New Tax Won't Add up to Better Schools

Exactly how much money does it take to educate a student in the public school system?

We are repeatedly told "our kids deserve the best!" But what does the "best" cost? Will another $11.5 million do it? Guarantee it? Moline School District 40 tells us that its 2012 cost per student was $9,488.46.

At the same time, the county can't afford to replace a century-old physically and functionally obsolete courthouse, and is expected to ask for a tax increase to save its nursing home. The American economy stinks, and here comes one more special interest group telling us that our kids will be better off if only we pay an additional 1 percent sales tax. I doubt it!

Moline School District 40's financial statements show:

"Total governmental fund revenues for the fiscal year ended June 30, 2012, of $86,634,518."

"Total governmental funds expenditures for the fiscal year ended June 30, 2012, of $85,333,855."

Not content with that $86.6 million in revenue, a special interest group calling itself, "YES Makes Cents for Students," wants Rock Island County voters to impose a 1 percent sales tax "to provide a better and safer learning environment and to reduce reliance on property taxes." The 1 percent will raise $11.5 million, about $3.8 million of which would go to the Moline schools. In consideration for that increase, the district promises to reduce the real estate tax levy by $400,000. As such, the net tax increase for the people of Moline would be $3.4 million.

In short, the "Yes" people want $90,034,518 to run the Moline schools. The group also blithely claims taking $11.5 million out of the private sector will somehow "boost the local economy." But this isn't $11.5 million for just one year. It's $11.5 million every year!

The Moline School District's financial report also states, "Moline School District No. 40 serves 7,438 students with a 2011-12 total governmental fund budget of $102,556,230." In 2012, there were 47,457 men, women and children in Rock Island County. An $11.5 million tax increase means every man, woman and child's share of the tax will be $78 per year -- year after year.

Therefore, as during the fiscal year ending June 30, 2012, there were 7,438 students, including high school students, in the Moline School system. By simple division, the cost of educating each student was $11,472 ($85,333,855/7438 = $11,472). A $3.4 million tax increase means the Moline schools can spend $90,034,518 or $12,105 per child ($90,035,518/7438 = $12,105). And yes, I question the district's $9,488.46 per student figure.

So, why isn't $86.6 million enough? Why isn't $11,472 per student enough?
According to the district's figures, the 2011-12 student/teacher ratio was 16.15 students per teacher. Taxpayers, therefore, are already spending $184,699 per year to educate the 16.15 kids in each class.

Do the "Yes" people really expect us to believe that if we spend an additional $457 on each Moline child, it will boost the local economy? Provide a better and safer learning environment? At a time when the district barges ahead with the Hamilton School expansion over public objection, how can there be any trust on their promise to permanently reduce real estate taxes? And in the $86.6 million they already have, is there no $3.4 million that could be put to better use?

In the 2012-13 school year, the Moline School District was very "average." It ranked 222 out of 480 (top 46 percent). Only 50 percent of Moline High School graduates meet or exceed the ACT College Readiness Benchmark (defined by an ACT composite of 21 or higher).

Maybe it is time for the public school systems to take an open-minded look at private/Catholic school achievement.

Alleman's 2012-13 enrollment was 457 students. Its student-to-teacher ratio was 17:1. Ninety-eight percent of Alleman's graduating seniors went on to college or joined the military. Over 70 percent of Alleman's 2013 graduates met or exceeded the ACT College Readiness Benchmark. The average composite ACT score for 2012-13 was 23.1.

Alleman's Total Operating Fund Revenues for the 2012-13 year was $2,931,209. Its Total Operating Fund Expenses were $2,959,045. Alleman spent an average of $6,565 per each of its 457 students. And as far as I know, Alleman has football, baseball, softball, soccer, golf, volleyball, tennis, drama, orchestra, etc., just like the "public schools."

Why does it cost $11,472 to educate a student in the public schools, and only $6,565 to do so in a Catholic school? It is rather difficult to argue that Alleman isn't giving more bang for the buck.


Posted Online:  March 09, 2014, 11:00 pm - Quad-Cities Online
Last Updated: March 10, 2014, 7:40 am
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Quit Your Job, Pursue Your Dream, Let Others Pay

On Jan. 27, 1998, President Bill Clinton, in his State of the Union Speech, said, "A strong nation rests on the rock of responsibility. A society rooted in responsibility must first promote the value of work, not welfare. We can be proud that ... together we ended the old welfare system, and we are now replacing welfare checks with paychecks."

Now 16 years later, on Feb. 4, 2014, the non-partisan Congressional Budget Office has reported that The Affordable Care Act -- Obamacare -- will lead to about 2.5 million fewer full-time workers by 2024 because those full-time employees are expected to voluntarily forgo working so as to be eligible for government-subsidized health insurance.

If the CBO's report is to be believed, people either are -- or will be -- quitting their jobs or working less hours to get free or heavily subsidized government health insurance. And because to get free health insurance they reduce their earned incomes, they may also become eligible for other welfare benefits. In short, President Obama's Affordable Care Act relegates President Clinton's notion that "a society rooted in responsibility must first promote the value of work, not welfare" to the Democrat Party trash heap.

If you doubt that, consider the Feb. 4 remarks of White House press secretary Jay Carney. Rather than "promote the value of work, not welfare," the Obama administration now pooh-poohs the value of work: "At the beginning of this year, we noted that as part of this new day in health care, Americans would no longer be trapped in a job just to provide coverage for their families, and would have the opportunity to pursue their dreams."

"Work" is no longer a "value;" now a "job" is a "trap." For the administration, Obamacare gives Americans the opportunity to quit working "to pursue their dreams," while at the same time providing them with health insurance and welfare benefits" paid for by their neighbors!

If you think Carney's pronouncement was a slip of the tongue, think again. It is the Democrat "answer" to the fact that Obamacare is killing full-time employment. Look at what James P. Hoffa, Teamsters president, Joseph Hansen, United Food and Commercial Workers president, and and D. Taylor, president of UNITE-HERE have written: "The Affordable Care Act that will destroy the very health and wellbeing of our members along with millions of other hardworking Americans."

Compare Carney's statement to what Sen. Charles Schumer, D-NY, told Meet the Press on Feb. 9: "The single mom, who's raising three kids (and) has to keep a job because of health care, can now spend some time raising those kids. That's a family value."

Translated, the new Democrat platform is this: "Be a single mother. Have kids. We offer you a choice. Work, or don't work -- or at least, cut back your working hours. If you choose to work, you can support yourself and your children. If you choose not to work, you can have free insurance and other welfare benefits, paid for by your neighbor."

But where is the personal responsibility in having children outside a stable marriage? Where is the personal responsibility in birthing children you can't support? Where is personal responsibility in having children and expecting your neighbor to support them? Where is the personal"responsibility in quitting your job and and taking government handouts to provide for your children?

The president never tires of preaching "fairness." But, why is it "fair" that I should support my children as well as yours, while you support neither and "pursue your dreams?"

What if every American selfishly put him or herself first, quit his or her job, and looked to his or her neighbor to support his children? Why wouldn't it be "fair" if no one worked? Why wouldn't it be "fair" if no one paid taxes? Why wouldn't it be "fair" for everybody to get free Obamacare and welfare benefits? And how long would it be before the whole selfish system collapsed?

If equality is the goal, either all able-bodied person should work, or no able-bodied person should work. It is hardly "fair" for one person to work, while his neighbor sits under a tree "pursuing his dreams."

Once upon a time, within my lifetime, it was a disgrace to go on welfare. Now its encouraged by the government. It's a choice, a lifestyle, a pursuit of dreams.

This administration is the most irresponsible this nation has ever known. Bread and circuses.

Welfare (and I am not talking about earned old-age pensions) should be reserved for the disabled. For the able-bodied, welfare should be short-term and engineered to encourage a return to work. It should not incentivize not working. President Clinton understood that, and took pride in creating jobs and cutting welfare. The Obama administration thinks that it is smarter.
So how well are President Obama's "smarter policies" working? Here is the indictment -- in his own words -- found in his Jan. 28 State of the Union Speech:

"Average wages have barely budged. Inequality has deepened. Upward mobility has stalled. The cold, hard fact is that ... too many Americans are working more than ever just to get by; let alone to get ahead. And too many still aren't working at all."


Posted Online:  Feb. 28, 2014, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

In America, is the Income Tax Becoming an Instrument of Plunder?

What is worse? Taxation without representation? Or representation without taxation?

I suggest they are two sides of the same coin. Both are equally bad.
Prior to the American Revolution, citizens of England's colonies in America were adamant against the British Parliament imposing taxes upon them.

They didn't care what tax Parliament sought to impose. The British "constitution" guaranteed that no free man could be taxed without his consent. That consent was given by the member of the House of Commons representing the citizen's district. But American colonists had no representatives in Parliament. As such, they objected to Parliament taxing them.

They opposed the Sugar Act of 1764, the Stamp Act of 1765, and the tax on tea of 1773. The amount of the tax was not the issue. It was the principle. They objected to the power of the English Parliament to impose any tax at all.

This is not to say that the colonists opposed all taxation. They recognized the right of their elected representatives in the colonial assemblies to tax them. But they denied the right of Parliament -- across the ocean -- where they had no representatives to tax them.

In May 1764, Samuel Adams of Boston set forth what came to be the position of the colonies:

"For if our Trade may be taxed, why not our Lands? Why not the Produce of our Lands & every thing we possess or make use of?

"This we apprehend annihilates our Charter Right to govern & tax ourselves -- It strikes our British Privileges, which as we have never forfeited them, we hold in common with our Fellow Subjects who are Natives of Britain: If Taxes are laid upon us in any shape without our having a legal Representation where they are laid, are we not reduced from the Character of free Subjects to the miserable State of tributary Slaves?"

The American federal income tax is a graduated tax. Persons with higher incomes pay at greater rates than persons with little or no income. But in America, every citizen gets one vote.

Samuel Adams and our founding fathers realized there was something wrong with people who aren't going to pay the tax voting to impose a tax on other people who will be required to pay the tax. In Adams' time, the danger came from across the sea. Englishmen, who weren't going to pay the tax, were voting to impose a tax that Americans would have to pay.

For the colonists, it was "taxation without representation. For the English, who weren't going to pay the tax, and who had representation in Parliament, it was "representation without taxation." To Americans who would be paying the tax, it was two sides of the same coin.

Once the principle was established, there were no limits. A one-penny tax imposed by Englishmen on Americans in 1765 could be increased to a one-pound tax a year later, and so on.

Two hundred and fifty years later, middle class Americans face a similar threat. According to the Tax Policy Center and Forbes Magazine, 43 percent of American households will pay no federal income tax in 2013. (They point out that this is down from 47 percent in 2009.)

But Americans who pay no taxes have power to elect representatives pledged to raise the income tax on all who do. The difference, of course, is that the Americans who will be taxed, do have representation in Congress. But in the very near future those who do pay income taxes may not have sufficient" representation in Congress to prevent the majority -- the non-paying majority -- from working its will.

Samuel Adams was not a Chicken Little when he worried that small taxes would morph into big taxes over time. The 16th Amendment, which allows for the graduated income tax, became law in 1913. The 1913 income tax created seven tax brackets. Rates ranged from 1 percent to 7 percent.
When a poor man pays 1 percent of his income, it hurts. And if he votes for congressmen pledged to raise taxes, that should include his own taxes. When the federal income tax imposed on middle class Americans is raised, that hurts, too.

The principle should be, if I am willing to raise my neighbor's taxes, I should be willing to raise my own. If I am willing to hurt the guy next door, I should be willing to hurt myself.

But when 43 percent pay no tax, and can vote to elect representatives to raise taxes of their neighbors who pay income taxes, is not Adams query true?

"Are we not reduced from the Character of free Subjects to the miserable State of tributary Slaves?"

Those who see nothing wrong with 43 percent paying no income tax, will respond that those who pay no income tax may still be paying FICA and state, real estate and sales taxes. But the people who are paying federal income taxes are also paying those taxes. And if the "poor" vote to raise FICA or state taxes, they are also sharing the burden. That is fair.

But it simply is not fair to increase the income tax on your neighbor -- generally the biggest tax of them all -- while at the same time not paying that tax yourself. This is converting the graduated income tax into an instrument of plunder.


Posted Online:  Feb. 16, 2014, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Should Americans Go to Jail for Lying?

On June 28, 2012, in U.S. v Alvarez, the United States Supreme Court decided what was, in my humble opinion, among the most important of all the First Amendment Cases it has ever decided.

Alvarez, the defendant, had introduced himself, after being elected to a Water District Board as follows: "I'm a retired marine of 25 years.... (I)n 1987, I was awarded the Congressional Medal of Honor."

Alvarez's medal claim was false. He was prosecuted under a law which provides "Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States ... shall be fined."

The press correctly reported the reversal of Alvarez's conviction, but failed to warn the American people what the Obama administration had argued to sustain the conviction. Had the court accepted the administration's position, the administration would have been handed the tool it needed to shut down and destroy Rush Limbaugh, Sean Hannity, the tea party and any other American it believed to be lying. Had the administration prevailed, it would have been in position to criminalize telling any simple lie.

The Obama administration, in the words of the court, cited to the court "language from some of this Court's precedents to support its contention that false statements have no value and hence no First Amendment protection."

The court added, "In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection."

The government then set out three examples of "false speech" being regulated.

-- False statements made to a government official

-- Perjury

-- False representation that one is speaking on behalf of the government

The court considered and rejected the government's notion that there should be a "new category of unprotected speech," pointing out that in all the examples given by the government, more was involved than a simple false statement. "These restrictions, however, do not establish a principle that all proscriptions of false statements are exempt from exacting First Amendment scrutiny. ... Perjury, for example, undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system. ...

"The Government has not demonstrated that false statements generally should constitute a new category of unprotected speech on this basis."

The court set out the logical consequences of the government's position.

"Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered conversations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain.

"Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court's cases or in our constitutional tradition."

Finally, the Court put the kibosh on the administration's reach to limit the right of American's to engage in free speech.

"Although the objectives the Government seeks to further by the statute are not without significance, the Court must, and now does, find the Act does not satisfy exacting scrutiny. ...

"To recite the Government's compelling interests is not to end the matter. The First Amendment requires that the Government's chosen restriction on the speech at issue be 'actually necessary' to achieve its interest.

"The Government has not shown, and cannot show, why counter speech (refutation) would not suffice to achieve its interest. ...

"Once the lie was made public, (Alvarez) was ridiculed online, ... his actions were reported in the press, ... and a fellow board member called for his resignation. ...

"The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. ...

"Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person."

The Justice Department lawyers who advanced the arguments before the Supreme Court were trained lawyers. It is inconceivable to me that they did not understand that if they could put Alvarez in jail for telling a simple lie, they could use the power of the FCC to silence Limbaugh, Fox News, and all others who disagreed with the policy positions of the Obama administration. Had the court acceded to the administration's position, upon a simple majority vote of Congress, the hated Alien and Sedition Act of 1798 could once again have been made law, and the First Amendment rendered a dead letter.

And who would have had power to decide if a lie had been told? The government, of course!

Posted Online:  Feb. 02, 2014, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Judge Pauley: Metadata Collection Is Constitutional

On Dec. 27, 2013, U. S. District Court Judge William H. Pauley III issued his opinion in ACLU v. Clapper, in which he upheld the constitutionality of the NSA's collection of metadata of "virtually every telephone call to, from or within the United States."

His opinion runs directly contrary to Judge Richard Leon's opinion, which I discussed in Sunday's op-ed.

Judge Pauley first finds that the NSA's collection of breathtaking amounts of metadata does not amount to a search because a search occurs only when the government looks into an area where the individual has a "reasonable expectation of privacy."

"In Smith v. Maryland, the Supreme Court held individuals have no 'legitimate expectation of privacy' regarding the telephone numbers they dial because they knowingly give that information to telephone companies when they dial a number. Smith's bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties."

Judge Pauley then sets out what he considered the fatal flaws in the ACLU's arguments.

"The ACLU's pleading reveals a fundamental misapprehension about ownership of telephony metadata. ...

"First, the business records created by Verizon are not 'plaintiffs' call records.' Those records are created and maintained by the telecommunications provider, not the ACLU.

"Second, the Government's subsequent querying of the ... metadata does not implicate the Fourth Amendment -- any more than a law enforcement officer's query of the FBI's fingerprint or DNA databases to identify someone.

"The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search."

Judge Pauley then proceeded to discuss the presidents' "executive" power, when the president acts in national security matters pursuant to congressional authorization.

"The Constitution vests the President with Executive Power ... That power reaches its zenith when wielded to protect national security."

Then citing Justice Robert Jackson's highly regarded concurring opinion in Youngstown Sheet &Tube Co., Judge Pauley wrote, "When the President acts pursuant to an express or implied authorization from Congress," his actions are "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion ... rests heavily upon any who might attack it. ... And courts must pay proper deference to the Executive in assessing the threats that face the nation."

Judge Pauley then explained why such deference is accorded. "Most federal judges do not begin the day with briefings that may describe new and serious threats to our Nation and its people. Any injunction dismantling the section 215 telephony metadata collection program would cause an increased risk to national security and the safety of the American public."

Then, Judge Pauley found that "The effectiveness of bulk ... metadata collection cannot be seriously disputed." By way of contrast, Judge Leon had found that "the Government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature."

Judge Pauley explains that failure away: "Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America's enemies."

Starting from his finding that the NSA metadata collection program did not amount to a "search," allowed Judge Pauley to focus instead on "national security concerns."

"No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific. Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the Government's counter-punch: connecting fragmented and fleeting communications to reconstruct and eliminate al-Qaeda's terror network."

But in his conclusion, Judge Pauley hedges his bets. Having written earlier that the NSA's collection of metadata was not a search, he concludes by saying that if it was a search, that it was a "reasonable exception" to the 4th Amendment's warrant requirement.

"The right to be free from searches and seizures is fundamental, but not absolute. ... The Bill of Rights is not a suicide-pact. ... Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness. The ultimate touchstone of the Fourth Amendment is 'reasonableness.'"

The program, although sweeping, is "reasonable" in his view because it does what it is designed to do.

"No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice."

He buttresses his finding that the program is "reasonable," writing, "There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks."

And the program is "reasonable" because "The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who serve on the Foreign Intelligence Surveillance Court."

Posted Online: Jan. 13, 2014, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Judge Leon: Madison Would Be Aghast at Spying

In my last op-ed, I described what two federal judges have said about the extent of the NSA's Bulk Metadata Program.

U.S. District Court Judge Richard J. Leon has held that the program is unconstitutional. This op-ed discusses his opinion. Judge William Pauley has held that the program is constitutional. My next op-ed will discuss his opinion.

On Dec. 16, Judge Leon issued his opinion in Klayman v. Obama. In that case, the plaintiffs challenged the constitutionality of the NSA's wholesale collection of phone record metadata of all U.S. citizens. Judge Leon held that what the NSA was doing was an unconstitutional violation of the plaintiffs' Fourth Amendment rights against illegal search and seizure.

The Fourth Amendment provides: "The right of the people to be secure in their ... effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath ... and particularly describing the place to be searched, and the persons or things to be seized."

Judge Leon began his opinion by alluding to the background of the case. "On June 5, 2013, the British newspaper The Guardian reported the first of several leaks of classified material from Edward Snowden, which have revealed -- and continue to reveal -- multiple U.S. government intelligence collection and surveillance programs. That Guardian report disclosed a Foreign Intelligence Surveillance Court (FISC) order, dated April 25, 2013, compelled Verizon ... to produce to the NSA on 'an ongoing daily basis ... all ... metadata created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.'"

Judge Leon noted The Guardian further stated that this order "showed that under the Obama administration, the communication records of millions of U.S. citizens are being collected indiscriminately and in bulk -- regardless of whether they are suspected of any wrongdoing."

Metadata includes information as to "what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted."

Judge Leon first found that that metadata collection was a search. "Having found that a search occurred in this case, I next must examine the totality of the circumstances to determine whether the search is reasonable within the meaning of the Fourth Amendment."

Judge Leon then noted "as a general matter, warrantless searches are per se unreasonable under the Fourth Amendment."

For that reason, he next looked to see if the NSA search might fall within a recognized exception.

"The Supreme Court has recognized only a few specifically established and well-delineated exceptions to that general rule ... Even where the government claims 'special needs,' as it does in this case, a warrantless search is generally unreasonable unless based on some quantum of individualized suspicion."

The judge then summarized the essence of the government's position:

"To my knowledge, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction such a dragnet."

The government's position shocked Judge Leon.

"I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment. ... James Madison ... would be aghast."

The judge then distinguished his holding from a U.S. Supreme Court precedent, Smith v. Maryland (1979), relied upon by the government.

"The question in this case can more properly be styled as follows: When do present-day circumstances -- the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies -- become so thoroughly unlike those (circumstances) considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer ... is now.

"The almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person's phone records for calls made (for a period of two weeks from his home) after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction."

Judge Leon's prime concern in refusing to carve out a Fourth Amendment exception appears to be that the same metadata that today can be used to ferret out terrorists, tomorrow can be misused by a dictator to ferret out all opposition.


Posted Online:   Jan. 11, 2014, 9:40 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Is What the NSA Is Doing Constitutional?

James Clapper is President Obama's director of national intelligence.
During a March 12, 2013, U.S. Senate Select Committee on Intelligence hearing, Sen. Ron Wyden, D-Ore., asked Director Clapper, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"

Mr. Clapper responded, "No, sir."

Sen. Wyden then asked, "It does not?" and Clapper said, "Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly."

Now, two contrary opinions by two U. S. District Court Judges, Richard J. Leon and William H. Paulley III, make it very clear that Director Clapper flat-out lied.

What must be understood, is this: Both Judge Leon (a Bush appointee) and Judge Paulley, (a Clinton appointee) accepted the government's version of the facts. They made their finding based on the government's own description of the NSA's Bulk Metadata Program (BMP).

Under the BMP, which was developed under Section 1861 of the Patriot Act, the NSA collects metadata. That includes information about what phone numbers were used to make and receive calls, when the calls took place, and how long they lasted.

According to the government, the BMP is used to detect:

-- Domestic U.S. phone numbers calling outside of the U.S. to foreign phone numbers associated with terrorist groups;

-- Foreign phone numbers associated with terrorist groups calling into the U.S. to U.S. phone numbers; and

-- "Possible terrorist-related communications" between U.S. phone numbers inside the U.S.

But that is only the beginning. Assume a phone call from Pakistan, from number (555) 555-5555, comes into the United States to phone number (123) 456-7890.

If one of 22 designated officials at the NSA determines that either of those numbers is "associated with a terrorist group," then a NSA intelligence analyst -- without seeking a search warrant from a judge -- can authorize a "query" if he decides that facts exist which give rise to "a reasonable articulable suspicion" that either of the phone numbers in question is associated with one or more foreign terrorist organizations ("the seed"). The "query" involves a "three-hop" analysis.

In plain English, this means that if a search starts with telephone number (123) 456-7890 as the "seed," the "first hop" will include all the phone numbers that (123) 456-7890 has called or received calls from in the last five years (say, 100 numbers).

The "second hop" will include all the phone numbers that each of those 100 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 100 "first hop" numbers, or 10,000 total).

Finally, the "third hop" will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 10,000 "second hop" numbers, or 1,000,000 total).

What must also be understood, is that once a query is conducted and it returns a "universe" of responsive records (i.e., a "universe" limited to records of communications within "three hops" from the seed), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without further "reasonable articulable suspicion."

So, is all this constitutional?

The government claims it is. It argues that the BMP has been approved by an order of the Foreign Intelligence Surveillance Court (FISC).

The government assured the judges that metadata "does not include any information about the content of those calls, or the names, addresses, or financial information of any party to the calls." Finally, the government has stated the orders of the FISC governing the program specifically provide that the metadata "records may be accessed only for counterterrorism purposes."

What must be understood, is that what the NSA is doing raises grave Fourth Amendment questions. 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."

Is the FISC order authorizing the BMP consistent with the Fourth Amendment? Sen. Rand Paul, R- Ky., doesn't think so, and has begun a class action law suit, which asks whether is it constitutional to "have a single warrant apply to millions of people."

I have written this piece, not to takes sides, but to set out what the NSA is doing according to two federal judges. Two companion pieces will follow discussing the contrary rulings of those two judges.

So did Director Clapper lie? Is this "inadvertent collection?"

You decide.

Posted Online:  Jan. 09, 2014, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea