The Government Is Not Capable Of Being Apolitical

Do you indulge yourself in the illusion that government bureaucracies are apolitical actors who ​perform their duties in a neutral fashion that is fair and just to all? Well, welcome to the IRS scandal.

My view is that government bureaucrats are human beings, and therefore behave like all other human beings. In other words, they seek to advance themselves in life, and part of that is growing and enhancing the organizations with which they are associated, which in this case means the government. Also, they seek to diminish or destroy those who would diminish them and their organizations. ​These ideas are not new with me. In fact, they are the fundamental principles of a branch of economics called Public Choice Theory, for which an economist named James Buchanan won the Nobel Prize in economics in 1986.

The corollary is that there is no such thing as a neutral apolitical actor or agency in the government. All government personnel are part of the main project, spoken or unspoken, to grow the government and to attack or destroy its enemies. It's like the sun coming up in the east.​

Which is why, of course, nothing about the current IRS scandal surprises me. Well, maybe the nakedness and thuggery of it surprises me a little, but not really, because the current administration has 90+% of the media prepared to cover for it, and given the dynamics of the process it was inevitable that the administration would push the envelope a little farther, and then a little farther, and sooner or later a nerve would be struck. This doesn't even have much to do with whether the members of the current administration are particularly bad guys. It's just the nature of human existence.

And now that the nerve has been struck, we start to find out how far things have gone. I've put together here a little sampling from around the web, not to mention from my personal e-mail.

• ​From Mark Hemingway at the Weekly Standard of May 27 (not yet out in print edition), comes a report, via attorney Cleta Mitchell, that the number of conservative groups seeking 501(c)(4) status that were subject to some form of IRS special scrutiny, delay and/or harassment over the last several years is no fewer than 471. According to Mitchell, "80 or 90 groups all got letters that are virtually identical, that are oppressive, with 30, 40, 50, 70 questions with parts and subparts and sub-subparts." Oh, all of this is in the context of a close election, of course, when applications by "progressive" groups could sail through without delay.
  
• ​From John Eastman of the Claremont Institute, and also Board Chair of the National Organization for Marriage, comes a mass e-mail stating that "A year ago, someone at the IRS
  illegally disclosed the confidential portions of [NOM's] tax return to the Human
  Rights Campaign, the leading organization on the other side of NOM in the war
  over the definition of marriage. At the time, HRC was headed by someone
  who had just been named national co-Chair of the Obama for President campaign. . . ." Eastman states that NOM has submitted an FOIA request demanding the name of the perpetrator, but the IRS has denied the request, stating that the name is "confidential." Disclosure of a tax return is a felony.
• ​From Jillian Kay Melchior at today's National Review Online comes the story of Catherine Engelbrecht, a co-proprietor with her husband of a small-ish Texas metal manufacturing business with about 30 employees, and founder of a right-leaning organization called True the Vote, a group seeking to prevent voter fraud and train poll volunteers. Catherine filed for 501(c)(4) status for her group in July 2010. The application went into limbo. Later that year, the FBI called to investigate an individual who had attended an event of the group. In February 2011, the IRS initiated audits of the Engelbrechts' business and personal tax returns. In April 2011 the IRS sent one of its long questionnaires for information about True the Vote. In October 2011, the application still pending, the IRS sent another questionnaire asking for more information. In February 2012 came a third request for information from the IRS. On the same day, representatives of ATF showed up unscheduled to inspect the manufacturing plant (it makes parts for firearms, among many other things). In July 2012 OSHA showed up unscheduled, at a time when the Engelbrechts were out of town, for another inspection.
• ​From Chris Horner of the Competitive Enterprise Institute, via ICECAP, comes the story of trying to get information out of the EPA by FOIA requests. Turns out that if you are friendly to the EPA, they give you the information you seek promptly and moreover waive the fees otherwise payable; but if you are perceived as unfriendly (like CEI), they fight you tooth and nail for information, and then charge you as much fees as they can get away with. All this, of course, in service of what Horner calls EPA's "anti-affordable energy policies."
  
• And so it goes.
  

Well, we now have hundreds of agencies at all levels that can regulate your business. They have hundreds of thousands of pages of regulations that you are supposed to comply with. Of course, it is not possible to comply perfectly with all of them. So, when you identify yourself as an enemy of the perpetually growing state, they can sic as many regulators on you as they feel like, each empowered to fly-speck your operations until they find something.​

And into this mix, let us throw Obamacare, otherwise known as government access to all medical records. Supposedly this is for the completely neutral and apolitical purposes of finding the best cures for disease and helping to control medical costs. Right! If they can access and leak your tax return, can they access and leak your medical records? Of course. We'll just have to see how long it is before someone posing a serious electoral threat to those in power (control of the Senate, perhaps?) finds something embarrassing in his medical records leaked to the friendly press. Not long, I predict. ​

Things The Government Gets Wrong By 180 Degrees -- Privacy

Despite what you may have heard about Supreme Court cases like Roe v. Wade, the Federal Constitution doesn't ever mention a right to "privacy," at least not using that word.  What it does mention, in the Fourth Amendment, is "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ."  In other words, to the extent there is any right to privacy mentioned in the Constitution, it is a right as against the government only; there is no privacy protection as to other private individuals or companies.

That seems right to me.  It's the government that has the monopoly on legitimate coercive force, the government that can put you in jail, the government that can perpetuate its own power by getting and using potentially damaging information about its challengers and opponents.​  The serious threat to privacy is from the government.

Well, advance forward to today's upside-down world.  Today the Federal government passes endless laws and regulations supposedly to protect our privacy, but always those laws and regulations offer protections only against private actors.  As to the government itself, all the statutes just give the government more and more access to our information.​

​For example, consider the new Health Information Privacy rules coming out of HHS.  They are extremely complex and expensive to comply with.  God help the doctor or hospital that accidentally discloses your health information to the wrong private entity.  But don't worry, here in the list of permitted disclosures of your information we have no fewer than twelve exemptions for the government, for anything from "public health activities" to "health oversight activities" to "research" to "law enforcement purposes."  So if the FBI wants your health information, no more need for clearing a "reasonableness" hurdle with a judge or getting one of those those pesky warrants.  And besides, how can we expect to achieve perfect fairness in the delivery of healthcare if the government can't monitor the details of everybody's diseases and treatments?

Or consider the Fair Credit Reporting Act.  That's the Act that's supposed to protect your information in the hands of the credit bureaus from improper disclosure.   But after long lists of restrictions supposedly to those with a "proper purpose" to be seeking your information, we come to this in Section 1681(f): "a consumer reporting agency may furnish identifying information respecting any consumer, limited to his name, address, former addresses, places of employment, or former laces of employment, to a governmental agency."   Again, no need for subpoena or warrant.  If you are the government (at any level) ask and ye shall receive!

Well, you say, that's not too bad because it's only identifying information; they can't actually get the details of your financial transactions behind your back, can they?  Well, yes they can.  The main source of authority is Section 505 of the USA PATRIOT Act, authorizing what are called National Security Letters.  These are the things that the government can send to banks, cell phone companies, or ISPs instructing them to turn over all their information about you and, by the way, don't tell the subject that you have gotten this letter or it is a felony.  Any need for a warrant for that?  The government's position is no, because in dealing with a third party (such as a bank or telephone company) you gave up any "reasonable expectation of privacy."  Of course, it's impossible to challenge a NSL if the bank or telephone company doesn't tell you about it, and they are not allowed to tell you about it.

As noted by me here, in March a Federal judge in California declared unconstitutional under the First Amendment the portion of the NSL statute that purported to make criminal the public disclosure of the receipt of the letter.  With any luck that will get to a higher court and get affirmed.  But even if it is affirmed and sticks, you will be relying on the decency of your bank or telephone company to tell you if the government comes snooping around.  Meanwhile, you have no choice but to assume that the government is monitoring all your financial transactions and phone calls behind your back. 

It just seems like the concept of privacy has turned around 180 degrees from where it started out.

Federal Judge Rules National Security Letters Unconstitutional

If you don't know about National Security Letters, you should.  They are the missives sent by the FBI to the institutions that hold your electronic information -- mainly banks, telecoms, ISP providers.​  The gist is, provide us all the information you have about Mr. or Ms. X, and, by the way, you are not allowed to mention to anyone, most particularly Mr. or Ms. X, that you are doing this, and if you so much as breathe a word it is a felony and we will prosecute you.  So this is all done behind your back, without any ability on your part to object or even to know that it is going on.  (The existence of these NSLs is the principal reason why you should assume that all your electronic communications and bank transactions are monitored by the government at all times.  Use cash.)

The authority for this is found in the so-called USA PATRIOT Act, ignominiously signed by George W. Bush in 2001.  Needless to say, the sanctimonious Barack Obama has continued issuing the letters and enforcing the gag orders with the same frequency and enthusiasm as his predecessor.

I have always believed that when this issue reached the courts the statute would immediately go down, and particularly that the part prohibiting the recipient of the letter from telling anyone including the subject could not possibly survive First Amendment scrutiny.   But it has been a long twelve year wait.  Why?  Because not a single one of the weasels otherwise known as the banks, telecoms and ISP providers has stepped up to the plate to mount a challenge.  But now an unnamed telecom, backed by the Electronic Frontier Foundation, has finally taken on the government in a case that has gone to decision before Judge Susan Illston in the Northern District of California.  Result:  statute unconstitutional. ​  Among many reports on the internet, here is one from Wired.

A comment about the conduct of the banks, telecoms and ISPs in this matter:  All of them are highly "regulated" by the government.  Do you indulge in the illusion that "regulation" is no more than oversight by neutral, disinterested experts who assure that the evil capitalists do not overreach into exploitation of the weak and helpless?  What we have gotten for ourselves are sniveling government supplicants who do whatever the bureaucrats say and are completely willing to spy on the American public behind their backs in the effort to win bureaucratic favor for approval of the next merger or spectrum purchase or whatever.​

Judge Illston has stayed the effectiveness of her injunction for 90 days.  After that, perhaps we will start to get some insight into the dark world of government surveillance on the public.  The Act was sold to the public as a response to terrorism.  What is the chance that these NSLs are limited to that arena?  I would say zero.  What percentage are actually part of the drug war as opposed to the war on terrorism?  My bet is the majority have nothing to do with terrorism.  Prove me wrong!  Use in the drug war may well be the least of the abuses.  Given the fallen character of all humans, what is the chance that no NSL has ever been used to investigate the guy that some FBI agent suspects of having an affair with his wife; or worse, to investigate some political opponents of the current administration.  Many human beings given this kind of power are just not capable of resisting these sorts of temptations.  Time will tell.​

Meanwhile, Wired reports on a few abuses of the NSLs that have already come to light.  For example, from an IG report in 2007:​

In 2007 a Justice Department Inspector General audit found that the FBI had indeed abused its authority and misused NSLs on many occasions. After 9/11, for example, the FBI paid multimillion-dollar contracts to AT&T and Verizon requiring the companies to station employees inside the FBI and to give these employees access to the telecom databases so they could immediately service FBI requests for telephone records. The IG found that the employees let FBI agents illegally look at customer records without paperwork and even wrote NSLs for the FBI.

Not much chance that the banks don't do the same thing.  How exactly are we better than say, East Germany in the Communist era?​

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