Stopping Warrantless Data Gathering on Citizens

Sen. Rand Paul will argue in a lawsuit to be filed today that warrantless data gathering of citizens' information is a 4th Amendment violation, reports Bridget Johnson @ pjmedia.com. In an unrelated article at USA Today, law professor Glenn Reynolds argues that it is also a serious threat to constitutional government and separation of powers.

Joined by former Virginia Attorney General Ken Cuccinelli and FreedomWorks president Matt Kibbe, "Paul will file his lawsuit on Wednesday morning at the U.S. District Court in D.C. ... against Obama, Director of National Intelligence James Clapper, Director of the National Security Agency Keith Alexander and FBI Director James Comey."

“This class action suit isn’t about Republican versus Democrat, or progressive versus conservative. This is about defending the basic civil liberties of every American from a government that has crossed the line. FreedomWorks is participating in this suit on behalf of our community of 6 million citizens nationwide, along with any American who has a phone,” Kibbe said. “If you use a phone, you should care about this case. Never in American history has there been such a warrantless gathering of citizens information. We believe it is time to put this before the courts. ”

Paul, Cuccinelli and Kibbe are expected to discuss their case in greater detail on the steps of the courthouse tomorrow after filing the lawsuit.

Under the subtitle, "the program makes it easy for the president to spy on and blackmail his enemies," University of Tennessee law professor Glenn Harlan Reynolds writes that "the ability of the executive branch to snoop on the phone calls of people in the other branches isn't just a threat to privacy, but a threat to the separation of powers and the Constitution." He argues that strong measures should be put into place to prevent these abuses.

Rather than counting on leakers to protect us, we need strong structural controls that don't depend on people being heroically honest or unusually immune to political temptation, two characteristics not in oversupply among our political class. That means that the government shouldn't be able to spy on Americans without a warrant — a warrant that comes from a different branch of government, and requires probable cause. The government should also have to keep a clear record of who was spied on, and why, and of exactly who had access to the information once it was gathered. We need the kind of extensive audit trails for access to information that, as the Edward Snowden experience clearly illustrates, don't currently exist.

In addition, we need civil damages — with, perhaps, a waiver of governmental immunities — for abuse of power here. Perhaps we should have bounties for whistleblowers, too, to help encourage wrongdoing to be aired.

Is this strong medicine? Yes. But widespread spying on Americans is a threat to constitutional government. That is a serious disease, one that demands the strongest of medicines.

Rand Paul Suing President Obama, Bridget Johnson, PJMedia.com, 2/11/14
NSA Spying Undermines Separation of Powers, Glenn Harlan Reynolds, USA Today, 2/11/14

Penalize Politicians for a Change

"As scandals explode across Washington — from the IRS scandals, to the Benghazi scandal, to the HHS donations scandal, to Pigford and more — one thing that I've noticed is that the people involved don't seem to suffer much," writes Glenn Reynolds. "There are consequences, but not for them."

The problem, says Reynolds, is that politicians don't have skin in the game. They will take 'responsibility', but not 'blame'.

What's the difference? People who are to blame lose their jobs. People who are "responsible," do not. The blame, such as it is, winds up deflected on to The System, or something else suitably abstract.

But when you cut the linkage between outcomes and experience, you make learning much more difficult. When you were a toddler learning to walk, you fell down a lot. This was unpleasant: shocking, at least, and often painful. Thus, you learned to fall down a lot less often.

But imagine if falling down didn't hurt. You wouldn't have learned not to fall, or at least, you would have accumulated a lot more bruises along the way.

Given the low penalties for failure it faces, our political class is one for whom falling down is usually painless and even — given the surprisingly common tendency of people who have presided over debacles to be given promotions rather than the boot — actually pleasurable. The leaders move society's arms and legs, but we're the ones who collect the bruises.

Reynolds, a law professor, offers a few recommendations to remedy the situation:

I'd favor some changes that put accountability back in. First, I'd get rid of judicially created immunities. The Constitution itself creates only one kind of immunity, for members of Congress in speech and debate. (Perhaps unsurprisingly, courts have interpreted this grant of immunity, explicitly in the Constitution, more narrowly than the judicially created ones).

I'd also cut all payments to members of Congress whenever they haven't passed a budget. If they can't take care of that basic responsibility, why should they get paid? Likewise, I'd ban presidential travel when there's not a budget. He can do his job from the White House.

I'm willing to consider other changes: Term limits that kick in whenever there's a deficit for more than two years in a row. Limitations on civil-service protections to allow wronged citizens to get offending bureaucrats fired. Pay cuts for elected officials whenever inflation or unemployment are above a threshold.

But the real lesson is this: We entrust an inordinate amount of power to people who don't feel any pain when we fall down. The best solution of all is to take a lot of that power back. When the power is in your hands, it's in the hands of someone who feels it when you fall down. When it's in their hands, it's your pain, their gain. That's no way to run a country.

Will: Subprime College Education

Taxpayers, students and their families are "paying rapidly rising prices for something of declining quality," writes George Will, and the government-induced bubble, built around a 440 percent increase in tuition and fees over 30 years, is about to pop.

In his "The Higher Education Bubble," [University of Tennessee law professor Glenn Harlan] Reynolds writes that this bubble exists for the same reasons the housing bubble did. The government decided that too few people owned homes/went to college, so government money was poured into subsidized and sometimes subprime mortgages/student loans, with the predictable result that housing prices/college tuitions soared and many borrowers went bust. 

Will cites examples of declining quality:

• Since 1961, the time students spend reading, writing and otherwise studying has fallen from 24 hours a week to about 15 — enough for a degree often desired only as an expensive signifier of rudimentary qualities (e.g., the ability to follow instructions).
• UC San Diego (UCSD), while eliminating master’s programs in electrical and computer engineering and comparative literature, and eliminating courses in French, German, Spanish and English literature, added a diversity requirement for graduation to cultivate “a student’s understanding of her or his identity.”
• UCSD lost three cancer researchers to Rice University, which offered them 40 percent pay increases. But UCSD found money to create a vice chancellorship for equity, diversity and inclusion. 

Read his full article.