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Is Obama About to Get Serious on Climate Change?

Kevin Drum — Wed, 19 Jun 2013 19:14:18 +0000

Several people have suggested that President Obama will make climate change a key initiative of his second term. I've never really believed that, but today the New York Times reports that it might be for real:

President Obama is preparing a major policy push on climate change, including, for the first time, limits on greenhouse gas emissions from new and existing power plants, as well as expanded renewable energy development on public lands and an accelerated effort on energy efficiency in buildings and equipment, senior officials said Wednesday

Heather Zichal, the White House coordinator for energy and climate change [...] suggested in her remarks that a central part of the administration’s approach to dealing with climate change would be to use the authority given to the Environmental Protection Agency to address climate-altering pollutants from power plants under the Clean Air Act. She said none of the initiatives being considered by the administration required legislative action or new financing from Congress.

The EPA can actually do a fair amount if it decides to. And Republicans know it: it's one of the reasons they've held up the nomination of Gina McCarthy to head up the EPA. This announcement is likely to turn up the heat in that battle another notch or two.

The Chutzpah, It Just Keeps Coming

Kevin Drum — Wed, 19 Jun 2013 18:22:52 +0000

Chutzpah awards are really getting hard to hand out these days. I just gave Darrell Issa one, but now I see that Sen. Jeff Sessions provided this explanation yesterday of why he opposes immigration reform even though the CBO says it would be good for the economy:

This increased GDP will be at the expense of poor and working-class Americans. The benefit will go to the business owners while the wages of U.S. workers—which should be growing—will instead decline

Um....since when has Jeff Sessions had a problem with benefits flowing to business owners? And since when has he demonstrated even the slightest concern with the fortunes of the poor? Since never. But I guess people can evolve on these things, so maybe we're now seeing a new, more compassionate Jeff Sessions. Maybe.

Ezra Klein has more details if you can stomach them.

Darrell Issa Wins Yet Another Chutzpah Award

Kevin Drum — Wed, 19 Jun 2013 16:19:13 +0000

Rep. Darrell Issa says he is "deeply disappointed" that Rep. Elijah Cummings went ahead and released the full transcript of a House Oversight Committee interview with an IRS screening manager that Issa wanted to keep under wraps. Then this:

His own previous release of excerpts from this very same transcript undermines his claims that the Committee is somehow trying to keep some specific revelation from public view.

I'm not even sure what to call this. Chutzpah? Something else? Basically, Issa released a few highly misleading excerpts from the interview and repeatedly refused to release the whole thing. So Cummings released some excerpts on his own, and somehow this is supposed to be evidence that Issa wasn't trying to hide anything? Say what? I'll bet Nixon was sorry he didn't think of that defense.

While we're on the subject, though, I pulled a muscle last night reading the full transcript of this interview. (Seriously. It still hurts.) And for what it's worth, it really doesn't prove that there was no White House involvement in targeting tea party groups. The interviewee was a low-level manager of a screening group that does initial sorting into "buckets" of 75,000 applications per year. He made it clear that applications get only a cursory review in his group; that tea party applications were grouped together mostly for the sake of consistency; and that after three days his folks never see these applications again. He did state that he had no reason to think the White House was involved in the higher-level review of tea-party applications, but it was clear that he really had no way of knowing. It was way above his pay grade.

None of this is to say the White House was involved. There's never been any evidence of that, and based on what we know it's vanishingly unlikely. Republicans are just blowing smoke on this. Nonetheless, this particular transcript doesn't really tell us anything aside from the fact that a low-ranking manager was unaware of any political influence. But he probably wouldn't be even if there was.

Most Americans Still OK With NSA Spying Programs

Kevin Drum — Wed, 19 Jun 2013 15:34:29 +0000

Here's the latest polling on the NSA surveillance program:

Most Americans in a new ABC News/Washington Post poll support telephone and internet surveillance by the National Security Administration, but two-thirds also favor congressional hearings on the subject — indicating broad interest in more information about these activities.

The public by 58-39 percent supports the NSA collecting “extensive records of phone calls, as well as internet data related to specific investigations, to try to identify possible terrorist threats.” Support for the program is far higher among Democrats and liberals than among Republicans and strong conservatives, reversing Bush-era political divisions on issues of privacy vs. security.

It's now been two weeks since the original Guardian story, and several recent polls have produced similar results. For now, then, I think we can say that we have a pretty good idea of what the public thinks. They favor surveillance by about a 2:1 margin, and now that Obama is president that margin is much higher among Democrats than Republicans.

On interesting tidbit about this: on most issues these days, opinion among independents is closer to Democrats than to Republicans. On this one, just the opposite is true: Independents are aligned almost perfectly with the newly Foxified and skeptical Republicans. Politically speaking, this should be unsettling news for Democrats.

Angela Merkel Reveals Plot #5 Broken Up By NSA Surveillance

Kevin Drum — Wed, 19 Jun 2013 15:06:17 +0000

Today, disclosures about NSA surveillance programs leapfrogged the Atlantic to Germany:

“We know of at least 50 threats that have been averted because of this information, not just in the United States but in some cases here in Germany,” Mr. Obama said during the news conference. “So lives have been saved.”

He did not provide any details. But Mrs. Merkel, who acknowledged that Germany has received “very important information” from the United States, cited the so-called “Sauerland cell” as an example of such anti-terrorism intelligence cooperation.

Hmmm. So I guess the Sauerland cell is example #5 of terrorist plots broken up via NSA surveillance. This dates back to 2006, though. Of the 50 plots that Obama mentioned today (following Gen. Alexander's testimony on Tuesday), I wonder how many of them have been broken up recently?

Less Lead Means Fewer Kids in Prison

Kevin Drum — Wed, 19 Jun 2013 14:53:42 +0000

Brad Plumer reports that the incarceration rate for youths has plummeted 32 percent over the past decade:

Some of the drop has been driven by the general decline in crime and arrests across the country. But not all. Importantly, another chunk of the drop is due to the fact that nine states — including California, New York and Texas — have been experimenting with new policies to keep kids who commit minor offenses out of jail.

....Take California. Since 2007, the state began to close some of its detention facilities to save money. At the same time, the legislature outlawed confinement for kids who had only committed minor, non-violent offenses. And the state poured some of the savings into alternative programs (which can include drug treatment, home monitoring, or mental-health services).

This is good news. And loyal readers know one of the reasons, right? Our old friend lead. If lead is partially responsible for crime rates, then what you'd expect to see when lead density goes down is (a) a drop in crime, (b) followed a bit later by a drop in youth incarceration, (c) followed by a drop in adult incarceration. And that's exactly the pattern we've seen. Violent crime peaked in 1991 and then started dropping. Youth incarceration rates peaked and started dropping about a decade later. And now, a decade after that, adult incarceration rates are peaking and will almost certainly fall steadily in the near future.

If kids are fundamentally less violent than they used to be, there are fewer to lock up. And the ones who are locked up can often be held in different kinds of facilities. Eventually this will run its course as youth crime rates bottom out, but it probably has another decade or so to go. That's pretty good news.

CBO Report: Immigration Reform Would Reduce the Federal Deficit

Kevin Drum — Tue, 18 Jun 2013 22:33:50 +0000

The Congressional Budget Office has scored the Senate's immigration reform bill, and the news is pretty good for deficit hawks. According to CBO estimates, the bill would:

Increase federal direct spending by $262 billion over the 2014–2023 period. Most of those outlays would be for increases in refundable tax credits stemming from the larger U.S. population under the bill and in spending on health care programs....
Increase federal revenues by $459 billion over the 2014–2023 period. That increase would stem largely from additional collections of income and payroll taxes....
Decrease federal budget deficits through the changes in direct spending and revenues just discussed by $197 billion over the 2014–2023 period.

Compared to its baseline estimates, CBO also projects that if the immigration bill is passed, GDP will increase a bit over the next decade; wages will go down a bit but then rise in the decade after that; capital investment will rise; and the productivity of labor and of capital will go up. All of these effects are fairly small, however. Economically, a pretty reasonable takeaway is that immigration reform would probably have a positive effect, but not a large one.

A Longer Look at Medical Inflation

Kevin Drum — Tue, 18 Jun 2013 21:53:09 +0000

Eric Morath of the Wall Street Journal reports today that "U.S. health-care costs fell in May for the first time in almost four decades, the latest evidence that government policies and an expansion in generic drugs are constraining prices."

Maybe. But I'd like to push back on this once again. The chart on the right shows real medical inflation—that is, medical inflation above and beyond overall inflation. As you can see, over the past 30 years it's been on a noisy but fairly steady downward path. Each peak is lower than the previous one, and the same is true of each trough. If anything, though, this trend has slowed a bit over the past decade. It's still on a downward slope, but it strikes me as unlikely that government policies have had an awful lot to do with this.

For a somewhat more pessimistic view, take a look at the chart below, which goes back 60 years. Aside from the noise, what you mainly see is a spike in the 1980s, followed by a reversion to the long-term average of about 1.5 percent. In other words, it's possible that we overreacted to what turned out to be a fairly short-lived swell from about 1983 to 1993 and are now overreacting to the fact that we've returned to our long-term average. If this view is accurate, it means that medical inflation has been outrunning overall inflation by about 1.5 percentage points ever since the 1950s, and, roughly speaking, that's still the case. There's been a bit of a slowdown over the past decade, but only a bit.

House Committee Conducts Lovefest With NSA Chief

Kevin Drum — Tue, 18 Jun 2013 20:48:21 +0000

The House Intelligence Committee held a hearing today about the NSA's covert surveillance programs, and to demonstrate just how tough-minded they planned to be, here's what they called it:

How Disclosed N.S.A. Programs Protect Americans, and Why Disclosure Aids Our Adversaries

Fair and balanced! NSA's director testified that domestic surveillance had helped prevent over 50 "potential terrorist events":

In addition, the deputy director of the Federal Bureau of Investigation, Sean Joyce, listed two newly disclosed cases that have now been declassified in an effort to respond to the leaking of classified information about surveillance by Edward J. Snowden, a former N.S.A. contractor.

Mr. Joyce described a plot to blow up the New York Stock Exchange by a Kansas City man, whom the agency was able to identify because he was in contact with “an extremist” in Yemen who was under surveillance. Mr. Joyce also talked about a San Diego man who planned to send financial support to a terrorist group in Somalia, and who was identified because the N.S.A. flagged his phone number as suspicious through its database of all domestic phone call logs, which was brought to light by Mr. Snowden’s disclosures.

The Kansas City man is Khalid Ouazzani, who, as part of a plea bargain in 2010, admitted that he sent money to Al Qaeda. He was never charged with planning any attacks inside the United States, and the NYSE bombing was described as "nascent plotting," so it's hard to know just how serious this was. Still, at least Ouazzani actually did something. The San Diego man merely planned to send money.

So far, the government's examples of terrorist plots prevented by the NSA's surveillance programs have been pretty thin. Aside from these two, they've also taken credit for stopping David Headley and Najibullah Zazi. But Headley scouted locations for the 2008 Mumbai bombing, which was successful. So no points there, though NSA might have prevented Headley from doing further damage. As for Zazi, he was indeed planning suicide bombings on the New York subway, but it's unclear just how instrumental NSA surveillance really was in catching him.

None of this is to say that NSA's claims are false or that their surveillance programs are ineffective. But most of their claims are unverified, and the few they've made public appear to have been exaggerated. So take this all with a grain of salt.

Is John Boehner Bluffing on Immigration Reform?

Kevin Drum — Tue, 18 Jun 2013 17:54:31 +0000

"I can't seem to persuade @ed_kilgore or @kdrum that Boehner may let immig reform pass w/mostly Ds," Greg Sargent tweets today. That's....sort of true. Here's Greg's latest in a series of blog posts making his case. It's a reponse to John Boehner's latest ironclad promise that he will never, ever, let immigration reform come to the House floor unless a majority of Republicans are convinced that it properly addresses border security:

There’s some interesting sleight of hand here. Note that Boehner seems more focused on enforcement and border security than on citizenship. The Speaker is claiming that if a majority of House Republicans thinks the emerging proposal isn’t tough enough on border security, then the House won’t vote on it. But the real Rubicon House Republicans must cross is the path to citizenship. What happens if a majority of House Republicans can’t support the path to citizenship, no matter how tough the border security elements are made? In that scenario, if Boehner holds to his vow, the House wouldn’t vote on anything that includes citizenship, right?....But the pressure on him to allow a vote will be very intense, from powerful GOP stakeholders such as the business community and wide swaths of the consulting/strategist establishment.

....I’m with Jonathan Bernstein: This all turns on whether enough Republicans privately want comprehensive reform to pass for the good of the party, even if they are not prepared to vote for it. If so, Boehner will let it go to the floor. Even if it must pass with mostly Dems. Don’t buy all the tough talk. Boehner himself doesn’t know how this is going to end.

This all relies on having a correct read of the internal machinations of the Republican caucus, and I won't even pretend to have any real insight into that. But just for scorekeeping purposes, here's the Cliff Notes version of Greg's argument:

The Republican establishment wants immigration reform to pass. The business community wants it because they'd rather have cheap legal labor than cheap illegal labor, and the smarter GOP eminences want it because they think—possibly correctly—that they can't win the presidency in 2016 if Hispanics keep voting overwhelmingly against them. And they really want to win back the presidency in 2016.
But the base of the party is dead set against immigration reform. They'll only accept it if (a) the border and citizenship requirements are tough, and (b) they believe that Republicans have fought hard to wring every last concession out of Democrats. They'll bolt at the first sign that they're being sold out.
Given that, Boehner (and Marco Rubio) have to sound relentlessly tough just to give the bill a chance.
But even if all this happens, lots of Republicans still won't be willing to risk the wrath of the tea-party base by voting in favor. Instead, they'd rather denounce the bill in public, while privately telling Boehner to bring it to the floor and get the damn thing over with. Let Democrats pass it with the help of just enough Republicans in safe seats that it seems plausibly bipartisan, thus salvaging the Hispanic vote.

For this to work, of course, everyone has to sound genuinely outraged by the bill all the way to the bitter end. Their private acquiescences have to remain completely buried.

So do I buy this? I'm just not sure. It certainly sounds logical, but let's face it: logic is not a strong suit of the contemporary House Republican caucus. And I wonder just how many House leaders are truly convinced that the party is doomed without the Hispanic vote anyway? I have a sense that a lot of them are in the process of convincing themselves that this is just a bunch of elite Beltway hooey. Plus, I'm always sort of generally skeptical of these kinds of 11-dimensional chess arguments. Most politicians just aren't that devious.

But I guess we'll find out soon enough.

Texas Says No To Our Tacocopter Future

Kevin Drum — Tue, 18 Jun 2013 16:51:15 +0000

As we contemplate a future in which the sky is black with tacocopters, state legislatures and civil libertarians are starting to weigh in. Tim Lee reports:

The Texas legislation illustrates the complexity of regulating private drone use. The legislation that Perry signed on Friday features a broad prohibition on public and private drone use followed by a long list of exceptions. For example, Texas allows drones to be used by “a Texas licensed real estate broker in connection with the marketing, sale, or financing of real property.” Oil and gas companies can use drones for “inspecting, maintaining, or repairing pipelines.” Utility companies can use drones for “assessing vegetation growth for the purpose of maintaining clearances on utility easements.” The legislation enumerates at least 19 circumstances where drone use is allowed.

This approach assumes the Texas legislature can anticipate all of the beneficial uses for drones. That’s probably not a good assumption — people often discover unanticipated applications for new technologies, and it will be cumbersome to amend the law every time someone thinks of a new drone application.

Margot Kaminski, a scholar at Yale Law School, describes the Texas approach to regulating privately operated drones as “kind of a disaster.” She warns that regulations of private drone use could raise First Amendment problems.

For example, “if you have a news organization hovering over a protest and videoing cops beating protesters, that’s really valuable for the First Amendment,” she says. The courts have already said that private citizens have a First Amendment right to video-record the activities of public officials. The same reasoning suggests that aerial recording of police conduct would be constitutionally protected.

I'm going to tentatively—very tentatively—speak up in favor of the Texas approach. First off, I don't think it assumes that they can anticipate every possible beneficial use of drones. Rather, it sets up a regime which assumes drones are bad unless proven otherwise. If you can sucessfully prove otherwise, then a new exemption will be written into the law.

Now, there are obviously problems with this. For starters, it's a certainty that exemptions will be granted mostly to deep-pocketed special interests, not to the most worthy causes. It's also, obviously, a pretty cumbersome approach. The Texas legislature may very well get tired someday of considering yet another plea from a drone-happy special interest. On the other hand, this might still be the best approach in the early going. Broader rules would almost certainly be better and fairer, but if Texas wants to keep a tight rein on drones until we have a better idea of what kind of rules we really want, that doesn't strike me as an unreasonable approach. It will be easier to lighten the regs later than it will be to tighten them if drone use gets out of control (as Texas's already long list of exemptions demonstrates).

As for Kaminski's concerns, I just don't get them at all. The First Amendment clearly allows broad regulations that aren't aimed specifically at restricting speech. If you want to fly a helicopter, you have to have a license and you have to obey the rules, even if you're a reporter covering a news event. Likewise, news organizations have to pay taxes and obey OSHA rules just like anyone else. They don't get a pass just because they're members of the press. A ban on drones that's genuinely based on broad safety and privacy concerns would almost certainly hold up in court.

At the risk of being called a Luddite, I'd say the thing to think about here is not what's possible today, but what's going to be possible in ten years. Drones are only going to get better and cheaper over time, and we need to think about what kind of regs we want in place when (a) anyone can buy a personal fleet of drones for the price of a washing machine; (b) small drones can fly for hours without recharging; (c) their surveillance capabilities are high quality; and (d) they're automated enough not to need much human control. Does it sound silly to think that a typical neighborhood could have hundreds or thousands of drones flying around? I don't think so. In fact, given my dyspeptic view of my fellow human beings, I'd say it sounds likely. Keeping a lid on this stuff until we're a lot more sure of the consequences doesn't really sound like such a bad idea to me.

Don't Believe the TTIP Hype

Kevin Drum — Tue, 18 Jun 2013 16:07:26 +0000

More than likely, you've never heard of TTIP and don't care what it is. Well, it's the Transatlantic Trade and Investment Partnership, a proposed new trade pact between the United States and Europe. Would it be a good thing if we cobbled together an agreement? Yeah, probably. But Jared Bernstein wisely counsels us not to believe the hype we're likely to hear about it:

I doubt that an actual TTIP (as opposed to the ones you’ll see simulated in coming months) would have a large effect of trade flows between us, because a) the deal will likely accommodate, not eradicate, initiatives like Airbus and their protection of treasured wines (and TV shows!), and b) again, the barriers just aren't that high, so I wouldn’t expect bringing them down to be a huge deal (average tariffs between us are around 3-4%). And of course, let the record show that we too subsidize our farms and our Boeings, and these subsidies have survived many a “free trade” agreement.

I could be wrong and this time trade barriers will fall like never before. My point here is that we don’t know, so we should avoid the usual claims—on either side—that are trotted out the minute some diplomat suggests a treaty. If you really want to get a feel for the impact of a deal like this, you actually have to slog through the negotiations. Assumptions about the textbook benefits of free trade won’t help you because in the real world nothing works like the textbooks, especially in this realm.

If you read any TTIP stories, you'll hear a lot about the nefarious French insistence on maintaining the "cultural exception." This refers to the French desire to protect French moviemakers, which is pitted against the ecumenical desire of Hollywood moguls to fill every theater in Paris with the latest Avengers flick. It makes for good conflict journalism—chauvinistic but art-loving French! greedy but audience-pleasing Americans!—but it's basically a sideshow. If Europeans want to continue resisting the tide of American cultural hegemony, that's not hard to understand. And the amount of money at stake is, in the grand scheme of things, small.

The more serious—and difficult—topics are going to be regulatory harmonization and the removal of various non-tariff barriers. But as Bernstein says, even if we make substantial progress on that stuff it's hardly going to usher in a golden age. It's worth doing, but everyone should keep their expectations about its job-creating power firmly in check.

Chart of the Day: Inflation Is Out of Control!

Kevin Drum — Tue, 18 Jun 2013 14:58:38 +0000

The BLS reported today that inflation is now running wildly out of control! It jumped from 1.1 percent in April to....1.4 percent in May. Obviously this means we need more austerity.

Or so the wise men and the conservative shills, allied as usual when it comes to monetary and fiscal policy, will tell us. Matt Yglesias provides the antidote:

If we had 2.3 percent core inflation and 2.6 percent headline inflation, then there'd be a real reason to tighten monetary policy. Given the high unemployment rate, there'd also be a reason to resist that pressure to tighten. But we're not 0.3 percentage points above the inflation target, we're 0.3 percentage points below the inflation target [he's talking here about core inflation, which came in at 1.7 percent in May]. Even if the unemployment rate were dramatically lower, tighter money would still be perverse.

With joblessness high and inflation low, the right policy is clear—easier money, not tighter.

Someday inflation will be persistently above 2 percent. At that point, we can all argue about whether that's the right target and whether we need to take action to get back under it. But that day is not today. Right now, we've been under our inflation target consistently for the entire past year. It's not something to worry about. Unemployment is.

There are 46 Guantánamo Detainees Who Will Never Be Tried and Never Be Released

Kevin Drum — Tue, 18 Jun 2013 05:46:09 +0000

Throughout the years-long debate about fate of the Guantánamo prison, there's always been one unanswered question: how many detainees are in permanent limbo? That is, how many of them are considered unquestionably too dangerous to release, but just as unquestionably not prosecutable. Now we know:

The Obama administration Monday lifted a veil of secrecy surrounding the status of the detainees at Guantánamo, for the first time publicly naming the four dozen captives it defined as indefinite detainees — men too dangerous to transfer but who cannot be tried in a court of law.

....Administration officials have through the years described a variety of reasons why the men could not face trial: Evidence against some of the indefinite detainees was too tainted by CIA or other interrogation torture or abuse to be admissible in a court; insufficient evidence to prove an individual detainee had committed a crime; or military intelligence opinions that certain captives had undertaken suicide or other type of terrorist training, and had vowed to engage in an attack on release.

The formal classification for these prisoners is "continued detention pursuant to the Authorization for Use of Military Force (2001), as informed by principles of the laws of war," as you can see in the excerpt below.

There are lots of Guantánamo detainees who have no near-term prospect of being prosecuted or released, but still could be if circumstances change. However, even if we handled every single one of them, there's still a hard nut of 46 prisoners with no recourse at all. They will never be tried, and they will never be released.

Poll of the Day: Nobody Wants to Get Involved in Syria

Kevin Drum — Tue, 18 Jun 2013 03:15:26 +0000

A new Pew poll tells a remarkable story: not only does the American public not want to get more involved in Syria, the American public doesn't even want to send arms to the rebels. What's more, this feeling is entirely bipartisan: Democrats, Republicans, and Independents all oppose arming the rebels by a margin of about 70-20. When was the last time that happened? It's a sign of the strength of the Beltway consensus in favor of intervention that despite this, President Obama was feeling pressure from all sides to do exactly the opposite of what 70 percent of the public wants. The war gods are strong in America.

Yep, Having More Money Is Good for Your Health (and Your Baby's)

Kevin Drum — Mon, 17 Jun 2013 20:55:42 +0000

In 1990, a pregnant low-income mother with one child would have received an EITC tax credit of $1,250. A mother with two children would have received the same amount, because back then EITC didn't take into account the number of children you had.

That changed in 1993, and the change was fully phased in by 1996. So in 1996, the first mother would have received $2,250, while the second mother would have received $3,750.

This provides us with the ability to perform a lovely little natural experiment. In the 1990 group, both pregnant mothers get the same amount of money, so you can use this as a baseline. In the 1996 group, pregnant mothers with two children get more money. Do their newborn babies do any better relative to this baseline? Last year a team of researchers did the legwork to find out, and as it turns out, the answer is yes:

We find that increased EITC income reduces the incidence of low birth weight and increases mean birth weight. For single low education (<= 12 years) mothers, a policy-induced treatment on the treated increase of $1000 in EITC income is associated with a 6.7 to 10.8 percent reduction in the low birth weight rate.

So an extra $1,000 produces about a 10 percent reduction in low birth weights. That's a pretty persuasive argument that having more money really does produce better health. As Bill Gardner puts it, "The bottom line is that redistributing income to poor families improves the health of their infants. It is, in effect, a form of prenatal care."

Can the Christian Right Persuade Republicans to Fix Obamacare?

Kevin Drum — Mon, 17 Jun 2013 17:30:50 +0000

A loyal reader just emailed to beg me to write about something other than NSA surveillance. I make no promises for the future, since I'm pretty caught up by the story, but perhaps a breather is in order. Luckily, Ann Kim and Ed Kilgore have served up a perfect little morsel to warm the heart of any liberal.

As you know, conservatives are doing everything they can to sabotage Obamacare. This includes court fights, refusal to expand Medicaid even though it's practically free, declining to set up state exchanges, and, of course, the flat rejection of any tweaks to Obamacare from House Republicans. The problem is that any big law is likely to need small adjustments here and there to clarify things or fix small bugs, but Republicans don't want to fix bugs. They want Obamacare to fail, so as far as they're concerned, bugs are good things. But what happens if one of those bugs happens to impact a key part of the GOP base?

For the first time, a constituency group to whom the GOP normally pays close attention—religious institutions—is asking for a legislative "fix" of the Affordable Care Act to make it work as intended....Without the requested "fix," as many as one million clergy members and church employees now enrolled in church-sponsored health plans could soon face the choice of leaving these plans (designed to meet their unique needs, such as the frequent reassignment of clergy across state lines) or losing access to the tax subsidies provided by the ACA to help lower-to-middle income Americans purchase insurance.

Observers generally agree that the exclusion of church health plans from eligibility for the exchanges, which occurred because they do not sell policies to the general public, was an oversight caused by staffers scrambling to draft bill language under tight deadlines. Because employees of religious institutions are usually paid modestly, many will qualify for subsidies made available on a sliding scale to families earning up to 400 percent of the federal poverty level. But the subsidies can only be used to purchase insurance from the exchanges.

Apparently this problem is starting to attract the attention of religious groups, including large, conservative denominations like the Southern Baptist Convention, who don't want their clergy to lose access to tax breaks just because of an unintentional drafting error. But can even the Christian Right persuade House Republicans to take a short break from their scorched-earth campaign against Obamacare? Stay tuned.

When You Get Right Down To It, Everything is Policy

Kevin Drum — Mon, 17 Jun 2013 16:47:57 +0000

There's a lot more heat than light in Edward Snowden's live Q&A over at the Guardian, which is too bad. We could use more clarity on the scope of NSA's surveillance. Along those lines, I was glad to see Josh Marshall picking up on this point:

For all the back and forth about Phoenixes and what exactly he expected a spy organization to do, the one interesting and significant thing to come out of this Snowden live chat is his focus on what is technically possible within the NSA vs whatever policy restrictions are in place to protect privacy, constitutional protections for US citizens and so forth. It’s not even totally clear, reading these answers, how much Snowden and his nemeses within the Intel Community are even disagreeing about how things work.

I'd guess there's not much disagreement at all. After all, Snowden has so far presented no evidence that NSA has abused its statutory powers. He obviously doesn't like NSA's statutory powers, but that's a different thing. At one point, for example, he says that the focus on whether NSA is sweeping up domestic communications is a "distraction from the power and danger of this system. Suspicionless surveillance does not become okay simply because it's only victimizing 95% of the world instead of 100%." Maybe so, but spying on foreigners is NSA's whole reason for existence.

And that gets to the nub of things: If you simply disapprove of spying on foreigners, then you're obviously not going to think much of the NSA. But that's a disagreement with U.S. policy, not a criticism of the agency itself.

Ditto for Snowden's comments about NSA being restricted only by "policy." Well, of course that's what restricts them. Once the technical capability is available to do something, then policy is always the only restriction. That policy can take the form of laws, of executive orders, of court oversight, or of internal NSA rules. Some of those are better than others, and all are subject to abuse if oversight is poor, but they're all policies. Pointing this out is like saying that Social Security is insecure because it's merely a policy of the federal government. That's true, but what isn't?

NOTE: There is, of course, a difference between Social Security and NSA surveillance. They're both creatures of policy, but NSA's actions are largely constrained by secret policies. That's a legitimate beef. The simple fact that NSA's constraints are policy-based isn't.

Edward Snowden Says More Info About "Direct Access" Is In the Works

Kevin Drum — Mon, 17 Jun 2013 16:09:44 +0000

Edward Snowden is holding a live Q&A at the Guardian. Here's one exchange:

Anthony De Rosa:

1) Define in as much detail as you can what "direct access" means.

2) Can analysts listen to content of domestic calls without a warrant?

Answer:

1) More detail on how direct NSA's accesses are is coming, but in general, the reality is this: if an NSA, FBI, CIA, DIA, etc analyst has access to query raw SIGINT databases, they can enter and get results for anything they want. Phone number, email, user id, cell phone handset id (IMEI), and so on — it's all the same. The restrictions against this are policy based, not technically based, and can change at any time. Additionally, audits are cursory, incomplete, and easily fooled by fake justifications. For at least GCHQ, the number of audited queries is only 5% of those performed.

2) NSA likes to use "domestic" as a weasel word here for a number of reasons. The reality is that due to the FISA Amendments Act and its section 702 authorities, Americans’ communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant. They excuse this as "incidental" collection, but at the end of the day, someone at NSA still has the content of your communications. Even in the event of "warranted" intercept, it's important to understand the intelligence community doesn't always deal with what you would consider a "real" warrant like a Police department would have to, the "warrant" is more of a templated form they fill out and send to a reliable judge with a rubber stamp.

Snowden's reply about direct access is weirdly nonresponsive. He's talking here about analysts' access to NSA databases, not to corporate servers, and he seems to be talking about metadata, not content. What's more, even if he is talking about content, he's talking about content that's already been collected by NSA, not content "direct" from Google's servers. He's right that access to this stuff is policy-based, but then again, I'm not sure what else it could be. In the end, access to everything is policy-based.

His reply to the warrant question is a little clearer, but doesn't really say anything new. Section 702 warrants are indeed very broad, and once issued can cover communications from a lot of targets. When this stuff is swept up, some of it inevitably turns out to be domestic communications, which NSA is required to either discard or segregate away from the view of analysts according to court-mandated minimization procedures.

Now, does NSA really do this? How do we know? Those are good questions, but Snowden sheds no light on that. He's just telling us that 702 warrants are very broad, something we already knew.

I really wish Snowden were more forthcoming and less evasive in his answers to questions like this. It's been over a week now, and if he really has more detail about what "direct access" means, it's long past time to share it with us. Ditto for any evidence that NSA is abusing its minimization protocols.

Immigration Reform Faces Long Odds in the House

Kevin Drum — Mon, 17 Jun 2013 15:17:51 +0000

David Drucker says that immigration reform is in trouble in the House:

House Speaker John Boehner is not going to bring a comprehensive immigration-reform plan to the floor if a majority of Republicans don't support it, sources familiar with his plans said. "No way in hell," is how several described the chances of the speaker acting on such a proposal without a majority of his majority behind him.

So what are the odds of getting a bill that a majority of House Republicans support? Kinda slim. But you never know. A combination of arm-twisting, modestly tighter enforcement requirements, and a fuzzy definition of "majority" (40 percent, anyone?) could be enough. Right now, I'd probably put the odds of passage at about a third or so. That's not great, but it's better than the 10 percent odds that a lot of folks are assuming these days.

Yet More Reporting on NSA's Surveillance Programs

Kevin Drum — Sun, 16 Jun 2013 05:08:09 +0000

I can't keep up with all the new reporting on NSA surveillance programs tonight. Here are two more. First, Mark Hosenball of Reuters reports that although NSA collects metadata for every phone call made, it makes only modest use of them:

Millions of phone records were collected in 2012, but the paper says U.S. authorities only looked in detail at the records linked to fewer than 300 phone numbers.

A person familiar with details of the program said the figure of fewer than 300 numbers applied to the entire mass of raw telephone "metadata" collected last year by the NSA from U.S. carriers — not just to Verizon, which is the only telephone company identified in a document disclosed by Snowden as providing such data to the NSA.

Is this true? Is this figure only for searches that began with a U.S. phone number, or for all searches of any kind? I don't know, but I'm passing it along. Take it with a grain of salt for now.

Next up is an AP story that describes how the PRISM program works. Prior to 2007, it reports, tech companies responded to warrants manually. But after the passage of the Protect America Act, NSA decided it wanted to streamline things:

Though the companies didn't know it, the passage of the Protect America Act gave birth to a top-secret NSA program, officially called US-98XN.

It was known as Prism....What the NSA called Prism, the companies knew as a streamlined system that automated and simplified the "Hoovering" from years earlier, the former assistant general counsel said. The companies, he said, wanted to reduce their workload. The government wanted the data in a structured, consistent format that was easy to search.

....Under Prism, the delivery process varied by company. Google, for instance, says it makes secure file transfers. Others use contractors or have set up stand-alone systems. Some have set up user interfaces making it easier for the government, according to a security expert familiar with the process.

Every company involved denied the most sensational assertion in the Prism documents: that the NSA pulled data "directly from the servers" of Microsoft, Yahoo, Google, Facebook, AOL and more.

Technology experts and a former government official say that phrasing, taken from a PowerPoint slide describing the program, was likely meant to differentiate Prism's neatly organized, company-provided data from the unstructured information snatched out of the Internet's major pipelines.

How accurate is this? It sounds about right to me, but reporting on this is reaching a fever pitch, so our understanding might change in the near future. Apparently the government is also preparing an unclassified white paper about all this, so we'll have that to chew over before long. Stay tuned.

How Much Email Metadata Does NSA Collect?

Kevin Drum — Sun, 16 Jun 2013 04:30:14 +0000

In Barton Gellman's big NSA surveillance piece, he says it wasn't bulk collection of telephone metadata that caused the dramatic showdown in John Ashcroft's hospital room in 2004. (Metadata consists of records about phone calls—time, location, and participants—not the contents of the calls themselves.) Everyone was fine with that. It was collection of internet metadata for email, chat, Skype, and so forth that caused the showdown. In the end, the program was shut down, but then a few months later it was started back up under the oversight of the FISA court.

So it's still cruising along, right? I'd guess so, but then there's this at the tail end of Gellman's article:

As for bulk collection of Internet metadata, the question that triggered the crisis of 2004, another official said the NSA is no longer doing it. When pressed on that question, he said he was speaking only of collections under authority of the surveillance court.

“I’m not going to say we’re not collecting any Internet metadata,” he added. “We’re not using this program and these kinds of accesses to collect Internet metadata in bulk.”

That's clear as mud, isn't it? Gellman also describes NSA's initial contention after 9/11 that it could collect bulk internet metadata because, legally, it didn't "acquire" the information merely by putting it in a database. It only "acquired" it when an analyst actually retrieved it for some reason. So as long as analysts only retrieved records they were legally entitled to, everything was kosher:

Goldsmith and Comey did not buy that argument, and a high-ranking U.S. intelligence official said the NSA does not rely on it today. As soon as surveillance data “touches us, we’ve got it, whatever verbs you choose to use,” the official said in an interview. “We’re not saying there’s a magic formula that lets us have it without having it.”

Taken together, these two officials are suggesting that NSA no longer collects internet metadata in bulk. It collects only data it's legally allowed to have in the first place, presumably based on a Section 702 warrant. But that's still a helluva lot. One of the documents released by Edward Snowden suggests that it amounts to over 1 trillion records per year.

Washington Post Provides New History of NSA Surveillance Programs

Kevin Drum — Sun, 16 Jun 2013 02:02:19 +0000

Barton Gellman has a big piece in the Washington Post today about NSA's codenamed surveillance programs that draws on "a classified NSA history of STELLARWIND and interviews with high-ranking intelligence officials." STELLARWIND, an umbrella name for the original Bush-era program that collected phone and internet data, was succeeded by four separate programs:

Two of the four collection programs, one each for telephony and the Internet, process trillions of “metadata” records for storage and analysis in systems called MAINWAY and MARINA, respectively. Metadata includes highly revealing information about the times, places, devices and participants in electronic communication, but not its contents. The bulk collection of telephone call records from Verizon Business Services, disclosed this month by the British newspaper the Guardian, is one source of raw intelligence for MAINWAY.

The other two types of collection, which operate on a much smaller scale, are aimed at content. One of them intercepts telephone calls and routes the spoken words to a system called NUCLEON.

For Internet content, the most important source collection is the PRISM project reported on June 6 by The Washington Post and the Guardian. It draws from data held by Google, Yahoo, Microsoft and other Silicon Valley giants, collectively the richest depositories of personal information in history.

....The Post has learned that similar orders have been renewed every three months for other large U.S. phone companies, including Bell South and AT&T, since May 24, 2006. On that day, the surveillance court made a fundamental shift in its approach to Section 215 of the Patriot Act, which permits the FBI to compel production of “business records” that are relevant to a particular terrorism investigation and to share those in some circumstances with the NSA. Henceforth, the court ruled, it would define the relevant business records as the entirety of a telephone company’s call database.

Gellman also tells us for the first time what it was that caused the famous 2004 showdown in John Ashcroft's hospital room:

Telephone metadata was not the issue that sparked a rebellion at the Justice Department, first by Jack Goldsmith of the Office of Legal Counsel and then by Comey, who was acting attorney general because John D. Ashcroft was in intensive care with acute gallstone pancreatitis. It was Internet metadata.

At Bush’s direction, in orders prepared by David Addington, the counsel to Vice President Richard B. Cheney, the NSA had been siphoning e-mail metadata and technical records of Skype calls from data links owned by AT&T, Sprint and MCI, which later merged with Verizon.

For reasons unspecified in the report, Goldsmith and Comey became convinced that Bush had no lawful authority to do that.

In other words, it wasn't the collection of telephone records that upset Comey, it was the collection of email, chat, Skype and other internet communications records. There's more at the link about the showdown over the data collection programs, as well as the secret policies and legal opinions that govern exactly what NSA can and can't do.

Can NSA Analysts Listen to Your Phone Calls?

Kevin Drum — Sun, 16 Jun 2013 01:17:36 +0000

Declan McCullagh at CNET draws our attention today to testimony from FBI director Robert Mueller at a House Judiciary hearing on Thursday:

Mueller initially sought to downplay concerns about NSA surveillance by claiming that, to listen to a phone call, the government would need to seek "a special, a particularized order from the FISA court directed at that particular phone of that particular individual."

Is information about that procedure "classified in any way?" Nadler asked.

"I don't think so," Mueller replied. "Then I can say the following," Nadler said. "We heard precisely the opposite at the briefing the other day. We heard precisely that you could get the specific information from that telephone simply based on an analyst deciding that...In other words, what you just said is incorrect. So there's a conflict."

Nadler was unavailable for comment, and this is apparently the sum total of the information we have. It's not clear precisely what "information from that telephone" means, or whether this applies to all calls or only to non-U.S. calls. It's also possible that Nadler was confusing the ability of an analyst to get subscriber information for a phone number with the ability to listen to the call itself. Another possibility is that this applies only to phone content that's already been acquired by warrant and is currently in NSA's database. Or perhaps it applies to real-time wiretapping, but only if an analyst concludes that the target is a non-U.S. person already covered by a "programmatic" (i.e., broad-based) Section 702 warrant.

Alternatively, it could be that NSA analysts have the ability to listen in on phone calls on their own say so. We won't know for sure until Nadler or someone else clears this up. Stay tuned.

NOTE: For more, check out Julian Sanchez's Twitter feed, which provided much of the background for this post.

UPDATE: Sanchez now has a more detailed blog post about all this. It's worth a read.

NSA Apparently Surveils About 0.01 Percent of Foreign Facebook Accounts

Kevin Drum — Sat, 15 Jun 2013 16:03:11 +0000

Tech companies, under pressure from foreign users who want to know if their accounts are routinely under surveillance by U.S. intelligence agencies, have been begging the federal government to allow them to release general figures on how many FISA requests they get. The feds haven't allowed them to do that yet, but they have allowed them to release a bit of information:

Over the last six months of 2012, Facebook said, it had received as many as 10,000 requests from local, state and federal agencies, which impacted as many as 19,000 accounts. Facebook has 1.1 billion accounts worldwide. Microsoft said that it received between 6,000 and 7,000 similar requests, affecting as many as 32,000 accounts.

The companies said some of the requests were for terrorism investigations. But others were from a local sheriff asking for data to locate a missing child or from federal marshals tracking fugitives. From these statements, it was impossible to ascertain the scale of the FISA requests made by the National Security Agency.

....That the company would rush to release a figure that gives the public little idea of the scale of the FISA requests is a sign of the pressure it has been under since the PRISM program was made public.

I'm not surprised at all that Facebook and Microsoft rushed to release this information. Their motivation is simple: they want to demonstrate that they aren't providing NSA with broad access to every foreign account holder in their systems, and even this partial release pretty much does that. In Facebook's case, they get requests covering about 38,000 accounts per year, which suggests that FISA warrants cover maybe 30,000 accounts or so, most of them foreign. At a rough guess, Facebook has about 900 million non-U.S. accounts, of which perhaps half are truly active. This means that NSA surveils about .01 percent of their active foreign accounts each year. There's obviously some guesswork in this estimate, but I think it gets us in the right ballpark.

The fact that Facebook and others have begged the government to allow them to release more detailed information is a clue all by itself that the number of surveilled accounts isn't huge. If they were handing over data on millions of accounts, they wouldn't be eager for the world to know it.

However, it's worth noting that Google hasn't yet made this partial information public, saying that they wanted to wait until they could release more detailed breakdowns. This might be genuine on their part, or it could suggest that the raw number of warrants served to Google is more dramatic than it is for Facebook or Microsoft. After all, Gmail might be a lot more interesting to NSA than a Facebook timeline. We'll have to wait and see.