Category: reason

Today is President Donald Trump’s last day in office! A White House official said Trump plans to pardon or commute sentences for up to 100 people today. Whether it might include big-name whistleblowers (like Chelsea Manning, Reality Winner, and Julian Assange) or just more of the president’s crook friends and allies is anybody’s guess. In any event, Trump leaves office with a 34 percent approval rating and a record-low average approval rating of 41 percent.

With Americans still reeling from the January 6 Capitol riot, the Biden administration will begin its term amid a rapidly escalating “tough on domestic terror” mood.

That’s never a good influence no matter which ruling party is in office, and perhaps especially bad in times of intense partisan conflict. There are a few things both Democrats and Republicans can almost always come together on, and limiting civil liberties in the name of national security is chief among them. But worse, Biden has never backed away from hysterical policy reactions to perceived crime and terror threats.

“Biden’s career was built on the politics of panics,” Reason‘s Jacob Sullum writes. “After 9/11, Biden did not just vote for the PATRIOT Act, which expanded the federal government’s surveillance authority in the name of fighting terrorism. He bragged that it was essentially the same as legislation he had been pushing since 1994.”

Now, “the Biden administration plans to make domestic terrorism a key focus of the National Security Council, transition officials tell @carolelee,” tweeted Geoff Bennett, NBC’s White House correspondent, on Monday. “Officials have been looking at ways to shift government resources previously used for counterterrorism, to combating domestic terrorism.”

Former lackeys of the war on terror are already salivating.

“Former intelligence official on PBS NewsHour tonight saying that the US should think about a ‘9/11 Commission’ for domestic extremism and consider applying some of the lessons from the fight against Al Qaeda here at home,” noted Evan Hill of The New York Times last night.

(“The more explicit they make it that they’re using the first War on Terror model for their new one domestically, the better,” responded Glenn Greenwald. “Please keep up this candor.”)

“Domestic terror” panic is infecting all sorts of policy arenas, too.

Since the Capitol riot, people have been calling for crackdowns on social media tech companies, under the rationale that some folks involved organized or posted about their plans online and/or received misinformation on digital platforms that led them to riot. (And, once again, people pretending that people will stop communicating disfavored ideas if they lose a few venues to do so are finding themselves sorely wrong, as folks move from Facebook, Twitter, and Parler to encrypted messaging apps and other forms of communication.)

Now, that’s spilling over into attacks on traditional media, too.

“Biden needs to reinvigorate the FCC to slow the lies and sedition from Fox and other right-wing broadcasters,” wrote Washington Post columnist Max Boot on Twitter yesterday, continuing the melodrama by warning that, if not, “the terrorism we saw on Jan. 6 may be only the beginning, rather than the end, of the plot against America.”

But as Boot and others unfold the plot to reinvigorate the failed war on terror, it seems we may have a lot more to fear from status quo authoritarians than the MAGA nationalist crowd right now. The latter worships a disgraced man who is leaving the White House tomorrow. The former will find friends in the executive branch, Congress, and all the levers of legacy media.

“Already, a bill has been introduced to empower federal law enforcement to better monitor and stop domestic extremist violence,” notes The Daily Beast:

“It is not enough to just condemn hate, we need to equip law enforcement with the tools needed to identify threats and prevent violent acts of domestic terrorism,” said its sponsor, Rep. Brad Schneider (D-IL). “The Domestic Terrorism Prevention Act improves coordination between our federal agencies and makes sure they are focused on the most serious domestic threats,” he said.

We’ve seen this episode before, and it doesn’t end well.

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FREE MINDS

Sex, Communism, race, and creative freedom in Hollywood. In Reason‘s February issue, Kat Rosenfield looks at historical Hollywood production codes and today’s new diversity standards for Oscar-eligible films.

In a way, these battles represent a new front in Hollywood’s diversity wars. But in another sense, they are nothing novel. The Academy was formed in tandem with Hollywood’s early content code, and it has been enmeshed in battles over what constitutes acceptable or desirable on-screen content—a matter in which the film industry has always yearned to both eat its cake and have it. Hollywood wants to wield total creative control and unimpeachable moral authority, to wag its finger out in public before retreating to backroom debauchery, to be seen as an idealistic protector of the arts against the forces of censorship and conformity while keeping box-office cash coming.

And like the Code that ruled during its Golden Age, Hollywood’s signature awards ceremony isn’t just a glitzy vehicle for celebrating Tinseltown’s best; it’s about control. The imprimatur of the Academy is a powerful influence on filmmakers’ output and public perceptions of the movie business alike, but more than that, it imagines Hollywood as an arbiter of goodness. What must we say? How should we live? What moves us to fear, to tears, to disgust? Sit back, let the lights go down, and await further instructions.

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FREE MARKETS

Hawley book finds new publisher. Conservative publishing house Regnery will publish Missouri Republican Sen. Josh Hawley’s anti-tech book after it was dropped by Simon & Schuster. The company chose to contract with the senator and promote his work until Hawley’s refusal to accept the presidential election results (and, some say, partial blame for the Capitol riot) made him someone the publishing company didn’t want to associate with anymore. Hawley exercised his right to speak in dispute of the election, Simon & Schuster exercised its right to choose who it does business with, and then one of the publisher’s competitors took advantage of that and snapped it up. Contra Hawley’s insistence that it was a First Amendment violation for Simon & Schuster to cancel his book contract in the first place, this is how free speech, freedom of association, and free markets work.

At USA Today, Ilya Somin suggests that Hawley’s statement about Simon & Schuster and the First Amendment “is not simply the result of ignorance. It is rooted in a broader worldview under which government should have vastly expanded power to control the private sector and thereby restrict constitutional rights. That vision is widespread on the right, among ‘national conservatives.’ But it also has close analogues on the left. Both variants are menaces to liberty.”

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QUICK HITS

• President-elect Joe Biden is promising to promote an eight-year path to citizenship for undocumented immigrants living in the U.S. “It provides one of the fastest pathways to citizenship for those living without legal status of any measure in recent years, but it fails to include the traditional trade-off of enhanced border security favored by many Republicans, putting passage in a narrowly divided Congress in doubt,” the Associated Press points out. “Expected to run hundreds of pages, the bill is set to be introduced after Biden takes the oath of office Wednesday, according to a person familiar with the legislation and granted anonymity to discuss it.”

• The armed march that wasn’t.

• Parler is partially back. After being dropped from Amazon’s web hosting services last week, the conservative social platform is back online—albeit not yet functional again. “On Monday, Parler’s website was reachable again, though only with a message from its chief executive saying he was working to restore functionality,” reports Reuters. “The internet protocol address it used is owned by DDos-Guard, which is controlled by two Russian men and provides services including protection from distributed denial of service attacks.”

• “Anytime when you have mutations that come up independently of each other in multiple places, it’s really a sign,” coronavirus researcher Vineet Menachery from the University of Texas told The Atlantic. And it’s not a good sign.

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The Washington Post has published my op-ed on social media speech suppression and what to do about it.  I consider and deprecate the use of section 230 and the antitrust laws, which leads me to using the tax code to induce gatekeeper platforms to break themselves up:

What if the federal government imposed a 40 percent tax on the gross revenue of gatekeeper social media companies that have more than, say, 30 million active users in the United States? Instead of fighting antitrust authorities in the trenches for years, companies faced with such a harsh tax rate would rush to break themselves up. (And if they didn’t, well, the treasury could certainly use the revenue after the bailouts of 2008-09 and 2020-21.) Efforts to avoid the tax would surely spur a proliferation of mainstream social media companies, each serving a broad audience. Some might adopt an editorial stance that leans to the left and others to the right, just as broadcast and other news media already do. But their ability to enforce ideological conformity or pursue a unified business interest would be shattered.

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1/19/1990: Justice Arthur Goldberg dies.

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President-elect Joe Biden has indicated that he will use his executive authority to reverse many of President Donald Trump’s immigration policies. Biden likely will move quickly to scrap the ban on travel from 13 countries, most predominantly Muslim, and to reinstate Deferred Action for Childhood Arrivals, the Obama-era program that granted temporary legal status and protection from deportation to residents brought to the United States without authorization as minors.

Another issue that deserves Biden’s urgent attention is stalled legislation in Congress that would expedite green cards for Indian and Chinese professionals, the former facing waits of well beyond their lifetimes. The Fairness for High-Skilled Immigrants Act overwhelmingly passed the House in fall 2019. But a companion Senate bill that then–Sen. Kamala Harris (D–Calif.) co-sponsored was derailed partly because of resistance from fellow Democratic Sen. Dick Durbin of Illinois. Biden can demonstrate his good faith on immigration by telling Durbin to get on board.

Current law caps the number of employment-based green cards that can be granted each year at 40,000. That is far fewer than the demand for green cards in that category. Making matters worse, nationals from any one country can be granted only 7 percent of the total.

As a result of that rule, a very small share of high-skilled professionals from India and China are able to land green cards even when their petitions have been approved. These two countries send America the bulk of our imported high-skilled talent, typically on H-1B visas. Meanwhile, the green card quotas for countries that don’t send much high-skilled talent to the U.S. go unfilled.

The upshot is that an estimated 800,000 immigrants who are working legally in the United States are waiting for green cards, an unprecedented backlog in employment-based immigration. The vast majority are Indians; Chinese are the next biggest category.

An Indian national who applies for a green card now might wait 50 years (or more) to get one. Under current policy, the Cato Institute’s David Bier estimates, 200,000 Indians will die of old age while waiting for green cards. The children of such workers qualify for dependent visas until they turn 21, at which point they become “legal Dreamers”—people who have grown up in this country but can’t qualify for permanent residence.

The Fairness for High-Skilled Immigrants Act would ameliorate this situation in two ways. In the first phase, it would eliminate the 7 percent per-nation cap, letting Indians and Chinese receive 85 percent of green cards in the first and second years, then 90 percent in the third year. The bill also stipulates that no national whose green card petition had been approved would face any delays. After three years, the bill would eliminate the nation-specific cap and award green cards on a first-come, first-served basis.

The legislation would address an unfair policy that lets an I.T. professional from, say, Sweden get a green card within a year while making a similarly situated Indian wait decades. Because of the annual cap on green cards, however, this fix will initially force some people from other countries to wait longer than they do now. A solution to that problem would be to raise the green card cap—or, better, eliminate it right away.

That’s where Durbin comes in. An alternative bill proposed by the Illinois senator, the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act, would raise the annual green card cap to a level large enough to clear the existing backlog. That idea was anathema to restrictionist Republicans. In addition to introducing his own bill, Durbin added red tape to the Fairness Act aimed at preventing alleged H-1B abuse by employers, which raised concerns in the business community.

While the RELIEF Act is a superior bill, passing something like the Fairness Act would not preclude coming back and doing better legislation later. At this stage, giving relief to folks who are playing by the rules should be a priority. Biden should impress that upon Durbin and other Democrats who are placing obstacles in the way of incremental reform.

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On January 29, former-FBI lawyer Kevin Clinesmith will be sentenced for making a false statement as part of the Government’s application to renew a Foreign Intelligence Surveillance Act (FISA) warrant authorizing secret surveillance of Dr. Carter Page’s communications.  In connection with that sentencing, an important crime victims’ rights issue has arisen. Dr. Page has filed a motion to be recognized as a “victim” under the Crime Victims’ Rights Act (CVRA), arguing that he has been “directly and proximately harmed” by Clinesmith’s crime. I have filed an amicus brief for crime victims’ organizations supporting Dr. Page.

The general issue of who qualifies as a “victim” under the CVRA is a foundational question for protecting “victim’s” rights and thus is extremely important to the crime victims’ movement. Dr. Page’s attorneys contend that:

In this case, Dr. Page was the target of the crime. He was the target of the
FISA warrant surveillance. Clinesmith lied … and provided an altered
document to him to mislead the agent [who drafted the warrant application] into believing that obtaining a FISA warrant against Dr. Page was legitimate, when in fact, it was not. Dr. Page suffered the direct and proximate harms … because the 4th FISA warrant was issued in reliance on Clinesmith’s false statement.

If Dr. Page is recognized as a “victim,” he will entitled to provide a victim impact statement at Clinesmith’s sentencing hearing.

Along with victims’ rights attorney James Marsh, I have filed an amicus brief in support of Dr. Page’s position that he is a “victim” under the Act. My brief on behalf of the National Crime Victims Law Institute, the National Organization for Victim Assistance, the National Center for Victims of Crime, and other leading crime victims’ rights organizations explains why Dr. Page’s position that he is a “victim” is correct, but suggests a slightly simpler route to the same conclusion. Rather than relying on the ultimate effects of the FISA warrant being granted based on the false information about Dr. Page, the amicus victims’ organizations explain that the submission of a false statement itself is “direct and proximate harm” sufficient to create “victim” status under the CVRA (some citations omitted):

In the Statement of Offense in Support of Guilty Plea, the Defendant admits
that his false statement fell within the jurisdiction of the judiciary because it involved an application to renew a FISA warrant to surveil Dr. Page.  The Defendant also admits that he knowingly provided “materially false” information about the contents of an email from a government agency to his supervisor who prepared the FISA warrant application—materially false information that was important in how the Government crafted its application. And the Defendant knew that the substance of the materially false statement he sent to his supervisor about Dr. Page would be conveyed “to the court”—i.e., to the [Foreign Intelligence Surveillance Court (“FISC”)].

Standing alone, these undisputed events establish Dr. Page’s “victim” status under
the CVRA. The reason that the FISC exists is to make a fair determination of whether to allow Government surveillance of identifiable individuals based on all pertinent evidence. As the FISC explained when learning about the Defendant’s deception, “‘Congress intended the pre-surveillance judicial warrant procedure’ under FISA, ‘and particularly the judge’s probable cause findings, to provide an external check on executive branch decisions to conduct surveillance’ in order ‘to protect the fourth amendment rights of U.S. persons.'” Of course, the judiciary cannot “protect the fourth amendment rights of U.S. persons”—such as Dr. Page—when a Government attorney responsible for preparing a FISA application knowingly falsifies material information used in preparing that application. …,

By committing his crime, the Defendant deprived Dr. Page of the careful FISC review to which he was entitled—i.e., a review of the warrant application based on a full and accurate accounting of the available information. Because the Defendant criminally interfered with a fair review of a FISA warrant application targeting Dr. Page, the Defendant harmed Dr. Page. Nothing more is required to establish Dr. Page’s “victim” status.

The Government has now responded in its brief, arguing that, although the defendant’s alteration of the email was a “material” falsification, it is unclear whether the outcome of the warrant application would have been any different in the absence of the crime.

Defendant Clinesmith has also filed a brief, arguing that “Page does not—and cannot—establish that his harm was proximately caused by [the] offense rather than sixteen other errors identified by the Inspector General, including the FBI’s heavy reliance on reporting from a confidential human source, Christopher Steele, to establish probable cause for all four FISA applications.”

On January 12, in his reply brief, Dr. Page takes on the argument that there were multiple misstatements in addition to Defendant Clinesmith’s falsification of the email–and thus that Clinesmith is somehow absolved of causing harm to Dr. Page. Dr. Page recounts conventional tort principles, explaining that Clinesmith’s position is “akin to arguing that, where multiple assailants stab someone who then dies of exsanguination, none is guilty because it cannot be established which one caused the death. This is nonsensical as the decedent in such a case is the victim of each assailant.”

Judge Boasberg has set sentencing for January 29, and a ruling is expected on or before that date. Obviously, I hope that he finds Dr. Page was a “victim” in this case. It would be a dangerous precedent to say that submitting false information to the FISA Court to obtain a warrant is somehow a “victimless” crime. And it would compound that danger to say that, merely because the Government made multiple inaccurate statements in obtaining its permission to surveil Dr. Page, none of the statements can be viewed as having caused harm.

In this case, the simplest conclusion is the correct one: Criminally making a false statement to the FISA court to obtain a warrant to surveil a person “directly and proximately” harms that person. Accordingly, Dr. Page should be recognized as a “victim” of Clinesmith’s crime.

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