Mike Leavitt is a Republican, a former Utah governor, a former Secretary of Health and Human Services under President George W. Bush, and now owns a firm called Leavitt Partners, which makes money by helping states implement ObamaCare’s health insurance “exchanges” and take advantage of ObamaCare’s Medicaid expansion. Let’s stipulate from the outset that Leavitt and his staff are doing what they think is best for the nation. Still, as this article in yesterday’s New York Times explores, it’s odd that Mitt Romney chose as one of his top advisers a guy who’s profiting from ObamaCare:

If Republicans in Congress agree on anything, it is their desire to eradicate President Obama’s health care law. But one of the top advisers to Mitt Romney, the party’s likely presidential nominee, has spent the last two years advising states and private insurers on how to comply with the law…

Mr. Romney has named Mr. Leavitt — a longtime friend, former governor of Utah and former federal health secretary — to plan the transition for what both hope will be a Romney administration.

Mr. Leavitt’s full-time job is running his consulting company, Leavitt Partners, which is based in Salt Lake City and has advised officials in Mississippi, New Mexico and Pennsylvania, among other states…

Michael F. Cannon, director of health policy studies at the Cato Institute, said: “It is strange to see Mr. Leavitt, a former Republican governor and former secretary of health and human services, helping and encouraging states to carry out this law for which Republicans have so much antipathy. It deepens suspicion as to whether Romney is sufficiently committed to repealing the Obama health care law.”

Twila Brase, president of the Citizens’ Council for Health Freedom, a free market group that is mobilizing opposition to an exchange in Minnesota, said: “Mike Leavitt is an enabler of Obamacare. He has taken advantage of Obamacare to expand his own business, instead of helping governors resist a federal takeover of health care.”

Secretary of Health and Human Services Kathleen Sebelius has thrown nearly a billion dollars at states in a desperate attempt to bribe them into establishing Exchanges. We do not yet know how much of that cash has found its way to Leavitt Partners:

Natalie Gochnour, a spokeswoman for Leavitt Partners, said its work with states was only part of its business, but she refused to say how much the company had been paid for such work.

Perhaps some day we will, and “Leavitt” will become synonymous with “Solyndra.”

Also, by my count the Times article devoted eight column-inches to such pro-Exchange nonsense as the idea that an ObamaCare Exchange could “run on free market principles” or Leavitt’s claim that “continued inaction by states risks an Obama-style federal exchange being foisted upon a state.” Yet the Times cited no one who challenges those claims. I have no problem with the Times posing difficult questions to Romney. Why should ObamaCare get a pass?

Law professor John McGinnis has written four posts on Citizens United for the new Federalist Society blog. All four are worth reading. I focus here on the final post and its diffident policy proposal.

McGinnis makes some good points about inequality in campaign spending.

We have a free speech guarantee in our constitution, not an equal speech guarantee. Wealth is in fact a source of more diverse influences than the other sources that would take its place. The wealthy are heterogeneous in their views. Last election more people earning over $250,000 a year voted for Obama than McCain despite the former’s promise to raise their taxes. Because innovation is always churning markets, the wealthy have constantly shifting interests.

Those who benefit from restrictions on campaign spending are the media and the entertainment field. They have fewer interests and are ideologically similar.

McGinnis remarks that those who are concerned about unequal spending might support a tax credit of several hundred dollars for those making less than $100,000 annually. He believe this credit would increase the information available to voters.

I wonder whether this would lead to more contributions. The presidential system now permits people to direct part of tax revenue to the presidential public fund. This check off system has seen declining participation for more than a generation.

You might argue that tax credits allows people to contribute to candidates they support rather than a general public funding system. But these credits would have to be paid for by some future taxpayers who would be compelled to fund current candidates. (I say “future taxpayers” because the tax credits would be introduced now and thus paid for by debt). Such compulsion seems illiberal. Moreover, many of the future taxpayers who will be forced to pay for the credits will be either minors or unborn. The tax credits now will be taxation without representation later.

According to multiple news reports, tens of thousands of Americans have fallen for a scam that’s being dubbed the “Obama utility bill scam.” The victims are told that a new Obama stimulus program will pay their utility bills. Fraudsters use the hook to get people to divulge their Social Security number and other personal information.

The following anecdote from MSNBC shows why so many people are falling for it:

Caroline Morales of Bethlehem, Penn., told the Allentown Morning Call that she had been tempted by the scam. “My neighbor comes running with a paper that had a routing and account number,” she told the paper. “She said Obama was helping people pay their utility bills, mortgage and any bills you had.” While Morales had her doubts, she said her mom told her, “It’s probably true since he is looking for votes.”

A lot of Americans see the president as Santa Claus. Back in 2008, a woman who had just attended an Obama rally excitedly told a reporter that she wouldn’t have to worry about putting gas in her car and paying her mortgage. “If I help him, he’s going to help me,” she said. Then there’s the recent example of actress Amanda Bynes tweeting the president and asking him to “Please fire the cop who arrested me” for driving under the influence.

It’s easy to poke fun at these people, but the reality is that we live in a country where people expect the federal government (i.e., taxpayer) to pay for everything: housing, food, student loans, health care, and even their businesses. Therefore, it’s little wonder that a lot of people have trouble separating fact from fiction when it comes to federal handouts.

Prominent Cuban dissident Oswaldo Paya was killed in a car crash in Cuba yesterday. Also killed was another critic of the regime, Harold Cepero, a friend of my current Cuban intern, Yuri Perez. Many dissidents believe that the deaths came at the hands of the Castro regime. If so, the incident may represent a chilling hardening of Raul Castro’s dictatorship at a time when the country’s social and economic problems are mounting and it is becoming increasingly obvious that the meager reforms announced so far will do little to solve them.

Below, Yuri describes the importance of Paya and the life of his friend Harold, who, like Yuri, was expelled from his university for criticizing the regime. There is in fact a whole generation of young Cuban activists and intellectuals who despite the repression are stimulating serious debate outside of officialdom about their country’s problems and how to solve them. (Two Cuban websites in English that I recommend are Translating Cuba and State of SATS). All of us at Cato are inspired by the dedication of Yuri and his compatriots to a free Cuba.

The Loss of Two Brothers

On July 22, prominent Cuban prodemocracy leader Oswaldo Paya and activist Harold Cepero were killed in a car accident while on a trip to the east of Cuba. According to blogger Yoani Sanchez, they were accompanied by two foreigners, Angel Carromero of Spain and Aron Moding of Sweden, both of whom were injured.

Foul play is suspected. Rosa María, Paya’s daughter, declared in an audio clip that a second car provoked Paya’s car crash.

We have lost a great leader and a dear friend, brothers in the long fight for freedom. I had the privilege to meet Oswaldo Paya at his home years ago, where he and his family lived in exemplary fashion the Christian values that eventually led Paya to stand up and reclaim fundamental rights for our fellow Cubans. He worked tirelessly for a better homeland, as another great patriot, Jose Marti, said “With All, and for the Good of All.” Paya was a peaceful justice seeker who met a violent death from a vicious regime.

Harold Cepero was a young man full of good intentions and with strong commitment toward his fellow man. I met him because we share many things in common, but one marked our lives forever. As with many other idealistic young Cubans, we were expelled from the university due our passion for freedom. Although we just wanted to have fun, improve ourselves and our Cuba, we faced the intolerant rule of the Castro brothers, the Cuban Communist Party, and the covert action of their secret police. Several requests directed to Cuban authorities, UNESCO and the OAS Inter-American Commission of Human Rights did not succeed in our efforts to go back to university. In fact, Cuban authorities stood by their discriminatory policy against “non-revolutionaries.” UNESCO sided with the Cuban government, despite recognizing human rights violations, and we are still waiting for the Inter-American Commission. (See here and here.)

In a country where young people are forced to adore the Castros’ revolution, are forbidden to think, and if they think, they cannot speak and act accordingly, we made the right choice. Harold had a gracious girlfriend, played soccer, and strived for a better future. He collected signatures for the Varela Project, a citizen initiative led by Paya to promote a peaceful transition to democracy that gained the support of thousands of fellow citizens. After being expelled from university, he decided to give himself to the service of the others and became a Catholic seminarian. However that was not his vocation, and Harold paid the ultimate price for liberty: he ended sacrificing his life on a very different altar.

In this tragic moment I recall images of their beloved families. Oswaldo Paya’s wife, Ofelia and their children, and Harold Cepero’s parents and brother. The immense grieving for the loss of these great Cubans is not only theirs, but also belongs to every freedom lover. As Jesus Christ, Paya’s and Harold’s teacher said, “There is no greater love than this to lay one’s life down for a friend.”

Peace be upon them,
Yuri Perez-Vazquez
Washington, DC

Americans are being told that there’s no need to worry about the broad surveillance programs authorized by the controversial FISA Amendments Act of 2008. Yet a report from Wired this weekend paints a more disturbing picture: National Security Agency surveillance enabled by the FAA was found “unreasonable under the Fourth Amendment” by the secretive Foreign Intelligence Surveillance Court “on at least one occasion.” The court also found that the government’s implementation of its authority under the statute had “circumvented the spirit of the law.” Despite these troubling rulings from a court notorious for its deference to intelligence agencies, Congress is so unconcerned that lawmakers don’t even want to know how many citizens have been caught up in the NSA’s vast and growing databases.

These revelations come by way of a letter to Sen. Ron Wyden—who will be speaking about this very government spying program at Cato this Wednesday—from the Office of the Director of National Intelligence, which approved Wyden’s request for declassification of a few morsels of information about secret FISA Court rulings. In the interest of permitting some minimal public debate about the FAA, which is currently before Congress for renewal, Wyden was told he would be allowed to say the following—and only the following publicly:

• A recent unclassified report noted that the Foreign Intelligence Surveillance Court has repeatedly held that collection carried out pursuant to the FISA Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.
• It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
• I believe that the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

That first statement is almost certainly a direct reference to Sen. Dianne Feinstein’s assertions in a recent report from the Senate Intelligence Committee—which noted that the Court has blessed much of the surveillance under Section 702, the part of the FAA that permits warrantless acquisition of international communications. Given the massive volume of NSA surveillance, however, the fact that some NSA surveillance was held constitutional is much less significant, for purposes of public accountability, than the fact that some of it was unconstitutional. Feinstein’s summary of those positive classified opinions was made public weeks ago, apparently without much trouble. Yet only now that the FAA renewal has made it through multiple committees is the public permitted to know—after much tooth-pulling from a senator, via a letter released late on a Friday afternoon—how incomplete that summary really was.

It’s cause for concern any time government exceeds the bounds of the Fourth Amendment, but it should be truly worrying when it’s in the context of mass-scale spying by the NSA. Based on what little we know of the NSA’s programs from public reports, a single “authorization” will routinely cover hundreds or thousands of phone numbers and e‑mail addresses. That means that even if there’s only “one occasion” on which the NSA “circumvented the spirit of the law” or flouted the Fourth Amendment, the rights of thousands of Americans could easily have been violated.

Moving from confirmed fact to mild—but I think reasonable—speculation, there is something about the peculiar phrasing of these statements worth noticing: “collection carried out pursuant to the Section 702 minimization procedures.” Minimization procedures are the rules designed to limit the retention and dissemination of irrelevant information about innocent Americans that might get picked up during authorized surveillance. In ordinary criminal wiretaps, it makes sense to talk about “collection carried out pursuant to… minimization procedures” because, under the stricter rules governing such spying, someone is supposed to be monitoring the wiretap in realtime, and ensuring that innocent conversations (like a mobster’s spouse or teenage kids chatting on the house line) are not recorded.

But that’s not how FISA surveillance normally works. As a rare public ruling by the FISA Court explains, the standard procedure for FISA surveillance is that “large amounts of information are collected by automatic recording to be minimized after the fact.” The court elaborated: “Virtually all information seized, whether by electronic surveillance or physical search, is minimized hours, days, or weeks after collection.” (Emphasis mine.) In other words, minimization is something that normally happens after collection: First you intercept, then you toss out the irrelevant stuff. Intelligence officials have suggested the same in recent testimony before Congress: Communications aren’t “minimized” until they’re reviewed by human analysts—and given the incredible volume of NSA collection, it’s unlikely that more than a small fraction of what’s intercepted ever is seen by human eyes. Yet in the statements above, we have two intriguing implications: First, that “collection” and “minimization” are in some sense happening contemporaneously (otherwise how could “collection” be “pursuant to” minimization rules?) and second, that these procedures are somehow fairly intimately connected to the question of “reasonableness” under the Fourth Amendment.

To make sense of this, we need to turn to the Defense Department’s somewhat counterintuitive definition of “collection” for intelligence purposes. As the Department’s procedures manual explains:

Information shall be considered as “collected” only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties.… Data acquired by electronic means is “collected” only when it has been processed into intelligible form.

This dovetails with a great deal of what we know about recent NSA surveillance, in which enormous quantities of communications are stored in a vast database codenamed Pinwale for later analysis. Under the FAA, the Court doesn’t review in advance whether there’s probable cause to justify surveillance of any particular individual, as is normally the case with search warrants. Rather, the Court simply verifies that the NSA is employing “targeting procedures” designed to pick up communications with at least one foreign participant. By that limited standard, an algorithm designed to record every call and e‑mail between the United States and Pakistan (or England) would qualify, which hardly sounds stringent enough to pass Fourth Amendment muster even under the looser rules that apply to foreign intelligence.

The language of these statements, however, would be consistent with the clever “solution” former NSA employees and whistleblowers like Bill Binney have long been telling us the agency has adopted. Referring to a massive data storage facility being constructed by NSA in Utah, Binney writes:

The sheer size of that capacity indicates that the NSA is not filtering personal electronic communications such as email before storage but is, in fact, storing all that they are collecting. The capacity of NSA’s planned infrastructure far exceeds the capacity necessary for the storage of discreet, targeted communications or even for the storage of the routing information from all electronic communications. The capacity of NSA’s planned infrastructure is consistent, as a mathematical matter, with seizing both the routing information and the contents o all electronic communications.

Binney argues that when NSA officials have denied they are engaged in broad and indiscriminate “interception” of Americans’ communications, they are using that term “in a very narrow way,” analogous to the technical definition of “collection” above, not counting an e‑mail or call as “intercepted” until it has been reviewed by human eyes. On this theory, the entire burden of satisfying the Fourth Amendment’s requirement of “reasonableness” is borne by the “minimization procedures” governing the use of the massive Pinwale database. On this theory, the constitutional “search” does not occur when all these billions of calls and emails are actually intercepted (in the ordinary sense) and recorded by the NSA, but only when the database is queried.

This is a huge departure from what has traditionally been understood to be constitutionally permitted. We do not normally allow the government to indiscriminately make copies of everyone’s private correspondence, so long as they promise not to read it without a warrant: The copying itself is supposed to require a warrant, except in extraordinary circumstances. It appears almost certain that a very different rule is in effect now, at least for the NSA.

It cannot be overemphasized how dangerous such a change would be. Traditionally, a citizen’s right to private communication was either respected or violated at the time it occurred: Your rights would be violated in realtime, or not at all, and even in the lawless era of J. Edgar Hoover, only so many citizens could be spied on at once. Under this new regime, the threat to our rights is perpetual. Even if this administration and the next are scrupulous about respecting civil liberties, even if every man and woman currently employed by the NSA is noble and pure of heart, the conversation you have today may well be there for the use or misuse of whoever holds power in ten years, or fifteen, or twenty. Will the incumbent president in 2032 resist the temptation to hunt for dirt in online chats from his opponent’s college years—showing greater restraint than so many past presidents? One must hope so—but better to design the rules of a free society so that such leaps of faith aren’t required.

Barack Obama and Mitt Romney will duel on foreign policy this week as they both address the national convention of the Veterans of Foreign Wars and Romney heads off toBritain,Israel, andPoland to burnish his foreign policy credentials. It will be difficult for Romney to overcome Obama on this set of issues. Denizens of neoconservatism scorn the president as a weakling on terrorism and other international issues, but that is not how most Americans see him. The killing of Osama Bin Laden (as well as dozens of other high-level al Qaeda operatives) has largely inoculated Obama against the “weak on terrorism” allegation, and the public generally gives him decent marks on most other foreign policy issues.

In the two areas where there has been grumbling about the president’s performance—escalating and perpetuating the war in Afghanistan and doing little about the bloated Pentagon budget—Romney’s neoconservative allies advocate measures that most voters dislike even more than they do Obama’s approach. If Romney is to seize the opportunity to score points against the president on foreign policy, he needs to break with the hawkish extremists in his party and take a very different tack than he has done so far in the campaign. Unfortunately, his harsh statements toward China and Russia—including describing the latter as America’s principal global adversary—and his alarmingly bellicose rhetoric toward Iran suggest that he is taking his foreign policy positions from George W. Bush’s playbook. That is a bad move both politically and in terms of good policy.

In his speech to the VFW, Romney should outline a new security strategy built on the foundation of cautious, national-interest realism—a position that once characterized the GOP and still finds some resonance among the party’s rank and file. That move, though, would require him to challenge the neoconservative conventional wisdom on four major issues.

First, he needs to advocate a prompt withdrawal of U.S.forces from Afghanistan, even faster than the Obama administration’s alleged commitment to have U.S.forces out of that country in 2014. The intervention in Afghanistanis the poster child for how a limited and justified punitive expedition against a terrorist adversary (al Qaeda) can morph into an open-ended, nation-building crusade on behalf of an inept, corrupt Third Worldgovernment. Unfortunately, it is difficult to discern whether Romney has a policy regardingAfghanistan. To the extent he has said anything substantive on the issue, it creates worries that he may want to keep American troops in that snake pit indefinitely.

Adopting a new, smarter position onAfghanistanleads to the second point Romney should emphasize in his VFW speech: a repudiation of nation building as aU.S.foreign policy goal. It is bitterly ironic that, beginning with the Bush administration, Republicans seem to have become more enthusiastic than Democrats about humanitarian interventions and nation-building ventures. Republicans rightly used to scorn such crusades as wasteful, utopian schemes. Condoleezza Rice once remarked that it should not be the mission of theU.S.military to escort children to school in foreign countries. Romney needs to return the GOP to that wise skepticism.

Third, Romney should advocate a complete reassessment ofWashington’s overgrown network of formal and informal security commitments around the world. It is absurd for theUnited Statesto continue subsidizing the defense of allies in Europe andEast Asiatwo decades after the collapse of the Soviet empire and nearly seven decades after the end of World War II. Those allies shamelessly free ride on America’s security exertions, choosing to under-invest in their own defenses and refusing to make a serious effort to manage the security affairs in their respective regions. Even if theU.S.government was cash-rich and running chronic budget surpluses, the current policy toward obsolete alliances would be wasteful and ill-advised. Maintaining such a policy whenWashingtonhas to borrow money fromChinaand other foreign creditors to do so, borders on insanity.

Reassessing alliances and other security commitments points to the final change that Romney should advocate: a willingness to cut military spending. The United Statesspends nearly as much on the military as the rest of the world combined. The House of Representatives just voted to appropriate $606 billion for defense—and that figure does not include $11 billion to pay for the nuclear arsenal, a budget item housed in the Energy Department. Instead of promising to increase military spending to four percent of GDP—an extra of $2.5 trillion over ten years—Romney should reverse course and support cutting that bureaucracy’s budget as part of an overall austerity program for the federal government. And as noted, the overseas missions should be trimmed or eliminated to match the capabilities and budget of a smaller force.

Such an agenda might not please the attendees at the VFW convention, and it certainly would not please the junior varsity from the Bush-Cheney administration that Romney has been relying upon thus far for advice on foreign policy. But it would appeal to a wide swath of American voters and put Barack Obama on the defensive. Most important, it would be a wise policy alternative for the American republic.

Cross-posted from the Skeptics at the National Interest.

If you watch HBO’s “Newsroom,” you may have seen Cato, IJ and others get a quick namedrop in relation to the Citizens United Supreme Court case. Actor Jeff Daniels misstates the holding of the case, claiming that Citizens United “allowed corporations to donate unlimited amounts of money to any political candidate without anyone knowing where the money was coming from.”

But, you see, this just shows Aaron Sorkin’s unwavering commitment to realism in his shows. Reporters regularly get the holding of Citizens United wrong. After all, if reporters were crystal clear that Citizens United cleared the way for all manner of groups to use “corporate treasury funds” to fund broad and overtly political statements about candidates, they would inevitably conclude that their own right to make those kinds of statements would be jeopardized by much of the campaign finance regulation on the books prior to Citizens United. And it’s hard to demonize libertarians when they’re fighting for the rights of everyone, including reporters and entertainers who work for subsidiaries of Time Warner (CNN, HBO), Viacom (CBS), Disney (ABC), Comcast (NBC, MSNBC), General Electric (NBC, MSNBC), News Corp. (FOX, Fox News), etc.

If you’d like to know more about the facts of Citizens United, watch this:

As to the claims about secrecy in political speech, Cato Institute senior fellow Nat Hentoff has a few thoughts on disclosure and the jurisprudence of Clarence Thomas.