Keystone Is A Reality Check For Democrats Who Oppose The Senate Filibuster Rule

Yesterday, Democrats cheered when the Senate filibustered a bill that would have granted approval to construction of the Keystone pipeline. A majority of Senators voted for the bill. In fact 59 senators voted for the bill. But since the Senate has a filibuster rule that allows 41 Senators to keep a bill from coming to the floor the bill was defeated. This vote really presents Democrats with a reality check on the use of the filibuster.

For years, Democrats have decried the use of the filibuster by Republicans, and rightly so. In fact, on the same day that the Senate blocked the Keystone bill, Republicans used the filibuster to block a Democratic proposal to overhaul the NSA's program for the bulk collection of telephone data. During President Obama's years in office countless bills have been blocked by a minority of Senators and Democrats have rightly been critical. But now, the shoe is on the other foot and in the next two years we will see more and more bills proposed by Republicans that the Democrats will filibuster.

Contrary to what some assert, the filibuster was never intended to be used in this way. Yes, the Senate was designed in part to be the "cooling saucer" that would be able to check the "unrestrained passions" of the House by providing each State, no matter how large or small, an equal voice in deciding whether laws should be enacted. To give effect to that intent, Senate rules allowed for unlimited debate, even by a small minority of senators, a process referred to as the filibuster. The filibuster was established to allow a minority of senators to delay legislation. However, the filibuster was not intended to allow a minority of Senators to prohibit the consideration of legislation and thereby block it indefinitely.

Many, such as myself, would like to see the Senate rules changed to allow unlimited debate by a minority but not permit that same minority to indefinitely block the consideration of legislation. It is wrong that a minority of Senators, sometimes representing a very small minority of the United States population can keep popular legislation from moving forward. But in doing so we must also accept that there will be circumstances in which terrible legislation will be advanced by a majority of Republican Senators. We should willing to accept that fact with the knowledge that if there is a Democratic House the bill can be blocked, and if there is a Democratic President the bill can be vetoed. And if not, if all branches of the government are controlled by Republicans, we must accept the outcome.

Time To Take Action To "Save Our Healthcare"

The Supreme Court is considering a case that could take away health insurance subsidies from working people in thirty-four States. Those are the States whose health insurance exchanges were set up by the Federal government, when those States refused to do so on their own. Seven states have actively sought to have the Supreme Court take away their citizen's health insurance and 27 others have sat on the sidelines, possibly in hope that the same thing happens to their citizens. We are talking about the health insurance of over 5 million people.

The people in those states have the capacity to influence the Court and at the same time bring to light the actions of their Governors, Attorneys General and Legislatures. That influence can be achieved by:

* Informing all those who have subsidized health insurance in each of the 34 states involved that their health insurance is at risk because those subsidies could be taken away by a decision of the Supreme Court.

* Informing these people that the governor and legislature in their state has either asked the Supreme Court to take away their ability to buy health insurance or has not asked the Court to protect their health care.

* Doing this could actually influence the governors and legislators in these 34 states to either retract their support for denying insurance subsidies or cause them to oppose a Supreme Court decision that would have that effect.

* Together, pressure from these states could have a real affect on the ultimate Supreme Court decision.

* At the very least, the hard working people of these states would understand who is on their side, who is looking out for their interests, and why they should hold their elected officials accountable.

The risk to the health insurance of these people began when the Supreme Court decided to hear King v Burwell. In that case a group of ACA opponents sought to undermine the law by arguing that a wording glitch in the law meant that people buying insurance on the Federal exchange could not get any subsidies. They lost the case in the District Court and the Appeals Court and are now seeking Supreme Court review.

In a sane world every state that did not set up an exchange would have supported the King v Burwell decision and would have said that there was no need for Supreme Court review. After all, these States did not have to spend money to set up an exchange. And if there are no subsidies available to their citizens through the Federal Exchange many of those folks will not be able to afford insurance. Also, unlike the issue of Medicaid expansion, this issue does not involve the expenditure of State funds. The States do not pay a cent towards these subsidies.

But it is not a sane world. There are 34 states which refused to set up health insurance exchanges and thus required the federal government to set up exchanges for them. Those exchanges are referred to by the Department of Health and Human Services as Federally Facilitated Exchanges. They cover 5,446,178 people. Of those over 5 million people, 86% receive subsidies enabling them to buy their insurance and the average subsidy is $4700. (This is May 1, 2014 data.)

Seven of those 34 states have actively sought to have the Supreme Court take away the insurance subsidies provided to their citizens. Those states are Oklahoma Alabama Georgia Indiana Nebraska South Carolina and West Virginia. Together, there are 2,573,585 people in those seven states who are receiving health insurance through the federally facilitated exchange for each of those states and 82% of those 2 1/2 million people are receiving subsidies. That means the governors, attorneys general, and/or legislature doors of those states are asking the Supreme Court to deny basic healthcare two over 2 1/2 million residents of those states.

But the sad truth is that many people in those states may be unaware of the actions of their elected officials. Is it conceivable that these people, many of whom have health insurance now for the first time, are aware that not only is their healthcare at risk but also that their elected officials are behind the effort to take it away? No, it is not, and for a simple reason. Most people simply have too much difficulty working their daily jobs, taking care of their families, and trying to keep their financial heads above water to spend time researching the intricacies of state government or health insurance policy, let alone the actions of the Supreme Court. It is not their fault that they may be unaware of what is about to happen to them but it would be our fault if we did not do everything possible to make them aware and give them the information needed to make their voices heard.

Now is theme for the people in these 34 states to become aware of what is being done or not being done in their names. They could start with letters to the editors from hard-working people whose health care is in jeopardy. They could also begin to circulate petitions to their governors, attorneys general, and state representatives. Social media could be used to spread the word and inform everyone of what is at stake.

The reality is the people who would be affected by a negative Supreme Court decision are hard-working people who seek only a modicum of health security for themselves and the members of their families. It is not too much to ask. Hopefully, their efforts could receive the attention of parties who have the financial resources necessary to begin an outreach campaign and even provide advertising in those states.

There is still plenty of time for people to take control of their future. But if they do not, they may find out too late that the health security they always wanted has been taken from them.

* * * * * *

It is not the purpose of this article to get into the merits of the challenge to the King v Burwell decision since that challenge ignores all precedent and all rules of statutory construction. However, for those who think that there is any serious merit to the argument that the Affordable Care Act does not authorize subsidies for state exchanges that are established within a federally facilitated exchange here are two things to consider.

The challengers sole argument is that one section of the law that refers to subsidies says that they are available on "an Exchange established by a State" and that these were established by the Federal Government not by States. The DOJ points out the same law imposes a mandatory requirement for each to set up an exchange, but provides that for any state that elects not to establish an exchange that Federal Government must establish one in its stead, and that for all purpose of the law each of those Federally Facilitated Exchanges is "an exchange established by a State." Here is the summary from the Solicitor General's brief, which eviscerates the challengers' arguments.

The Act provides that each State “shall * * * establish an American Health Benefits Exchange.” 42 U.S.C. 18031(b)(1). But, in a provision expressly designed to respect the sovereign dignity of each State by affording “State flexibility,” 42 U.S.C. 18041, the Act provides two ways for that requirement to be satisfied. First, a State may elect to create the Exchange on its own. 42 U.S.C. 18041(b). Alternatively, if a State does not elect to establish the “required Exchange” itself, then HHS will “establish and operate such Exchange within the State.” 42 U.S.C. 18041(c)(1). Either choice satisfies Section 18031(b)(1)’s requirement that each State “shall * * * establish an [Exchange].” The text of the Act thus makes clear that an Exchange established by HHS in a State’s stead is, as a matter of law, “an Ex- change established by the State.”

That interpretation harmonizes the Act’s text, structure, and purpose. Petitioners’ reading, in contrast, would transform the Act into a hash of superfluities, absurdities, and internal contradictions. It would obstruct the Act’s express purpose by denying affordable insurance to millions of Americans. It would thwart the operation of the Act’s interdepend- ent reforms and gut the Exchanges through which those reforms are implemented. And it would destroy the Act’s model of cooperative federalism by trans- forming the Act’s promise of “State flexibility” into a threat that a State may forgo establishing an Ex- change for itself only at the price of crippling its insurance market and depriving its citizens of the tax credits at the heart of the Act. The Act unambiguously forecloses that construction. At a minimum, the IRS’s interpretation is a permissible one meriting deference under Chevron.

The brief goes on to explain these arguments in detail. It is well worth the reading.

Next are the words of Justice Antonin Scalia in the case upholding the ACA, National Federation of Independent Business v Sibelius. He wrote a scathing dissent to the majority opinion upholding the constitutionality of the ACA and in the course of that dissent made clear his understanding that subsidies are available to all people purchasing insurance under the ACA, whether through a state established or federally facilitated state exchange. He makes no distinction between the two, as illustrated by this excerpt discussing the Medicaid portion of the bill. The discussion is a bit convoluted because he is saying that while there is a backup plan for the Federal government to set up an exchange for a state refusing to set up an exchange or cover legal aliens, including subsidies, there is no similar backup for a state refusing to expand Medicaid. And because there is no backup the Medicaid expansion is Unconstitutional. But what is important here is how he describes the statutory structure.

If Congress had thought that States might actually refuse to go along with the expansion of Medicaid, Congress would surely have devised a backup scheme so that the most vulnerable groups in our society, those previously eligible for Medicaid, would not be left out in the cold. But nowhere in the over 900-page Act is such a scheme to be found. By contrast, because Congress thought that some States might decline federal funding for the operation of a “health benefit exchange,” Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State. See 42 U. S. C. §18041(c)(1). Likewise, knowing that States would not necessarily provide affordable health insurance for aliens lawfully present in the United States because Medicaid does not require States to provide such coverage Congress extended the availability of the new federal insurance subsidies to all aliens. See 26 U. S. C. §36B(c)(1)(B)(ii) (excepting from the income limit individualswho are “not eligible for the medicaid program . . . by reason of [their] alien status”). Congress did not make these subsidies available for citizens with incomes below the poverty level because Congress obviously assumed that they would be covered by Medicaid. If Congress had contemplated that some of these citizens would be left without Medicaid coverage as a result of a State’s withdrawal or expulsion from the program, Congress surely would have made them eligible for the tax subsidies provided for.

Now, no one expects Justice Scalia to be consistent when it comes to the ACA. He has proven that his decisions are motivated purely by reactionary politics and have little to do with the law. However, it is very clear that he as well as all of the other justices who decided the original challenge to the ACA understood that subsidies were available to people buying insurance whether that insurance was purchased on an exchange established by a state or established for a state by the federal government. If they choose to do the mental gymnastics necessary to get around that simple fact, so be it. But everyone will know exactly what they are doing.

In A Sane World Oklahoma, Alabama And Five Other Red States Would Be Siding With Obama On The ACA Case

The Supreme Court has decided to hear King v Burwell, the case that rejected a challenge to the ACA by die hard ACA opponents. They had argued that a wording glitch in the law meant that people buying insurance on the Federal exchange could not get any subsidies. They lost the case and are now seeking Supreme Court review.

In a sane world every state that did not set up an exchange would have supported the Burwell decision and would have said that there was no need for Supreme Court review. After all, these States did not have to spend money to set up an exchange. And if subsidies are not available to their citizens through the Federal Exchange many of those folks will not be able to afford insurance. Also, unlike the issue of Medicaid expansion, this issue does not involve the expenditure of State funds. The States do not pay a cent towards these subsidies.

But it is not a sane world, which is why Ok, AL, Ga, IN, NE, SC and WV filed a petition together asking the Supreme Court to review the Burwell decision and strongly hinting it should be overturned. Their stated reason was that the matter needed to be settled so that they would know whether they needed to set up exchanges. But both their words and the tenor of their petition was that they hope that the Court will effectively neuter the ACA in a large part of the country. This is Obama derangement syndrome at its worst.

It is interesting that the Court agreed to take the Burwell even though there is no split among the Circuits on the issue. There had been an earlier conflicting decision in the DC Circuit but that decision was set aside when the full DC Circuit decided to rehear the case. Many observers worry that this does not bode well for the ACA. But the optimist in me hopes that Justice Roberts, who already passed on a chance to kill the ACA when he uphold the individual mandate, is not going to turn around and neuter it by striking down the subsidies. After all, the mandate made people do something but here you are just giving them money and helping them afford insurance. I also hope Kennedy upholds the subsidies as a way to finally get on the right side of the ACA.

As to the merits of the argument against subsidies in the Federal exchange, the Solicitor Generals brief eviscerates the challengers arguments.

The challengers sole argument is that one section of the law that refers to subsidies says that they are available on "an Exchange established by a State" and therefore subsidies are unavailable if the Federal Government sets up an exchange for a State. The DOJ points out that there are numerous other provisions of the law that make clear that for any state that elects not to establish an exchange that Federal Government can establish one in its stead and for all purpose of the law that too is "an exchange established by a State." Here is the summary from DOJ's brief,

The Act provides that each State “shall * * * establish an American Health Benefits Exchange.” 42 U.S.C. 18031(b)(1). But, in a provision expressly designed to respect the sovereign dignity of each State by affording “State flexibility,” 42 U.S.C. 18041, the Act provides two ways for that requirement to be satisfied. First, a State may elect to create the Exchange on its own. 42 U.S.C. 18041(b). Alternatively, if a State does not elect to establish the “required Exchange” itself, then HHS will “establish and operate such Exchange within the State.” 42 U.S.C. 18041(c)(1). Either choice satisfies Section 18031(b)(1)’s requirement that each State “shall * * * establish an [Exchange].” The text of the Act thus makes clear that an Exchange established by HHS in a State’s stead is, as a matter of law, “an Ex- change established by the State.”

That interpretation harmonizes the Act’s text, structure, and purpose. Petitioners’ reading, in contrast, would transform the Act into a hash of superfluities, absurdities, and internal contradictions. It would obstruct the Act’s express purpose by denying affordable insurance to millions of Americans. It would thwart the operation of the Act’s interdepend- ent reforms and gut the Exchanges through which those reforms are implemented. And it would destroy the Act’s model of cooperative federalism by trans- forming the Act’s promise of “State flexibility” into a threat that a State may forgo establishing an Ex- change for itself only at the price of crippling its insurance market and depriving its citizens of the tax credits at the heart of the Act. The Act unambiguously forecloses that construction. At a minimum, the IRS’s interpretation is a permissible one meriting deference under Chevron.

The brief goes on to explain these arguments in detail. It is well worth the reading.

But we are left with this. There are States that are led by people who hate the President so much that they will go to any lengths, conjure up any bogus arguments,and pursue any course to attack the President and his Presidency even if it directly harms the lives, health and financial security of their own citizens.

HHS Reports That The ACA Has Saved Consumers $9 Billion

The Department of Health and Human Services issued a report today explaining that the Affordable Care Act has saved consumers $9 Billion since it was enacted. The bulk of the savings was in reduced premiums. But it also included $330 million of refunds to consumers when their insurance companies spent more than 20% of premiums on overhead. Here is a link to the actual report.

An HHS report released today shows that last year alone, consumers nationwide saved $3.8 billion up front on their premiums as insurance companies operated more efficiently. Additionally, consumers nationwide will save $330 million in refunds, with 6.8 million consumers due to receive an average refund benefit of $80 per family. This standard and other Affordable Care Act standards contributed to consumers saving approximately $4.1 billion on premiums in 2013, for a total of $9 billion in savings since the MLR program’s inception.

These savings all come from the 80:20 medical loss ration that requires insurers to limit their overhead to 20% of premiums. The effect of this requirement has been premium reductions totaling $3.8 Billion in 2013 alone. And the insurers who did not reduce their premiums were required to issue refunds to their customers. In the first three years the refunds that have been or will be paid totaled $1.9 Billion.

Most significantly, in the individual insurance market the spending on overhead dropped from 15.3% in 2011 to 11.7% in 2013.

The report also charts how refunds are declining each year as insurers reduce their premiums, which is exactly how the law was intended to work. For instance, in the individual market refunds went from $399 Million in 2011 to $192 Million in 2012 and $128 Million in 2013. There were similar reductions in the small group and large group markets. And in the aggregate, for all markets, refunds went from $1.1 Billion in 2011 to $332 Million in 2013. But most significantly those refund reduction were a direct result of insurers reducing their premiums to the point that for 2013 the ACA caused premium reductions in all markets of $3.85 Billion


This is real progress.

Benghazi Is About The President's Legitimacy Not Just Hillary

The entire premise of the Republican Benghazi fixation is backwards.

All of the Congressional and State Department reports make clear that the Republican Benghazi story is fact free nonsense supported only by delusional drivel. This is all very well detailed in this excellent summary the GOP's disregard of facts. But more importantly, the entire political premise for their Benghazi fixation, the entire foundation upon which it is built, is laughable and completely backwards. In their view Obama is the President only because he lied his way to re-election by pulling the Benghazi wool over peoples eyes. Yes, since the election the focus has shifted to undercut Hillary Clinton if she runs in 2016, but make no mistake it started out and continues to be about the legitimacy of Obama as President of the United States.

The Republican theory is that after the Benghazi attack the President downplayed an al Qaeda/terrorist connection to the attack in order to enhance his election prospects. They say that the Benghazi attack undercut the Administration's position that we were having some success against terrorists intent on doing us harm. They knew that Obama had achieved many successes against terrorists, most notable the killing of Bin Laden. All of these successes had eluded Bush and gave rise to the popular perception that Obama was making advances against terrorism.

The Republicans thought Benghazi would reverse all of that. In their view, if Americans were told that four Americans had been killed in Benghazi by al Qaeda terrorists everything Obama had done in the prior four years would have been for naught and he would go down to stunning defeat. This one event would undo the prior four years.

Of course it wouldn't do if the attack was just part of a sequence of events triggered by a hateful video. It had to be an attack by the big AQ, which would prove that everything else that had been done in the prior four years was meaningless smoke. Benghazi today, Benghazi tomorrow, Benghazi forever.

And so, when Susan Rice read the CIA talking points that suggested this attack was motivated by the same thing that generated protests or attacks in Tunis and Cairo and elsewhere, there had to be a coverup. Even in that telling it was an odd coverup since the President had already said it was terrorism and the story details were revised a week later. It didn't matter, this was a coverup of the Achilles heel of the Obama re-election campaign.

Well, if history is a guide they have it backwards. If Obama wanted to use Benghazi to advance his election prospects he would have hyped the Al Qaeda/terrorist fear and brought back the color coded terror alerts. He would have used the playbook that Bush used for all the years after 9/11, including immediately before the election day. Bush would tout his successes but point to every terrorist attack, or threat of attack, or imagined attack to keep people afraid and manufacture the image he and only he was the one who could "keep us safe."

This cynical use of terror attack and threats real or imagined was long suspected while Bush Was President. And it was eventually acknowledged by his DHS Secretary Tom Ridge who said, as reported by Time,

Ridge says he objected to raising the security level despite the urgings of former Defense Secretary Donald H. Rumsfeld and then-Attorney General John Ashcroft, according to a publicity release from Ridge's publisher. He said the episode convinced him to follow through with his plans to leave the administration; he resigned on Nov. 30, 2004.

Similarly, as reported by John Amato in connection with the publication of Ridge's book, The Test of Our Times,

Former US homeland security chief Tom Ridge charges in a new book that top aides to then-president George W. Bush pressured him to raise the "terror alert" level to sway the November 2004 US election.

Then defense secretary Donald Rumsfeld and attorney general John Ashcroft pushed him to elevate the color-coded threat level, but Ridge refused, according to a summary from his publisher, Thomas Dunne Books.

"After that episode, I knew I had to follow through with my plans to leave the federal government for the private sector," Ridge is quoting as writing in "The Test of Our Times: America Under Siege ... And How We Can Be Safe Again."

Some of Bush's critics had repeatedly questioned whether the administration was using warnings of a possible attack to blunt the political damage from the unpopular Iraq war by shifting the debate to the broader "war on terrorism," which had wide popular appeal.

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He later publicly acknowledged that much of the information underpinning the new alert was three years old, stoking Bush critics' charges of political manipulation.

If President Obama wanted to make political hay about Benghazi he would have done exactly what Bush did, and try to scare the living bejeezus out of the American people right before the election. But that's not what he did. He and spokespersons for the Administration went out and told he truth as they knew it at the time. It was an evolving narrative as is always the case in times of conflict. First reports are rarely completely accurate and the facts become clearer after the dust settles.

The funny thing is the Republicans know that the Administration was being candid and was not hyping the incident as they know Bush would have done. They knew that his demeanor during this time was a strength, exuding a combination of confidence, compassion for the victims, and resolve. It was the calmness that the American people needed.

So they did what they always do? They attacked this strength. This is what they have done throughout his Presidency. They know he is a gifted orator so they attack his use of tele-prompters. They know he is brilliant and extraordinarily well read so they raise bogus questions about his educational background. They know he is very popular in one on one settings so they attack him for being aloof.

They did and are continuing to do the same with Benghazi. They know he was truthful and the tone and tenor were spot on so they attach him for not hyping an al Qaeda connection and cynically argue that if he had done so his re-election would have been doomed, when, if anything, it would have been further bolstered.

Well, the American people didn't fall for that in 2012 and four years of age aren't going to make it a more successful line of attack in 2014 or against Hillary in 2016.

But it isn't just about 2014 or Hillary. It started out as an attack on the President's legitimacy and continues to this day. In Republican minds the 2012 election had nothing to do with the forty-seven percent. It hinged on only one issue - Benghazi. If the Benghazi truth had been told he would have lost in a landslide.

In the Republican mind President Obama's first term was illegitimate because he was a Kenyan (not to mention anti-colonialist socialist) who wasn't eligible to hold office. And his second term is doubly illegitimate because he lied his way to re-election by pulling the Benghazi wool over peoples eyes.

Debt Limit Extraordinary Measures Should Be Repealed.

The House is proposing to eliminate the "extraordinary measures" that delay hitting the debt ceiling. Some people think this is a bad idea or a poison pill but it is not. These special procedures started out as a method to give the Treasury flexibility but have turned into something completely different. They have essentially allowed the Republicans to force a delay in when we hit the debt limit by essentially requiring the Treasury to take money from the civil service retirement fund the federal employees 401(k) plan and other sources. In doing so all they have done is delay the inevitable. Moreover, they have added uncertainty to the process, something that increases the danger that the debt limit will be crossed.

Here is the type of announcement the Treasury uses to invoke the special measures:

Today, the United States has reached the statutory debt limit. Secretary Geithner sent the following letter to Congress this morning alerting them to actions that have be taken to create additional headroom under the debt limit so that Treasury can continue funding obligations made by Congresses past and present. The Secretary declared a "debt issuance suspension period" for the Civil Service Retirement and Disability Fund, permitting Treasury to redeem a portion of existing Treasury securities held by that fund as investments and suspend issuance of new Treasury securities to that fund as investments. He also suspended the daily reinvestment of Treasury securities held as investments by the Government Securities Investment Fund of the Federal Employees’ Retirement System Thrift Savings Plan. For more information on these measures, please read this FAQ.

These are but two of the several measures the Treasury uses to delay the day of reckoning. Treasury takes civil-service retirement contributions and instead of investing them in securities, uses them to pay other obligations. It also takes money contributed by federal employees to their 401(k) and instead of investing it, uses that money to pay off other obligations.

It should be noted that this is not what happens with Social Security and other trust funds. This is something totally different and pernicious and it only affects Federal employee money and some other things like the issuance of State and Local Government Series Treasury Securities.

Under normal circumstances all trust fund accounts, whether Social Security, Medicare, Highway Trust Fund, Civil Service Retirement Fund, et al., are invested in special issue Treasury instruments and are part of the national debt. They are under the heading of Debt Not Held By The Public.

But there is a law that applies to Civil Service Retirement Trust funds that allows Treasury to cancel the instruments in the CSRS fund when it reaches the debt ceiling. Once those instruments are cancelled, the national debt is reduced by that amount and the money can be spent for expenses, like Boehner's salary. The law requires the money to eventually be paid back, but for now the instruments are gone. This debt cancellation cannot be done with the Social Security or most other trust funds.

The Thrift Savings Plan (TSP) funds can also be raided under these procedures. The TSP is a 401k administered by a separate board. Federal employees have many choices of where to invest their funds including, stocks, bonds, real estate and Government Securities. This law applies only to money in the G Fund and it allows Treasury to cancel those government securities and spend the money. Also new money designated for the G Fund can be directly spent. Again, the law says it must be redeposited later, but right now the debt is cancelled, and that is why it doesn't it isn't part of the national debt.

Congress should eliminate the authority for these special measures. What started out as something to be used rarely and only in extraordinary circumstances has now been used every time we reach the debt limit and has merely delayed when the final day of reckoning arrives. These extraordinary measures hurt the process by adding uncertainty and confusion and creating the impression the Treasury has some magical tricks that can prevent debt limit catastrophe. And once again it is federal employees who are the victims of Congress' incompetence.

The President Restates That There Are No 14th Amendment Tricks Around The Debt Ceiling

At todays press conference the President restated what he said in January that there are no tricks around the debt ceiling, such as the 14th Amendment, gigantic coins or script.

And I know there's been some discussion, for example, about my powers under the 14th Amendment to go ahead and ignore the debt ceiling law. Setting aside the legal analysis, what matters is -- is that if you start having a situation in which there -- there's legal controversy about the U.S. Treasury's authority to issue debt, the damage will have been done even if that were constitutional, because people wouldn't be sure. It'd be tied up in litigation for a long time. That's going to make people nervous.

So -- so a lot of the strategies that people have talked about -- well, the president can roll out a big coin and -- or, you know, he can -- he can resort to some other constitutional measure -- what people ignore is that ultimately what matters is, what do the people who are buying Treasury bills think? And again, I'll -- I'll just boil it down in very personal terms.


If you're buying a house, and you're not sure whether the seller has title to the house, you're going to be pretty nervous about buying it. And at minimum, you'd want a much cheaper price to buy that house because you wouldn't be sure whether or not you're going to own it at the end. Most of us would just walk away because no matter how much we like the house, we'd say to ourselves the last thing I want is to find out after I've bought it that I don't actually own it.

Well, the same thing is true if I'm buying Treasury bills from the U.S. government, and here I am sitting here -- you know, what if there's a Supreme Court case deciding that these aren't valid, that these aren't, you know, valid legal instruments obligating the U.S. government to pay me? I'm going to be stressed, which means I may not purchase. And if I do purchase them, I'm going to ask for a big premium.

So there are no magic bullets here. There's one simple way of doing it, and that is Congress going in and voting. And the fact that right now there are votes, I believe, to go ahead and take this drama off the table should at least be tested. Speaker Boehner keeps on saying he doesn't have the votes for it, and what I've said is, put it on the floor. See what happens. And at minimum, let every member of Congress be on record. Let them -- let them vote to keep the government open or not, and they can determine where they stand and defend that vote to their constituencies. And let them vote on whether or not America should pay its bills or not. And if, in fact, some of these folks really believe that it's not that big of a deal, they can vote no.


And that'll be useful information to -- for voters to have. And if it fails and we do end up defaulting, I think voters should know exactly who voted not to pay our bills, so that they can be responsible for the consequences that come with it.

These positions are not new. In a January 14, 2013 press conference he said "There are no magic tricks here, there are no loopholes." This reiterated what the President, through the Treasury, stated a few days earlier that he will not use the platinum coin option. Both statements echoed his decision in 2011 that he would not use the 14th Amendment option.

All of all these issues are discussed in this post and here is a summary.

It has been argued the President could use the authority to mint a platinum coin in a trillion dollar denomination and use those funds to continue to pay the Treasury's bills. The second alternative was to use his authority to issue scrip that would be used to pay the debts of United States until the debt limit that could be raised and real dollars borrowed. The third option was for the President to simply say that he has the authority under the 14th Amendment, or some other constitution provision, to issue debt notwithstanding the fact that the issuance would exceed the amount of the debt limit law.

The President will not choose the first two options because, whether or not one thinks he has the legal authority to issue a platinum coin or issue scrip, the President knows that both internationally and domestically taking either of those actions would be viewed as a gimmick, a magic trick. They would at the least raise significant legal issues that would call into question the validity of any debt that is issued. Also, either of those actions would merely be kicking the can down the road. They would be giving the Congress an excuse to not raise the debt limit because the President would have continued to keep the country operating and the Republicans would have been let lose to fight the President in the courts and through impeachment hearings.

The third option was for the President to assert that the 14th Amendment gives him the authority, if not a requirement, to avoid default notwithstanding the debt limit. But this assertion would not only raise the legal and practical issues of the first two, but also create a significant Constitutional crisis, a crisis between the President and the Congress as well as between the President and the Supreme Court.

Asserting this position is not the same as a conflict between two statutes, where the President interprets one statute as overriding another. Many people have suggested this possibility by arguing that the Congress has passed Appropriations Acts and that they require the President to spend the money appropriated, a requirement which conflicts with the debt limit law. That argument has little merit. There is no statute that says money that is appropriated must be spent if there is no money available. In fact, if you look at every Appropriations Act the lead off language is ,

"That the following sums are appropriated, out of any money in the Treasury not otherwise appropriated, . . . . . "

"Any money in the Treasury." Very soon if Treasury cannot borrow money and put it in the Treasury, there will only be two dollars in the Treasury for every three dollars of bills coming due. Appropriations acts simply do not authorize let alone require the expenditure of funds that the Treasury does not have. There is no conflict between Appropriations Laws and the Debt Limit law. One tells Treasury how to spend money in the Treasury, the other limits how much can be borrowed to put money in the Treasury. This question is totally different than the question of whether the President can refuse to spend appropriated funds when such funds are available, which the Supreme Court has ruled to be unconstitutional.

Simply put we are talking about the President asserting the power to unilaterally decide whether he will comply with laws that are duly enacted by Congress and signed by the President. Except for Nixon no President has done that, in this way, since Lincoln suspended the Habeas Corpus provisions of the Judiciary Act of 1789. The action was challenged by a prisoner but Lincoln ignored a court decision which ruled the action Unconstitutional. Eventually, however, Congress essentially ratified his action.

The President would be effectively declaring the debt limit built to be unconstitutional because it conflicted with his 14th amendment powers. He would be declaring unconstitutional a law that was passed many decades ago and has been amended scores of times since then. A law which during all that time no President has ever declared to be unconstitutional or in any way inconsistent with the President's powers under the 14th amendment.

The President has made clear that he will not take these actions. He knows they do not solve the underlying problem and run the risk of chaos over an extended period of time in the international financial markets and damage to the standing of the United States that may take a long time to fix. And it goes without saying that the political chaos this would create domestically would ruin any chance of his being able to achieve anything in his second term.

President Obama May Be About To Achieve His Syria/Chemical Weapons Objectives

Congress is considering a resolution that would authorize the President to use force against Syria for a limited period of time and restrict the force that could be used by excluding ground troops. Recent developments suggest that the resolution will soon be amended. Secretary Kerry stated that one way for the Assad regime to avoid military strikes was to relinquish its chemical weapons stockpile. Apparently Kerry has suggested this in the past to his Russian counterpart, Lavrov, but made little progress in getting Russian agreement, something that is critical to getting Syria to act. Now the Russians are jumping on the idea and Lavrov offered a proposal for Syria's chemical weapons to be turned over to an international body. The Assad regime has given its initial support to the Russian initiative.

It remains to be seen whether either the Russians or Syria are serious about this but the concept is a useful one that could be included in the resolution for the use of military force. For that reason look for the resolution currently under consideration to be be amended to include some form of trigger that would allow Syria to avoid military action by relinquishing its chemical weapons stockpile to international control. How that is worded and what form the trigger will take is yet to be seen. But there is a reasonable possibility that the resolution will take this form in the coming days.

From the beginning of the Syria conflict President Obama has opposed United States intervention. Initially he opposed giving even non-lethal aid to the Syrian rebels and was only committed to aiding the countries that were taking in Syrian refugees. As the pressure from war hawks mounted and as the conflict became more intense he decided to start giving non-lethal aid to the rebels. Then, after the initial reports of possible gas attacks,but which were convincing not sourced well enough to justify a firm response, the President warned Assad against further use and agreed to provide lethal aid to the Syrian rebels. Finally, after the August 21st chemical weapons attacks in Damascus, attacks which the intelligence community gave its highest rating of probability as having been conducted by the Syrian government, the President decided that the only way to deter further use was to launch a limited military strike.

But the goal of the military strike has always been clear - to deter the Assad regime from using chemical weapons, to degrade their ability to use such weapons and to reinforce the international norm against the use of such weapons. While are the goals it was also recognized that a side affect of the military attacks would be to degrade Syria's overall military capabilities and by extension, benefit the Syrian rebels.

The President's attempts to get Congress to pass a resolution authorizing the limited use of force for this limited purpose have been met with considerable opposition. Some of the opposition has been based on totally valid reasons and some has not.

Valid reasons for opposing the resolution include the belief that it will not achieve its objective; general opposition to the use of force under any circumstances; overall war weariness; and the belief that chemical weapons do not deserve special treatment. This reasoning holds that if we were unwilling to act when 100,000 people were killed using bullets and bombs, the death of an additional thousand people through chemical weapons should not change that equation.

Invalid reasons include the position that anything this President proposes must be opposed because of who he is, or that since the resolution does not provide for full scale war against Syria it is insufficient and therefore limited strikes will not be supported.

But with this new development the level and nature of the opposition to a Syria resolution may now change. There will of course be some persons who will continue to oppose any resolution, including one that enables Assad to avoid military action by ceding control over his chemical weapons. But for others it may well make a difference. Those are the people who, notwithstanding their war weariness and their determination to avoid our getting directly involved in the Syrian conflict, believe that chemical weapons truly are different. They believe that it is critical that the United States and the international community do more than pay lip service to the international norm against their use.

In connection with this amended Congressional resolution, there is a likelihood that we will see an effort to pass resolution out of the United Nations Security Council that condemns the use of chemical weapons and establishes a framework for Assad's weapons to be turned over to international control. The United States may also try to see if it can convince the Russians to include a specific condemnation of Assad and the type of trigger that would authorize the use of military force in the event Bashir Assad does not comply. It will be interesting to see if the Russians continue to object to this last element. It is also unknown how the Chinese will respond.

What is arguably most important about this new development is that it will focus all this discussion on chemical weapons and enable the President to achieve his twin objectives of deterring the further use of chemical weapons in Syria and reinforcing the international norm against such weapons.

Assad Gassed His People, Even Opponents Of Syria Resolution Agree. Question Is What To Do

The Senators and Representatives who have seen the classified materials agree that Assad gassed his people. That includes those who are strongly against intervention. The debate is over what if anything should be done.

Here are some samples of statements by opponents of intervention on the question of whether Assad perpetrated the Damascus attacks:

Senator Tom Udall (D-NM)

I want to repeat that I am horrified by what Bashar al-Assad has done to his own people. He has committed a heinous act and a violation of the Geneva Convention no doubt about it. However, I still believe this proposal is the wrong course of action for the United States and its military.

I am voting no because this policy moves the United States toward greater American conflict and increasing regional conflict.

Senator Chris Murphy (D-CT)

Bashar al-Assad’s use of chemical weapons against the people of Syria is a human rights atrocity and a blatant violation of international law. It’s impossible to see the horrific images of death and suffering in Syria and not feel compelled to act in some way. But there is not always an American solution to every international crisis. For me, today's vote was a close call, but in the end, I voted no because I believe that the downside risks of military action, both for U.S. interests and the Syrian people, outweigh the potential benefits.

Senator John Barrasso (R-WY)

“Over the last two years, the Assad regime has committed terrible atrocities against thousands of innocent men, women and children in Syria. I join the rest of America in strongly condemning these awful acts of violence.

“This past week, I’ve participated in both open and closed hearings with the Administration about the President’s call for military strikes in Syria. Like most folks back home, I am concerned about the Administration’s willingness to commit to military action without providing an ultimate objective and an overall strategic plan in Syria.

Rep. Jeff Duncan (R-SC)

“I don’t see where any imminent threat to the United States is evident,” he said. “I do believe that chemical weapons were probably used in Syria but I don’t understand and don’t see a way that we involve the United States in this. So I plan on voting no.”

Michael McCall (R-TX)

I think what gives Congress great pause, and the American people great pause, is there's no good outcome here. They don't see a good side versus a bad side. They see Assad as a bad actor who's used chemical weapons. There's no question about that. But then who is the other side? Who are the rebel forces?

Ted Yoho (R-FL)

The use of chemical weapons is deplorable and should be decried as such by the rest of the world, yet for some reason some people think it is the United States alone who must enforce the world’s outrage. The philosophy that the United States should be the world’s police is one that will lead to our own demise.”

The members of the House and Senate of both parties who have seen the materials agree on two things - there was a gas attack on Damascus and Assad's troops did it. They disagree on the response.

This is not Bush and Iraq, and bogus intelligence to support a war that was unjustified even if the intelligence had been accurate. This is a question of Assad using gas increasingly over several months until the last usage was so egregious that some response is warranted.

When earlier uses were suspected but not conclusively confirmed, Assad was warned directly, and through intermediaries like Russia, that he needed to cease. Instead he escalated. The only debate now is what, if anything, that has not already been tried should be done.

Congressional Letter On Syria AUMF

The following was sent to my Members of Congress, Senator Bennet, Senator Udall and Representative Tipton.

"I urge you to Vote for the Syria Joint Resolution to "Authorize The Limited And Tailored Use Of The United States Armed Forces Against Syria." It is absolutely essential that the United States take action to respond to the use of chemical weapons by Syria. The last time we faced this issue in the Iran-Iraq war we did nothing when Iraq killed tens of thousands of Iranians with chemicals weapons.

To put my position in perspective I view this as analogous to the naked aggression of Iraq against Kuwait, which is why I supported the Gulf War resolution. Similarly, I supported the Afghan resolution because it was a response to aggression. On the other hand I opposed the Iraq AUMF resolution because it was not in response to anything and was based on ridiculous assertions of a future threat to the United States.

I do not believe the United States should be actively engaged in the Syrian Civil War. But I also believe that unless we respond to this use of chemical weapons there will be two consequences. First, Syria will be emboldened and will continue to use chemicals weapons realizing that there will be no consequences. Second, for all intents and purposes there will be no enforceable international norms on any issue moving forward. Rights without remedies are not rights. And prohibitions without penalties are not prohibitions. It is time to make clear that the rules against indecency and inhumanity will be enforced."

Why Did Assad Use Chemicals? We Finally Have A Plausible Answer

On August 30 I heard an interview on NPR with retired General Jack Keane that had the effect of prospectively fleshing out an important part of Secretary Kerry's presentation that was made a few hours later. I did not write about Keane's NPR interview at first because, although thought provoking, I had never heard it before. While Keane often has good inside information I'm a real skeptic when it comes to his policy judgements and recommendations. But confirmation came for me in Secretary Kerry's speech. With that I think I'm officially off the fence.

In his presentation on Syria Kerry stated,

We know that the regime was specifically determined to rid the Damascus suburbs of the opposition, and it was frustrated that it hadn’t succeeded in doing so.

But the details of what Kerry was saying were not included in his speech. As it turns out that detail had been provided earlier in the morning by Gen. Keane in his NPR interview.

Keane said that Assad's regime has been trying to clear the rebels from this Damascus suburb for some time without success using aircraft. Then a few weeks ago the rebels received a shipment of arms from Saudi Arabia that included shoulder fired antiaircraft weapons. Using those weapons the rebels shot down two of Assad's aircraft. Since then, no aircraft have flown. Instead, Assad tried continual barrages of conventional artillery but had no luck in dislodging the rebels. That is why he decided to use chemical weapons.

I have thought that the use of chemical weapons would be suicidal for Assad and that most regimes are not suicidal. That is why I was highly skeptical that Assad had use these weapons, believing it equally likely that this was a disinformation campaign. This had the feeling of a Syrian version of the Iraq curveball exercise , where the anti-Hussein factions used every conceivable form of deceit to dupe us into invading. However, it is not suicidal to use chemical weapons when they are your only choice in defeating an enemy. That is why Saddam Hussein use them when he was losing the war against Iran and apparently that is why Assad is using them now.

As a general matter I agree that "dead is dead." Generally it makes no difference what the means of your demise is. But chemical weapons are different in the sense that their affects are usually indiscriminate. And in this case they are being used deliberately against civilian targets. Additionally, the method of death can be important if it is one that causes long periods of extended suffering. That is what chemical weapons do. They often don't kill but leave the victims maimed. In the case of blister agents, they also leave the victims horribly disfigured and in terrible agony.

Since Assad has apparently decided that he can use chemical weapons I am now convinced it is incumbent upon someone, anyone, and if no one else, the United States, to tell him no. You are violating international norms and you will be held to account. You must understand that he cannot adopt a strategy of using chemical weapons against his people.

I believe the President makes this decision very reluctantly. I suspect that he may see it as the moral equivalent of Rwanda or maybe trying to undue the precedent of the US ignoring Iraq's use of chemical weapons in the Iran/Iraq War. But while he makes this decision reluctantly, I'm certain he feels he has no other choice.

Don't Further Privatize National Security

There are proposals in Congress that would prohibit NSA from collecting communications metadata. If enacted this would have the effect of further privatizing intelligence gathering and national security. This is a bad idea. The intelligence community is already using far too many contractors, such as Booz Allen, to conduct what are essentially government functions. The last thing we need is more privatization of the government.

The Senate held an informative hearing on the NSA metadata collection program this morning. The purpose was to identify problems in the program and possible legislative changes. This article addresses one of those issues - Who should maintain the data.

By way of background here are links to the three documents that were declassified today regarding this program. 1) 2009 Report to Congress 2) FISA Court Primary Order 3) 2011 Report To Congress

Here's the issue. If the intelligence agencies have identified a phone number that they have a reasonable, articulable suspicion belongs to a person who has engaged in terrorism or is otherwise an enemy of the United States they investigate further. Most people believe that the Government should do something with that information, not just sit on it. The logical thing for them to do is see whether that phone number has contacted any phone numbers in the United States or any other country. At this point they do not know if there have been any contacts within the United States let alone who those contacts may be or where they may be located. Therefore they need to do as broad a search as possible to determine whether that phone number shows up in the call data of phone calls in the United States. To do that, intelligence agencies must have access to phone numbers in the United States that could have been contacted by that foreign number.

There are three ways to go about this. The United States can collect the phone call data from all of the phone companies and combine it in a way that enables the Agency to quickly do a search on the entire database. Keep in mind that at this point the only thing the government is trying to do is identify domestic phone numbers that communicated with the foreign phone number and, potentially, numbers that those people may be calling. That is what is currently happening.

There are two other ways to do this. Rather than collecting the data, the United States could require that the phone companies maintain the databases themselves. Then, when the agency wishes to see if a phone number that is linked to a terrorist has been in contact with any phone numbers in the United States it could send its agents to each of the phone companies and do separate searches of the individual databases to see if there are any contacts. Alternatively the United States could request that the phone company employees do the search and provide the information to the government.

For the system to work if the Government doesn't maintain the data, laws would have to be enacted which require the phone companies to keep the records for some period of time beyond what their pure business purpose is. The government generally likes to keep these records for up to five years whereas many phone companies may only keep them for a year or less. There will also be some other requirements. The phone companies will have to comply with government requirements for security. The data will have to be maintained in a way that is searchable for intelligence purposes, separate from the companies business purposes. In addition the phone companies will have to employ persons who have the proper security clearances and laws will have to be enacted similar to those applicable to government employees, which criminalize the unauthorized use of those phone data logs. And since all of these requirements will cost money the Government will have to pay the companies for carrying out these activities.

Also, the United States is going to have to feel good about having to ask China Mobile, Verizon, AT&T, and all of the other phone companies, whether domestic or foreign, that do telecon business in the United States, to carry out our foreign intelligence activities, essentially handing over an essential government function to private companies including foreign companies.

Most people, including me, have concerns about the way the current NSA program is being conducted. There are real concerns about transparency, monitoring and controls. But we need to think carefully before embracing alternatives. Turning each American phone companies let alone foreign companies into privatized NSAs is not a good idea. We need to address the concerns about transparency by addressing those concerns directly, not by privatizing the activity. We need to address the concerns about the FISA court directly, not by thinking they will go away if the databases are maintained and queried by private companies as opposed to the NSA.

One thing is certain. The American people will never accept a situation in which the US government obtains intelligence about potential terrorism in the United States and does nothing about it. It is hard to imagine many Americans, let alone Members of Congress, who would advocate ignoring actionable intelligence. Here is an excerpt from the 2011 memorandum that explains why:

Prior to the attacks of 9/11, the NSA intercepted and transcribed seven calls from hijacker Khalid al-Mihdhar to a facility associated with an al Qa'ida safehouse in Yemen. However, NSA's access point overseas did not provide the technical data indicating the location from where al-Mihdhar was calling. Lacking the originating phone number, NSA concluded that al-Mihdhar was overseas. In fact, al-Mihdhar was calling from San Diego. California. According to the 9/11 Commission Report (pages 269-272):

"Investigations or interrogation of them [Khalid al-Mihdhar, etc], and investigation of their travel andfinancial activities could have yielded evidence of connections to other participants in the 9/1] plot. The simple fact of their detention could have derailed the plan. In any case, the opportunity did not arise."

Today, under FISA Court authorization pursuant to the "business records" authority of the FISA (commonly referred to as "Section 215"), the govemment has developed a program to close the gap that allowed al-Mihdhar to plot undetected within the United States.

When overseas contact information is developed the first action is always to see whether a phone number of a suspected terrorist has been in contact with phone numbers in the United States or elsewhere in the world. That will not stop. The issue before the Congress now is to ensure that it is done in the most effective and efficient manner, that is as protective as possible of the privacy rights of Americans.


There are many good ideas that are being discussed in connection with the administration of the NSA's phone data collection activities. Clearly the issue of transparency is one that needs to be worked on. Also, there may be ways to make people have more confidence in the activities of the FISA court. But turning our private phone companies into arms of the federal government makes no sense at all. It is not only a logistic and operational nightmare but it furthers the process of turning government activities into corporate activities. We have been going down this road for many decades whether in the area of prisons, defense contracting, and virtually anything else you can name. In virtually every instance the result is higher cost, lower quality, and less accountability.

For people who are concerned about accountability of the government, imagine what happens if Verizon and China Mobile are storing the data and conducting searches. One can guess that most people will come to the conclusion that this is not the way we want to go.

The Outrage In The Zimmerman Case Is The Law – Not The Judge, Jury, Defense Or Prosecution

The verdict in the trial of the Zimmerman for the homicide of Trayvon Martin is an outrage. George Zimmerman killed him. George Zimmerman instigated the events which resulted in Martin's death. Unfortunately the law prevented justice in this case, and it is the standard self defense law, not the "Stand Your Ground" law.

Disclaimer. There is no question the George Zimmerman killed Trayvon Martin. It is difficult to believe that Zimmerman was not motivated at least in part by racial animus. If Zimmerman had not taken the steps he did that night Trayvon Martin would be alive. The evidence included many self-serving statements by Zimmerman and in many instances he lied. Having said that, the verdict in this case was a product of the law that the jury had to deal with.

The Zimmerman trial did not turn on the Florida stand your ground law, even though a stand your ground instruction was given. Rather, it is a case of the self-defense law of Florida, which is shared by all states in the nation except Ohio. Under Florida law if a defendant asserts a prima facie case of self-defense the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. Note, the defendant doesn't need to prove anything. The state must prove that the defendant did not act in self-defense. As we saw in the Zimmerman case that is an almost impossible burden on the state in a case where the victim is dead and there are no eyewitnesses.

Before getting to this self-defense issue, a few words on stand your ground. Essentially the stand your ground laws eliminate the duty to retreat that is otherwise required in cases of a confrontation outside of one's home. In the case of Florida's law, if a defendant seeks to invoke stand your ground for having injured or killed someone, the person can request a pretrial hearing at which a determination of the applicability of the law is made. If the person succeeds, there will be no trial. It is noteworthy that the general lack of a duty to retreat is not present if it is determined that the defendant was the instigator of the conflict.

There is some question as to why the Zimmerman defense did not seek a stand your ground hearing. If they were convinced they could win it is hard to see why they would not have done so since it certainly could have saved much of the expense of trial. One is left with the thought that maybe they were concerned about whether Zimmerman would be ruled to have been the aggressor, the one who instigated this conflict. Nevertheless, while stand your ground instructions were given in this case which made clear that Zimmerman did not have a duty to retreat, given the defense's presentation it is doubtful that it had much impact. The defense argued that he was attacked, fell to the ground, and therefore had no ability to retreat. Even if stand your ground were not applicable, the state did not appear capable of presenting any evidence indicating that Zimmerman did not try to retreat.

A recent Florida case, Falwell v Florida sets out the current state of Florida self defense law,

When self-defense is asserted, the defendant has the burden of producing
enough evidence to establish a prima facie case demonstrating the justifiable use of
force. Montijo v. State, 61 So. 3d 424, 427 (Fla. 5th DCA 2011); Fields v. State, 988
So. 2d 1185, 1188 (Fla. 5th DCA 2008); see Murray v. State, 937 So. 2d 277, 282 (Fla.
4th DCA 2006) (holding that law does not require defendant to prove self-defense to
any standard measuring assurance of truth, exigency, near certainty, or even mere probability; defendant’s only burden is to offer facts from which his resort to force could have been reasonable). Once the defendant makes a prima facie showing of self defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. Fields, 988 So. 2d at 1188. The burden of proving guilt beyond a reasonable doubt, including the burden of proving that the defendant did not act in self-defense, never shifts from the State to the defendant. Montijo, 61 So. 3d at 427; Fields, 988 So. 2d at 1188; see Monsansky v. State, 33 So. 3d 756 (Fla. 1st DCA 2010) (explaining that defendant has burden to present sufficient evidence that he acted in self-defense in order to be entitled to jury instruction on issue, but presentation of such evidence does not change elements of offense at issue; rather, it merely requires state to present evidence that establishes beyond reasonable doubt that defendant did not act in self-defense); Murray, 937 So. 2d at 279 (explaining that defendant in trial for aggravated battery was not required to prove self-defense claim beyond reasonable doubt or by preponderance of evidence; rather, self-defense evidence needed merely leave jury with reasonable doubt about whether he was justified in using deadly force).

It is important to note that in order for this self-defense burden to shift to the prosecution the defendant only need offer a few minimal facts suggesting he acted in self-defense. As the court says the defendant is not required to "prove self-defense to any standard measuring assurance of truth, exit and see, near certainty, or even mere probability . . .."

So what did this mean in the context of the Zimmerman case? From the very beginning Zimmerman made a prima facie case for self-defense. He had injuries, however minor. And he asserted to the police initially that he had acted in self-defense. Given those bare facts, ignoring for a moment all his other statements and a few witness statements, it was the state's burden to prove "beyond a reasonable doubt" that he did not act in self-defense.

In analyzing the evidence offered at trial, virtually all of the statements made by Zimmerman after the night of the shooting could have been disregarded by the jury. It was very clear that they were self-serving statements, that he had a strong motivation to lie, and that because he was caught in numerous lies his credibility was minimal. It was also reasonable for the jury to give Rachel Jeantel's testimony considerable weight. That testimony indicated that Zimmerman initiated the incident, he followed Martin, and Martin reacted with concern, if not outright fear. But her testimony ends minutes before the shooting. The testimony covering the remaining minutes is conflicting. Without going over it all, there is testimony indicating that Martin was on top of Zimmerman and contrary testimony indicating Zimmerman was on top of Martin. There is conflicting testimony as to who was screaming. There were injuries to Zimmerman and all evidence indicates that Martin was shot at close range.

If this were a case where Zimmerman had to prove beyond a reasonable doubt or even prove with a simple preponderance of the evidence that he acted in self-defense, it is not unlikely that he would have been convicted. However he didn't have to show anything. The state had to prove beyond a reasonable doubt that he did not act in self defense.

This case is about race because there is every indication that George Zimmerman would not have followed Martin that night but for his race. There is also every indication that Zimmerman was, at best, a totally irresponsible gun owner Who had dreams of police glory and was prone to vigilantism. It also appears that the Sanford Police Department did not initially give this case the type of scrutiny it deserved. It may also be possible that some of the jurors were unable to exclude race from their consideration. Having said all those things however the outcome of this case was a result of the law. Moving forward, it is time for a serious examination of the state of the law of self-defense in this country. The killing of Trayvon Martin has made that abundantly clear.

The Fourth Amendment Doesn't Cover Data Collection In the Abstract

The Fourth Amendment does not restrict the collection of things unless those things are used by the Government to deprive someone of life, liberty or property. Additionally, existing Supreme Court precedent says there is no reasonable expectation of privacy in phone call data and therefore the Government does not need a warrant to get phone company call data even if it uses that data in a criminal proceeding. Simply put, what many people perceive as an invasion of privacy is neither illegal nor Unconstitutional. Those two points and some other matters seem to get glossed over in some of the discussion about the disclosures of the NSA's data collection practices. This is an attempt to sort through a little of that and is limited to the NSA program collecting call records from phone companies.

Disclaimer. I believe there is far too much information classified by the federal government. I believe we have far too many intelligence agencies. I believe that portions of the Patriot Act are a very bad idea, particularly the authority to issue national security letters, though I suspect the current Supreme Court would find it all Constitutional. I believe we need a court like the FISA Court with Article III judges who have security clearances and who can convene and make decisions on quick notice to review intelligence agency actions and issue warrants. I believe that much of what the FISA court does must remain classified for a reasonable period of time. Having said that I think the FISA court can be considerably more transparent. I also believe the Congressional oversight committees can be considerably more transparent. Lastly if I could choose who I wanted to have my phone records, I would prefer the NSA over Verizon.

When the NSA requests telephone call records from telephone companies, records which the telephone companies already have collected and maintained, two questions arise. Is the NSA authorized by statute to collect the information and is the NSA or another agency using the information in a manner consistent with law? There is an important distinction between these two issues. Analysis of these two issues also subsumes the question of whether the law as written or applied is Constitutional.

Before getting to the NSA, let's appreciate the world we are already live in. There is a considerable amount of data that is collected and maintained by private companies on every individual in this country. For example, our banks know our names addresses, telephone numbers, Social Security numbers, credit history, credit rating, and how much we spend, what we buy, where we buy it, and how much we spend for it. Banks maintain those records and use the information for a variety of purposes including billing, credit reviews, credit decisions, marketing, and other matters. Similarly, our telephone companies maintain records on every call we make, what numbers we call, how long we are on the phone, and other matters. The same is true for stores where we shop, which maintain detailed records on what we buy, how much we spend, when we buy it, and how we pay for it. The list of private companies maintaining records on our personal lives is extensive.

These records are maintained as a matter of course by commercial enterprise and there are no federal laws prohibiting companies from collecting this data. In some instances, such as financial institutions and medical providers, there are laws governing how the data can be used, but to a large extent our privacy is subject to the whim of these companies. We rely on them to keep our data secure and to implement and enforce strict policies regarding how it is used by the company and how the company prevents its misuse by its employees.

The recent NSA disclosures shine a light on the fact that telephone company call record data is also shared with and held by the NSA. To some people, having the government hold that data presents a significantly greater concern than when that data is merely held by a private company. That fear is justifiably based on the concern that the Government, using that data, could use the power of the state to deprive people of life, liberty or property. I would share that concern if I didn't know that there are statutory and Constitutional restrictions that prevent this from happening. Furthermore, to the best of our knowledge, this data has never been used to deprive American citizens, residents or others living in the United States of life, liberty or property in violation of the laws or Constitution.

Now to the Constitution. The Fourth Amendment provides

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While on its face it may appear otherwise, the Fourth Amendment does not, in a vacuum, restrict the government from collecting data. In fact it doesn't restrict the government from collecting anything. What the Fourth Amendment does is prohibit the government from collecting things without probable cause and without a properly executed warrant if it uses that data, information, or material to deprive someone of life, liberty or property, most often in a criminal proceeding. And if the original collection is Unconstitutional then everything that flows from that collection is Fruit Of The Poison Tree that is likewise excluded from use under the Exclusionary Rule. It may be possible to pursue a civil action under the Federal Tort Claims Act for a violation of privacy, but that would face many hurdles, not the least of which a determination of damages if the Government hasn't actually done anything with your data. (There are many good treatises on the Fourth, even this one in Wikipedia.)

And when it comes to call records, the Supreme Court has gone so far as to say they are not covered by the Fourth Amendment even if used to get a name and tap a phone and introduce the tapped calls in evidence in a criminal proceeding. That 1979 case is Smith the Maryland, which held that there was no reasonable Fourth Amendment expectation of privacy regarding the phone numbers given by a person to a phone company. In that case, the police installed a "pen register" at a telephone company without a warrant. The pen register recorded all of the phone numbers that were dialed from the defendant's home telephone. The police use those numbers to develop evidence against the defendant. At trial the defendant sought to have that evidence excluded on the grounds that it was only obtained through a warrantless search of his phone records. The lower courts and ultimately the Supreme Court ruled that there was no Fourth Amendment violation. Specifically, the Supreme Court stated:

(a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U. S. 347. Pp. 442 U. S. 739-741.

(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does, in fact, record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone, rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police, cf. United States v. Miller, 425 U. S. 435. Pp. 442 U. S. 741-746.

While the Constitution does not speak to the mere collection of data there are Federal laws which do. They provide agencies the authority they need to collect the data, and place restrictions on both the collection and use of the data. Section 215 of the Patriot Act is the law the Government assets as the authority to collect call record data from telephone companies. Section 215 authorizes the collection of any tangible thing, including business records from a telephone company after obtaining a warrant from the FISA court.

There is a difference of opinion as to whether or not section 215 covers mass collections of data regarding potentially millions of telephone numbers at one time and whether the law is Constitutional. At the link you will see why the ACLU thinks it is Unconstitutional. Suffice it to say that while there is a difference of opinion on this issue, the Justice Department believes this activity is authorized, the FISA court believes this activity is authorized, and most members of the Congressional oversight committees appear to believe this activity is authorized. Ultimately a court may rule the activity is not authorized or that the law is Unconstitutional but clearly, as of now, the activity is being carried out under color of law.

Many are troubled by the Government simply having the data, regardless of how it is used. Others are not particularly concerned about the collection of the data but focus instead on how it is used. Is the Government using it in an unauthorized or Unconstitutional manner to deprive people of life, liberty or property? Given a choice some people would rather have the data held by a government agency, which is at least somewhat accountable, then being held by private companies which have virtually no accountability.

While we have very little control or recourse over how private companies use our data we have a great deal of recourse on how the federal government uses the data. We are not talking about some random government employee voyeur perusing data, an activity that would violate agency regulations. We are talking about the information being used by the agency in a way that harms us.

In order for the federal government to use the telephone numbers against a person, it has to first determine the name of the person associated with a number. Until it does that, it merely has phone numbers. Then, if it wants to hear what the person talking on that phone is saying, it has to obtain an individualized warrants to tap that telephone number. If it does not obtain an individualized warrant to tap that telephone number none of those conversations can be introduced in evidence at a judicial or administrative proceeding. And if it did not get a warrant to collect the data initially, even the data cannot be introduced in evidence, not because of the Fourth Amendment but because of the restrictions in FISA.

It is noteworthy that the government's ability to obtain the content of phone conversations is prospective in nature. It cannot obtain records of the content of prior telephone conversations because they are not kept by the telephone company. And if the government on its own had decided to tap the phone number earlier, it would have needed an individualized warrant to engage in that activity if it subsequently sought to introduce evidence of the content of the phone conversation in a judicial proceeding.

Some have suggested that the NSA call data collection program is in some way comparable to the Bush warrantless wiretap program, which was discontinued after significant outrage. I too would be outraged if this program in any way resembled the Bush program, but it does not. The Bush warrantless wiretap program, involved the collection of the content of telephone calls, emails, and other communications in the United States, of US citizens, without a warrant. The Obama program does not. It only involves phone numbers and the duration of phone calls. There is no recording of telephone calls. If, based on a review of those phone numbers the authorities wish to obtain the content of future communications between people associated with those numbers, they have to obtain a separate individualized warrant to tap the phone.

Additionally, the Bush program was not only done without any warrants it was done without any legal authority. Since Bush knew the program was not authorized under the Foreign Intelligence Surveillance Act they did not go the FISA Court to obtain a warrant. And since they couldn't rely on FISA as legal authority for the program, Bush manufactured an Executive Order which he claimed was issued under the authority of the AUMF (Authorization For Use Of Military Force). This assertion was so bogus that even Republicans on the Hill didn't buy it and the result was amendments to FISA to make the point absolutely clear

If it turns out that the Obama administration has or in the future develops a program different from the one that is currently outlined I will have a problem with it. But until then I see this as a minimal intrusion.

There Would Be Reason For Concern If It Were Warrantless Domestic Wiretapping

There has been much discussion about two NSA programs: the first involving records of phone calls within the United States and the second involving the content of internet communications outside the United States that do not involve American citizens.

There is little reason for concern about the second group since the United States has asserted the authority to spy on foreigners overseas and there is no statute or Constitutional provision that would prohibit the US from doing so. As far as the collection of data regarding phone numbers and the duration of phone calls conducted within the United States, since 1979 it has been clear that such collections are Constitutional.

In 1979 the Supreme Court decided the case, Smith the Maryland, which held that there was no reasonable Fourth Amendment expectation of privacy regarding the phone numbers given by a person to a phone company. In that case, the police installed a "pen register" at a telephone company without a warrant. The pen register recorded all of the phone numbers that were dialed from the defendant's home telephone. The police use those numbers to develop evidence against the defendant. At trial the defendant sought to have that evidence excluded on the grounds that it was only obtained through a warrantless search of his phone records. The lower courts and ultimately the Supreme Court ruled that there was no Fourth Amendment violation. Specifically, the Supreme Court stated:

(a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U. S. 347. Pp. 442 U. S. 739-741.

(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does, in fact, record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone, rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police, cf. United States v. Miller, 425 U. S. 435. Pp. 442 U. S. 741-746.

In this case the NSA is merely collecting the phone numbers involved in phone calls and the duration of those calls. It does not, as in the Smith case, know the identity of the persons who use the phone numbers. Also, unlike in Smith, it obtained a warrant before seeking the information.

These numbers are used for one purpose. If the NSA has the phone number used by a suspected terrorist it can try to determine whether or not that phone number appears in the database. If the phone number does, it will then track which numbers that phone number is connected to. At that point, assuming it has a reasonable suspicion, it can go to the Foreign Intelligence Surveillance Court and seek a warrant to put a wiretap on the phone numbers. If the court agrees that there is a reasonable suspicion that this person is a terrorist or affiliated with the terrorist and that the phone number is one reasonably believed to have been used by that person then the court may issue a warrant after which the phone can be wiretapped.

I would be concerned if this program in any way resembled the Bush warrantless wiretapping program which was discontinued after significant outrage. The Bush warrantless wiretap program, which they referred to as the "terrorist surveillance program" involved the collection of the content of telephone calls, emails, and other communications. The Obama program does not. It only involves phone numbers and the duration of phone calls. There is no recording of telephone calls. If, based on a review of those phone numbers the authorities wish to obtain the content of future communications between people associated with those numbers, they have to obtain a separate individualized warrant similar to that required in any criminal case.

Additionally, the Bush program was done without any warrant or legal authority. The program was not authorized under Foreign Intelligence Surveillance Act and consequently no warrant was sought from a court. Instead Bush asserted it could be done through an Executive Order issued under the authority of the AUMF (Authorization For Use Of Military Force) and without court review.

If it turns out that the Obama administration has or in the future develops a program different from the one that is currently outlined I will have a problem with it. But until then I see this as a minimal intrusion.

One final observation. Most people are well aware that there are reasonable criticisms of the operations of the Foreign Intelligence Surveillance Court. It has been viewed by many as little more than a rubber stamp for the administration seeking to obtain the patina of court oversight over its intelligence gathering activities. I sympathize with those concerns. However, there are reasons why this court exists and operates in the way it does. The information provided to the FISA Court is generally classified and therefore must be presented to judges who have the appropriate clearances. Second, decisions often have to be made very fast, which requires the availability of judges who can make decisions any day and at any time of day. Finally these are specialized areas of the law that require judges with specialized knowledge. It is almost inevitable that any court designed to carry out the unique responsibilities of a FISA court will also have the limitations that we see in the FISA court.

Miranda And The Public Safety Exception - Reality and Myths

There is a considerable amount of confusion regarding the Miranda doctrine and how it operates. This confusion has been heightened by the discussion of whether the FBI will invoke the public safety exception to the Miranda doctrine when questioning the Boston marathon bomber. Here is some basic information that may be useful in trying to understand the issues.

As most people know, the 1966 case of Miranda v Arizona held that the police are required to notify a suspect who is in custody that he has the right to stay silent and that if he speaks, any statements can and will be used against him in a court of law.

But of course if that is all the court had said, the Miranda decision wouldn't mean a whole lot. Just saying someone has a right to not make a statement would be meaningless sophistry, a right without a remedy, unless there are sanctions to back it up. The significance of the Miranda decision was not just that people in custody are required be notified of their Fifth Amendment right against self-incrimination, but that if that right is violated their statements cannot be used against them at trial.

This second part of Miranda was an extension of a series of decisions stretching back decades earlier which held that evidence that was obtained in violation of a person's Constitutional rights could not be used at trial. This was definitively articulated by Weeks v US for Federal cases and by Mapp v Ohio for state cases.

This doctrine is known as the exclusionary rule. It is one of the cornerstones of American jurisprudence and has been wildly controversial. The underlying premise of the rule is that unless law enforcement officials are severely penalized when they violate a suspect's Constitutional rights, they have no incentive not to keep a violating them. Excluding unlawfully gained evidence from trial is viewed as the best tools to make law enforcement officials abide by the rules since both from the standpoint of the police as well as the prosecutors all of their work will come to naught if they are unable to get a conviction. The courts did analyze other potential remedies, such as sanctions against police officers, but determined that they are largely unworkable, and provide no real protection to a defendant whose rights have been violated.

It is important to note that the Fifth Amendment right to not be "compelled in any criminal case to be a witness against himself" exists regardless of whether or not the Miranda warning is given. If the suspect tells the authorities that he does not want to make a statement or in fact does not make a statement, his Fifth Amendment right against self-incrimination protects him. All Miranda does is ensure that the suspect is aware of that right.

Miranda applies when a suspect is in custody because the courts have determined that the very fact that a person is in custody is inherently coercive. If a person in custody freely and openly decides to talk after being told that he does not need to talk then the coercive element is taken away.

There is one other factor about the Miranda rule that is critical. Miranda does not prevent the authorities from questioning a suspect who has not been told of his Miranda rights. It merely prevents the authorities from using any of the statements made by the suspect and certain evidence that flows from those statements which is often referred to as the "fruit of the poisonous tree" from being used against the defendant at trial.

Now, what about the public safety exception. In a 1984 case, New York v Quarles, the Supreme Court set forth what is referred to as the "public safety" exception to Miranda. The court referred to it as a "narrow" exception which would allow the police to question a suspect before he is given his Miranda warnings about limited matters directly affecting the safety of the officers or the public. Further, the court held that any statements made by the defendant in response to those could be used at trial.

Quarles was a 6 to 3 decision with a vigorous dissent. The dissenters questioned whether or not, on a purely factual basis, there was a public safety issue in the case But more importantly were very concerned about how this exception could be abused. They asserted that this exception would cloud the clear unambiguous requirements of the Miranda rule which they believed had served the public and the interests of justice well for many years. In response, the majority stated

the exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. Police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.

There is an important point to remember when analyzing the public safety exception. It involves both factual and legal questions. If one does not believe that a public safety exception should exist, then no set of facts will justify such an exception. On the other hand if one's concerns are purely fact related, i.e., whether or not there a clear and immediate public safety concern justifying the questions, those concerns can only be resolved by a clear understanding of all of the underlying circumstances.

The public safety exception has been in existence for almost three decades. Needless to say the FBI and the Justice Department had a keen interest in providing guidance to its agent about the exception since they do not want to have prosecutions thrown out based on improper questioning. To that end, the FBI has issued a fairly comprehensive explanation of public safety exception which is a useful primer on how the exception developed, and how the FBI views it in application.

In addition, the FBI has issued specific public safety-terrorist guidance that is designed to be used in terrorist cases. Here is the meat of the guidance contained in that document, which is titled "Custodial Interrogation for Public Safety and Intelligence-Gathering Purposes of Operational Terrorists Inside the United States."

1. If applicable, agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights. [3]

2. After all applicable public safety questions have been exhausted, agents should advise the arrestee of his Miranda rights and seek a waiver of those rights before any further interrogation occurs, absent exceptional circumstances described below.

3. There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government's interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

What does all this mean in the upcoming interrogation of Dzhokhar Tsarnaev, the one surviving brother accused of carrying out the Boston Marathon bombing. It is possible that the FBI has some legitimate basis to invoke the public safety exception based on concerns about whether Tsarnaev has planted other explosive devices or is aware of other specific pending terrorist attacks. Beyond that, it's difficult to imagine any questions that would fall within the exception.

That does not mean, of course, that they can't ask him about anything they want to without having previously advised him of his Miranda rights. They can do so with the full awareness that in all likelihood they will be unable to use any statements he made about those matters in any trial against him.

Also, if he advises the authorities that he does not want to speak to them, or simply does not speak to them, even though they have not advised him of his Miranda rights, he is perfectly entitled to do so and the authorities are prohibited from compelling testimony.

We should always remember that even though the FBI may think it's questions are reasonable and fall within the public safety exception that does not mean that the courts will agree with them. Also, any answers to questions they may ask about future threats, whether admissible or not, don't necessarily in any way impact the admissibility of all of the evidence that has already been gathered in the case or that make be developed in the future that is unrelated to any statements.

Given some comments I've read I need to make some editorial observations. This is not Guantánamo. This is not some black site in Afghanistan. The United States has successfully prosecuted a large number of people accused of terrorism in the Federal courts of the United States and has done so while fully complying with the Constitutional guarantees applicable in such cases. Lindsey Graham notwithstanding, this case will be treated just like all of those other cases.