Civil Liberties

RERUN–Be Afraid

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(Originally posted in July 2009. I’m re-running it now for obvious reasons)

Many Unhappy Returns, by Charles Rossotti, is the story of Rossotti’s experiences as IRS Commissioner, which position he held from 1997-2002having previously spent his career in the private sector and been cofounder & chairman of American Management Systems Inc. I picked the book up for a dollar at a library book sale, thinking it might offer an interesting case study on the challenges of managing and improving a very large bureaucratic organization.

And I’m sure it does. On the very first pages of the book, though, are some stories which are very relevant to our current political situation.

During the 1990s, public dissatisfaction with the IRS reached new levels, resulting in a series of Congressional hearings beginning in 1996. Rossotti excerpts some of the stories told by taxpayers (and IRS agents) at these hearings, and grim reading they are indeed.

For example, a woman from California told of her 14 year struggle to pay off a tax debt incurred by her first husband prior to their 1983 divorce. “Kafka himself could not have invented this real-life tale of an ordinary person caught in a maddening bureaucratic maze with no maps, no exits, and no explanation,” says Rossotti. Her ex-husband had gotten all the notices, but she alone had gotten the bill for interest on the unpaid balance. When she tried to pay it, the IRS repeatedly refused to accept payment, telling her she didn’t owe anything and even sending her refunds. But years later, the IRS threatened to put a lien on her new husband’s home because of her prior “debt.” She paid it but five years later, her second husband’s salary was levied for payment on the same “debt,” leaving the couple with only $18 a week to live on.

“The IRS is judge, jury, and executioneranswerable to none” said the woman in her Congressional testimony.

An IRS agentthe only one willing to testify without concealing her identityclaimed that it was an intentional policy of IRS management to pick on weak taxpayers to make the IRS’s statistics look better. She said that “to the IRS, vulnerabilities can be based on a perception that the taxpayer has limited formal education, has suffered a personal tragedy, is having a financial crisis, or may not necessarily have a solid grasp of their legal rights”…that “if the taxpayer does object or complain, every effort will be made by the IRS to run up their tax assessment, deplete their financial resources, and force them to capitulate to IRS demands.”

A Newsweek story said that “According to more than a dozen agents…(management) pushed for ever more property seizures from delinquent tapayers, even though the IRS manual says such moves should be a final resort, riding roughshod in some cases over their rights to appeal. They closed cases an sometimes slapped on levies and liens prematurelywhich boosted the enforcement stats that the IRS rewards with cash awards for top officers.” There’s lots more of this stuff in Rossotti’s book.

Government is inherently dangerous. As a Delaware construction contractor said during the hearings, “believe me, when the resources of the government are unleashed on you, you are in trouble, no matter how good your case.” And this point is not specific to the IRS.

 Reading these stories reminded me of a passage that has been attributed to George Washington:Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action.It’s not clear that this quote really came from George Washingtonbut whoever said it, it captures an important truth. Yes, government is essential, but it is inherently very dangerous and there must be constant vigilance to keep this danger in check. Yet the dangers to individuals that come from a tremendous expansion of government seem entirely invisible to the “progressives” who currently dominate our national politics. This despite the fact that over the last century, hundreds of millions of people have been killed by their own governments and billions more subjected to lifetimes of unnecessary poverty.

And I would assert that the organizational and systems issues involved in enforcing the IRS regulations fairly, although not simple, are far less complex than those involved in a national healthcare program. And the  time  criteria are much more stringent in healthcarea delay of a week usually won’t matter in an IRS case; in a healtcare situation, it may literally be a matter of life and death.

In virtually every aspect of American life, we are now seeing efforts to vastly expand government power, while ignoring or minimizing the dangers associated with such expansion.

Original CB discussion thread here

Obama, NSA Surveillance, and the Future of the American Information Technology Industry

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I’m currently reading 1913: In Search of the World Before the Great War, by Charles Emmerson. The book describes the social and political climates then existing not only in the major European countries, but also in other places around the world, ranging from Australia to Canada to China.

In his description of Jerusalem–then under control of the Ottoman Empire but with a population including residents and pilgrims from many countries–the author says:

Different countries even had their own postal services, circumventing the Ottoman telegraph service, which was widely thought to be a nest of spies reporting communications back to Constantinople.

Fast forward 100 years….In the wake of the reports concerning NSA surveillance programs, there is widespread concern..among non-Americans as well as among citizens of this country…that the American telecommunications and information-processing services may be “a nest of spies” reporting communications back to Washington…and from there, possibly, to other shadowy recipients. These concerns may have serious economic ramifications.

See, for example, Forbes–NSA Surveillance Threatens US Competitiveness:

Non-US customers of any US business will immediately evaluate their exposure to these new risks and look for alternatives. European, Canadian, and Australian tech companies will profit from this. Competitors in those regions will offer alternatives that will also draw US customers away from the compromised US services.

Washington Post–European Leaders Raise Concerns on US Surveillance

“The German business community is on high alert,” said Volker Perthes, director of the German Institute for International and Security Affairs. “It’s not just about listening in on some bearded guy from Ulm who bought a ticket to Afghanistan and makes conversation with his friends in Waziristan.  .”‰.”‰.  The suspicion in large parts of the business sector is that Americans would also be interested in our patent applications.”

Popular Mechanics–Why the NSA Prism Program Could Kill US Tech Companies:

Think for a second about just how the U.S. economy has changed in the last 40 years. While a large percentage of our economy is still based in manufacturing, some of the most ascendant U.S. companies since the 1970s have been in the information technology sector…

Let’s say you ran a business in (Japan, India, Australia, Mexico, or Brazil)  that relied upon information services from a U.S. company. Don’t these revelations make using such a service a business liability?  

See also Business Insider–Did Obama Just Destroy the US Internet Industry?

 

I don’t think these revelations, even if they are fully validated, will really “kill” US tech companies or “destroy” the US Internet industry…the headlines are a bit over the top, as headlines often are. I do believe, however, that the American information technology industries will be significantly harmed, with implications for the entire US economy…something that we really cannot afford at this particular point in time.

I think it is obvious that the US government needs to conduct anti-terrorist surveillance programs, which must encompass telecommunications networks…the idea that NSA should be abolished, as some have suggested in recent days, is to my mind very unwise. But non-Americans as well as Americans have every right to be concerned about the scope of what has apparently been going on, and the apparent lack of proper controls, and furthermore, to raise questions about how the information gathered is actually being used.

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Durbin, Tocqueville, and Freedom of the Press

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Yesterday, Glenn Reynolds linked some comments by Senator Dick Durbin, who said he favors a “media shield law”…but isn’t sure if such a law should protect people who are bloggers and/or tweeters, rather than being employees of Associated Press, Fox News, etc.

“Are these people journalists and entitled to constitutional protection?, asked Durbin. “We need to ask 21st  century questions about a provision that was written over 200 years ago.”

As it happened, last night I was reading Alexis de Tocqueville, who (as usual) has some relevant things to say:

In France the press combines a twofold centralization; almost all its power is centered in the same spot and, so to speak, in the same hands, for its organs are far from numerous. The influence upon a skeptical nation of a public press thus constituted must be almost unbounded. It is an enemy with whom a government may sign an occasional truce, but which it is difficult to resist for any length of time.

Neither of these kinds of centralization exists in America. The United States has no metropolis; the intelligence and the power of the people are disseminated through all the parts of this vast country, and instead of radiating from a common point they cross each other in every direction; the Americans have nowhere established any central direction of opinion, any more than of the conduct of affairs. This difference arises from local circumstances and not from human power; but it is owing to the laws of the Union that there are no licenses to be granted to printers, no securities demanded from editors, as in France, and no stamp duty, as in France and England. The consequence is that nothing is easier than to set up a newspaper, as a small number of subscribers suffices to defray the expenses.

Hence the number of periodical and semi-periodical publications in the United States is almost incredibly large. The most enlightened Americans attribute the little influence of the press to this excessive dissemination of its power; and it is an axiom of political science in that country that the only way to neutralize the effect of the public journals is to multiply their number…The governments of Europe seem to treat the press with the courtesy which the knights of old showed to their opponents; having found from their own experience that centralization is a powerful weapon, they have furnished their enemies with it in order doubtless to have more glory for overcoming them.

In America there is scarcely a hamlet that has not its newspaper. It may readily be imagined that neither discipline nor unity of action can be established among so many combatants, and each one consequently fights under his own standard. All the political journals of the United States are, indeed, arrayed on the side of the administration or against it; but they attack and defend it in a thousand different ways.  

Durbin referred to the First Amendment as “a provision that was written over 200 years ago,” apparently implying that the passage of time makes it less relevant today. If he were better-educated and more intelligent, he would understand that the press environment of the Revolutionary era and the first half of the 1800s, marked by decentralization and low start-up costs, is more similar to today’s Internet-driven media environment–marked by the same factors–than either is to the era that was marked by a few huge quasi-monopolistic media organizations.

When the Founders referred to “freedom of the press,” what exactly did they mean? I think there is a very strong case to be made (see detailed legal analysis by Eugene Volokh) that they meant freedom of the printing press (and, implicitly, of its technological successors) rather than offering a grant of special privilege to entities within a particular industry. Indeed, what would a grant of special protection to a “press” industry have even meant in an age when any citizen could buy a simple printing press and immediately begin publishing pamphlets or newspapers, without any need for huge capital investments, AP wire feeds, dozens of employees, etc?

I agree with Glenn Reynolds that “We need protections for journalism, not journalists.” The idea of special civil-liberties protections only for a particular industry, with membership in that industry inevitably to be certified by the powers-that-be, is highly dangerous, and takes us back to an environment of  licenses to be granted to printers, securities demanded from editors, as in France, and stamp duty, as in France and England.

I notice that the people who want to use “technology” as an excuse for the erosion of constitutional protections are generally people whose ignorance of technology is exceeded only by their ignorance of history.

 

When Nixon Meets RICO, Obama’s Real IRS Problem

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Over the week end of May 18-19 2013 the Obama Administration official Dan Pfeiffer went out and spun the IRS scandal saying “The law is irrelevant”. On the contrary, the law is very much relevant to the IRS scandal, including prohibitions against specific acts by IRS personnel and more general laws of which the ones to watch concern private civil actions for damages under the federal Racketeering, Influence and Corrupt Organizations (RICO) Act (18 USC 1961, et seq.) and Civil Rights Act (42 USC 1983, et seq.). There is every possibility that the victims of the IRS’s suppression of Obama political opponent free speech rights will sue the IRS and individual IRS employees under the civil rights and civil RICO laws for a $150-to-$650 million legal payday.

Remember, _THE IRS CONFESSED_. There is no argument that it admitted some of its actions concerning Tea Party organization tax-exempt applications were unlawful, i.e.., illegal. It is obvious that the IRS and its staff engaged in an organized multi-work unit, multi-state, plus Washington DC Headquarters, wide conspiracy to suppress the Tea Party. The IRS unlawfully applied special rules to Tea Party applicants that it did not to others and that conspiracy prevented them from exercising their free speech rights for the 2010 and 2012 election cycles.

It also is very clear that the IRS — via the questions it was asking the Tea Party and other religious non-profits — was busy creating a quite extensive Nixonian/Ailinskyite ENEMIES LIST for future use in intimidation and the depriving Obama Administration political opponents of their Constitutional Rights.

Those are classic CONSPIRACY AGAINST RIGHTS (18 USC 241) and DEPRIVATION RIGHTS UNDER COLOR OF LAW (18 USC 242) violations.

See these criminal federal civil rights statutes, whose violation gives rise to civil liability for damages too:

“Conspiracy Against Rights (18 USC 241)
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.”

and

“Deprivation Rights Under Color of Law (18 USC 242)
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both;

and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.”

That is the criminal side of things.

The problem AG Holder is going to suffer obstructing discovery in civil rights and civil RICO lawsuits against the IRS is that criminal prosecutions and civil suits for damages proceed in tandem. The civil suits aren’t stayed by criminal prosecutions on the same subject, let alone by criminal “investigations” short of prosecutions.

The IRS “Special Group’s” delay of tax exempt status prevented Tea Party NGO’s from fund raising and participating in two political cycles (2010 and 2012) by educating “low information voters” as to the political issues of the day, like the National Rifle Association does. The NGO’s whose applications for tax-exempt status were slow-rolled can claim “trade and business” damages under Civil RICO provisions of Federal law. And the Supreme Court of the USA decided decades ago that criminal acts by the Federal government “under the color of law” do not qualify for sovereign immunity under the Federal supremacy clause of the constitution.

To quote a lawyer I know

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