge Leon wrote Madison “would be aghast” at what’s going on now.

Has Congress finally come to its senses?

Only 10 percent of voters approve of the job it is doing, according to
one new national poll.  And another survey reports only 26 percent have
a positive view of Republicans, who control the U.S. House of
Representatives and can block votes in the Senate.

More than half of American voters think this is one of the worst
Congresses ever, the polls say.

Congress seems paralyzed. Unable to agree on a budget, it has allowed
automatic, across-the-board spending cuts to click into effect.

The leading groups favoring those cuts are some conservative
organizations that want so badly to cut government spending they hardly
care how it will be done.  They even agree to slash military spending,
which they usually support.

With more automatic budget cuts looming, Congress gave itself one more
chance.  It appointed a huge, unwieldy committee to come up with a
solution. Fortunately, the two committee heads, GOP Rep. Paul Ryan and
Democratic Sen. Patty Murray, decided to do all the work, and they came
up with a compromise.

It was pretty simple.  The House Republican budget proposal was $967
billion. Senate Democrats came in with $1.058 trillion.  The average of
the two is about $1.012 trillion.

The Ryan-Murray bipartisan deal is for $1.012 trillion.  Brilliant.

Amazingly, the House and Senate had earlier agreed on the military
portion of the budget, larger than all the rest combined. But the
compromise result was less for the military. Nonmilitary spending was
closer to the Democratic level.

The good news is that there is a two-year deal, and Congress can get on
with other major issues such as farm policy and immigration, both of
which need immediate attention.

Not everybody liked the outcome. Liberal Democrats, including Maine’s
Chellie Pingree, had wanted additional unemployment insurance to be
included in the deal, but it wasn’t. 

Even before the deal was complete, conservative groups blasted it. 
Following their lead, faithful tea partiers opposed the budget, voting
with the liberals.

In the end, a moderate majority, including Maine’s Mike Michaud,
dominated the House.  It was composed of an almost equal number of
members of both parties.

Certainly, some Republicans decided a compromise was worth the risk of
facing tea party challengers next year.

Conservative groups attacked those favoring compromise over drastic
automatic cuts.  They preferred deadlock.

It matters that the people believe their government is capable of
functioning, whether it cuts taxes and spending, raises them or
compromises.  Prolonged deadlock is dangerous to the political system.

Coming after years of stalemate, the federal budget compromise was more
important for the simple fact of its existence than the details of the
deal.

But what happened after the deal was announced was perhaps even more
surprising than the compromise.

House Speaker John Boehner, a conservative Republican, blasted the
conservative organizations that had opposed the deal.  He said they were
using his members for their own fund-raising purposes.

The Republican Party has come to rely heavily on these groups, which
have produced massive support for the tea party candidates that gave the
GOP its House majority.

But they have also used the GOP to block any action they did not like. 
Boehner, clinging to his speakership, has been reluctant to move unless
his party could pass a bill without Democratic support. 

This time, he stood up to the tea party and its conservative backers by
allowing a bipartisan vote to pass the budget.  It looked like he was
taking back the Republican Party, still conservative, but willing to
compromise.

The Republican House majority has the right to influence the policies
adopted by Congress and the president.  But it may be backing off from
causing stalemate by preventing anything it dislikes from passing.  

The renewal of a healthy political system seems to depend heavily on the
GOP shifting from a “my way or the highway” approach to hammering out
compromises with the Democrats.

That’s why Boehner’s move, almost a declaration of independence from
outside conservative groups, may be the most important thing that
happened last week.

The U.S. Senate went along with the House.  The key vote was to end
debate on the budget, and 67 senators, including 12 Republicans, voted
in favoring of blocking a filibuster.

Among the Republicans, in addition to GOP moderates like Maine’s Susan
Collins, were several true conservatives, though not tea partiers. 
Angus King voted with the Democrats who all voted to end debate.

This congressional course correction offers some hope that the American
political system can get back on the track.

Lincoln’s Death Affects Today’s Politics

This is a big year for remembering the Civil War, because it was 150 years ago that the events sometimes called “the Second American Revolution” took place.

In the middle of the war, after the battle that was its turning point, President Abraham Lincoln delivered probably the best public speech in American history, the Gettysburg Address.

He spoke at the battlefield in November 1863, and the occasion has recently been marked by public events.

By that time, Lincoln had already issued the Emancipation Proclamation, freeing slaves who lived in areas still under Confederate control.  He did not end slavery in the United States, which did not happen, formally at least, until after the adoption of the Thirteenth Amendment to the Constitution.

That Amendment, the subject of the recent hit movie “Lincoln,” was passed by Congress months before he was assassinated, but did not come into effect until after his death.

We can only speculate if the fate of African-Americans and, with it, the course of American history would have been different, if he had lived.

There is reason to believe that there might not have been a great deal of difference.  Lincoln’s focus was not freeing the slaves, but saving the Union.

Even in his Second Inaugural Address, made after the events shown in the film and a month before his death, he reminded people that he had been willing to accept slavery in the South if that would have saved the country from the Civil War.

As for the post-war period, he foresaw a future “with malice toward none, with charity for all.” This could only be understood as meaning that there would be no harsh punishment for the rebel states.

That’s much the same sentiment as Nelson Mandela’s more recent “peace and reconciliation” with the former racist leaders of South Africa.

Perhaps Lincoln reflected the views of W.T. Sherman, one of his toughest generals, famous for his march across the South, who favored “a hard war, but a soft peace.”  Contrary to modern myth, Sherman was welcomed in Atlanta after the war.

There is a tangible indication of what may have been Lincoln’s thinking in a political choice he made.

When first ran in 1860, he selected Hannibal Hamlin of Maine as his running mate. A U.S. senator, Hamlin had been a Democrat. To hold onto congressional control, northern Democrats supported the South on slavery.

But Hamlin could not go along and had switched to the new Republican Party.  That was big national news.  Maine mattered in electoral politics, and Lincoln of Illinois got a converted Democrat and regional balance on the ticket in one move.

Much has been written about Lincoln’s cabinet being composed of a “team of rivals,” his former competitors for the Republican presidential nomination.  Hamlin, having little contact with Lincoln, was not a member of that “team.”

Lincoln saw his running mate as a person who could help him win election, but not as a partner in governing, unlike more recent vice presidents.

Not that Hamlin was idle. He aligned with a growing wing of his party – the Radicals – who not only favored emancipation, but who wanted to force the South, with more than a little “malice,” to provide the freed slaves with full equality.

When Lincoln faced reelection in 1864, he worried about losing.  He had Republican support, but he needed some Democrats, even if they still leaned toward the South.

He picked Tennessee Democrat Andrew Johnson, the only southerner who had not bolted the U.S. Senate, when the South seceded.  Johnson had no serious problem with slavery, but he opposed secession.

When Johnson succeeded the assassinated president, he faced a Congress dominated by Radical Republicans.  He did all he could to block any move they made to bring the South into line.

If Hamlin had become president, the South might have been forced to accept “radical” change.

It’s likely that, had he lived, Lincoln would have been less conservative than Johnson and less radical than Hamlin.

Lincoln might have accepted many racist policies in the former Confederacy, so long as they allowed voting by a relative handful of African-Americans, the black soldiers who had fought in the Civil War.

What Lincoln would have done is mere speculation, but it leaves a question for today. 

Republicans became the party of the conservative South, while northern Democrats are now more liberal, but a clear divide remains between the political views of northern and southern states that still plays a major role in national politics. 

Had Lincoln remained president, would that be true?

Politics Become a Long Game Show

Is Hilary Clinton running for president?

And is New Jersey Gov. Chris Christie headed in the same direction?

Do Affordable Care Act issues give Republicans a strong position in the 2014 elections?

Is the three-way race for Maine governor heating up a year in advance?

All these questions point to the United States having probably the longest political campaigns of any established democracy in the world.

President Obama has more than three years remaining is his term, but the political media is already honed in on how Hilary is doing with African-American voters and Chris’ tight-wire act over a potentially hostile GOP right wing.

Next year, there will be congressional races in which almost all incumbents will be re-elected, thanks to the way their districts are gerrymandered.  But the media wants us to focus on both possible disaster and opportunity for either party to control the Congress taking office in 2015.

To be sure, almost every vote or statement by a politician is done with an eye to the next election.  In a country where democracy is expressed through elected representatives of the people, it’s not surprising that candidates continually play to the voters.

The trouble is that political posturing during long campaigns can take the place of governing.  If everybody takes positions based on what they think will please most voters, their conflicting views can amount to posturing that leads to government paralysis.

Even in polarized Washington, members of Congress can occasionally agree on some national issues.  But, unless there is a rare, clear message from the voters, almost nothing happens in the long run-up to the election.

For example, for the first time in many years, a renewed national farm policy cannot pass.   

The Democrats want to continue including both price supports for farmers and food stamps for the less fortunate.  The GOP wants to cut food stamps, but likes price supports.

So the traditional compromise on farm policy has become impossible, thanks to a bigger battle over the proper role of government.

Both sides agree on the need to resolve immigration policy.  And they agree that the Democrats have greater appeal to the growing bloc of Latino voters who care about this policy.

While GOP members of the U.S. House of Representatives have fewer Latinos in their districts than do Democrats, they have an eye on the presidential election in 2016.  While they seem to oppose a comprehensive policy, they may concede a few changes to the law.

In both cases, it’s likely that the country would be better served by the adoption of full-scale agriculture and immigration policies, based on compromise between the two parties.  In the long prelude to elections, that’s unlikely.

In Canada and in Europe, campaigns have been a matter of weeks not years.  Of course, there’s political posturing there, but governments can function closer to normal nearer to elections.

Before we try to figure out how to copy them, we had better recognize that foreign politicians are on the way to copying us.  American political consultants now enjoy a world market, and they guide their clients to start early in trying to manipulate public opinion.

Is there nothing that can be done about the transformation of the American political system into a permanent political campaign?

The best option would be for office holders to demonstrate leadership rather than trying to cater to what their polls tell them about public opinion.

Leading in this way may decrease the chances of being re-elected.  Too often, holding onto office becomes an end in itself.  Real term limits could free politicians to focus more on policy and less politics.

It’s not all the fault of politicians.  Television “news” programs are also responsible for the continuous campaigns.

Serious coverage of public issues used to be financed by the profits from popular game and reality shows.  But networks have cut back on coverage and expect the news operation to be profitable, so the ongoing political saga has become the new game show.

Television pundits have spent more time handicapping the effect of the Obamacare sign-up snafu on next year’s elections than they ever did in explaining the program.

The television outlets think more people will follow public affairs in the off-season if it looks like a sport or a game.  And they offer full employment for pundits, whose opinions now pass for facts.

 
Without help in understanding the issues, we are left with politicians and television catering to our prejudices, but not our concerns. We face the prospect of ever longer campaigns with little real content.

Filibuster Abuse Will Lead to its End

The U.S. Senate decision last week to allow presidential appointees to be approved by a simple majority was a waypoint on the path of history.

The Constitution specifies only a few cases when Congress must have more than a simple majority to take action. Appointees need only a simple majority. So the vote should have been routine.

But Congress adopts its own rules.  When the Senate went to work in 1789, its rules allowed unlimited debate.  There was full discussion, but it seldom prevented votes.

By 1917, endless debate blocked voting on World War I issues.  Senate Democrats decided there had to be a way to bring “cloture” and ruled that debate could be cut off by a two-thirds majority.

Under the new rule, endless debate – filibustering – was confined to one or two bills a year.   

The former Confederate states had lost the Civil War, but their senators managed to block civil rights for African-Americans by using the filibuster.

By 1975, opposition to civil rights was crumbling, and Senate Democrats moved to make it easier to end debate, allowing debate to be ended by a vote of three-fifths of its members.

Both Republicans and Democrats used the filibuster to block the confirmation of presidential appointees.

One-time deals on appointees have been struck by the two parties, but they could not agree to change the Senate rules.

In recent years, the rate of filibusters has sharply increased.  For one thing, it was no longer necessary for the minority, having blocked cloture, to continue the debate.  Its filibuster threat was accepted in place of actually doing it.

The Republican Senate minority has resorted to using the filibuster threat hundreds of times to block legislation and to prevent President Obama from naming people to executive office or to the courts.

Endless debate had become a tool not to promote full and thoughtful discussion but with the open intent to introduce minority rule.

The Democrats threatened to use their majority to change the rule to allow decisions by a simple majority, but that change was thought to be so drastic that it was labeled “the nuclear option.”

In other words, majority rule in a democracy was considered to be as dangerous as a nuclear weapon.

Why?  Because either party might find itself in the minority at any given moment, so it would want today’s minority to have the kind of filibuster protection that it might want later.

By last week, Republican senators had made it clear they would not approve any appointees to the federal appeals court in Washington, D.C., although it is authorized by law to have 11 judges, and there are only eight now on the bench.

The GOP had no serious objections to the three Obama appointees.  But it feared that the ideological balance on the court could shift away from conservative domination by justices appointed by Republican presidents.  It wanted the court reduced to the current eight judges.

The GOP was unwilling to wait until there was a Republican president and Senate to change the number of judges, assuming it would do so if it had control.

While the Constitution provides that the president appoints federal judges subject to the “advice and consent” of the Senate, it does not suggest that a Senate minority should legislate by blocking presidential appointments.

With the frequent use of the filibuster, the rule could prevent a presidential election from meaning much in the face of a determined Senate minority.

So the majority Democrats drew the line.  They used their majority to rule that executive and judicial appointments below the Supreme Court should be subject only to a majority vote.

Maine’s two senators split their votes. Independent Angus King, who has softened his opposition to the filibuster, voted with the Democrats, saying “I am sorry it had to come to this.”

Moderate Republican Susan Collins showed she was more Republican than moderate.  As a moderate, she supported the blocked confirmation of an Obama appointee to the D.C. court. But she joined with all other Republicans to oppose the change to majority rule that would have made that appointment possible.

Collins called the vote “a terrible mistake.”  Presumably, she worried that future majorities could run wild, unchecked by the filibuster.

Perhaps a Senate run by a simple majority rather than by filibuster might do more to limit extreme legislation.  The majority would know that after the next election, the other party could gain the votes to reverse its actions.

 
Inevitably, the Senate will someday allow majority rule to apply to all appointments and all bills.  That’s the historical message of last week’s vote.