Friday, October 25, 2013

The Obama Care Web Site: Peeling The Onion

Note:  New readers could, if they wish, scroll down to the original essay, which starts with a "poem," and read this chronology back to front.  The poem and the title of this post have been updated as of 3 December.

Update 3 December 2013 

The good news:  

Today I was accepted, re registered and declared eligible to shop.  Then I was actually allowed to shop among actual insurance offerings.  Since I am already insured twice over by other federal programs, this is far as I can penetrate the procedures of Obama Care without risking a bill from Blue Cross.  Future comentary will not spring from noodling through the web site, but from media reports.

The re registering process was especially impressive.  It took about two minutes because I did not have to laboriously enter my basic data all over again, but merely verify that previously supplied.

All reference to first having to hear from Florida about Medicaid assistance was gone.  That, perversely, will not make Florida's nay saying government happy as it will lose a stick with which to belabor Obama Care.

Meanwhile the Obama Care web site is not a camel, dromedary or platypus, but an onion to be peeled until fresh and edible.  Hopefully there will be something left when we ae done here.  

The Bad News: 

I was not asked why at my age I was not on Medicare, and, once admitting that I was, told that I was not eligible for Obama Care.  My many misguided befuddled contemporaries would proceed blithly on to the point of incurring that Blue Cross bill.  This is not a bug, but a design flaw. Correcting it should not be counted as an improvement.  One one-hundreth  of 30 million is 30,000 over payments out of the blue to The Blue.

Not all previously supplied data was verified.  Nor could I see a way to access it and correct any errors therein. For example, I suspected that I might have understated my income. That would explain all the medicaid hoopla.    

I am only one person.  I am a test case, but hardly a test.  For example, I refused any consideration of applying for subsidies, thus eluding a whole other world of complex logic based on new data demands.  (What even many computer programmers of business applications don't grasp is that there are more logic paths through even a fairly simple program than will ever be tested by the input data it will be fed during the program's life.  This is because the transactions (data sets, cases) that occur are over whelmingly of a few types while the rest are either invalid versions of the few types or rare combinations of data elements that make up the many types. But I digress.)

The process of comparing insurance plans available in each state is at best primtive.  No comparison charts, let alone spread sheets, no requests for input data to winnow out the unacceptable beyond the basic platinun, gold, silver, bronze price categories,  just summaries of offerings listed by company by category.  Somebody ought to study "Consumer Reports" for clues to how to display comparisions.

Moving right along:  The public emphasis will now shift to "back office" processes from the public's interaction with the web site. These are (1) issuing and paying for policies based on web site outputs; (2) penalties and subsidies collected and paid by the IRS as calculated by the web site; and (3) changing relations among the triangle of medical care providers, insurers and the newly covered,  mostly driven by Obama Care. I will follow them all.

Update: 2 December 2013.

Great progress, but not just as reported by the media, which continues to conflate speed with accuracy.  There is now a reset feature!  If you wish to begin again afresh, now that both you and the web site are smarter. you may.   One caution: I haven't tried it yet, so my next report may be less of a rousing cheer.  

All home computer users know that when a program freezes, times out or just sits there ignoring you, it is time to restart it.  If it's basic stuff like the browser or the operating system (e. g. Windows) you may have to reboot from power off.  A reset button does the same general thing for a web site app.  It should have been there from the beginning.

Next update will report on my reset adventure. Meanwhile my "poem" is change to be more cheerful.    The camel is now a dromedary.  For a while there I thought it was destined to be a platypus.

Update: 26 November 2013.

No change.  Not in Florida anyhow.  NY Times Columnist Paul Krugman reports that California, which has its own system (which must use a central federal data base like everybody else) has ramped up to a healthy 10,000 sign ups a day.  As he says, this is proof of concept in a state of 38 million people with a profile like the nation's.  Especially promising is that the youngest cohort is signing up at a slightly faster pace than the rest of the population.  I read this on line, not in my two Florida papers that hit the front door every morning. Krugman is usually both right and reliable, so cross fingers and hope.

Update: 21 November 2013

My application remains both complete and incomplete depending upon which website button takes me where.  There is progress of a sort regarding my application's side trip to Florida to see if "The Medicaid" can be of help.

(1) I found my way from healthcare.gov to the Florida medicaid website via a button on a healthcare.gov page.  No more need to find Florida on my own -- if I can ever find that button again on my own.  I filled out the same Florida form again and was again promptly rejected as expected.

2) However, Florida still leaves you hanging; there is no button taking you back to healthcare.gov, and once back on my own there no indication that Florida has sent anything back to the Feds.  This is not too surprising, given Florida's republican government's policy of official intransigence and non cooperation with the federal program.

A change of status (not its real name) button still leads to a dead,  but a more truthful, end.  It no longer promises to activate this branch of the system by 15 November.  It instead asks that you come back "next month."  I am less apt to be one of those who can navigate all the way to actually applying for coverage with an insurer before the end of November.

Obama Care will remain a camel through Thanksgiving, and probably until Christmas at the rate it is progressing for simple me.  Perhaps it can get a seasonal job in a nativity scene.

Update: 16 November 2013

Today The Marketplace told me: (1) my application was incomplete, but gave me no way to complete it that I could find; (2) my application was complete and sent to Florida for evaluation.  I attempted to report a change in my status, which was to be available November 15, but is not there yet.  I did find a way to go to Florida Medicaid directly from the federal web site and apply.  Florida promptly told me that I was not eligible for a damn thing,  which I knew, but which Florida evidently hasn't communicated to The Marketplace, or The Marketplace doesn't know enough to recognize.

The Obama Care web site, two weeks from its relaunch, is a very ugly camel indeed.  Now all I want to do is cancel my application, but I can find no way to do that either.  For their own sake they need a button that is labeled, "Cancel your fucked up application and try again sometime."  If I weren't a staunch democrat and Obama man I would send this chronology to Darrell Issa.

Update: 5 November 2013

Today I finally parsed the governmentese enough to figure out that I was in the hell of "The Medicaid."  This was determined not by what "The Marketplace" says to me, but by what it does, or more precisely what it won't let me do: shop for a policy (which it clearly says I should do) until I hear back from The Medicaid.

One possible alternative -- report a change in your life status -- advises that this avenue will not be open until 15 November.  The current approved fork in this road is to protest the decision (that they say they have not made).  To do this one must print a protest form, fill it out (with the same data I have already entered twice) and mail it to The Marketplace or someplace; maybe The Medicaid has a place.

This I won't do because (1) It's not nice, maybe even unlawful, to enter a fictitious story into an Official Government Web Site; (2) I don't want to test anything but the on-line system; (3) I am not interested in signing up for Medicaid; (4) I don't want to bother a real person with my made up story; (5) I'm bored with the whole thing.  Be back on 15 November when I will find out if a change in my life status can be made to equal "drop the whole thing."

Update: 4 November 2013.

Today I learned that I qualify for a family membership  even though I thought I applied as a single person.  For now I am assuming that a single person and a family of one are equivalent.  I also learned that my effort to date had the result of making me "Eligible to purchase health coverage through the Marketplace."  I was told that my "Next Steps" was/were, "Choose a health plan and make first month's payment."

Confidently I clicked the large green "Next" button.  Nothing.  Many clicks later, still nothing.  Tomorrow I will go back and try again.  Meanwhile I was referred to an eleven page document in the form of a letter to me made up mostly of frequently asked questions (FAQs) and their answers.  The FAQ format is most effective.  It provides targeted information in an easily scanned format.  Still, it is hardly tailored to its audience.  For example, the last two pages provided 800 numbers for speakers of all the major languages on earth. Except, of course, English.  I obviously speak English, so why me?  Perhaps that is too critical right now.  Refinements  have to wait.  What do you think this is: open source code?

One result of my application is mystifying: "The Marketplace is transferring your information to the Medicaid to see if you qualify to get more health services. . .The Medicaid will contact you for more information."  Nothing, except my age, that I told The Marketplace, even suggests that I need more health services from The Medicaid.  And I have no more information to supply.

At first I thought that I would have to deal with The Medicaid before being allowed to shop The Marketplace, but not so.  After a good night's sleep perhaps I and the Next Button will click better.    

Update: 3 November 2013.

A small squib in the back pages of one of the two tea party loving newspapers we still subscribe to -- mainly for the real authentic comic pages -- carried a federal government announcement that the Obama Care web site was now 80% more responsive than on opening day.

So I went to www.healthcare.gov and tried it.  If it's ramped up that much I figure I won't be adding to its troubles by any significant degree.  Sure enough, the opening screen snapped into place with an alacrity I wish my browser would emulate.  It invited me to check some prices in my area, so I did.

It is no longer true that you must go through the lengthy registration procedure before you can browse what's typically on offer in your town.  You don't even have to prove that you are you.  Much better. However the prices are not adjusted by any government subsidies for which you may qualify.  For that you must register.

So, later, I went back and registered.  The web site continued to be speedy and responsive and the instructions for the most part reasonably clear.  They were way too wordy, and much bureaucratic fanny covering was in evidence.  Whole pages read too much like those lawyer ridden "Terms and Agreements" statements for which nearly all of us check the "I agree" button without reading.

As you progress, certain disconnects become evident.  The same data is asked for more than once and you get no help with the tedium of form filling.

By that I mean that I have a social security card, a U.S. passport and the postman finds me daily. Instead of ponying up the info the fed already has under my social security number, etc., and asking me to just verify it, the system requires me to enter it all over again.   (Much as your technophobic doctors and hospitals still do.) Thus irritating me and missing a chance to update many of its federal data pots at one time.  Maybe next year.

When asked I proudly gave my age as 83.  No problem, even though Medicare Part B is automatic at 65, and one thing we old folks have always been told about Obama Care is that you can't shop for so called medi-gap insurance on the Obama Care exchanges.  Why, I don't know.  Maybe next year. (Maybe never if the incumbent medi-gap insurance companies have their way.)

In any event the web site should have politely informed me to get lost once my age was honestly revealed.  As the really, really old joke about the couple who were caught registering at the motel with a fake marriage certificate (Yes we did need them, once upon a time, in certain suspicious locales.) explains it: "If you 'haint done it, don't do it! 'Taint fer it!"

It didn't brush me off, though, and after about 30-40 minutes of navigation I was duly registered. Without having to submit to finger printing or an iris scan.  But, then, I was steered to what I suspect was another contractor's silo and my browser settled down for a long wait.  I went to bed and was timed out some time in the wee hours.  Maybe the system figured out how old I was.

I'll be back to try again.  Older and wiser.  But don't wait up for me.   It's any body's guess how many layers of the Obama Care onion are left to be peeled.


Original essay of 31 October; updated 2 December 2013.

Old saying around Dilbert's water cooler:  "The camel is an animal created by a committee."

Obama Care's Website had a great fall.
Obama Care's Website fell off the wall.
Then all the King's horses
And All The King's men
Put Obomby together again

I do hope the po'try is is right.  But as a life long democrat and a career long computer guy (for the federal government no less), I am still deeply embarrassed by the amateur hour roll out of the federal health insurance exchange of two months ago. 

The spectacle of various contractors defending their silos -- their self contained assigned parts of the whole -- against gleeful republican barbs tossed at legislative hearings is still one source of embarrassment.  Beleaguered democrats, reduced to exhorting GOP critics to help fix what they so recently tried to kill, is another.

The president's lame apology for misleading buyers of single policies about what was apt to happen to the insurance they were used to, no matter how bare bones their coverage, is even worse than the web site fiasco.  The web site can be fixed and finished.  The terms of Obama Care can be refined with experience -- as with all complex systems -- once the politicians get the message that "mend it, don't end it" is what the voters want. and they will.  Traditional Medicare and Medicaid will also be improved in coverage and reach.

But the President's reputation for honesty is harder to recover.  This writer has never doubted Barak Obama's integrity.  Until he cleans house of those that have failed him I will wonder if he is too gullible and insufficiently ruthless.  Staff stupidity and executive incompetence needs to be eliminated with the same intensity that he showed when he eliminated Osama Bin Laden.  Of course, the one difference is that he will praise them on their way out.

Worst of all still is the clueless ignorance revealed at the highest level of executive government, where political considerations kept the system's design in flux well beyond the last minute. It was changed in a major way just four months ago; the design should have been frozen six months ago.  At least. Truly, they did not know what they did not know.

 Not one but two levels of testing were either not done at all or had barely begun when millions of people were encouraged to fire up their computers all together now. It's the pointy-haired boss directing Dilbert down a path to a plank ending in the sea. (Fortunately, Dilbert now seems to be swimming strongly to shore.  He'll survive if the weather holds and the sharks hold off.)

Usually integrated testing of systems far smaller that this one halts after a couple of days while the individual players finally, really, realistically, honestly talk to each other.  Then, after a return to the drawing boards, they try, try again. After perhaps more than one iterations of this cycle, they will be at last ready to test -- not use -- their work in prime time.

The next stage is called the Beta test.  A self selected volunteer group of real users using real data is recruited to use the system.  Usually they are also techies, eager to propose elegant solutions to the problems they unearth, and able to recover on their own when head slapped by the software.  Except for some humbled systems engineers with product on the testing block everyone has a high old time.

Obama Care's volunteers would not be techies, but ordinary Joe's and Jane's like you and me (In fact you and me), and it will not be a high old time. The result of a good Beta testing will yield only workable software, not bug free, when fired up for real.  The only time a successful computer system of any size is bug free is the day it is retired.

The feds insurance exchange system is a Guinness candidate for the most complicated of all time.  The Associated Press has reported that to apply and eventually buy insurance you must enter 52 bits of data:  income, name, address, Social Security number, proof of citizenship -- the usual suspects, many of which are stored by the feds in other data bases already..  Every one of these has its ambiguities: gross/net wages, total income, adjusted income, alternate income, income before/after payroll deductions, take your pick.  Only 51 to go.  Chances that multiple contractors will pick the same definitions, let alone the right ones, is nil.

Then to verify your input 55 data bases at eight different federal agencies -- from Social Security to the IRS to the Peace Corps -- must talk nicely with the exchange, and sometimes to each other.  Then, to place your insurance order the exchange must also communicate correctly to thousands of insurance companies across the country. Then the insurance company you pick must speak accurately and lawfully to you in a way you can understand. Then the IRS, must subsidize/penalize you properly in the years ahead according to the law.

Those last three "Thens" are still ahead for many. Responsible news media such as the  New York Times have already reported Insurance Company woes with the data they are receiving: duplicates, incompletes, missings.

Then you, your medical practitioners, hospitals and the insurance companies must happily dance together in the same way most of us are familiar with.  The formerly uninsured, however, are new to the beat of this particular tambourine. ( Mama Mia! Standard ways to do these tasks help greatly, once they are comprehensive and everybody interprets them the same way.  Wrangling over national standards can take years.)

How could this fiasco have been avoided?  The House republicans once proposed a one year delay of Obama Care.  If the White House had had an inkling of the trouble it was in, it could have offered a compromise republicans would probably go for: let the states decide when -- not if -- to sign up. Fines and subsidies could also be put on a state-by-state schedule.

 A democrat leaning state using the federal exchange could have been recruited as a Beta site.  New York and California, perhaps others building their own exchanges, could have also dared to open on time or nearly so.

A reasonable degree of success for this much of the country would have encouraged other states which want Obama Care to soon join, leaving Texas and other hotbeds of the modern secessionist movement
on the outside looking in.  Obama Care would be nailed firmly to the wall for generations.    

But instead the White House hung tough, allowing the GOP only one minor change to Obama Care, namely a tightening of the rules for income verification.  Guess which aspect of the exchange system is said to be getting folks in the deepest do do.  Maybe somebody gave the republicans a clue about what to hold out for.

Recently, if two years late, the White House told the the most experienced contractor of a sorry, self serving lot to stop licking its wounds and take charge as the technical lead.  A czar has also been named, effectively sending the Department of Health and Human Services to the bureaucratic sidelines where it belongs. That agency has all it can do to prepare to take over the system once fully installed.  It needs to watch, listen and learn, maybe write a few constructive memos, but no longer to decide.

A deadline of the end of November was picked as the next target date for full roll out.( It is now December 2.) The rationale for this latest drop dead date seems to be the scheduling constraints built -- very unwisely -- into the law. The Administration spin doctors are promoting quite impressive improvements as "nearly there."  Don't count on it.  One of the things about computer systems pointy haired managers never seem to learn is that you cannot order them to work.  The best you can do is to pay the contractors to keep on keeping on for at least the next two years.





    



  

Sunday, October 20, 2013

Letters Seldom Sent

Editor:

Do you ever wish to correct the misguided and mistaken who write you letters?  I do.  Every time from now on when I note you suffering more fools gently I'm going to rouugh them up. Not for their idiotic opinions, which they are welcome to, but for their ignorance of facts easily checked.  Here's the first one you won't get.

Editor:

A recent letter you published declared that Social Security was not an entitlement.  The writer's logic was ill and his facts were wrong, but he got to that conclusion anyhow.  His premise was that Social Security is insurance.  You and your employer pay for it and that is what you get back.

Not at all.  First, payments are a little more involved that that. Next, you must pay in for 40 quarters (ten years) to even be eligible for pay when you retire.  Your payments go into the Social Security trust fund, which has been there since 1935, and is managed by the Treasury Department.  Treasury pays interest, currently 4.5%, on the money it borrows from the Trust Fund.

Contrary to opinions often voiced by people who know better, the money Treasury borrows from the Trust Fund is not waisted.  Most of it goes to pay current retirees -- your parents for example.  The rest is temporarily used to reduce the national debt (not often) or to pay the nation's current bills (usually).  More about that later.

Social Security calculates what you are due on your earnings, not on what you paid in. The formula is complicated, so listen up.  The less well paid you were during your working life, the higher the percentage of your average wages you are paid.  But your actual retirement pay is always higher than the guy below you on the working life pay scale.

That result, plus an annual cost of living adjustment (usually up, occasionally zero, but never down), is what you will be paid every month for the rest of your life.  If your life is short, you will not get back what you and your employer paid in.  If it is long enough you will get back more than you paid in.  Contrary to current mythology, and because we are all living longer, the latter is the usual case. If that is not an entitlement, what is?

Now to why the Social Security Trust Fund has not been wasted, no matter what you have been told.  First,  understand than the total debt of the country has two parts.  One part is the public debt (about two thirds of the total) which the Treasury owes to individuals, corporations, pension funds, other governments.  The other part (about one third) is owed to other parts of the federal government, mostly Social Security and other federal pension funds.  The full faith and credit of the United States backs up both parts.

When the Social Security administration needs to draw from the Trust Fund, the Treasury sells new bonds to the public, ships the money to it, reducing the value of the Trust Fund by that amount. The total debt of the United States is unchanged.  The public is eager to buy, because The United States has never defaulted on any part of its debt in over 200 years.  Lately we nearly did and that was beyond dumb.

Sincerely,

Bruce G Johnson

20 October 2013

  











Saturday, October 19, 2013

The Late Congressional Follies

Editor, Daytona Beach News-Journal::

It's okay to keep the Federal government shut down for a while.  We federal civil servants don't mind a few days on the beach.  We are used to being deemed non-essential parasites until we are not there to keep the country open for business.  You will miss us eventually.  Not in Washington, perhaps, where I used to work before that first lengthy shutdown in the Clinton era, but in the local field offices of Social Security, the USDA extension service, the FBI, the Weather Service and yes even the IRS among others. Folks will be banging on their doors soon enough.

But it is definitely not okay to play fast and loose with the full faith and credit of the United States of America.  The repercussions will be profound, long lasting and felt world wide.  The world will judge us irresponsible and unreliable, and will look elsewhere for leadership to our --  and the world's -- detriment.

Perhaps that is why the plain language of the U. S. Constitution prohibits Congress from doing so.  How can the debt ceiling law be constitutional when the Fourteenth Amendment reads as follows:

Section 4. The validity of the public dept of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.?

Yes, this was a Civil War amendment, but its language is more general than that, and certainly written that way for a purpose, as the Congresional historical record attests.  Perhaps this obscure language -- as the NY Times has called it -- has been lurking there for just such a dismal occasion as this to save us for our own folly.  It's worth a test and would certainly be an interesting case for the Suprene Court.

Another point worth considering: no other major country has a law restricting its democratic government from paying debts already owed.  Why do we put up with this plaything of the political parties?  It should be repealed before it does real harm to world finances.  Don't the Tea Party's zealots like Texas Senator Ted Cruz understand that US Treasury Bonds are collateral for bank and other loans around the world?  Call their value into question and interest rates will jump for all kinds of loans, including a lot of U.S. variable rate mortgages. Are more underwater mortgage defaults better for America than paying our bills?

Even worse, an actual default will cause world lenders to go into a cautious crouch, freezing credit markets and tripping the globe into yet another financial panic and then into economic recession.  Enough already!

Bruce G Johnson
Orange City, FL


Friday, August 2, 2013

Wanted: A Fourth Branch of Government

A work in progress.

Last revised 30 November 2013.  

The Case For Change

The single minded folks that pine for a Constitution that requires the Federal Government to balance its books -- at least every now and then -- do have a point. If they only knew how to make it.  Instead of coming to grips with the complicated calculation, that just might be adequate to consistently fund a complicated government, they plump for a simple balance to be struck each year.

Except of course for National Defense, broadly defined by Republicans.  And of course entitlements are entitlements, so Social Security and Medicare for the old, Medicaid and at least some food stamps for the poor and just a few other similar programs of lessor import (Earned Income Tax Credit, Supplemental Security Income, Farm Price Supports, college loans) can't be balanced on the back of largely Democratic constituencies.

Besides, how does a balanced budget amendment work when the Federal Reserve system is out there independently managing the money supply to simultaneously control inflation and foster job growth?  Of course we never have an occasion when the Fed is expanding credit while the Congress is contracting budgets or vice versa.  Or do we?   Do you recall the names Ronald Reagan and Paul Volcker? Nor are there battalions of lobbyists ceaselessly patrolling the halls of Congress and the by-ways of Executive agencies offering food, drink, erotic relaxation and helpful language to flesh out the next bill to become law at the expense of tax collections. Or are there?  No, a balanced budget is more a term of piety than an achievable goal, more a promise than a prospect.

The short hand phrase that policy wonks use for what we really need to do is: "coordinate monetary policy with fiscal policy."  The -- often unstated --  goal of that coordination is to keep American debt, public and private, as highly prized around the world, as it is today. Another goal is to ride herd on private capital markets so that, in the words of Volcker, "We take away the punch bowl just as the party is getting interesting."   He could have also said that "when the party is tanking, it is time to refill the bowl and mail more invitations."

Lets be specific.  We need to implement the hard half of Keynesian economics that we have never really tried. --  reducing debt when times are plush -- as well as its more popular half -- spending when times are poor.  Today we let the politicians of both parties spend their way to popularity on both occasions, and wonder why the national debt tends to ratchet up.

The other main block to coordinating monetary and fiscal party is that each is managed separately by arms of government that manage at separate speeds.  Let's say that President Clinton from her 2016 bully pulpit urges a modest slow down in the economy for the next two years.  All agree.  The Fed managers deliberate and agree on a series of steps to raise short term interest rates -- in secrecy of course as it would not do for speculators to be that privy to the future as envisioned by the Fed.

 Congress, now run by the Democrats under Harry Reid and Nancy Pelosi, puts together a budget that tries to be responsive to the President and to various party factions.  The process is noisy and in public.  Senate and House pass widely differing versions as Democrats are wont to do.  The joint reconciliation committee cuts so many deals that the original intent to tighten the budget is lost in a welter of amendments that increase spending.  Just as, Republicans say, the Democrats are wont to do, and as Republicans do also.

To her credit President Clinton vetoes the bill, but only gets a new one much later that is only marginally better which she grimly signs. The Fed attempts to compensate, but its tool kit is lacking policies that allow it to turn on a dime. The country, pulled this way and that, muddles through, saved yet again by the entrepreneurial spirit of its citizens, its command of immense natural resources, and the generally adroit and under appreciated coping skills of the Executive, which fly best under the radar, that is at the sub cabinet level.

To do better than that requires a level of fiscal management that goes way beyond merely balancing the federal budget for the sake of balance without regard for the needs of the country or the ability of the government to manage whatever level of debt the nation's wealth allows.

What is required definitely goes beyond the Federal Reserve system's charter to manage interests rates and the money supply in a way that keeps inflation in check while promoting job growth -- a logical contradiction.

What is required also needs to encompass the Fed's new responsibilities to identify and regulate financial and some other corporations deemed too big to fail.  It needs to manage the swings of the business cycle in a way that does not hamstring corporations from investing in new technology, goods and services whenever the mood strikes them, but is not as nearly accommodating to (supposedly) new forms of rent seeking via derivatives and such.

 What is further required is a regulatory regime organized to keep up with the financial system's talent for  inventing new obscure and opaque ways to manipulate paper so lucrative as to divert capital -- financial and intellectual -- from the real economy, and from inventing new ways to fall into the old trap of leverage which first sends the economy greedily soaring and then fearfully tanking. Leverage, we frequently learn anew, works both ways. A new form of leveraged derivative as an invention for the wealthy is not quite on a par with a new and improved model iPhone for the rest of us.  The latter merely deserves applause, while the former needs careful watching and the occasional stifling.

Finally, this new level of fiscal management needs to do things we haven't thought of yet in order to take charge of the framework within which governments and businesses alike can conduct their part of the economic affairs of the nation without inflating and bursting periodic bubbles..

Enter a fourth branch of federal government on an equal plane with the Legislative, Executive and Judicial.  Call it the Fiscal Branch.  Its first job will be to run the national economy at the macro level by establishing national tax and spending limits on a multi year basis (probably tied into the presidential inauguration cycle) that are constitutionally binding on on the Congress and the President.  Within those limits, the executive and legislative arms would function as usual.  Since this is a new federal only branch, no change need occur in the federal/state relationship as currently defined in the Constitution. 

Equally important, the Fiscal Branch would monitor and regulate the nations private financial institutions.  The Fiscal Branch would assume all the functions now performed by the Federal Reserve Board, plus those of the Comptroller of the Currency, The Securities and Exchange Commission, the Federal Deposit Insurance Corporation, and The Commodity Futures Trading Corporation.

Constitutional Language

All  responsibilities herein enumerated shall be vested in The Fiscal Branch of the federal government as necessary to independently direct the commanding heights of the national economy toward the goals of sustained and sustainable growth at full employment and of transparent conduct of financial transactions in public markets

A National Fiscal Chairman, nominated by the President and confirmed by the Senate, shall serve during good health and behavior unless removed by impeachment for high crimes and misdemeanors.  The Chairman shall at his sole discretion appoint and remove subordinate managers and other employees as needed to carry out these responsibilities.

The Fiscal Branch shall have the power to charge appropriately for its services and shall not be otherwise funded.

With the advice and consent of the Congress, the Fiscal Manager shall, upon nomination and confirmation, prepare and execute a plan for the permanent transfer to the Fiscal Department of the functions of the following federal agencies as presently constituted, and shall assume in a like manner the other enumerated functions:

1.  The Federal Reserve Board.

2.   The Comptroller of the Currency.

3.   The Securities and Exchange Commission.

4.  The Federal Deposit Insurance Corporation.

5.  The Commodities Futures Trading Corporation

6.  The National Programs of Home Loan Guarantees and Regulation.

The Fiscal Branch shall organize and conduct the transferred functions.   No other such functions shall be created by other than Constitutional amendment.

The Fiscal Branch shall publish a general revenue and spending plan binding upon the Executive and Legislative branches of the Federal Government. 

The plan shall commence upon the inauguration of the next elected President following ratification of this amendment and at the same time hereafter. The plan shall provide binding rates of deviance from tax and spending levels contained therein on an annual basis in keeping with the official fiscal year of the United States government as determined by statute.  Binding rates of deviance will not be effectively either zero  or infinite.

Upon a formal declaration of war or grave national emergency by the Legislative and Executive Branches acting in concert, the National Fiscal Chairman will suspend fiscal limits as necessary for the conduct of the war to its termination, and will reinstate them when at his sole discretion he determines the emergency is ended.

The Fiscal Branch shall publish such advisory goals and  plans as it deems necessary for the best conduct of the financial responsibilities of the United States.  

The Fiscal Branch shall  conduct and support a program of scientific studies in furtherance of its Constitutional responsibilities.

Frequently Asked Questions

What happens to the annual budget?

It is constrained by the general plan, which does not allocate funds to government agencies in the Executive Branch nor to the separate entitlement programs.  Instead it places boundaries around the overall revenues and expenditures within which the Congress and the President can tax and spend as they do today, preferably by formally devising and executing an annual budget. 

How much flexibility will the Congress have?

The same as today within the new limits established by the  Fiscal Branch.  The larger the gap between floor and ceiling in the revenue and spending limits the more flexibility.

What new responsibilities does the Congress have?

The Congress will need to keep track of  revenues and appropriations in order to be sure it does not fall below or exceed the legal limits of each.

The Congress and the President need to pass and sign into law a schedule for the receipt and implementation of each plan which provides for its implementation on a schedule that fits with the inauguration of a president.  Vice presidents who take charge due to the death or other incapacity of the president must comply with the current limits.

What about the President?

He remains the Chief Executive and Head of State.  He remains Commander-in-Chief.  Likewise the Congress remains as before.  Nearly all of the powers consolidated in the Fiscal branch are exercised, or could be exercised, by an agency set up to be independent of the Legislative and the Executive by current law.  This is especially true of the Federal Reserve System.

What's the point of it all? 

The Fiscal power is defined, consolidated and limited by Constitutional amendment to an equal footing with the three traditional branches of national government.  The Fiscal Branch sets broad limits but does not allocate revenues and expenditures.  It's purpose is to moderate the emotions of finance so that neither fear nor greed nor exuberance nor despair need plague the world's largest economy with recesions, depressions and panics. 

What about the public debt?  Do we ever pay it off?

We might, but why?  The instruments of our debt sold and traded publically are in demand around the world.  They are the collateral behind 30% of the world's debt.  What would replace it and at what cost?  Why are our treasury instruments so in demand?  Because we have never defaulted.  Because our debt in relation to our GNP is not excessive  when compared, for example, to Japan's debt to GNP ratio.   





 




   

 

     



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Saturday, July 20, 2013

Zimmerman: Not Guilty. But . . .

The Verdict

The jury correctly found George Zimmerman not guilty of murder in the second degree.  Another way to put it: not proven guilty beyond a reasonable doubt.  We can take satisfaction in that.  It is how the criminal justice system, rooted in English common law, is supposed to work.  Every indicted person walks into the court room at the start of every day of his trial an innocent man.  Only at the end does the court room drama reach its climax with the jury's verdict: Guilty, Not Guilty or Not Decided. Sir William Blackstone, the great Anglo jurist said it this way: "It is better that ten guilty persons escape than one innocent suffer." 

Trayvon Martin was innocent too; we do not try the dead.  Neither man was guilty but both were complicit.  Both contributed to an encounter that proved nothing and ended in tragedy.  Martin can claim that ancient school boy excuse, "He started it."  Zimmerman, playing a role of neighborhood watchman, followed a young man wearing a hoodie with the  hood up, calling police as he did so.  He told them he was following Martin.  "We don't need you to do that," the dispatcher said, but Zimmerman did so anyway, first in his car and then on foot.  Martin spotted him.

"What Are You Following Me For?"  "What Are You Doing Around Here?"

It was slightly later than 7:09 pm, February 26, 2012,  in the non descript town of Sanford, Florida, when that exchange of questions went down. The mean temperature that day was 61 Fahrenheit, cool for Florida and excuse enough to wear a cool hoodie.  Martin was on his cell phone to his friend Rachel Jeantel, who told investigators that she over heard the exchange of questions in the heading above.  Minutes later a single shot was fired into Martin's heart and he died almost immediately.  In between a number of witnesses testified that they saw and heard a patchwork of conflicting sights and sounds.  A brief summary of what we know: they fought; Zimmerman was losing (and had the injuries to show for it); he shot and killed Martin, probably in self defense.

George Zimmerman

He was accused of being a "wannabe cop."  That may be true but it is also probably unfair.  A recent rash of burglaries and other bad behavior had prompted his neighbors to elect Zimmerman head of their new Neighborhood Watch program, which they made known to the police.

 But his actions that night were not an advertisement for what Neighborhood Watch members do.  Their job is to be alert and aware and to report suspicious behavior to the police.  Nothing more.  They do not patrol.  They do not follow (stalk) suspicious characters.  They do not carry a concealed weapon (pack heat).  They are not, as in Florida and elsewhere, emboldened by the right to pack heat, follow anyone and stand your ground if you feel endangered.

 Zimmerman may have been off the Neighborhood Watch reservation, but he was a member in good standing of a numerous Florida tribe not nearly as civilized as the Seminoles. It may have been just after 7 pm that night, but in Florida, and places like it, it is always High Noon.  George Zimmerman bought into  that culture and his life will never be the same old normal again.

Trayvon Martin

At 17 he was only technically the child his supporters like to conger up.  As in "How can we keep our children safe?"  To compare his death to the Clan crushing the life out of Emmet Till demeans a memory we dare not forget.  Martin was a normal kid who had been into no more mischief than is typical of his age.  In fact he was a danger to himself, full of the physical strength of a young man, the culturally induced thin skin of a young black and the immature  judgement of the child his supporters made him out to be.

It was not late to be out.  He was not doing anything more suspicious than walking with cell phone.  He had ties to the neighborhood and was in fact staying with his father's fiance. His hood was up because it looked cool and the weather was cool enough for it.  He had every right and excuse to be where he was.  When he questioned Zimmerman about following him and Zimmerman replied with a variant on The Question every black child and man hears all too often, he lost it.  Trayvon Martin had not yet learned what Martin Luther King had learned from Mahatma Gandhi and it cost him his life.

The Rest of Us
 
It is not rational what happened that night. The consequences  are at once tragic and commonplace. It could have just as easily been you and me toe to toe on that lawn, feeling and not thinking, hot and not cool, deciding in split seconds what to do, and deciding wrongly.  But the consequences did not have to exceed a broken nose, bruised head and maybe a split lip or two.  Instead a cowboy culture that condones stalking, packing heat and high stakes at High Noon, and is coupled with an ancestral bent to think in stereotypes, especially when danger lurks, and to view those who fit a stereotype stored in our more ancient brain parts as the "other," can expect many more such nights.

It would be interesting, if impractical now, to trace each man's origins through their DNA.  Trayvon self-identified as black; George as Hispanic. DNA testing can show to a remarkable degree the geographical origins and racial makeup of your ancestors.  I would suspect that the two antagonists were more alike than different, and like most of us brothers under the skin. 
 
I just hope the next such story to gain national attention doesn't occur 20 miles from my home.  There hasn't been much else in the local newspapers lately. 

















Friday, July 19, 2013

Civil Rights: An End to a Frontier

Last Updated on 27  November 2013.

Until Death Do US Part

No change in a public perception confirms the good sense of the American people at their best like the sudden, startling, shift in opinion that now accepts same sex marriage. Sex between couples of the same gender has gone in a generation from a source of titter and disdain to acceptance as a valid part of the continuum of human sexual conduct and union. 

This phenomenon has more to do with social changes than candor about our lusts.  When life was short and men dominant, marriage came early and often by arrangement..  The changes in social mores that led to today's open mart, in which couples find each other and set their own rules for intimacy and degree of commitment, took a couple of centuries even in the most individualistic societies.  Even now it is still proper etiquette for the young man to sweat out a request to the father for his daughter's hand in marriage -- no matter how long they have been living together.

Marriage in America has always been both a contract and a sacrament. The sacramental blessing validated the pact in the eyes of whatever religion the society or the individuals professed.  But in the United States you are not married unless the civil authorities say so; religious figures may bless the union in the name of their reigning deities but they act as designated agents of the state to perform and record the union. Thus marriage is usually a mix of the sacred and the civil --  but it can be just the civil. 

Gay and lesbian unions have usually hovered outside this social web.  They were felt to be of no obvious benefit to society, and homosexuality was condemned as an abomination in the sight of their gods by most religions.  They were confined to households quietly sharing more than expenses.  They were acknowledged in whispers, and practiced in secret. Most straights, when they thought about such relationships at all, thought them brief, usually casual, totally carnal and rarely committed.

The Young, The  Sexy and The Gay

If this sounds vaguely familiar it is because relationships today among college students, and the young in general, are just that casual.  "Hooking up" is their name for their culture of serial relationships, made practical by contraceptives and antibiotics, and made possible by the 1971 constitutional amendment that gave 18-year-olds the right to vote. This was done so young soldiers could vote as well as die for their country, but there were unintended consequences. Eighteen became the de facto point of adulthood.  Colleges stopped pretending to  restrict students as if they were charges in loco parentis and began treating them as adults.  (Dorm life today is a fantasy come true to this octogenarian.)  The new sexual freedom has seeped down via the tales of older brothers and sisters to the high and middle schools.

So it is not surprising that it is the young who are the most accepting of gays.   But this only one of the developments that led to a change of heart among Americans.  Another was an outgrowth of the HIV/AIDS epidemic.  In the early days of  its spread, when mostly gay men were dying, the stereotype of the lone predator did not fit the scenes of grieving survivors; nor did their anger over isolation from their partners during the days of hospitalized illness and death fit the story line of only casual couplings. Society belatedly noted that "these people" can care for each other just like everybody else.  Who helps you grieve when you must grieve in secret?

AIDS also spawned a new militancy born of desperation.  One result was the pivotal 1969 Stonewall Riot in New York City. Then in 1973 American psychiatrists officially stopped listing homosexuality as a mental disorder.  Their psychological brethren followed suit two years later..The World Health Organization lagged behind, but finally joined the consensus in 1990.   Other catalysts include the books of the late Randy Shilts, a San Francisco writer (who greatly influenced this writer) and the homophobic murder of Harvey Milk, San Francisco's gay city council member in 1979. Gradually closeted shame gave way to being openly, even proudly out for many if not most.

The Courts Weigh In

Perhaps the most telling early event was a decisive verdict of the U. S. Supreme Court.  One enduring truism of American life-- one that is not true at all -- is that you cannot change hearts by passing  a law.  The country has often done so, notably with discrimination bans such as the Voting and Public Accomodations Rights acts.  The Supreme Court also changes behavior by striking down laws deemed unconstitutional. Lawrence v. Texas in 2003 was just such a milestone.  It overturned a previous decision of an earlier Supreme Court (Bower v. Hardwick) and invalidated the antique sodomy laws of 13 states on the way to legalizing the private sexual acts of consenting adults by finding them deserving of the equal protection of the laws and the protection of privacy as well.

Same sex marriage began in Massachusetts on May 17, 2004, when the state's highest tribunal ruled that it was contrary to the state constitution to allow only straight couples to marry.  Suddenly homosexuals were no longer queers.  They were not sick or illegal or depraved and, increasingly, no where near the closet. In Massachusetts at least.

Dumb, Dumber and DOMA

There was of course another law at the federal level.. Its name was DOMA. The Defense of Marriage Act had been around since 1996 after Hawaii's and other state's flirtations with legalizing same sex marriage scared the bejesus out of the Congress.  Of dubious constitutionality from the beginning, DOMA lets states refuse to recognize such unions granted under the laws of other states.  This part of the statute would seem to run roughshod over the "full faith and credit" states are supposed to grant each other's laws as clearly required by the U.S. Constitution.  This clause cuts both ways in this case, though, so a consitutional amendment may be needed to fully equalize marriages (see below for a proposal).

DOMA also placed all married gay couples outside the equal protection of the laws granting federal rights, benefits and privileges to heterosexual marriages, no matter where they lived.  They were unable to collect social security survivors benefits, couldn't file for bankruptcy as a couple, file joint tax returns, inherit with a spouse's tax deduction, to name the most salient of what DOMA denied them.
 
More details from the Wikipedia on line encyclopedia as of June 9, 2013:

"Initially introduced in May 1996, DOMA passed both houses of Congress by large majorities and was signed into law by President Bill Clinton in September 1996. By defining "spouse" and its related terms to signify a heterosexual couple in a recognized marriage, Section 3 codified non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, social security survivors' benefits, immigration, bankruptcy, and the filing of joint tax returns, as well as excluding same-sex spouses from the scope of laws protecting families of federal officers (18 U. S. C. §115), laws evaluating financial aid eligibility, and federal ethics laws applicable to opposite-sex spouses.[1]:23–24

"Clinton – along with key legislators – later advocated for DOMA's repeal. The Obama administration announced in 2011 that it had concluded Section 3 was unconstitutional and, though it would continue to enforce the law while it existed, it would no longer defend it in court. In United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 of DOMA unconstitutional under the Due Process Clause of the Fifth Amendment."

The March of the States

On the same historic day the Supreme Court struck down part of DOMA, it also found that California advocates had no "standing" under the Constitution to complain that a Federal district court had invalidated a referendum passed by the state's voters which defined marriage as -- in what has become the classic phrase in many a state's statute -- "between one man and one woman."  California, which had permitted gay marriages for a while in 2008, then stopped as opponents managed to narrowly pass the referendum, had refused to defend the law in federal court.  This opened the way for the Supreme Court to send the case back to the Federal district court, which promptly sent to back to the California high court, where it finally died -- probably of exhaustion from all the travel and travail.  

The US Supreme Court took refuge behind the dictum that marriage was not a Federal matter, but one that each state could settle for itself.  In effect this allowed California to join Massachusetts and nine other states and DC that haved legalized same sex marriage.  It also left for another day knotty questions about the over eleven hundred federal laws and regulations that apply to married couples when same sex married travel or relocate to states that do not recognize their marriage.  Do federal benefits follow them, or vanish at the border?

Discrimination and DADT  

Another barrier to social acceptance  was DADT (Don't ask, don't tell) the foolish policy enshrined in federal law that let gay and lesbian members of the military stay in the ranks if they lied about their basic nature, and didn't overtly "practice" their homosexuality.  The law came about because gays in the military became an issue too early in Bill Clinton's presidency. It banned overt homosexuals from serving on grounds that their presence would risk "the high standards of morale, good order and discipline and unit cohesion that are the essence of military capability."  Sure.  In fact the law was no more than modestly successful in preventing zealous unit commanders from ferreting out and discharging every queer they could.  Men deemed feminine and women acting butch didn't stand a chance as stereotype and prejudice continued to rule.

Clinton who signed DADT into law to quiet the furor over his premature indications that homosexuals ought to be as accepted in the U.S. military as they were in other NATO nations, finally personally repudiated the law.  Washington slowly moved that way, taking 18 years and three presidential elections before repeal and its ever so gradual implementation was consummated (there is no better word) on 20 Sept 2011.  After that nothing much happened except that gays ccould be gay. It was, after all, a non event in the young enlisted ranks.  A few high ranking troglodytes probably retired and the process of generational change was helped along thereby.

On To The Future

In another -- this time valid -- example of leading from the rear, the United States will -- eventually and belatedly join -- other nations of our mutual western culture in the full acceptance of homosexuals into the communitas of civil society.  We have to sort out a constitutional way to get there.  The conservative Supreme Court has charted a path to consensus that walks the walk state by state.  An ensuing and shifting tangle of contradictions will be born thanks to a conflict between evolving rights and privileges and the geography inherent in their decision.  

People move about.  When they do they expect to take their rights with them.  For perhaps a very long time this will not be possible for the unisex married if their journey takes them from, say, Massachusetts to Alabama, even if just for business or pleasure.  Businesses will be inconvenienced to such a point that even the U. S. Chamber of Commerce might come to urge the country to get real.  Governments will be inconvenienced in ways large and small.  Perhaps even this Supreme Court bench will note that a consequence of their California ruling is a chaotic spread of unequal protection of the laws.  A more liberal Court is a cinch to get it. But we are not a cinch to get a more liberal Court.

The most permanent way to settle these dilemmas is a Constitutional amendment.  I suggest:

Equality of rights and privileges under the law shall not be denied or abridged by the United States or by any State on account of sex or sexual identity.

The reader will please note the sly way justice for homosexuals has been appended to the old, once rejected equal rights amendment for women.  It is an unbeatable combination directly affecting the status of a majority of the country. We should go for it.  And toast with something stronger than tea when it pases.

The End of The Frontier In Sight

Should we so amend the Constitution, there will be a certain sadness along with the joy and satisfaction of that moment.  It will be akin to one like it in 1890 when The Census Bureau announced the closing of the territorial frontier.  For we will have completed the march of civil rights for all.  From sea to shining sea no group of citizens will be without equal protection -- or secured privileges --  under the law.  The law is of course only words on paper unless enforced and finally taken to heart by the citizenry, but at least the state will no longer have to enforce discriminatory laws.

A few mopping up operations and a certain amount of eternal vigilance will be necessary.  Barriers to voting have gotten more ingeneous of late.  And the franchise accorded the District of Columbia citizens remains in unsatisfactory legal limbo.  Some southern states, with no other way left to refight the Civil War, will drag their feet on gay married rights for a generation perhaps.  Our enfranchisement of Indian tribes leaves much to be desired.  And then there is the 11 million "undocumented," mostly Latinos on the outside looking in and tapping more or less gently on the glass. Still, all us babies have come a long way.    


 



     




Friday, July 5, 2013

FISCA: A Court or a Fig Leaf

Last Updated 18 July 2013.

FISCA spelled out is the [United States] Foreign Intelligence Surveillance Court Act.  It's an act of Congress signed into law by President Jimmie Carter in 1978.  It sets up the FISCA Court to pass on requests for surveillance, mostly by the FBI and the NSA (National Security Agency). 

The impetus for doing all this came from a committee headed by then Utah Senator Frank Church, a democrat not known for his trust in the surveillance industry.  In fact the committee was born to delve into charges of illegal spying on American citizens by FBI and CIA units.  The charges were true.  Among the committee's recommendations was FISCA.

Is FISCA a court at all?  Opinions differ:

Yes:  Members are sitting federal circuit court judges selected by the Chief Justice of the Supreme Court.  Its sole function is to review requests for warrants from agencies permitted by law to request them. Only a court can issue warrants under our constitution.  Since the judges are drawn from the ranks of sitting Federal Judges who  have life time tenure for good behavior at a salary that cannot be reduced while they are in office, they are immune from the cruder forms of pressure. Their adverse decisions can be appealed to a 3-man review court.

No:   This court conducts no trials, hears no witnesses, renders no verdicts of guilt or innocence.   No defendant comes before the court, innocent until proven guilty, to confront his accusers.  No claimant gets his day in court to press for redress of grievance.  The session is not a trial, speedy or not, nor is is public.  The usual attendees are government lawyers. It is unclear whether or not the court can compel witnesses to appear, or hold the uncooperative in contempt of court.  It is unstated - -so far as I could determine -- whether or not judges are compensated.

If it is a court it is highly specialized.  So too are Federal bankruptcy courts and the courts that specialize in drug cases or handle family disputes. It is also highly secretive.  Virtually none of the details of specific cases are known to the public, and these are highly redacted (edited).  Members of Congressional intelligence committees are briefed.  All members of Congress may read surveillance requests and subpoenas in a secure room, but given their recent fury over the leak of some wholesale surveillance warrants for domestic phone call meta data few of them took the time.

From the Wikapedia entry:  "During the 25 years from 1979–2004, 18,742 warrants were granted, while just four were rejected. Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004."

The flurry of modifications mid way through the Bush first term was probably caused by the court's discovery that the Justice Department was making liberal use of an emergency procedure to approve warrants and tell the court about it later.  In some cases the implication was that it was much later -- if ever.  Of course those were the days when Al Kaida went from being a bunch of rag heads in the eyes of the Bushies to master terrorists capable of anything.  We will probably never know all the sins against the Constitution committed in our name,  in the interest of our safety but at a cost to our liberty, in the years following 9/11.

So is FISCA a court or not?  In the beginning, yes.  Now?  It is more fig leaf and rubber stamp.  It is unclear whether or not the Church committee envisioned the court approving the wholesale data collections that have come to light (See my blog entry, "Speaking Meta data.").  The data handling technology required was not commonplace 35 years ago.  At that time this writer was buying data storage for the Department of the Navy at a price for a mere 100,000 bytes that would buy a nice suburban Florida home today, while the physical size of the storage units would fill the spare bedroom and double the cost of air conditioning.

The close scrutiny the FISCA is now getting is thus, on technical grounds alone, well overdue. In its present incarnation it has morphed into just another slightly more benign item in a long list of Bush/Obama era abuses of power in the name of security such as Guantanamo and the bribes that filled it, disregard of treaty obligations, unlawfully torturous interrogations, secret renditions. 
 and assassinations of American citizens.                  

 Somehow we need to get a challenge to FISCA in front of a real court. Even if you concede -- and I do -- that NSA's data has saved lives, the potential cost to our civil liberties from  this precedent is too great. Not only soldiers die in defense of our constitutional rights.  Perhaps you, maybe me. 


A Wikipedia Entry Exerpt

Since 2009, the Foreign Intelligence Surveillance Court has been located in the E. Barrett Prettyman United States Courthouse in Washington, D.C.[2][3] For roughly thirty years of its history, it was housed on the sixth floor of the Robert F. Kennedy Department of Justice Building.[2][3]
In 2013, a top secret warrant issued by this Court was leaked to the media. That warrant, which ordered Verizon to provide a daily feed of all call detail records – including those for domestic calls – to the National Security Agency, sparked a public outcry of criticism and controversy.

Closed hearings and classified proceedings[edit]

Because of the sensitive nature of its business, the court is a "secret court" – its hearings are closed to the public. While records of the proceedings are kept, they also are unavailable to the public, although copies of some records with classified information redacted have been made public. Due to the classified nature of its proceedings, usually only government attorneys are permitted to appear before the court. Because of the nature of the matters heard before it, court hearings may need to take place at any time of day or night, weekdays or weekends; thus, at least one judge must be "on call" at all times to hear evidence and decide whether or not to issue a warrant.
A heavily redacted version of an 2008 appeal by Yahoo of an order issued with respect to NSA's PRISM program had been published for the edification of other potential appellants. The identity of the appellant was declassified in June 2013.[4]

FISA warrants[edit]

Each application for one of these surveillance warrants (called a FISA warrant) is made before an individual judge of the court. The court may allow third parties to submit briefs as amici curiae. When the Attorney General determines that an emergency exists he may authorize the emergency employment of electronic surveillance before obtaining the necessary authorization from the FISC, after which the Attorney General or his designee must notify a judge of the court not more than 72 hours after the Attorney General authorizes such surveillance, as required by 50 U.S.C. § 1805.
If an application is denied by one judge of the court, the federal government is not allowed to make the same application to a different judge of the court, but may appeal to the United States Foreign Intelligence Surveillance Court of Review. Such appeals are rare: the first appeal from the FISC to the Court of Review was made in 2002 (In re Sealed Case No. 02-001), 24 years after the founding of the court.

It is also rare for FISA warrant requests to be turned down by the court. During the 25 years from 1979–2004, 18,742 warrants were granted, while just four were rejected. Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four rejected requests were all from 2003, and all four were partially granted after being submitted for reconsideration by the government. Of the requests that had to be modified, few if any were before the year 2000. During the next eight years, from 2004–2012, there were over 15,100 additional warrants granted, with an additional seven being rejected. In all, over the entire 33 year period, the FISA court has granted 33,942 warrants, with only 11 denials – a rejection rate of 0.03% of the total requests.[5]
On May 17, 2002, the court rebuffed then-Attorney General John Ashcroft, releasing an opinion that alleged that FBI and Justice Department officials had "supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh".[7] Whether this rebuke is related to the court starting to require modification of significantly more requests in 2003 is unknown.
On December 16, 2005, the New York Times reported that the Bush administration had been conducting surveillance against U.S. citizens without the knowledge of the court since 2002.[8] On December 20, 2005, Judge James Robertson resigned his position with the court, apparently in protest of the secret surveillance.[9] The government's apparent circumvention of the court started prior to the increase in court-ordered modifications to warrant requests.

Criticism[edit]

There has been growing criticism of the court since 9-11. The minimal number of requests that are modified by the court has led experts to characterize it as a rubber stamp. For example, Russell Tice, a former National Security Agency analyst said "It is a kangaroo court with a rubber stamp."[10] The very small percentage of requests that are modified by the court, combined with the statistically-negligible percentage of denied requests (0.03%), has been sharply criticized.[10][11][12][13]

2013 NSA controversy[edit]

In June 2013 a copy of a top secret warrant, issued by the FISA court on April 25, 2013, was leaked to British media. That warrant orders Verizon's Business Network Services to provide a daily feed to the National Security Agency containing "telephony metadata" – comprehensive call detail records, including location data – about all calls in its system, including those that occur "wholly within the United States, including local telephone calls":[14]
"This Court having found that the Application of the Federal Bureau of Investigation (FBI)... satisfies the requirements of 50 U.S.C. § 1861, "IT IS HEREBY ORDERED that, the Custodian of Records shall produce to the National Security Agency (NSA) upon service of this Order, and continue production on an ongoing daily basis thereafter for the duration of this Order, unless ordered by the Court, an electronic copy of the following tangible things: all call detail records or "telephony metadata" created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls....
"Telephony metadata includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer." (emphasis added)
—Judge Roger Vinson, Foreign Intelligence Surveillance Court[14]
This document acted as a "smoking gun" and sparked a public outcry of criticism and complaints[15][16] that the Court exceeded its authority and violated the Fourth Amendment by issuing general warrants.[17] The Washington Post then reported that it knew of other orders, and that the court had been issuing such orders, to all telcos, every three months since May 24, 2006. [18] Subsequent to the media disclosures, the Obama Administration revealed that the records of all phone companies had been collected by the NSA since 2006, with oversight from Congress and the FISA court.[citation needed]
Marc Rotenberg, executive director of the Electronic Privacy Information Center, challenged the Administration's "oversight" claims, saying that:
"The FISA system is broken. At the point that a FISA judge can compel the disclosure of millions of phone records of U.S. citizens engaged in only domestic communications, unrelated to the collection of foreign intelligence... there is no longer meaningful judicial review."[5]
Former Vice President Al Gore was also sharply critical, both of the practice and of the Obama Administration's stance on the topic:
"I quite understand the viewpoint that many have expressed that they are fine with it and they just want to be safe, but that is not really the American way. Benjamin Franklin famously wrote that 'those who would give up essential liberty to try to gain some temporary safety, deserve neither liberty nor safety.'... This in my view violates the Constitution, the Fourth Amendment and the First Amendment – and the Fourth Amendment language is crystal clear.... It is not acceptable to have a secret interpretation of a law that goes far beyond any reasonable reading of either the law or the Constitution, and then classify as top secret what the actual law is.... This is not right.... I think that the Congress and the Administration need to make some changes in the law and in their behavior so as to honor and obey the Constitution of the United States. It is that simple."[17]

Composition[edit]

When the court was founded, it was composed of seven federal district judges appointed by the Chief Justice of the United States, each serving a seven-year term, with one judge being appointed each year. In 2001, the USA PATRIOT Act expanded the court from seven to eleven judges, and required that at least three of the Court's judges live within twenty miles (32 km) of the District of Columbia. No judge may be appointed to this court more than once, and no judge may be appointed to both the Court of Review and the FISA court.

Current membership[edit]



Judge[19]Judicial districtDate appointedTerm expiry
Reggie Walton (presiding)District of Columbia02007-05-19May 19, 2007May 18, 2014
Rosemary M. CollyerDistrict of ColumbiaMarch 8, 2013March 7, 2020
Raymond J. DearieEastern District of New YorkJuly 2, 2012July 1, 2019
Claire EaganNorthern District of OklahomaFebruary 13, 2013May 18, 2019
Martin L.C. FeldmanEastern District of LouisianaMay 19, 2010May 18, 2017
Thomas HoganDistrict of ColumbiaMay 18, 2009May 18, 2016
Mary A. McLaughlinEastern District of PennsylvaniaMay 18, 2008May 18, 2015
Michael W. MosmanDistrict of OregonMay 4, 2013May 3, 2020
F. Dennis Saylor IVDistrict of MassachusettsMay 19, 2011May 18, 2018
Susan Webber WrightEastern District of ArkansasMay 18, 2009May 18, 2016
James ZagelNorthern District of IllinoisMay 18, 2008May 18, 2015

Former membership[edit]

[hide]JudgeJudicial DistrictDate AppointedTerm Expiry
Roger VinsonNorthern District of FloridaMay 4, 2006May 18, 2013
Jennifer B. CoffmanEastern District of KentuckyMay 19, 2011May 18, 2018 (retired Jan 8, 2013)
John D. BatesDistrict of ColumbiaFebruary 22, 2006February 21, 2013
George P. KazenSouthern District of TexasJuly 15, 2003May 18, 2010
Robert C. BroomfieldDistrict of ArizonaOctober 1, 2002May 18, 2009
Colleen Kollar-KotellyDistrict of ColumbiaMay 18, 2002May 18, 2009
James RobertsonDistrict of ColumbiaMay 19, 2002May 18, 2006
(resigned December 20, 2005)
Nathaniel M. GortonDistrict of MassachusettsMay 18, 2001May 18, 2008
James G. CarrNorthern District of OhioMay 19, 2002May 18, 2008
Claude M. HiltonEastern District of VirginiaMay 2000May 2007
John Edwards ConwayDistrict of New Mexico2000May 2006
Harold A. BakerCentral District of Illinois2005
Stanley S. BrotmanDistrict of New Jersey2004
William Henry Stafford Jr.Northern District of Florida19962003
Royce C. LamberthDistrict of Columbia19952002
John F. KeenanSouthern District of New YorkMay 1994May 2001
James C. CacherisEastern District of Virginia19932000
Earl H. CarrollDistrict of Arizona19921999
Charles Schwartz Jr.Eastern District of Louisiana19911998
Ralph G. ThompsonWestern District of Oklahoma19901997
Frank FreedmanDistrict of Massachusetts19901997
Wendell Alverson MilesWestern District of Michigan19891996
Robert W. WarrenEastern District of Wisconsin19891996
Joyce H. GreenDistrict of Columbia19881995
James E. NolandSouthern District of Indiana19871994
Conrad K. CyrDistrict of Maine19871994
Frederick B. LaceyDistrict of New Jersey19791985

See also[edit]

Notes[edit]

  1. ^ Cohen, David; John Wells (April 17, 2004). American National Security and Civil Liberties in an Era of Terrorism. Palgrave. ISBN 1-4039-6199-9.  p. 34
  2. ^ a b Wilber, Del Quentin (March 2, 2009). "Surveillance Court Quietly Moving". The Washington Post. Retrieved June 24, 2013. 
  3. ^ a b Leonnig, Carol; Ellen Nakashima, Barton Gellman (June 29, 2013). "Secret-court judges upset at portrayal of ‘collaboration’ with government". The Washington Post. p. 2. Retrieved June 30, 2013.  "For about 30 years, the court was located on the sixth floor of the Justice Department’s headquarters, down the hall from the officials who would argue in front of it. (The court moved to the District’s federal courthouse in 2009.)"
  4. ^ Claire Cain Miller; Nicole Perlroth (June 28, 2013). "Secret Court Declassifies Yahoo’s Role in Disclosure Fight". The New York Times. Retrieved June 29, 2013. 
  5. ^ a b Evan, Perez (9 June 2013). "Secret Court's Oversight Gets Scrutiny". Wall Street Journal. Retrieved 20 June 2013. 
  6. ^ "Foreign Intelligence Surveillance Act Court Orders 1979-2012". Electronic Privacy Information Center. Retrieved 20 June 2013. 
  7. ^ Shenon, Philip (August 23, 2002). "Secret court says F.B.I. aides misled judges in 75 cases". The New York Times. Retrieved November 20, 2011. 
  8. ^ Bush Lets U.S. Spy on Callers Without Courts, New York Times, December 16, 2005 – mirror
  9. ^ Spy Court Judge Quits In Protest: Jurist Concerned Bush Order Tainted Work of Secret Panel, Washington Post, December 21, 2005
  10. ^ a b "Fisa chief judge defends integrity of court over Verizon records collection". June 6, 2013. Retrieved June 7, 2013. 
  11. ^ "Foreign Intelligence Surveillance Act Court Orders 1979–2011". Retrieved June 7, 2013. 
  12. ^ "The bad joke called 'the FISA court' shows how a 'drone court' would work". May 3, 2013. Retrieved June 7, 2013. 
  13. ^ "Toobin: Bush on 'questionable legal footing'". December 19, 2005. Retrieved June 7, 2013. 
  14. ^ a b Vinson, Judge Roger (April 25, 2013). "In re Application of the Federal Bureau of Investigation for an Order Requiring the production of tangible things from Verizon Business Network Services, Inc. on behalf of MCI Communication Services, Inc. d/b/a Verizon Business Services" (PDF). Top Secret order of the Foreign Intelligence Surveillance Court. Electronic Privacy Information Center. Retrieved 20 June 2013. 
  15. ^ Greenwald, Glenn (June 5, 2013). "NSA collecting phone records of millions of Americans daily". The Guardian. Retrieved June 6, 2013. 
  16. ^ Savage, Charlie; Wyatt, Edward (5 June 2013). "U.S. Is Secretly Collecting Records of Verizon Calls". The New York Times. Retrieved 6 June 2013. 
  17. ^ a b Goldenberg, Suzanne (June 14, 2013). "Al Gore: NSA's secret surveillance program 'not really the American way'". The Guardian. Retrieved 20 June 2013. 
  18. ^ "U.S. surveillance architecture includes collection of revealing Internet, phone metadata". 
  19. ^ "2013 Membership". Federation of American Scientists. Retrieved 20 June 2013. 

References[edit]