Category: reason

The European “Schengen Area” Travel Ban and Trump v. Hawaii

Yesterday, President Trump issued a travel ban from the twenty-six European nations that make up the “Schengen Area.” The United Kingdom is not covered by the proclamation. The proclamation excludes lawful permanent residents (LPRs), as well as certain close family members of citizens and LPRs.

The Proclamation relied on 8 U.S.C. 1182(f). The Supreme Court considered this provision in Trump v. Hawaii. Chief Justice Roberts’s decision opined on the risk of epidemics.

You can hear Roberts’s announcement from the bench (via Oyez):

“Now, in addition to the text of 1152(a), which references the act of visa issuance alone, commonsense and historical practice confirm that the provision does not limit the President’s authority under Section 1182 to determine who may enter the country. In response to diplomatic disputes both President Carter and President Reagan broadly suspended entry on the basis of nationality. And on plaintiffs’ reading the President would not be able to suspend entry from a particular country in the event of an epidemic in that country or even if the United States were on the brink of war with that country. In sum, the proclamation is squarely within the scope of the President’s authority under the INA.”

Here is full excerpt from the opinion:

Common sense and historical practice confirm as much. Section 1152(a)(1)(A) has never been treated as a constraint on the criteria for admissibility in § 1182. Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality. As noted, President Reagan relied on § 1182(f) to suspend entry “as immigrants by all Cuban nationals,” subject to exceptions. Proclamation No. 5517, 51 Fed. Reg. 30470 (1986). Likewise, President Carter invoked § 1185(a)(1) to deny and revoke visas to all Iranian nationals. See Exec. Order No. 12172, 3 C.F.R. 461 (1979), as amended by Exec. Order No. 12206, 3 C.F.R. 249 (1980); Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, Vol. 1, Apr. 7, 1980, pp. 611-612 (1980); see also n. 1, supra.

On plaintiffs’ reading, those orders were beyond the President’s authority. The entry restrictions in the Proclamation on North Korea (which plaintiffs do not challenge in this litigation) would also be unlawful. Nor would the President be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war.

In a reprise of their § 1182(f) argument, plaintiffs attempt to soften their position by falling back on an implicit exception for Presidential actions that are “closely drawn” to address “specific fast-breaking exigencies.” Brief for Respondents 60-61. Yet the absence of any textual basis for such an exception more likely indicates that Congress did not intend for § 1152(a)(1)(A) to limit the President’s flexible authority to suspend entry based on foreign policy interests. In addition, plaintiffs’ proposed exigency test would require courts, rather than the President, to determine whether a foreign government’s conduct rises to the level that would trigger a supposed implicit exception to a federal statute. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 491, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (explaining that even if the Executive “disclose[d] its . . . reasons for deeming nationals of a particular country a special threat,” courts would be “unable to assess their adequacy”). The text of § 1152(a)(1)(A) offers no standards that would enable courts to assess, for example, whether the situation in North Korea justifies entry restrictions while the terrorist threat in Yemen does not.

I scanned the SG’s briefs, and did not see any obvious reference to epidemics. This argument may have come from Roberts himself, or from someone else in the majority.

Some critics of the travel ban have argued that Section 1182(f) is unconstitutional on its face. For example, my co-blogger Ilya Somin wrote that 1182(f) may violate the nondelegation doctrine. If so, then President Trump would lack the statutory authority to suspend entry from foreign countries.

I still maintain that the President would have an Article II power in this context to suspend entry, and the existence of this statute merely confirms that power.

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The European “Schengen Area” Travel Ban and Trump v. Hawaii

Yesterday, President Trump issued a travel ban from the twenty-six European nations that make up the “Schengen Area.” The United Kingdom is not covered by the proclamation. The proclamation excludes lawful permanent residents (LPRs), as well as certain close family members of citizens and LPRs.

The Proclamation relied on 8 U.S.C. 1182(f). The Supreme Court considered this provision in Trump v. Hawaii. Chief Justice Roberts’s decision opined on the risk of epidemics.

You can hear Roberts’s announcement from the bench (via Oyez):

“Now, in addition to the text of 1152(a), which references the act of visa issuance alone, commonsense and historical practice confirm that the provision does not limit the President’s authority under Section 1182 to determine who may enter the country. In response to diplomatic disputes both President Carter and President Reagan broadly suspended entry on the basis of nationality. And on plaintiffs’ reading the President would not be able to suspend entry from a particular country in the event of an epidemic in that country or even if the United States were on the brink of war with that country. In sum, the proclamation is squarely within the scope of the President’s authority under the INA.”

Here is full excerpt from the opinion:

Common sense and historical practice confirm as much. Section 1152(a)(1)(A) has never been treated as a constraint on the criteria for admissibility in § 1182. Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality. As noted, President Reagan relied on § 1182(f) to suspend entry “as immigrants by all Cuban nationals,” subject to exceptions. Proclamation No. 5517, 51 Fed. Reg. 30470 (1986). Likewise, President Carter invoked § 1185(a)(1) to deny and revoke visas to all Iranian nationals. See Exec. Order No. 12172, 3 C.F.R. 461 (1979), as amended by Exec. Order No. 12206, 3 C.F.R. 249 (1980); Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, Vol. 1, Apr. 7, 1980, pp. 611-612 (1980); see also n. 1, supra.

On plaintiffs’ reading, those orders were beyond the President’s authority. The entry restrictions in the Proclamation on North Korea (which plaintiffs do not challenge in this litigation) would also be unlawful. Nor would the President be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war.

In a reprise of their § 1182(f) argument, plaintiffs attempt to soften their position by falling back on an implicit exception for Presidential actions that are “closely drawn” to address “specific fast-breaking exigencies.” Brief for Respondents 60-61. Yet the absence of any textual basis for such an exception more likely indicates that Congress did not intend for § 1152(a)(1)(A) to limit the President’s flexible authority to suspend entry based on foreign policy interests. In addition, plaintiffs’ proposed exigency test would require courts, rather than the President, to determine whether a foreign government’s conduct rises to the level that would trigger a supposed implicit exception to a federal statute. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 491, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (explaining that even if the Executive “disclose[d] its . . . reasons for deeming nationals of a particular country a special threat,” courts would be “unable to assess their adequacy”). The text of § 1152(a)(1)(A) offers no standards that would enable courts to assess, for example, whether the situation in North Korea justifies entry restrictions while the terrorist threat in Yemen does not.

I scanned the SG’s briefs, and did not see any obvious reference to epidemics. This argument may have come from Roberts himself, or from someone else in the majority.

Some critics of the travel ban have argued that Section 1182(f) is unconstitutional on its face. For example, my co-blogger Ilya Somin wrote that 1182(f) may violate the nondelegation doctrine. If so, then President Trump would lack the statutory authority to suspend entry from foreign countries.

I still maintain that the President would have an Article II power in this context to suspend entry, and the existence of this statute merely confirms that power.

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Flashback to 2005: Judicial Conduct of the 2nd Circuit Opinion concerning Judge Calabresi’s Political Comments

In my prior post, I noted that Judge Adelman’s writings are not consistent with the ABA Model Code of Judicial Conduct.  Such overtly partisan remarks are rare for federal judges. The only comparable example I can think of came from Judge Guido Calabresi’s June 19, 2004 remarks before the American Constitution Society’s convention. Calabresi’s conduct was the subject of a published memorandum by the Judicial Conduct of the Second Circuit.

Calabresi spoke on a panel discussion, titled, “The Election: What’s at Stake for American Law and Policy.” Here are his remarks, as reported by the Second Circuit, with my comments interspersed:

Okay, I’m a judge and so I’m not allowed to talk politics and so I’m not going to talk about some of the issues which were mentioned or what some have said is the extraordinary record of incompetence of this administration at any number of levels, nor am I going to talk about what is really a difficult issue which is the education issue, which is an incredibly complicated one, which I’m glad you talked about.

It is very common for someone to say, “I am not going to talk about” X. By merely flagging X, he is talking about it. If you don’t want to talk about X, don’t mention it.

I’m going to talk about a deeper structural issue that is at stake in this election, and that has to do with the fact that in a way that occurred before but is rare in the United States, that somebody came to power as a result of the illegitimate acts of a legitimate institution that had the right to put somebody in power. That is what the Supreme Court did in Bush versus Gore. It put somebody in power. Now, he might have won anyway, he might not have, but what happened was that an illegitimate act by an institution that had the legitimate right to put somebody in power.

ABA Model Rule 2.1 encourages judges “to participate in activities that promote public understanding of and confidence in the justice system.” Calabresi, like Adelman, took the opposite approach. Such comments undermine confidence in the judiciary system.

The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the King of Italy, that is, the King of Italy had the right to put Mussolini in though he had not won an election and make him Prime Minister. That is what happened when Hindenburg put Hitler in. I’m not suggesting for a moment that Bush is Hitler.

I’m skeptical. Audience can connect dots. Judge Adelman wasn’t as circumspect. He wrote that “Trump’s temperament is that of an autocrat.” And Adleman’s remarks weren’t off-the-cuff. They were prepared for a published journal.

I want to be clear on that, but it is a situation which is extremely unusual. When somebody has come in in that way they sometimes have tried not to exercise much power. In this case, like Mussolini, he [Bush] has exercised extraordinary power. He has exercised power, claimed power for himself that has not occurred since Franklin Roosevelt, who after all was elected big and who did some of the same things with respect to assertions of power in time of crisis that this President is doing.

Here, Calabresi was opining on President Bush’s executive actions–actions that could come before the Second Circuit. Rule 2.1, Comment [1] urges Judges to avoid creating “risks of conflicts that would result in frequent disqualifications.” Indeed, at least one prominent Bush-era case passed through the Second Circuit: Ashcroft v. Iqbal, then known as Iqbal v. Hasty.

It seems to me that one of the things that is at stake is the assertion by the democracy that when that has happened it is important to put that person out, regardless of policies, regardless of anything else, as a statement that the democracy reasserts its power over somebody who has come in and then has used the office to take… build himself up.

These remarks, shortly before the 2004 presidential election, were overtly partisan. He was campaigning against George W. Bush.

That is what happened after 1876 when Hayes could not even run again. That is not what happened in Italy because, in fact, the person who was put in there was able to say “I have done all sorts of things and therefore deserve to win the next election.” That’s got nothing to do with the politics of it. It’s got to do with the structural reassertion of democracy. Thank you.

Judge Calabresi, like Judge Adelman, cloaks his partisanship with the guise of protecting “democracy.”

Judge Calabresi promptly apologized to the Chief Judge of the Second Circuit on June 24, 2004.

I write you as Chief Judge to express my profound regret for my comments at last weekend’s American Constitution Society Conference. My remarks were extemporaneous and, in hindsight, reasonably could be–and indeed have been–understood to do something which I did not intend, that is, take a partisan position. As you know, I strongly deplore the politicization of the judiciary and firmly believe that judges should not publicly support candidates or take political stands. Although what I was trying to do was make a rather complicated academic argument about the nature of reelections after highly contested original elections, that is not the way my words, understandably, have been taken. I can also see why this occurred, despite my statements at the time that what I was saying should not be construed in a partisan way. For that I am deeply sorry.

I will not take the time here to outline the nonpartisan theoretical framework I was trying to develop. In retrospect, I fear that is properly the stuff only of an academic seminar. For, whatever I had in mind, what I actually said was too easily taken as partisan. That is something which judges should do their best to avoId, and there, I clearly failed. Again, I am truly sorry and apologize profusely for the episode and most particularly for any embarrassment my remarks may have caused you, my colleagues, and the court. You should feel free to share this letter with our colleagues.

Calabresi’s apology, as well as an admonition from Chief Judge Walker, were released to the public.

Five misconduct complaints were filed against Judge Calabresi. These complaints fell under four heads: (1) advocacy that the President not be reelected, (2) comparing the President to Hitler and Mussolini, (3) political bias or engagement in political advocacy, and (4) disagreement with Bush v. Gore.

Ultimately, the Council found that Calabresi violated the canons of ethics with respect to the first head of conduct. There was not enough precedent to resolve the second claim. The third and fourth claims were dismissed. The Council found and the public admonition was “both a sufficient sanction and corrective action.” I encourage you to read the Second Circuit’s careful analysis, which I will not repeat here.

Judge Adelman should apologize. But he likely won’t. Indeed, those who are inclined to agree with him are promoting his cause. The group “Demand Justice” apparently wants him to testify before Congress! Judge Adelman is welcome to testify before Congress on this issue if he resigns his post.

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Balaji Srinivasan: Why the Coronavirus Is the Next 9/11

How should the United States government and the rest of us respond to the coronavirus, which the World Health Organization has just declared a global pandemic?

Balaji Srinivasan, who was on a short list to run Donald Trump’s Food and Drug Administration (FDA), has some strong opinions on the matter. Srinivasan is a former venture capitalist at Andreessen Horowitz and a serial entrepreneur with a Ph.D. in electrical engineering. The genetic testing company he co-founded, Counsyl, helped change the way millions of people prepare for parenthood; his cryptocurrency startup, Earn.com, was acquired by Coinbase, where he served as chief technology officer. 

In his prescient and lively Twitter feed, Srinivasan has been ahead of the curve in noting the coronavirus’s potential to cause a global public health crisis and to disrupt our economic and social lives. During a conversation conducted via Skype, he talked about why he thinks the coronavirus may have as big an impact on our way of life as the 9/11 attacks, how the United States government—especially the FDA he once might have headed—has fumbled its response, and why we’re likely looking at mandatory quarantines at the national level.

At the same time, Srinivasan believes that private-sector and nonprofit actors are conducting a “digital Dunkirk” rescue operation that could not just save countless lives but accelerate positive forms of decentralization in our political, economic, and personal lives.

 

Edited by Austin Bragg

Music: Brittle Rille by Kevin MacLeod is licensed under a Creative Commons Attribution license

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Flashback to 2005: Judicial Conduct of the 2nd Circuit Opinion concerning Judge Calabresi’s Political Comments

In my prior post, I noted that Judge Adelman’s writings are not consistent with the ABA Model Code of Judicial Conduct.  Such overtly partisan remarks are rare for federal judges. The only comparable example I can think of came from Judge Guido Calabresi’s June 19, 2004 remarks before the American Constitution Society’s convention. Calabresi’s conduct was the subject of a published memorandum by the Judicial Conduct of the Second Circuit.

Calabresi spoke on a panel discussion, titled, “The Election: What’s at Stake for American Law and Policy.” Here are his remarks, as reported by the Second Circuit, with my comments interspersed:

Okay, I’m a judge and so I’m not allowed to talk politics and so I’m not going to talk about some of the issues which were mentioned or what some have said is the extraordinary record of incompetence of this administration at any number of levels, nor am I going to talk about what is really a difficult issue which is the education issue, which is an incredibly complicated one, which I’m glad you talked about.

It is very common for someone to say, “I am not going to talk about” X. By merely flagging X, he is talking about it. If you don’t want to talk about X, don’t mention it.

I’m going to talk about a deeper structural issue that is at stake in this election, and that has to do with the fact that in a way that occurred before but is rare in the United States, that somebody came to power as a result of the illegitimate acts of a legitimate institution that had the right to put somebody in power. That is what the Supreme Court did in Bush versus Gore. It put somebody in power. Now, he might have won anyway, he might not have, but what happened was that an illegitimate act by an institution that had the legitimate right to put somebody in power.

ABA Model Rule 2.1 encourages judges “to participate in activities that promote public understanding of and confidence in the justice system.” Calabresi, like Adelman, took the opposite approach. Such comments undermine confidence in the judiciary system.

The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the King of Italy, that is, the King of Italy had the right to put Mussolini in though he had not won an election and make him Prime Minister. That is what happened when Hindenburg put Hitler in. I’m not suggesting for a moment that Bush is Hitler.

I’m skeptical. Audience can connect dots. Judge Adelman wasn’t as circumspect. He wrote that “Trump’s temperament is that of an autocrat.” And Adleman’s remarks weren’t off-the-cuff. They were prepared for a published journal.

I want to be clear on that, but it is a situation which is extremely unusual. When somebody has come in in that way they sometimes have tried not to exercise much power. In this case, like Mussolini, he [Bush] has exercised extraordinary power. He has exercised power, claimed power for himself that has not occurred since Franklin Roosevelt, who after all was elected big and who did some of the same things with respect to assertions of power in time of crisis that this President is doing.

Here, Calabresi was opining on President Bush’s executive actions–actions that could come before the Second Circuit. Rule 2.1, Comment [1] urges Judges to avoid creating “risks of conflicts that would result in frequent disqualifications.” Indeed, at least one prominent Bush-era case passed through the Second Circuit: Ashcroft v. Iqbal, then known as Iqbal v. Hasty.

It seems to me that one of the things that is at stake is the assertion by the democracy that when that has happened it is important to put that person out, regardless of policies, regardless of anything else, as a statement that the democracy reasserts its power over somebody who has come in and then has used the office to take… build himself up.

These remarks, shortly before the 2004 presidential election, were overtly partisan. He was campaigning against George W. Bush.

That is what happened after 1876 when Hayes could not even run again. That is not what happened in Italy because, in fact, the person who was put in there was able to say “I have done all sorts of things and therefore deserve to win the next election.” That’s got nothing to do with the politics of it. It’s got to do with the structural reassertion of democracy. Thank you.

Judge Calabresi, like Judge Adelman, cloaks his partisanship with the guise of protecting “democracy.”

Judge Calabresi promptly apologized to the Chief Judge of the Second Circuit on June 24, 2004.

I write you as Chief Judge to express my profound regret for my comments at last weekend’s American Constitution Society Conference. My remarks were extemporaneous and, in hindsight, reasonably could be–and indeed have been–understood to do something which I did not intend, that is, take a partisan position. As you know, I strongly deplore the politicization of the judiciary and firmly believe that judges should not publicly support candidates or take political stands. Although what I was trying to do was make a rather complicated academic argument about the nature of reelections after highly contested original elections, that is not the way my words, understandably, have been taken. I can also see why this occurred, despite my statements at the time that what I was saying should not be construed in a partisan way. For that I am deeply sorry.

I will not take the time here to outline the nonpartisan theoretical framework I was trying to develop. In retrospect, I fear that is properly the stuff only of an academic seminar. For, whatever I had in mind, what I actually said was too easily taken as partisan. That is something which judges should do their best to avoId, and there, I clearly failed. Again, I am truly sorry and apologize profusely for the episode and most particularly for any embarrassment my remarks may have caused you, my colleagues, and the court. You should feel free to share this letter with our colleagues.

Calabresi’s apology, as well as an admonition from Chief Judge Walker, were released to the public.

Five misconduct complaints were filed against Judge Calabresi. These complaints fell under four heads: (1) advocacy that the President not be reelected, (2) comparing the President to Hitler and Mussolini, (3) political bias or engagement in political advocacy, and (4) disagreement with Bush v. Gore.

Ultimately, the Council found that Calabresi violated the canons of ethics with respect to the first head of conduct. There was not enough precedent to resolve the second claim. The third and fourth claims were dismissed. The Council found and the public admonition was “both a sufficient sanction and corrective action.” I encourage you to read the Second Circuit’s careful analysis, which I will not repeat here.

Judge Adelman should apologize. But he likely won’t. Indeed, those who are inclined to agree with him are promoting his cause. The group “Demand Justice” apparently wants him to testify before Congress! Judge Adelman is welcome to testify before Congress on this issue if he resigns his post.

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via IFTTT

Balaji Srinivasan: Why the Coronavirus Is the Next 9/11

How should the United States government and the rest of us respond to the coronavirus, which the World Health Organization has just declared a global pandemic?

Balaji Srinivasan, who was on a short list to run Donald Trump’s Food and Drug Administration (FDA), has some strong opinions on the matter. Srinivasan is a former venture capitalist at Andreessen Horowitz and a serial entrepreneur with a Ph.D. in electrical engineering. The genetic testing company he co-founded, Counsyl, helped change the way millions of people prepare for parenthood; his cryptocurrency startup, Earn.com, was acquired by Coinbase, where he served as chief technology officer. 

In his prescient and lively Twitter feed, Srinivasan has been ahead of the curve in noting the coronavirus’s potential to cause a global public health crisis and to disrupt our economic and social lives. During a conversation conducted via Skype, he talked about why he thinks the coronavirus may have as big an impact on our way of life as the 9/11 attacks, how the United States government—especially the FDA he once might have headed—has fumbled its response, and why we’re likely looking at mandatory quarantines at the national level.

At the same time, Srinivasan believes that private-sector and nonprofit actors are conducting a “digital Dunkirk” rescue operation that could not just save countless lives but accelerate positive forms of decentralization in our political, economic, and personal lives.

 

Edited by Austin Bragg

Music: Brittle Rille by Kevin MacLeod is licensed under a Creative Commons Attribution license

from Latest – Reason.com https://ift.tt/2TN2rJA
via IFTTT

Over Objections From Privacy Advocates, Tame Surveillance Bill Sails Through the House

It took all of a day after the text was released for the House of Representatives to vote for a surveillance reform and reauthorization bill that privacy groups (and some members of Congress) say doesn’t go nearly far enough.

On Tuesday evening, Reps. Jerry Nadler (D–N.Y.) and Adam Schiff (D–Calif.) released the text of the USA Freedom Reauthorization Act. On Wednesday evening, it sailed through the House by a vote of 278–136.

The bill renews but revises the USA Freedom Act, which was passed in 2015 after Edward Snowden revealed that the National Security Agency (NSA) had secretly been collecting and storing massive amounts of Americans’ phone and internet records. The USA Freedom Act was a compromise between those who pointed out these acts violated Americans’ privacy and Fourth Amendment rights and those who insisted the United States needed the info to fight terrorism. The law allowed the NSA and FBI to access these collected records under more strict guidelines and authorized the use of roving wiretaps to keep track of “lone wolf” terrorists.

The USA Freedom Act sunsets this weekend, and privacy activists on both the left and the right have used the opportunity to push for stronger protections from secret surveillance and unwarranted data collection.

Last night’s vote suggests we will not see tougher reforms. The bill does include some milder (but nevertheless welcome) changes. It ends the records retention program entirely—not as big a deal as it might sound, since the NSA has already abandoned it. The Foreign Intelligence Surveillance Amendment (FISA) Court will have modestly expanded powers to bring in outside advisers when the feds want a warrant and to review decisions. And the attorney general will have to sign off on any secret surveillance warrant applications that target federal officials or federal candidates for office. But the bill does not grant civil libertarians’ demands for limits on how business records can be secretly collected and used, for stronger protections against secret surveillance of First Amendment–protected activities, and for a stronger role for those outside advisers.

The vote did not follow party lines. There is a consistent group of Democrats and Republicans who support strong privacy and Fourth Amendment protections, even if they don’t see eye to eye on most other issues. Among the 60 Republicans who voted against the limper reforms were Louis Gohmert of Texas, Thomas Massie of Kentucky, Jeff Duncan of South Carolina, and Tom McClintock of California. Among the 75 Democrats who voted no were Zoe Lofgren of California, Alexandria Ocasio-Cortez of New York, Ted Lieu of California, Rashida Tlaib of Michigan, and Tulsi Gabbard of Hawaii. Independent Justin Amash of Michigan also voted against the bill.

But they’re the minority. The larger, more establishment-minded leadership of Congress seems fine with kicking the can down the road yet again (the law will sunset once more in 2023) and reforming as little as they can get away with.

One of the more notable “yea” votes comes from Rep. Devin Nunes (R–Calif.). A vocal defender of the president, Nunes has long insisted that the feds and the FISA Court abused their powers when they snooped on Trump aide Carter Page. (Subsequent investigation shows he was right to be concerned.) Nunes has even gone so far as to call for the entire FISA Court to be dismantled. Yet when it came time to vote, he, like he has done historically, voted to preserve the wider surveillance authorities.

This bill wouldn’t have done anything to stop the FBI from wiretapping Page. He was neither a candidate for office nor a federal official at the time. But it will make it harder for the feds to wiretap Nunes.

The legislation heads over to the Senate now, where Rand Paul (R–Ky.) is trying to use his influence over Trump to stop the bill and demand stronger reforms. A tweet from Trump suggests Paul has the president’s ear:

We went through this once before. That time, Trump wound up approving legislation that actually expanded the feds’ authority to secretly spy on American citizens. Let’s hope this isn’t yet another case where the people in power care only about whether they are the ones being surveilled.

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Over Objections From Privacy Advocates, Tame Surveillance Bill Sails Through the House

It took all of a day after the text was released for the House of Representatives to vote for a surveillance reform and reauthorization bill that privacy groups (and some members of Congress) say doesn’t go nearly far enough.

On Tuesday evening, Reps. Jerry Nadler (D–N.Y.) and Adam Schiff (D–Calif.) released the text of the USA Freedom Reauthorization Act. On Wednesday evening, it sailed through the House by a vote of 278–136.

The bill renews but revises the USA Freedom Act, which was passed in 2015 after Edward Snowden revealed that the National Security Agency (NSA) had secretly been collecting and storing massive amounts of Americans’ phone and internet records. The USA Freedom Act was a compromise between those who pointed out these acts violated Americans’ privacy and Fourth Amendment rights and those who insisted the United States needed the info to fight terrorism. The law allowed the NSA and FBI to access these collected records under more strict guidelines and authorized the use of roving wiretaps to keep track of “lone wolf” terrorists.

The USA Freedom Act sunsets this weekend, and privacy activists on both the left and the right have used the opportunity to push for stronger protections from secret surveillance and unwarranted data collection.

Last night’s vote suggests we will not see tougher reforms. The bill does include some milder (but nevertheless welcome) changes. It ends the records retention program entirely—not as big a deal as it might sound, since the NSA has already abandoned it. The Foreign Intelligence Surveillance Amendment (FISA) Court will have modestly expanded powers to bring in outside advisers when the feds want a warrant and to review decisions. And the attorney general will have to sign off on any secret surveillance warrant applications that target federal officials or federal candidates for office. But the bill does not grant civil libertarians’ demands for limits on how business records can be secretly collected and used, for stronger protections against secret surveillance of First Amendment–protected activities, and for a stronger role for those outside advisers.

The vote did not follow party lines. There is a consistent group of Democrats and Republicans who support strong privacy and Fourth Amendment protections, even if they don’t see eye to eye on most other issues. Among the 60 Republicans who voted against the limper reforms were Louis Gohmert of Texas, Thomas Massie of Kentucky, Jeff Duncan of South Carolina, and Tom McClintock of California. Among the 75 Democrats who voted no were Zoe Lofgren of California, Alexandria Ocasio-Cortez of New York, Ted Lieu of California, Rashida Tlaib of Michigan, and Tulsi Gabbard of Hawaii. Independent Justin Amash of Michigan also voted against the bill.

But they’re the minority. The larger, more establishment-minded leadership of Congress seems fine with kicking the can down the road yet again (the law will sunset once more in 2023) and reforming as little as they can get away with.

One of the more notable “yea” votes comes from Rep. Devin Nunes (R–Calif.). A vocal defender of the president, Nunes has long insisted that the feds and the FISA Court abused their powers when they snooped on Trump aide Carter Page. (Subsequent investigation shows he was right to be concerned.) Nunes has even gone so far as to call for the entire FISA Court to be dismantled. Yet when it came time to vote, he, like he has done historically, voted to preserve the wider surveillance authorities.

This bill wouldn’t have done anything to stop the FBI from wiretapping Page. He was neither a candidate for office nor a federal official at the time. But it will make it harder for the feds to wiretap Nunes.

The legislation heads over to the Senate now, where Rand Paul (R–Ky.) is trying to use his influence over Trump to stop the bill and demand stronger reforms. A tweet from Trump suggests Paul has the president’s ear:

We went through this once before. That time, Trump wound up approving legislation that actually expanded the feds’ authority to secretly spy on American citizens. Let’s hope this isn’t yet another case where the people in power care only about whether they are the ones being surveilled.

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Donald Trump Declares ‘We Will Ultimately and Expeditiously Defeat This Virus’

In a prime time speech to the nation last night, President Donald Trump outlined some steps his administration is taking to address the coronavirus. A lot of his speech focused on the economic fallout from the spreading epidemic. Let’s set aside those fiscal items here, and instead concentrate on the measures that aim to deal directly with the disease.

The most headline-grabbing item was his restrictions on travel from Europe for the next 30 days. (The spread of the new coronavirus is accelerating in most of Europe, with about 23,000 cases now, half of which are in Italy.) The new ban mirrors the limits his administration put on travel from China in January.

In his speech, the president claimed that by “taking early, intense action, we have seen fewer cases of the virus in the United States than are now present in Europe.” A March 6 study in the journal Science did calculate that the ban led to 77 percent fewer cases imported from mainland China than would have been expected. At the time that the administration imposed the rules, many infectious disease experts concurred that the travel restrictions would likely help slow the spread of the virus into the U.S.

The Science study also noted that while the “travel ban was initially effective at reducing international case importations, the number of cases observed outside Mainland China will resume its growth after 2–3 weeks from cases that originated elsewhere.” Slowing is not stopping. The idea behind the travel ban was to buy time for public health workers to roll out a robust program of testing, aimed at quickly diagnosing and isolating new cases to prevent community transmission of the disease. Unfortunately, due to a bureaucratic snafu, that extra time was wasted.

The president asserted that “testing and testing capabilities are expanding rapidly,” but the plain fact is that the U.S. lags substantially behind many other nations in testing for the virus. Indeed, bureaucratic barriers are still hindering the rapid deployment of coronavirus diagnostic tests developed by private companies and academic laboratories. Now there is evidence that the coronavirus epidemic may be accelerating here.

“Smart action today will prevent the spread of the virus tomorrow,” declared the president. He urged Americans to follow his administration’s guidance with respect to school closures, social distancing and limiting large gatherings.

Trump correctly pointed out that for “the vast majority of Americans, the risk is very, very low. Young and healthy people can expect to recover fully and quickly if they should get the virus.” Research shows that the death rate for folks under age 40 is about 1 in 500. The greater risk, as he noted, “is for elderly population with underlying health conditions.” A study out of China, for example, reported that the fatality rate for folks ages 60 to 69 is 3.6 percent. The rate increases to 8 percent for patients in their seventies, 15 percent for those over age 80. “The elderly population must be very, very careful,” warned the 73-year-old president. “In general, older Americans should also avoid non-essential travel in crowded areas.”

The president also gave the now standard but always good advice for people to practice good hygiene by frequently washing their hands; to avoid infection by not touching their faces; and to stay home if they are not feeling well.

“We’ve seen dramatically fewer cases of the virus in the United States than are now present in Europe,” stated the president. That’s true. But how much longer will that last?

To get some idea of how the epidemic here might evolve, let’s contrast how it is currently playing out in Italy and South Korea.

Italian public health authorities reported detecting the first 16 cases of local coronavirus transmission on February 21. By February 29, the outbreak had risen to more than 1,000 cases and the death toll stood at 29. Not even four weeks later, the country is reporting nearly 12,500 cases and almost 900 deaths.

In South Korea, the first community transmission of the virus was confirmed on February 19. By February 26, the number of confirmed cases had climbed to 1,261 and killed 12. At the time, the daily of rate of increase in cases reached 40 percent. To counteract the epidemic, the country’s public health authorities engaged in a massive testing campaign featuring drive-by testing sites. As of yesterday, the number of cases had risen to nearly 7,900, with 66 deaths. But the daily rate of increase had slowed to just 1.5 percent. That slowdown is largely the result of the widespread testing, which let infected citizens know they should isolate themselves and helped public health workers track and monitor their contacts.

On February 28, four people in California, Oregon, and Washington state were suspected of having been infected through community transmission. As of Wednesday, 1,311 cases have been diagnosed in the U.S. and 38 people have already succumbed to the disease. In just a couple of weeks, we will know which way the epidemic is trending in this country—more like Italy, or more like South Korea.

 

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Donald Trump Declares ‘We Will Ultimately and Expeditiously Defeat This Virus’

In a prime time speech to the nation last night, President Donald Trump outlined some steps his administration is taking to address the coronavirus. A lot of his speech focused on the economic fallout from the spreading epidemic. Let’s set aside those fiscal items here, and instead concentrate on the measures that aim to deal directly with the disease.

The most headline-grabbing item was his restrictions on travel from Europe for the next 30 days. (The spread of the new coronavirus is accelerating in most of Europe, with about 23,000 cases now, half of which are in Italy.) The new ban mirrors the limits his administration put on travel from China in January.

In his speech, the president claimed that by “taking early, intense action, we have seen fewer cases of the virus in the United States than are now present in Europe.” A March 6 study in the journal Science did calculate that the ban led to 77 percent fewer cases imported from mainland China than would have been expected. At the time that the administration imposed the rules, many infectious disease experts concurred that the travel restrictions would likely help slow the spread of the virus into the U.S.

The Science study also noted that while the “travel ban was initially effective at reducing international case importations, the number of cases observed outside Mainland China will resume its growth after 2–3 weeks from cases that originated elsewhere.” Slowing is not stopping. The idea behind the travel ban was to buy time for public health workers to roll out a robust program of testing, aimed at quickly diagnosing and isolating new cases to prevent community transmission of the disease. Unfortunately, due to a bureaucratic snafu, that extra time was wasted.

The president asserted that “testing and testing capabilities are expanding rapidly,” but the plain fact is that the U.S. lags substantially behind many other nations in testing for the virus. Indeed, bureaucratic barriers are still hindering the rapid deployment of coronavirus diagnostic tests developed by private companies and academic laboratories. Now there is evidence that the coronavirus epidemic may be accelerating here.

“Smart action today will prevent the spread of the virus tomorrow,” declared the president. He urged Americans to follow his administration’s guidance with respect to school closures, social distancing and limiting large gatherings.

Trump correctly pointed out that for “the vast majority of Americans, the risk is very, very low. Young and healthy people can expect to recover fully and quickly if they should get the virus.” Research shows that the death rate for folks under age 40 is about 1 in 500. The greater risk, as he noted, “is for elderly population with underlying health conditions.” A study out of China, for example, reported that the fatality rate for folks ages 60 to 69 is 3.6 percent. The rate increases to 8 percent for patients in their seventies, 15 percent for those over age 80. “The elderly population must be very, very careful,” warned the 73-year-old president. “In general, older Americans should also avoid non-essential travel in crowded areas.”

The president also gave the now standard but always good advice for people to practice good hygiene by frequently washing their hands; to avoid infection by not touching their faces; and to stay home if they are not feeling well.

“We’ve seen dramatically fewer cases of the virus in the United States than are now present in Europe,” stated the president. That’s true. But how much longer will that last?

To get some idea of how the epidemic here might evolve, let’s contrast how it is currently playing out in Italy and South Korea.

Italian public health authorities reported detecting the first 16 cases of local coronavirus transmission on February 21. By February 29, the outbreak had risen to more than 1,000 cases and the death toll stood at 29. Not even four weeks later, the country is reporting nearly 12,500 cases and almost 900 deaths.

In South Korea, the first community transmission of the virus was confirmed on February 19. By February 26, the number of confirmed cases had climbed to 1,261 and killed 12. At the time, the daily of rate of increase in cases reached 40 percent. To counteract the epidemic, the country’s public health authorities engaged in a massive testing campaign featuring drive-by testing sites. As of yesterday, the number of cases had risen to nearly 7,900, with 66 deaths. But the daily rate of increase had slowed to just 1.5 percent. That slowdown is largely the result of the widespread testing, which let infected citizens know they should isolate themselves and helped public health workers track and monitor their contacts.

On February 28, four people in California, Oregon, and Washington state were suspected of having been infected through community transmission. As of Wednesday, 1,311 cases have been diagnosed in the U.S. and 38 people have already succumbed to the disease. In just a couple of weeks, we will know which way the epidemic is trending in this country—more like Italy, or more like South Korea.

 

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