Privacy Reform, The NSA, And The “Spy Court”

An interesting and important effort is underway in Washington, D.C. to address the delicate balance between data-gathering by the National Security Agency and other federal agencies and the privacy concerns of American citizens. President Obama is set to explain his views in a speech on Friday. In the meantime, Congress is holding hearings on the issue and is getting some meaningful feedback on its reform proposals — which is precisely what congressional hearings are supposed to accomplish.

A key issue with reform of intelligence-gathering efforts is the lack of information about such efforts. Clandestine programs by definition are not transparent; knowledge is limited to a small group that is sworn to secrecy. When information about the programs leaks — as happened with Edward Snowden’s disclosures last year — people react with astonishment and concern. But how do you achieve reform, and have a full airing of competing views, if the programs remain inside a black box?

That’s why congressional hearings are such an important tool. Yesterday the Senate Intelligence Committee received testimony about reform efforts, and one of the submissions was from U.S. District Judge John Bates, the current Administrative Judge of the United States Courts and the former chief judge of the Federal Intelligence Surveillance Court — the so-called “spy court” that considers governmental surveillance requests. Bates wrote in opposition to proposals that an independent “privacy advocate” be appointed to bring competing viewpoints to the court’s attention; he argues that given the nature of the court (such as the fact that the advocate could never communicate with the proposed target of the surveillance) the advocate could never provide a truly adversarial perspective or help the court consider the facts.

Bates also opposed a proposal to require the court to pass on every “national security letter” the government sends in an effort to obtain information from third parties. Bates noted that there are 20,000 such letters each year and argues that requiring court approval of each one would bury the court. It’s hard to dispute that conclusion; 20,000 letters amounts to about 55 letters each day of the year. How are the judges on the court supposed to give meaningful consideration to each such letter along with their other workload?

It’s difficult to stake out a position on these issues because the secrecy of the programs means the general public may not have all of the pertinent information. No one wants to undercut national security concerns, but the Snowden revelations have given rise to legitimate concerns that the NSA’s enormous appetite for data collection that touches upon the lives (and phone calls, and internet uses) of Americans isn’t justified by realistic objectives or by results. I’m glad to see that Congress is taking testimony and receiving competing views, and I hope that it and the President make a thoughtful and legitimate effort to tackle the privacy concerns raised by the NSA’s programs.

Trying To Get To The Bottom Of Benghazi

Congressional hearings are underway into the storming of the American consulate in Benghazi, Libya and the killing of four Americans, including Ambassador Chris Stevens.  The hearings are interesting — both for what they are telling us about what happened in Libya and within the U.S. government itself as the attacks unfolded, but also for what they are telling us about the twisted, hyper-partisan world of Washington, D.C.

During yesterday’s testimony, which the New York Times described as “riveting,” a veteran U.S. diplomat named Gregory Hicks gave a detailed account of the night of the attack.  Hicks, a 22-year Foreign Service veteran, became the head State Department official in Libya after Ambassador Stevens was killed.  He testified about how a Special Operations team wanted to fly to Benghazi to help but was overruled by officials in Washington, who concluded it could not arrive in time to help.  Hicks also described being “stunned” and “embarrassed” when Administration officials, including UN Ambassador Susan Rice, initially portrayed the attack as a response to a YouTube video and how such comments angered the president of the Libyan National Assembly, who had called the attack a preplanned terrorist act.  Hicks testified that the Libyan government’s feeling of being undercut may have delayed their cooperation with Americans investigating the incident.  Furthermore, he said that when he raised questions about Rice’s comments, he was effectively demoted and led to understand that he should stop asking questions.

The testimony of Hicks and two other officials, Mark Thompson and Eric Nordstrom, indicate that there is still information to be uncovered and lessons to be learned about Benghazi.  When four Americans, including an ambassador, are killed, their deaths deserve a detailed inquiry and a careful evaluation, at the congressional level.  Such an evaluation should determine whether changes in law, security arrangements, staffing, or emergency response procedures are needed to prevent such an incident from ever happening again.

Unfortunately, in our modern government, things are never quite that simple.  The Times story linked above reflects that unfortunate fact, because much of the article is devoted to the “politics” of what should ideally be an apolitical, objective fact-finding exercise.  It’s ludicrous, and disheartening, and it is happening on both sides of the aisle.  Republicans should stop portraying every incident as “another Watergate”; it just allows their opponents to dismiss hearings such as yesterday’s as a politically motivated witch hunt.  And Democrats should stop trying to downplay the significance of Benghazi and resist every inquiry about why four Americans died.  That much, at least, is owed to the memories of those four Americans — and to the many other Americans who serve their country in diplomatic posts in dangerous parts of the world.

A Costly Solar Flame-Out (III)

In recent years — where important legislation always seems to be prepared at the eleventh hour, after closed door meetings with only selected congressional leaders — it has been easy to forget that one of Congress’ more important powers is the power to investigate, obtain documents, and take testimony.  Much of the drama in the Watergate story, for example, came during the long, drawn-out congressional hearings into that scandal, as witness after witness drew the ring of scandal closer and closer around President Nixon.

The story of Solyndra — the solar power company that recently went into bankruptcy after receiving more than $500 million in government loan guarantees and then became the subject of an FBI investigation — may reignite interest in congressional hearings.  ABC News is reporting that the House Energy and Commerce Committee, which will hold hearings on the Solyndra story tomorrow, has obtained emails that indicate that the White House was carefully monitoring the Energy Department’s consideration of loan guarantees to Solyndra, at the same time that government analysts were expressing serious concerns about the risks involved.

The Solyndra story is no Watergate, of course, but congressional oversight and investigation powers aren’t reserved only for scandals capable of bringing down a President.  Congress should determine whether federal officials disregarded clear risks and awarded more than half a billion dollars to a private company just to advance a political agenda — or, even worse, to help a political contributor who invested in a struggling business — and, if so, Congress should take steps to ensure that those officials are appropriately punished and such recklessness does not happen again in the future. Such actions would be a good sign that Congress may actually get back to doing its job and exercising its powers, rather than simply, and endlessly, fundraising and grandstanding.

The Law Of Unintended Consequences

A number of U.S. companies have modified their accounting statements to reflect increased liabilities that will be imposed on them as a result of the “health care reform” legislation.  The latest (and largest) is AT&T, which is taking a $1 billion non-cash charge to its accounting statements for the first quarter of 2010.  AT&T says the charge reflects additional taxes it will have to pay.  The increased tax burden in this particular instance could cause AT&T and other companies to change — and perhaps eliminate entirely — benefits offered to retirees.

Congress’ response to this news is interesting and entertaining.  The Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce has asked the CEOs of the affected companies to appear for a hearing and to produce clearly confidential corporate documents, like analyses of the impact of “health care reform” legislation on the companies and other documents, including e-mails, prepared or reviewed by senior company officials concerning health care reform.  Copies of the letters to the company CEOs are available on the Energy and Commerce Committee website.  The tone of the letters is quasi-intimidating and humorous at the same time.  The letters earnestly state that “[t]he new law was designed to expand coverage and bring down costs, so your assertions are a matter of concern” and notes that the companies’ decisions “appear to conflict with independent analyses” like the Congressional Budget Office and the Business Roundtable.

The implication of these letters is that the Committee expects to find a giant cabal, in which large American companies have gotten together to take phony accounting charges to undercut the “health care reform” legislation and make the President and the Congress look bad.  Is Congress really so clueless?  Do they honestly think that large companies manipulate their accounting statements and take $1 billion charges for political purposes?  In this post-Enron era, the accounting statements of publicly traded companies are carefully considered and vetted by independent accounting firms and independent audit committees of the company’s Board of Directors; political views don’t enter into the equation.  And in this economy, do Members of Congress really believe that companies would take huge unnecessary charges that would make their earnings look worse than they already are?

Even more hysterical is the letters’ pitting of the decisions of company management against “independent analyses” from the Congressional Budget Office and the Business Roundtable.  Does Congress actually think that the generic findings of the CBO about decreased premium costs by 2016, or the comments made by the Business Roundtable months ago about some earlier version of the “health care reform” legislation, have more substance than the determinations of company executives who must grapple with how accounting and auditing standards require them to evaluate and report the liabilities of their companies based on the specific of their particular health care plans?

The congressional investigation will leave the company CEOs being summoned in a quandary.  They probably can’t refuse to attend.  In this era of big government, no American company wants to be in the cross-hairs of anti-business congressional committees.  But the alternative is not attractive.  If the companies produce sensitive corporate documents to a notoriously leaky Congress, those documents may end in the hands of keenly interested competitors.  And if the CEOs appear to testify, they will likely be browbeaten by a gang of know-nothings who couldn’t distinguish generally accepted accounting principles from a cracked pumpkin and who will attempt to shirk their own responsibility for foisting increased taxes and increased costs on American businesses.  The hearings won’t be pretty.

Don’t be surprised if other companies announce similar accounting decisions as a result of the changes made by the “health care reform” legislation and if, ultimately, benefit plans get changed materially as a result.  Congress is about to get a serious lesson in the law of unintended consequences and the repercussions of making poorly considered, wholesale changes in the law applicable to a huge chunk of the American economy.