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Published: Sat, 24 Sep 2016 00:00:00 -0400

Last Build Date: Sat, 24 Sep 2016 22:07:42 -0400


Lawmakers Offer Snowden Film Cross-Promotion with Report Blasting Him

Thu, 15 Sep 2016 22:00:00 -0400

(image) This is a movie promotion strategy like no other. Oliver Stone's retelling of Edward Snowden's surveillance whistleblowing, Snowden, hits the theaters Friday. There's a big push now to attempt to convince President Barack Obama to pardon Snowden and allow him to return home.

Ron Bailey made note of this new effort yesterday. My own cynical take is that Obama is only interested in correcting the overreach in prosecutions of citizens during previous administrations. He has demonstrated absolutely no interest in even remotely restraining the authority of his own Department of Justice in any way whatsoever. The "right people" are in charge. There will be no pardon coming.

Now, this afternoon, the House Intelligence Committee decided to wade into the world of film promotion by releasing a summary of a classified report extremely critical of Snowden. And it's a bipartisan critique. Every member of the committee signed a letter to Obama urging him not to pardon Snowden.

The report, a result of two years of investigation, concludes that Snowden was not a whistleblower at all and didn't attempt to properly bring problems with National Security Agency (NSA) snooping to lawmakers before snatching documents and fleeing the country. And the report makes it personal, accusing Snowden of feuding with coworkers and accusing him of lying about the reasons he left the Army (he says broken legs—they say "shin splnts") and lying about his education. Wondering what any of that has to do with whether his whistleblowing exposed illegal NSA surveillance? Keep wondering.

Read the summary of the House's report here. The full report is classified, so we have no actual foundation to evaluate the assertions presented in the summary. On Twitter, Snowden offered a handful of responses accusing the lawmakers themselves of misleading the public:


Advance reviews of Snowden are decidedly mixed. Maybe the spat will increase the film's profile? Reason's film critic, Kurt Loder, will be offering his take Friday morning.

Maybe 2016 Will Be the Year Voters Elect an Openly Gay Republican to Congress

Wed, 31 Aug 2016 17:00:00 -0400

In 2014 America came so close to electing an openly gay Republican to Congress. Two candidates on opposite sides of the country, Carl DeMaio in California and Richard Tisei in Massachusetts, landed their party's nominations, but lost in the general election. It's a trend worth noting because a success here serves as an indicator of Republicans and conservatives further turning away from an attitude that there's something bad or wrong about being gay and a push away from government policies that are influenced by sexual orientation. Also, Tisei and DeMaio both had some libertarian-friendly positions in their platforms (DeMaio had previously worked with the Reason Foundation as an independent contractor on pension reform). As of Tuesday night's Arizona primary, we now have Paul Babeu, the Republican sheriff of Pinal County in Arizona. He won last night's primary and will be facing Tom O'Halleran, a Democrat and a former Chicago police officer, to replace Ann Kirkpatrick as the representative for Arizona's 1st District. Kirkpatrick, a Democrat, is challenging Sen. John McCain for his seat in November. If elected, Babeu would not be the first gay Republican to serve in Congress. Steve Gunderson of Wisconsin and Jim Kolbe, also of Arizona, both came out of the closet while serving. Babeu would be the first to actually be elected as an openly gay man. Kolbe, incidentally, has endorsed Babeu. As a candidate, Babeu is a bit of a mixed bag for libertarians. He is a hardcore border security and control advocate and is very vocal about saying America has "complete lawlessness" on immigration enforcement. He holds President Barack Obama responsible for any crimes committed by illegal immigrants within the United States. He's also a hardcore drug warrior and promotes on his campaign site the fact that his sheriff's office was responsible for the largest drug bust in Arizona history. These two positions appear intertwined. In May he warned hikers and campers to be wary of "Mexican drug assassins" operating his county. When Vice News investigated, they couldn't find much evidence that there was a serious problem. On the other hand, much of his economic platforms are pro-innovation and pro-freedom. He's against the Enivornmental Protection Agency's and the Obama administration's meddling in coal power operations, but also supports the development of renewable energy. He's very critical of EPA regulatory overreach, which is a hot-button issue in a state like Arizona with a lot of federal land. He's pro-gun rights, and anti-Common Core. Babeu's public coming out story is also tied to his strong immigration positions due to an odd scandal from 2012, the first time he attempted to run for Congress. He came out of the closet publicly following accusations from an ex-lover who also happened to be an illegal immigrant from Mexico, claiming he was threatened with deportation after the relationship turned sour. An investigation by Arizona's Attorney General's office cleared Babeu of any wrongdoing, but he nevertheless dropped out of the race for Congress. This will be his second attempt, and it appears as though he's going to be heavily focused on getting out votes on the basis of immigration, energy, and local control issues.[...]

Will a Zombie Congress Devour Our Gains?

Tue, 30 Aug 2016 12:50:00 -0400

(image) Congress will be returning to session next week after Labor Day with a busy agenda that nobody actually wants to deal with because this year's elections seem so crazy.

At the top of mind of small-government conservatives (and obviously libertarians) is the intense pressure to pass a spending bill to keep the government in operation. The omnibus spending bill approved last December funds the government to the end of September. So they've got to pass something.

Several activist groups that support reducing the size of government and lowering taxes are putting forward an organized effort to try to discourage Congress from kicking the can down the road to December's lame duck session and then pushing through a last-minute, post-election, must-pass spending bill influenced by members of Congress who are on their way out the door and don't have to worry about accountability. (We're looking at you, Sen. Harry Reid.)

Some of the groups involved—like Americans for Prosperity, FreedomWorks, and Americans for Task Reform—are heavy-hitters in small-government and Tea Party activism. They, and several dozen other organizations, are calling on Congress to avoid a last-minute push to fund government all the way through 2017 and quietly include all sorts of cronyist regulations that benefit certain influential parties that lobby the government. In a teleconference with the media this morning, participants noted efforts to re-establish the loan authority of the cronyist Export-Import Bank as a concern. In a letter, the groups note how last year's last-minute, must-pass omnibus spending bill turned out:

Congress already considered the matter of expiring tax provisions a little under a year ago. The $680 billion package signed into law last December made some of these items permanent and allowed more than two dozen others to expire at the end of 2015, laying the groundwork for comprehensive tax reform. Included in the nearly $20 billion in tax provisions that are set to expire are provisions pertaining to small-scale wind power, geothermal heat pumps, race horses, film production—provisions that distort our tax laws and narrowly benefit favored industries over the rest of the tax base. These provisions were made temporary for a reason. It makes no sense to come back just one year later and selectively extend certain provisions in a lame duck.

Reason noted some of the secret stuff buried in that Omnibus legislation earlier in our April issue (not all of it was bad—but it was certainly not transparent). In a press call this morning, representatives from three of the groups involved in this push said they're specifically focused on making sure spending legislation is not approved at the last minute, and only spending and tax-related legislation. They're going to stay focused on that goal and not other types of bills that could get pushed through in December. That may matter in the event that heavily negotiated criminal justice and sentencing reforms finally make it through Congress before the end of the year.

But clearly something does need to be passed in order to prevent a government shutdown. What some Republicans are pushing for is a continuing resolution to fund the government through March of next year. That would put the new president and a new Congress into place. Read more about the push behind that six-month plan here.

9th Circuit Says Feds May Not Prosecute State-Legal Medical Marijuana Suppliers

Wed, 17 Aug 2016 06:30:00 -0400

Yesterday a federal appeals court ruled that a spending rider approved by Congress in 2014 and 2015 prohibits the Justice Department from prosecuting marijuana suppliers who "fully comply" with state laws allowing medical use of the plant. The DOJ had argued that the rider, which says the department may not use appropriated money to "prevent" states from "implementing" their medical marijuana laws, applies only to litigation against the states themselves, not to prosecution of individuals who provide cannabis to patients. A three-judge panel of the U.S. Court of Appeals for the 9th Circuit unanimously rejected that interpretation, saying federal marijuana defendants are entitled to evidentiary hearings at which they can try to show their actions were authorized by state law. The case, United States v. McIntosh, consolidates 10 appeals by medical marijuana growers and dispensary operators in California and Washington, including the proprietors of Hollywood Compassionate Care in Los Angeles. The defendants argued that prosecuting them violates Section 542 of the omnibus spending bill that Congress approved last December, which covers the fiscal year that ends on September 30, as well as a similar provision that applied to the previous fiscal year. The amendment, which was introduced by Reps. Dana Rohrabacher (R-Calif.) and Sam Farr (D-Calif.), says "none of the funds made available in this Act to the Department of Justice may be used" to "prevent [states] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana." The 9th Circuit agreed with the defendants that the Rohrabacher/Farr amendment, although "not a model of clarity," covers criminal prosecution of people who engage in those activities as well as lawsuits aimed at overturning or neutralizing medical marijuana laws: DOJ argues that [Section 542] does not prevent the Medical Marijuana States from giving practical effect to their medical marijuana laws by prosecuting private individuals, rather than taking legal action against the state. We are not persuaded.... DOJ, without taking any legal action against the Medical Marijuana States, prevents them from implementing their laws that authorize the use, distribution, possession, or cultivation of medical marijuana by prosecuting individuals for use, distribution, possession, or cultivation of medical marijuana that is authorized by such laws. By officially permitting certain conduct, state law provides for non-prosecution of individuals who engage in such conduct. If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct. We therefore conclude that, at a minimum, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.... If DOJ wishes to continue these prosecutions, Appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law, by which we mean that they strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana. Passing that test may not be easy, since neither California nor Washington licensed or explicitly allowed commercial production and distribution of medical marijuana when these defendants were arrested. In both states dispensaries operated based on controversial interpretations of state law, as patient cooperatives or collectives in California and as "collective gardens" in Washington. The 9th Circuit explicitly rejected the argument that Section 542 means the DOJ must let states deal with medical marijuana suppliers who fail to "fully comply" with state law. Another limitation of Section 542 is its temporary nature. "D[...]

Combative Tea Party Kansas Rep. Huelskamp Loses Primary

Wed, 03 Aug 2016 11:45:00 -0400

Republican Kansas Rep. Tim Huelskamp is out, defeated in the state's primaries last night by a challenger, Roger Marshall, a political newcomer. The latest numbers have Marshall ahead 57 percent to 44 percent. That's not a narrow loss. Huelskamp came into office in 2010 as part of the Tea Party push. He is a member of the House Freedom Caucus and was one of the small group of Republican congressman who in 2015—along with familiar-to-Reason reader names like Justin Amash, David Brat, and Thomas Massie—voted against naming John Boehner speaker of the House. Huelskamp had previously been punished by Boehner in 2012 for voting against Republican establishment positions by being booted from the Agriculture Committee (this happened at the same time Amash was booted by Republicans from the Budget Committee). This apparently turned the agriculture industry against Huelskamp. Club for Growth and the Freedom Caucus maintained support for Huelskamp, but the U.S. Chamber of Commerce and agriculture industry groups turned to Marshall. Marshall's endorsements include a host of agriculture interests, including ethanol representatives. Huelskamp opposes the federal renewable fuel standard. Marshall supports it. The narrative for Huelskamp's loss was that he was just too combative and that his clashes had hurt his district, which is an interesting way of describing the party's establishment punishing Huelskamp by stripping him of his influence for voting in ways they didn't like. But as McClatchy notes, there was a little bit more than just the agriculture lobby plotting against Huelskamp. His district lines were redrawn to include Fort Riley and Kansas State University, bringing voters who "are not as libertarian on economic issues nor as socially conservative as those who live in the west." Possibly relevant, beyond just the agricultural lobby, was the fact that Huelskamp's social conservativism had a strong anti-gay bend to it. He believed that proponents of gay marriage recognition were trying to weaken and destroy the institution altogether and was a supporter of the National Organization for Marriage's efforts. His position went far beyond the "let the states decide" position of many current conservatives. In 2013 he introduced a constitutional amendment to try to restrict marriage recognition across the country to heterosexual couples only. Marshall holds many conservative positions and is pro-life (he's also an obstetrician), but there's nothing on his issues page about gay marriage or gay rights at all. Huelskamp's campaign actually attacked Marshall for belonging to a physician's group (the American College for OB-GYNs) that supports gay marriage recognition and the right to abortion. Is this a warning sign for the future of the Tea Party movement? Hard to say. Given the state of the Republican Party right now with Donald Trump as a completely uncontrollable presidential candidate, it's tough to even speculate about the party's future other than to say that regardless of what happens in November, it's going to have to really figure out what the heck it is. It is worth noting that despite the crazy tone of the election, we're not actually seeing a lot of shocking primary results. ABC notes that Huelskamp is only the fourth incumbent legislator to lose a primary. Two others had their district boundaries significantly altered and one was indicted on corruption charges. Below the fold is House Freedom Caucus Chairman Jim Jordan's (R-Ohio) statement in response to Huelskamp's loss: "Our colleague Tim Huelskamp (R-KS) is a fifth generation farmer and conservative Republican who, since the day he was elected, has stood up for the values of the families and taxpayers in his district. "At times, Tim's commitment to fighting for smaller, more accountable government required him to stand up and say no to 'business as usual' in Washington. "For this, he was punished by the same party insiders and special interests that Republ[...]

Rep. Barbara Lee: I Didn't Support Libya Intervention, But I Support Hillary Clinton

Mon, 25 Jul 2016 22:30:00 -0400

(image) Rep. Barbara Lee (D-Calif.) is perhaps best known for casting the one vote in Congress against the Authorization for the Use of Military Force (AUMF) in Afghanistan days after 9/11. For her vote of conscience, she was pilloried by a traumatized, terrified, and hyper-patriotic American populace.

She defended her bold and lonely vote on the floor of the House by arguing that "military action will not prevent further acts of terrorism against the United States." She added that she had "agonized" over the vote but felt it necessary for someone to urge "restraint." In hindsight, Rep. Lee's call for caution proved prescient, as that AUMF has been used to authorize military actions which had nothing to do with 9/11, but were instead vaguely lumped into what was once called the Global War on Terror, but which the Obama administration prefers to not define at all while it bombs countries and combatants that also had nothing to do with 9/11.

On the floor of the Democratic National Convention (DNC), I asked Rep. Lee—a Hillary Clinton supoporter—if she has any issues with Clinton's career-long track record supporting military intervention.

Of the U.S. military intervention in Libya, which many believe was a well-intentioned humanitarian mission that ultimately helped produce a failed state (and which Clinton still describes as an example of "smart power" even while President Obama calls it his greatest foreign policy "mistake") Lee makes very clear that "I did not support that." 

However, the congresswoman wanted me to know that she believes "Secretary of State Clinton's foreign policy does emphasize diplomacy and development. Where I disagree [with Clinton] is often times with the use of force."

Lee pointed to her votes against the AUMF in both Afghanistan and Iraq and added, "I've been calling for a new authorization and congressional debate on this new war footing," but said she believed in Clinton's ability to provide a "comprehensive strategy" and identify "the root causes of terrorism." She added that President Obama had submitted a new AUMF to Congress but that Congress has yet to put it up for a vote. 

Watch Lee's speech from 9/14/01 below:

src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0">

Congressman Demands Pokémon Go Makers Tell Him What They Do About Data Usage

Wed, 20 Jul 2016 19:53:00 -0400

Rep. Frank Pallone, Jr. (D-NJ), sounds like he doesn't know how a smartphone works or what the role of Congress is. The ranking member of the House Energy and Commerce Committee fired off a letter along with two Democratic colleagues demanding Pokémon Go explain what it does about how much data its users use playing the game. "We are writing to better understand what measures Niantic has undertaken to ensure consumers are informed of Pokémon Go's effect on their mobile data usage," the letter begins, continuing by explaining that the app had been downloaded 7.5 million times in its first week out and earned "an estimated $2.3 million day on the iOS and Android platforms. The reference to revenue is totally gratuitous and unrelated to anything else Pallone brings up. He does not mention that Pokémon Go is a free app or that he has no business getting involved with Pokémon Go and data usage in the first place. Amazingly, while trying to whip up fears over Pokémon Go and data usage, Pallone cites a Wall Street Journal article titled "Relax, Pokémon Go Isn't Eating Your Data Plan," which reports that according to Verizon the app takes up less than 1 percent of its total data traffic. Pokémon Go, like any sophisticated app, can drain battery life, but it does have a setting for "battery saver." Battery usage is a problem for many smartphone users and one smartphone makers have long been working to improve. Like data usage, battery usage isn't any of Pallone's business either. It's up to individuals how much they want to consider their data usage when playing Pokémon Go. Most smartphones allow you to check data usage by app—I've used about 300MB of data on Pokémon Go in the last two weeks, hardly my most data-taxing app—and there are even apps to help monitor data usage instead. But Pallone could relax even if that weren't the case, because issues like data usage on Pokemon Go are outside the purview of Congress. It's notable too that the concept of net neutrality, which Pallone and Democrats tend to support, make it harder for service providers and app operators to minimize the cost of data usage because "net neutrality" doesn't permit treating data spent on Pokémon Go to be treated differently than data used on any other program or internet service. If Pallone is interested in contributing, he could work to roll back net neutrality controls. Frank Pallone ends with four questions he asks Niantic to answer, none of which it should feel compelled to answer and none of which are intelligent enough to be worth asking. He wants to know whether there are "best practices" Niantic follows to minimize how much data is used (their code is none of Pallone or the government's business), whether it works with carriers to "ensure that consumers are not unexpectedly hit with large overage charges," (this is non-sensical as other apps use even more data), whether it warns consumers about data usage (again, nonsensical given that Pallone has overblown the data impact), and most incredibly, whether it had "any mechanisms in place to make sure consumers are made whole in the event they are hit with an unexpected overage charge resulting from the use of your app." Why would anyone but the user of a phone be responsible for the data they use? I wouldn't even say Congress has more important things to concern itself about. Even if Congress didn't have anything to concern itself with—no self-created foreign policy, fiscal and other messes to get itself out of—Pokémon Go would still not be something that's appropriate for Congress to concern itself with. If Frank Pallone has concerns about Pokémon Go, he should free to quit his job in Congress and work on developing an augmented-reality game he thinks is superior. Otherwise he should shut up and not use the pulpit of political office to bully a company that did develop an augmented-reality game it and millions of users[...]

Sick of Trump and Hillary? Tune In Scott and Booker

Mon, 18 Jul 2016 16:15:00 -0400

Instead of paying attention to Donald Trump or Hillary Clinton today, take a moment to listen to Senators Tim Scott and Cory Booker. Scott is a black Republican from South Carolina. Booker is a black Democrat from New Jersey. Together, they've done something relatively unusual in Washington these days—teamed up across partisan lines to introduce two pieces of legislation aimed at increasing upward mobility and fighting poverty. The bills hadn't been on my radar screen until last week, when Sen. Scott took to the Senate floor to offer some disturbing firsthand accounts of how he'd been treated by law enforcement officers and to offer some ideas on how to move forward. These two pieces of legislation were among them. The first is the Leveraging and Energizing America's Apprenticeship Programs or "LEAP" Act. It would create a new $1,500 per apprentice tax credit for businesses that hire employees younger than 25 to participate in apprenticeship programs registered with the federal or state governments. The cost of the tax credits would be offset by having the government publish more documents on the Internet instead of printing them. The LEAP Act already has support from two other Republicans, Deb Fischer and Kelly Ayotte, and from two other Democrats, Chris Coons and Amy Klobuchar. The second bill is the Investing in Opportunity Act. It would give governors the power to create "opportunity zones" and provide a break on the capital gains tax for taxpayers who invest their gains in a qualified opportunity zone. This law, too, has bipartisan backing. Its supporters include Democrats Michael Bennet, Chris Coons, and Gary Peters, and Republicans Roy Blunt, Cory Gardner, and Lindsey Graham. Both these laws, unfortunately, would add complexity to a tax code that needs simplification. The senators get credit for good intentions, but federal antipoverty needs to be judged on results, not intentions, as decades of counterproductive spending have testified. Even so, perhaps they are onto something. Certainly, the problem of how people younger than 25 can gain valuable and employable skills is one worth tackling. Not all of them will go to college, and the combination of high state and local minimum wages, health insurance mandates, and payroll taxes means that, without a subsidy of some sort, entry-level employees in many cases aren't worth the cost for businesses to hire and train. My preferred solution would be to reduce the payroll tax, the minimum wage, or the healthcare mandate, or to let someone in the private sector find a way to make money by hiring and training these people better than competitors. As for the opportunity zones, again, the problem of entire neighborhoods or even cities or regions that have been left behind from the coastal urban booms that have affected places like Silicon Valley, New York City, and Washington, D.C. is one worth thinking about. The idea of dealing with it by offering a capital gains deferral may be a little too cute, though. The concept is to get people who made lots of money on, say, Facebook stock, to reinvest the money in some rundown city or rural backwater and avoid some of the tax hit on their gains. But as Mark Zuckerberg's unsuccessful $100 million gift to the Newark, N.J. public schools shows, the problems in some of these neighborhoods go well beyond the issue of lack of financial capital willing to invest. "It's a dark hour in race relations for America, but I bring you hope, real hope," Sen. Scott said in his remarks, speaking about how a heavily white congressional district in South Carolina elected him—the grandson of a cotton-picker—over Senator Strom Thurmond's son and over the son of the late Gov. Carroll Campbell. "Please remain optimistic." It's not necessarily easy these days to do that. But the fact that Senators Booker and Scott can at least agree on common goals—increasing [...]

The Fourth Amendment Gets Its Own House Caucus to Demand Its Respect

Thu, 14 Jul 2016 15:30:00 -0400

Does Congress actually need a special caucus to advocate on behalf of a civil liberty that is spelled out in the Constitution's Bill of Rights? For 25 lawmakers in the House of Representatives, when it comes to the Fourth Amendment, the answer is increasingly "yes." On Wednesday, the Hill saw the formal launch of the Fourth Amendment Caucus, a bipartisan coalition (nearly evenly divided between the two parties) of those who are concerned about the degradation of the right of Americans to protect their communications and personal information from unwarranted government searches. Edward Snowden has become a household name since he revealed the United States government was secretly collecting massive amounts of data from its citizens own communications without their knowledge, all ostensibly to help fight terrorism. Snowden's decision to blow the whistle on the behavior of the National Security Agency (NSA) was intended, in part, to highlight the increasing degredation of the citizen protections of the Fourth Amendment. And yet, in the wake of his revelations and the public outrage, agencies like the NSA and FBI continue to push for more authority to collect data about American citizens without having to turn to warrants. The FBI wants to increase the data it can gather through the use of secret National Security Letters. An attempt to expand the authority of the Patriot Act to get banks to share data from its customers with the government to fight crimes beyond terrorism and money-laundering was just defeated in the House. Two of the House members who were vocal about stopping that Patriot Act expansion, Reps. Justin Amash (R-Mich.) and Thomas Massie (R-Ky.), are members of this new Fourth Amendment Caucus. The caucus was the brainchild of Rep. Ted Poe (R-Texas) a strong supporter of requiring better citizen privacy protections and for the NSA and feds to respect the restrictions the Fourth Amendment puts in place when investigating crime and terrorism. Poe asked Rep. Zoe Lofgren (D-Calif.) to help chair the caucus. Lofgren recently worked with Massie to attempt to pass legislation to try to force the feds to get warrants to access collected data on American citizens. Their efforts failed. The two are also strong voices in trying to protect tech companies from federal efforts to force them to make "back doors" in their software or otherwise weaken their encryption to assist authorities in investigations. Other members of Congress known for speaking out on the Fourth Amendment are also on the caucus. Rep. Jared Polis (D-Colo.), who has been trying to change federal law to require warrants to access old emails, is on the caucus. Rep. Ted Lieu (D-Calif.), who blatantly once told a district attorney with a dim view of encryption to "follow the damn Constitution," is in the caucus. Rep. John Lewis (D-Ga.), himself once a target of federal surveillance during the civil rights movement, is in the caucus. After the caucus formally rolled out Wednesday, Lofgren explained to Reason that these legislators already work together on Fourth Amendment issues, but putting together a caucus allowed for a more formal structure for them to move forward together in the broad sense as a team. She sees the caucus as a necessary response to the push from authorities to collect more data and the unwillingness of some to make sure the Fourth Amendment retains its teeth. "Everybody says they're for the Constitution," Lofgren says, "but when you look at the application is when you see the problem." There's been a tendency to hope for the courts to pull back on overreach by the FBI and NSA in collecting citizen data, but Lofgren notes that the legislative branch has a role to play, particularly given how the courts have been responding to challenges. "The legislative branch has equal responsibility," Lofgren says. "We have old legal d[...]

Obama on His Unauthorized War Against ISIS: I'm Not Hearing 'No'

Wed, 13 Jul 2016 06:30:00 -0400

Responding to a lawsuit arguing that the U.S. war against ISIS is illegal because Congress never authorized it, the Obama administration argues that Congress kinda-sorta did, since it appropriated money that is being used to fight the terrorist organization. The administration's brief, filed on Monday, cites $5.6 billion that Congress approved in December 2014 for "overseas contingency operations to counter ISIL" (another name for ISIS), language in the National Defense Authorization Act (NDAA) for fiscal year 2015 that authorized the Defense Department to help Iraqi security forces defend their country against "the threat posed by [ISIS]," a 2016 appropriations measure approving "additional conduct counter-ISIL operations," and the NDAA for fiscal year 2016, which expressed  "the sense of the Congress" that ISIS "poses an acute threat to the people and territorial integrity of Iraq" and that "defeating ISIL is critical to maintaining a unified Iraq."  None of these measures explicitly authorized the U.S. war against ISIS, and each of the appropriations bills warned that "none of the funds made available by this Act may be used in contravention of the War Powers Resolution," which requires the president to get congressional permission within 60 days of introducing U.S. forces into hostilities or, failing that, withdraw them within 90 days. That law says Congress may not authorize military operations through an appropriations measure unless it "states that it is intended to constitute specific statutory authorization." The lawsuit to which the administration is responding was brought by Nathan Michael Smith, an Army captain who works at the Kuwait headquarters of the combined joint task force overseeing the forces fighting ISIS in Iraq and Syria. He is seeking clarification of the war's legal status, arguing that participating in an unauthorized war would violate his oath to uphold the Constitution. Smith notes that President Obama has blatantly failed to meet the requirements of the War Powers Resolution, and he rejects the administration's implausible contention that the war against ISIS is covered either by the 2001 Authorization for the Use of Military Force (AUMF) against the perpetrators of the 9/11 attacks, which was approved before ISIS existed and which Obama himself describes as dangerously obsolete, or the 2002 AUMF in connection with the Iraq war, which Obama declared over in July 2014 and which in any event never involved military action in Syria. The administration argues in a footnote of its brief seeking dimissal of Smith's lawsuit that the provision of the War Powers Resolution requiring explicit authorization of military deployments is unconstitutional because one Congress cannot bind a subsequent Congress. But the Constitution can, and the War Powers Resolution is aimed at preventing the president from rendering meaningless the power "to declare war," which the Constitution unambiguously assigns to Congress. If presidents were free to use military force around the world at their sole discretion, there would be no need for such declarations. Still, the pieces of legislation cited by the administration show that congressional capitulation has combined with presidential presumption to make the war power all but irrelevant. Members of Congress, who could authorize the war against ISIS if they think it's a good idea or defund it if they don't, have chosen to do neither. They prefer to have it both ways, avoiding the blame for failing to confront ISIS while disowning responsibility for a war that may go terribly wrong. While Obama never got permission for his war, the administration notes, "Congress has not enacted legislation, or even passed a resolution, indicating its opposition to the President's military actions against ISIL." T[...]

Senator Mike Lee: Give More Power to Congress (and Take it Away from Federal Agencies)

Wed, 06 Jul 2016 12:25:00 -0400

"A government that's that big, that takes that much of your money, that is big enough and powerful enough to spy on you, to lie to you, to target you, is a government that we ought not have in the first place," Senator Mike Lee (R-UT) told Reason TV.

Mike Lee isn't content simply to identify the out-of-control expansion of federal agencies. He's got his eye on a much larger mission to enact deep structural reform that will rebalance the separation of powers in Washington to their constitutionally prescribed limits. But before he can do that, the junior senator from Utah wants the voting public to understand how federal power got so far out of whack to begin with.

Lee's book, Our Lost Constitution: The Willful Subversion of America's Founding Document, aims to do just that. It explains how and why Congress delegates much of its authority to federal agencies. Simply put, the outsourcing of power allows legislators to enjoy all of the credit for passing laws, while evading responsibility for the details when things go wrong. "All of the credit, none of the blame," as Senator Lee sums it up.

But while legislators can be held accountable for their actions, federal agencies cannot. Civil servants don't stand for election. Yet they are empowered by Congress to create regulations, enact penalties, and enforce punishment on the public. Today, agencies have become what Senator Lee calls "a super legislative and executive" branch of government unto themselves.

The empowerment of federal agencies is the product of decades of legislative legerdemain, from the New Deal to the present day. The delicate balance of federal authority, which once worked well, has gradually eroded to the point where many constitutional restraints on power have all but disappeared.

What can be done to rebalance power in Washington? Coming from a small government Republican, Senator Lee's solution at first may seem surprising. He wants to restore power and responsibility to Congress by wresting it away from federal agencies.

To that end, the Senator has co-sponsored The Regulations from the Executive in Need of Scrutiny Act – or REINS Act, for short – which would require any regulation with an economic impact of $100 million or more to be ratified by Congress. He is also spearheading The Article I Project, which seeks to reassert and reinvigorate congress' legislative power.

The road to reform in Washington is long and uphill. Senator Lee is in it for the long haul.

Runs 15:40 minutes.

Produced by Todd Krainin. Hosted by Nick Gillespie. Cameras by Josh Swain and Krainin.

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Clinton May Get a Pass Based on Her Intentions. So Why Do Democrats Want to Imprison Those Who Make Honest Mistakes?

Wed, 06 Jul 2016 00:01:00 -0400

Supporters of Hillary Clinton should have a new appreciation for the legal concept of mens rea—literally, "defendant's mind"—because it looks like it will save her from federal prosecution for her use of a personal email server as secretary of state. In recommending that the Justice Department not bring charges against Clinton, FBI Director James Comey distinguished her "extremely careless" handling of "very sensitive, highly classified information" from previous cases involving "intentional and willful mishandling." Not every potential federal defendant gets the benefit of such distinctions. Consider the retired racecar driver on a snowmobile outing in Colorado who got lost in a blizzard and unwittingly crossed into a National Forest Wilderness Area, the Native Alaskan trapper who sold 10 sea otters to a buyer he mistakenly believed was also a Native Alaskan, and the 11-year-old Virginia girl who rescued a baby woodpecker from her cat. The first two of these incidents resulted in misdemeanor and felony convictions, respectively, while the third led to a fine (later rescinded) and threats of prosecution. All three qualify as federal crimes, even though the perpetrators had no idea they were breaking the law—a kind of injustice that would be addressed by reforms that opponents falsely portray as a special favor to corporate polluters and other felonious fat cats. The federal code contains something like 5,000 criminal statutes and describes an estimated 30,000 regulatory violations that can be treated as crimes. The fact that no one knows the precise numbers is itself a scandal, compounded by the fact that many of these provisions include minimal or no mens rea requirements, which specify the mental state required for conviction. The upshot is that innocent acts, honest mistakes, and simple accidents can lead to criminal convictions that deprive people of their liberty and property, ruin their reputations, and carry lifelong collateral consequences ranging from impaired occupational opportunities to the loss of constitutional rights. That's a serious problem recognized by Democrats as well as Republicans, as demonstrated by the bipartisan support for mens rea reform in the House of Representatives. Yet Senate Democrats dismiss the proposed changes, which would add culpability requirements to statutes that do not address the issue, as "corporate protection." They blame Republican insistence on mens rea reform for imperiling a criminal justice reform bill that until recently seemed likely to pass this year. It would be a shame if disagreement on this issue prevented Congress from reducing excessively harsh federal sentences. But Senate Democrats' critique of mens rea reform is seriously misguided, if not downright disingenuous. Their chief complaint, also voiced by the Justice Department, is that requiring the government to prove a defendant knew he was breaking the law will make it harder to convict people. No kidding. The same could be said of many safeguards widely supported by civil libertarians, including the presumption of innocence, the exclusion of illegally obtained evidence, the requirement of proof beyond a reasonable doubt, and the ban on double jeopardy. No doubt guilty people, including violent criminals, escape conviction because of these rules. Likewise, if Congress beefed up federal mens rea requirements, some white-collar malefactors probably would escape criminal punishment as a result. But that prospect should not deter Congress from doing what's right. "The critics of mens rea reform—there's no way of overestimating the cynicism of these people," said Harvey Silverglate, a leading critic of overcriminalization, in a recent interview with Reason TV. "They're saying, 'It would be a terrible thing, beca[...]

Congress Wants To Force Pentagon To Buy Ships Against Its Will

Tue, 05 Jul 2016 14:20:00 -0400

(Editor's Note: An earlier version of this post did not fully credit the original article written by Lauren Chadwick and R. Jeffrey Smith of the Center for Public Integrity for Politico. The piece has been revised and we regret the error.) Since its commission in November 2008, the Littoral Combat Ship has received a mixed reception. The Navy, select lawmakers, and the ship's producers—Austal USA and Lockheed Martin—have thrown support behind the ship, while the Pentagon has been more than critical toward produced models. Voyages marred by "cracked hulls," technical failures, and rusting are only a selection of the ship's issues, according to Lauren Chadwick and R. Jeffrey Smith of the Center for Public Integrity. Experts think it wouldn't fare well if attacked. But, as Chadwick and Smith note in Politico, lawmakers want to build more of these ships, even though the Obama administration wants nothing to do with them: A defense appropriations bill moving toward Senate approval in coming days or weeks directs that $475 million be spent by the Navy to procure an extra Littoral Combat Ship next year. The House of Representatives has already passed legislation ordering that $384 million be spent on the extra ship. So it's virtually certain to happen, a prospect that cheers the Navy greatly but has evoked dismay among the ships' many critics. The extra spending is a direct repudiation of the secretary of defense, putting the Navy back on track with its original three-ship production schedule for 2017—and pushing the decision about the fate and total size of the LCS fleet off to the next president. The Obama administration "strongly objects" to buying the extra ship, the White House said in a budget message to Congress on June 14. It said just two are needed now to preserve a competition that "ensures the best price for the taxpayer on the remaining ships" and that spending more would needlessly drain funds from other military priorities, including undersea, surface and aviation programs. Carter made clear at the time he cut back the program that there's no love lost between his office and the Navy's command, which he accused in a blunt letter of ignoring technical risks, neglecting warfighting needs and prioritizing warship "quantity over lethality." The Pentagon could also be forced to buy an amphibious warship, four C-40 aircrafts, and a powerful new Coast Guard ship, Chadwick and Smith note. None of these vessels were requested by the Defense Department. So why do lawmakers want them so badly? To satisfy their crony capitalist benefactors, of course: The shipyards in question—Austal USA, in Mobile, Alabama, and Lockheed Martin's Marinette Marine in Marinette, Wisconsin—reinforced this message with hundreds of thousands of dollars' worth of lobbying from January to March 2016, according to reports they filed with the House and Senate clerks. Lockheed said it spent $3.65 million to lobby Congress on all issues between January and March, with an unspecified portion related to shipbuilding. Austal USA spent $189,096 lobbying just on the shipbuilding provisions in House and Senate defense appropriations bills. Spending on fancy new warships should probably correspond to an actual public need for said warships.[...]

Federal Criminal Justice Reform May Fail, and Everybody’s Blaming Everybody Else

Thu, 30 Jun 2016 12:10:00 -0400

It's not clear whether lawmakers in both parties are looking to deflect blame or looking to shame other lawmakers into action (or both—those aren't contradictory goals), but it looks like the Sentencing and Reform Act may be on the ropes. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), told RealClearPolitics that the legislation, which came together with a lot of compromising and has been significantly watered down already, has stalled. He can't foresee anything happening with the legislation prior to July 15, after which the Senate will be on a break until after Labor Day, and then everything is going to be all about the election. The Sentencing and Reform Act modestly updates federal mandatory minimum sentences to make them less brutal in non-violent drug cases and allows federal judges to invoke "safety valve" exceptions to sentence less than the mandatory minimum in certain cases. Probably the most important component of the law is that it would make the Fair Sentencing Act, which lowered the mandatory minimums for crack cocaine-related crimes to those of powder cocaine, retroactive. According to Families Against Mandatory Minimums (FAMM) this could help somewhere around 5,800 people currently serving sentences in federal prison. You can read FAMM's analysis of what's good and bad about the current incarnation of the Sentencing and Reform Act here. So thousands of prisoners could be stuck serving outdated sentences for cocaine crimes that no longer even apply if this law is not passed. In response to frustration that the bill isn't going anywhere there's a chain of blaming that weaves throughout RealClearPoltics' report: Grassley merely says he's "disappointed" because he worked hard to get more Republicans on board supporting the law. Sen. Dick Durbin (D-Ill.), who wrote the bill, blames Republicans, particularly Senate Majority Leader Mitch McConnell (R-Ky.) for offering him "little to no hope" that the legislation would move forward. (He is undoubtedly also referring to conservatives like Arkansas Sen. Tom Cotton.) Sen. John Corbyn (R-Texas) blames the House of Representatives for not moving more quickly, which he said would have created "momentum" in the Senate for passing the law. Sen. Orrin Hatch (R-Utah) says the refusal to add reform to mens rea is holding back the legislation. "Mens rea" is the legal concept that convicting a person of a crime should require proving that they had criminal intent to do so. Not all federal laws have this mens rea requirement, and some Republicans want to add it. This has angered some Democrats and the Department of Justice because they believe it would make it harder to convict people (or more accurately, to force settlements) in white-collar criminal cases or cases of corporate misconduct. Sen. Sheldon Whitehouse (D-R.I.) blames the Koch brothers for helping push the mens rea reform, calling it a "fatal poison pill." Cornyn, however, pointed out that the current Senate bill does not even contain this reform. There are concerns that it will be attached later on. Both Cornyn and Durbin believe they can still get something passed under the next administration regardless of which party rules the Senate. But we should be concerned about how this massive populist fracture could affect the House vote. We're having a new revival of tough on crime tactics from the right (which Donald Trump thoroughly supports). And we're seeing on the left a desire to punish those "evil" corporations that's so strong they're willing to abandon due process to make it happen. This is an election that is heavily revolving around punishing one's perceived "enemies." Criminal justice reform pushes may face some significant challenges in the[...]

Benghazi Report Reveals Folly of Interventionism

Tue, 28 Jun 2016 16:45:00 -0400

The House Benghazi select committee released its five-part 800-page report on the September 11, 2012 attacks on the U.S. mission in Benghazi, with an "additional views" addendum from Reps. Jim Jordan (R-Ohio) and Mike Pompeo (R-Kan.) that blamed President Obama and Hillary Clinton, who was secretary of state at the time, more directly for the various intelligence, security, and communications failures that led to the attack and misinformation in the aftermath about the existence of protests against a YouTube video that sparked the violence. Democrats, who accused Republicans of "wasting taxpayers money" on an issue that's been investigated by the executive branch, and Congress, multiple times, released their own report. Democrats insist the select committee was a political ploy to sully Clinton, the presumptive Democratic nominee, ahead of the November elections. "There seems to be only one remaining question," White House Press Secretary Josh Earnest said today. "It's simply this. Is the RNC going to disclose the in-kind contribution they received from House Republicans today?" They're probably even after the Democrats' kabuki sit-in against civil rights, off which they raised money directly. The partisan argument about Clinton's culpability in an attack that led to the killing of four Americans by Libyan militants misses the broader argument about aimless interventionism. A spokesperson for the State Department responded to the report by saying the department's "priority continues to be carrying out our national security mission while mitigating the risks to our employees." Democrats insist the State Department has boosted security, so the problem is solved. Republicans argue the White House didn't do enough militarily (in one part of the report referring to Obama's "no boots on the ground" policy as having informed the immediate response to the Benghazi attack), and often believe the answer is more military spending and "boots on the ground." The reality is the U.S. should not have participated in the Libyan civil war in the first place, and certainly the Obama administration should not have committed forces before getting approval from Congress. None of the investigative reports I've seen tackled that question. The select committee reports that Ambassador Chris Stevens, among the four killed in Benghazi, had been charged with preparing the mission there to be converted to a permanent consulate, so as to offer a "deliverable" for Clinton's planned October 2012 visit to Libya. Today Clinton insists the fault with the Libyan intervention lies in the Libyan government, for not permitting foreign security to operate in Libya, on the political fallout from the Benghazi attack itself. President Obama has expressed regret at the aftermath of the Libyan intervention multiple times, calling it the "worst mistake" of his presidency. Clinton insists it's still an opportunity for more U.S. involvement in affairs around the world. The report also focused on the misinformation surrounding the role of a trailer for a Mohammed movie on YouTube in sparking protests that terrorists may have taken advantage of. There appear to have been no protests in Benghazi prior to the attack and at least one report was based on an article about planned protests that was published a week before the protests happened. Some officials are quoted as being in shock about national security advisor Susan Rice's infamous Sunday morning appearances about Benghazi. But the administration's lies were as plain as day to anyone bothering to follow the news during and after Benghazi. The story started unravelling pretty quickly. There was a clear campaign to deflect what happened in Beng[...]