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Privacy is not the problem

December 9, 2015

In the wake of last month’s monstrous terrorist attacks in Paris and the recent massacre in San Bernardino, national security hawks wasted no time in declaring their verdict of who was truly responsible. The USA FREEDOM Act and encryption are the culprits. They don’t offer evidence to back their statements—instead, they rely on a preconceived narrative of truthiness.

Presidential candidate Jeb Bush called for the restoration of Section 215 of the PATRIOT Act "I think we need to restore the metadata program, which was part of the Patriot Act… I think that was a useful tool to keep us safe and also to protect civil liberties.” Not to be outdone Sen. Marco Rubio (R-Fla.) slammed rival presidential candidate Sen. Ted Cruz (R-Texas) for supporting the USA FREEDOM Act, which Rubio argues “leaves Americans vulnerable.”

This in spite of the fact that both the Director of National Intelligence, James Clapper and Attorney General Loretta Lynch penned a joint letter endorsing the USA Freedom Act explaining “We believe that it is a reasonable compromise that preserves vital national security authorities, enhances privacy and civil liberties and codifies requirements for increased transparency.”
USA FREEDOM is not without its flaws, but its drafters aimed to strike balances between national-security concerns and real issues centering on government overreach and intrusiveness. Even the author of the PATRIOT Act, Rep. Jim Sensenbrenner (R-Wis.) recognized that Section 215 went too far and was ineffective which is why he penned the USA FREEDOM Act to curtail an obvious abuse of the intelligence community.  Worse, it’s indisputable that the metadata program of Section 215 was never successful in disrupting a terrorist plot.

Sensenbrenner hasn’t changed his tune, despite the attacks. Instead he has continued to call for a balanced approach to the serious national security threats facing us, blaming fellow Republicans for hyperbole saying, “these horrific actions are no excuse for the knee-jerk reactions, political platitudes, and fear mongering we've been experiencing from some of my colleagues in its aftermath.”

Efforts to undermine the USA FREEDOM reforms shouldn’t be taken seriously. The metadata program, which is domestic, would never been used to ensnare a plot in Europe. Additionally, we know for a fact that these terrorists were already under surveillance by European intelligence authorities but steps were not taken to actually apprehend them.

This is a scenario we in America understand. Whether it was the 9/11 hijackers or the Boston Marathon bombers, there have been times when a weak link in the chain between intelligence community surveillance and law enforcement halted efforts to catch the bad guys. Instead of creating a bigger haystack to find the needle, but following Constitutional methods to catch those who seek ways to carry out terrorism. This year’s surveillance reforms did just that.

Instead of waiting for facts from the French-led investigation Senate Intelligence Committee Chairman, Richard Burr (R-N.C.) jumped to the conclusion telling the press “It is likely that end-to-end encryption was used to communicate between those individuals in Belgium, in France, and in Syria.” This notwithstanding facts that French authorities found unencrypted SMS text messages between the perpetrators. (It’s not even clear yet that there’s a Syrian connection to the attacks.)

Over the past few months there has been a revamped effort to curtail encryption. This debate was highlighted by FBI Director James Comey’s hearing in July where he called for a “golden key” that will enable the government to access encrypted information. While at the time his plea did not move the needle for legislative action, in the aftermath of Paris momentum is stirring to enable government entities to have backdoor access into encrypted communication.

The rationale used by national security hawks is that terrorists could potentially encrypt their messages making it impossible for monitoring. While it is possible that terrorists could use encrypted messages, it is a benefit that everyday Americans also enjoy in every facet of their lives. Online banking, establishing a secure Internet connection, purchasing a product on Amazon, or even missionaries helping religious minorities in a far-off nation are all enabled because of strong encryption. Opening a backdoor wouldn’t just help the intelligence community but would also expose users to vulnerabilities from hackers and other entities wishing to do harm. Every right we have is a right that bad guys might use against us, but that’s not an argument for security “backdoors.” And when truly secure encryption is outlawed, only outlaws will have truly secure communications. That’s a crazy outcome.

The old adage that a good politician never lets a crisis go to waste might raise your profile but it also makes for terrible policy. Instead of undermining Internet security and the privacy of Americans policymakers should work with tech and privacy experts to discern the right, balanced approach to handling of these delicate issues. 

Leamer is outreach manager and a senior policy analyst at the R Street Institute, a free-market think tank.

View this article online here.
WASHINGTON, D.C. – Today, Congressman Jim Sensenbrenner released the following statement:

Congressman Sensenbrenner: “Political posturing does not make this country safer and it certainly isn’t a serious approach to the challenges we face. The bulk collection of innocent Americans’ data is not only a government intrusion, but it also overwhelms intelligence agents, increasing the likelihood they miss crucial information. Further, the promulgation that the terrorist onslaught in Paris could’ve been prevented under the NSA’s overbearing bulk data collection program is fundamentally false. It was still in effect at the time of the Boston Marathon and Paris attacks, as well as the lead up to the attacks in San Bernardino. USA FREEDOM is carefully balanced legislation that gives intelligence agencies the tools they need to keep America safe. Claims to the contrary are fear mongering, plain and simple.”
A lead author of the U.S. Patriot Act has some advice for European officials as they wrestle with the balance between personal liberties and security in the wake of the Paris terror attacks.

“The cautionary tale is that democracy depends upon a respect for civil liberties,” Jim Sensenbrenner, the former chairman of the House Judiciary Committee, told POLITICO this week. “In France this goes all the way back to their revolution, which was right after ours and the Declaration of the Rights of Man following that revolution.”

He should know. The 18-term Wisconsin Republican, who helped push through President George W. Bush’s post-September 11 sweeping law enforcement and surveillance legislation in 2001, has long since concluded that the U.S. intelligence establishment went far beyond its mandate. That’s why after the Snowden revelations of 2013, he led the charge to scale back the Patriot Act and end the National Security Agency’s bulk collection of data earlier this year, resulting in the USA Freedom Act.

“Talking about it in practical terms, the answer is to target the people which you know are up to bad stuff rather than bringing in the 99.8 percent of the inhabitants there, including the vast majority of followers of Islam, who have no intention whatsoever of conducting a terrorist attack,” he said.

While he’s been in Washington for nearly four decades, Sensenbrenner is actually no stranger to many European lawmakers, so he’s sensitive to the higher priority that many Europeans place on personal privacy. In mid-October, Europe’s largest political party — the EPP, which is center-right ideologically — awarded him its Robert Schuman Medal for his work on data-protection issues. The only other American to get the award is former President George H.W. Bush.

Sensenbrenner says the aftermath of the Paris attacks reminds him of the dark, confusing days after 9/11.

On the Sunday after the attacks on New York City and the Pentagon 14 years ago, Sensenbrenner returned to his home state of Wisconsin and received the Bush administration’s first draft of the Patriot Act. Sensenbrenner describes the proposal as an almost complete suspension of civil liberties, and a grab bag of proposals that Congress had previously rejected.

Sensenbrenner defends his role in writing the law, and says he insisted to President George W. Bush that the programs couldn’t go on in perpetuity. Sunset provisions were therefore included, requiring the programs to be renewed. He notes that at the time, a broad range of lawmakers, from security hawks to civil libertarians, voted for the bill. The House passed the bill on a 357-66 vote on Oct. 24, 2001; the Senate cleared the bill a day later on a 98-1 vote, with only Democrat Russ Feingold of Wisconsin dissenting.

After the Snowden revelations brought NSA spying concerns to the fore, however, Sensenbrenner joined with other former supporters to rein in its surveillance authorities. The USA Freedom Act was signed into law in June, and government’s authority for bulk data collection ended this week.

“We strongly agree that the dragnet collection of millions of Americans’ phone records every day — whether they have any connection at all to terrorism — goes far beyond what Congress envisioned or intended to authorize. More important, we agree it must stop,” Sensenbrenner wrote in POLITICO along with another author of the Patriot Act —Sen. Patrick Leahy (D-VT) — days before introducing the Patriot Act rollback in 2013.

The Patriot Act was already a dirty phrase in Europe, particularly in the wake of the Snowden revelations, synonymous with limiting freedoms under the guise of protecting national security.

A Pew Research Center poll last year found that 82 percent of French respondents said it was “unacceptable” for the U.S to monitor French citizens. That was the second highest percentage of objections in Europe after Greece. The French were equally displeased with American spying on its own citizens, according to the same poll.

And as European governments propose new security measures post-Paris, wary privacy advocates sometimes cite the U.S. law.

“We refuse [to support] a Belgian Patriot Act,” said Patrick Dewael, the leader of a liberal Belgian political party said on the floor of the Belgian parliament last month, after the country’s prime minister announced a slate of proposals aimed at cracking down on extremism. Among other things, the prime minister proposed allowing authorities to hold suspects for 72 hours without a warrant and tag extremist young people with electronic tethers. “We must always preserve the balance between safety, freedom and privacy of citizens,” he said.

In France, the current state of emergency, which lawmakers quickly agreed to extend for three months, allows authorities to raid homes without warrants. The country’s interior minister said Wednesday that since November 13, French authorities have conducted 2,235 searches and arrested 263 people.

Like Sensenbrenner, former French diplomat Pierre Vimont sees parallels with the post-Sept. 11 American response.

“You are going to see, exactly as you saw in America with 9/11, that pressure is building up to do something,” said Vimont, who is now a senior associate at Carnegie Europe.

Still, Vimont, who has served as French ambassador to the United States and the European Union, and also as the first Executive Secretary General of the European External Action Service, predicted that his country would never create a Patriot Act. Instead, he said, it would search for a “European way” of dealing with the moment.

The reason? The legacy of what played out in Washington in 2001 looms large for European policy makers.

“I don’t think you can go as far as that precisely because we have the experience now — the American experience — that a lot of political leaders are somewhat scared of,” said Vimont. “We may not go as far as that, but I’m sure you will see some change in legislation if not in constitution.”

Nonetheless, since the Snowden revelations and the Charlie Hebdo attacks, France has broadened its surveillance mandate to allow the government to monitor phone calls and emails of suspected terrorists without a warrant. And it goes even farther, compelling internet service providers to collect the metadata and the web movements of millions from overseas and make that available to intelligences services.

Back in Washington, when asked if the actions taken by the French government go too far, Sensenbrenner demurs. He says he won’t get “involved in the nuances of French law and what the French constitution allows.” He says only that good intelligence must make its way into the right hands, so that attacks like the one in Paris can be prevented.

“The bottom line is really the effectiveness of whether what the French government has done since the attacks in Paris will be able to stop future attacks,” he said. “And stopping future attacks depends on good intelligence, which is shared worldwide.”

View this online here.
WASHINGTON, D.C. – Today, Congressman Sensenbrenner released the following statement on the United States Environmental Protection Agency’s (EPA) decision to increase the amount of biofuels it will require under 2016’s Renewable Fuel Standards (RFS): 

Congressman Sensenbrenner: “Calling for more than 18 billion gallons of ethanol to be incorporated into the fuel supply breaks the blend wall and is a slap in the face to the millions of Americans who don’t want it. According to data from the Energy Information Administration, the overall demand for ethanol-free gas is increasing, and it’s easy to see why.

“Increasing the ethanol mandate is a dangerous decision that will lead to misfueling, damaged engines, and more emissions and pollution. It is a giveaway to corn farmers and ethanol refiners that guarantees that Americans will be paying more to drive their cars, mow their lawns, and plow their driveways.  

“The President is continuing to pick winners and losers when it comes to ethanol. The EPA’s decision should be immediately reversed.”

Rein in farm bill spending

November 28, 2015

The 2014 farm bill is failing to produce the cost savings promised taxpayers. That’s why Congress should fix the holes in the bill that have let $5.2 billion more than expected flow out in one fiscal year.

A proposal sponsored by two Wisconsin congressmen offers a good starting point.

Democrat Ron Kind of La Crosse and Republican Jim Sensenbrenner of Menomonee Falls introduced the plan, which would rein in subsidies received by farmers and insurance companies from the farm bill’s $9-billion-a-year crop insurance program. Some of the proposed spending cuts, totaling $24 billion over 10 years, may be an overreaction to unusual circumstances.

But the proposal — the Assisting Family Farmers through Insurance Reform Measures Act — should prompt Congress to attack runaway spending in agriculture programs.

The stakes for Wisconsin are high. Agriculture contributes about $60 billion a year to the state’s economy. The state is home to more dairy farms than any other state, produces more cheese than any other state and is among the top 10 corn-producing states.

The goal of any farm bill should be to provide consumers with a stable, affordable food supply by protecting farmers from boom-and-bust cycles. The bill also should keep the nation competitive in the global marketplace, encourage environmental stewardship and remain fiscally responsible.

The farm bill passed in early 2014 began with a sound idea: Rein in costly subsidies for farm production in favor of expanding a subsidized insurance safety net. The goal was to allow farmers to buy protection from risks to their income while eliminating direct government payments to farmers.

The plan was projected to save $16.6 billion over 10 years, compared to the old farm bill. But, as the State Journal editorial page warned before the farm bill passed, the insurance subsidies are too generous. Consequently, while the idea remains worthy, the cost savings have vanished, making taxpayers the losers.

Part of the reason is an unusual crop price decline, especially for corn. Farmers who received a corn price of $7.63 per bushel in August of 2012 received $3.68 per bushel in August of this year. Because of the steep price decline, many farmers will collect huge insurance payments.

The situation also exposed other faults in the insurance system, including how big, wealthy farmers collect large payments and how insurers collect subsidies for offering policies and filing claims.

The Kind-Sensenbrenner proposal would place caps on subsidies, disqualify high-income farmers from receiving subsidies and make other changes to cut costs. Sen. Jeff Flake, R-Ariz., introduced a companion bill in the Senate.

The legislation is expected to receive stiff opposition. While some compromises are warranted, Congress should use the Kind-Sensenbrenner bill as a guide to give taxpayers the victory they were originally promised.

View this online here.
There are many things that make Thanksgiving a special time of year. It’s an opportunity to sit down and spend time with our family and friends. It’s a time to reflect on the many blessings we enjoy throughout the year, and of course, it’s a time for great food. 

This Thanksgiving, as you prepare your meals, take pride in knowing that many of the Thanksgiving foods we enjoy are produced right here in Wisconsin. 

Take dinner rolls, for example. 
Wisconsin is famous for being “America’s Dairyland,” but we also have been known as “America’s Breadbasket.” From 1840- 1880, one-sixth of the nation’s wheat came from Wisconsin fields, and although we are no longer the country’s top wheat producer, it is still among  Wisconsin’s leading industries.

How about those mashed potatoes… 
When you think of potatoes, Wisconsin may not come to mind, but our state is actually the third leading potato producer in the country, just behind Idaho and Washington. 

…with a side of corn?
More than 15,000 farmers in Wisconsin grow corn on approximately three million acres, and the state is one of the top producers in the nation. In addition to food, Wisconsin corn is used for livestock feed, and about 10 percent of the state’s production is exported. 

What would a Wisconsin meal be without cheese?
They don’t call us “cheeseheads” for nothing. Wisconsin ranks number one in the United States for cheese production. Whether it’s cheese and crackers before dinner, shredded cheese sprinkled in our salads or on our potatoes, or baked with love into our green bean casseroles, it’s hard to imagine Thanksgiving without delicious Wisconsin cheese.

Wash it down with an ice-cold glass of milk. 
Wisconsin has been the country’s leading dairy state since 1915, and it’s a proud tradition we hold today. Our state is a national leader in milk production with more than 10,000 dairy farms, each with an average of 120 dairy cows. 

And don’t forget the cranberry sauce.
Wisconsin has been the largest producer of cranberries in the country for the last 20 years. In fact, Wisconsin is the largest producer of cranberries in the world. They are Wisconsin’s largest fruit industry, and the cranberry was declared the official state fruit in 2004. More than 250 growers throughout the state produce cranberries on land that spans 20 counties. That’s a lot of cranberries! 

I’m thankful for many things, including my family, friends, health, and the privilege of serving the people of Wisconsin’s Fifth District. Thank you for the opportunity to be your representative. Have a safe and blessed Thanksgiving Day.
In a recent Post op-ed, Gregory B. Craig, former White House counsel, and Cliff Sloan, former special envoy for Guantanamo closure, argued that President Obama has the legal authority to ignore the law and transfer some of the world’s most dangerous terrorists to the United States.

I sincerely hope that, as former Obama administration officials, they are not laying the groundwork for a course of conduct from the White House that can end only in constitutional crisis. In a recent letter, I respectfully requested that the president reject Craig and Sloan’s legal reasoning and assure Congress that he will not transfer detainees from the military prison at Guantanamo Bay, Cuba, to the United States in violation of the law.

The Constitution gives Congress the power to declare war but reserves to the president, as commander in chief, the ability to “make war.” This led Craig and Sloan to conclude that Congress cannot “direct specific facilities in which specific detainees must be held.”

Stated this broadly, I agree. But in framing the question as “whether Congress can tell the president where military detainees must be held,” they grossly mischaracterized the issue.

Congress has not required that any individual detainee be held in a specific facility. Rather, it prohibited the use of federal funds to move detainees from Guantanamo to the United States. This is not a de facto mandate that the president maintain the detention facility at Guantanamo Bay, as Craig and Sloan seemed to assume. It is a legitimate exercise of congressional power to prevent the president from housing some of the world’s most dangerous terrorists on U.S. soil. This, emphatically, Congress can do.

The Constitution’s separation of powers is also a balance of powers. While the president has broad powers as commander in chief, Congress has equally broad authority in its power of the purse and its exclusive grant of legislative powers. The Constitution gives Congress authority to “make all Laws necessary and proper for carrying into Execution the . . . Powers vested by this Constitution in the Government of the United States.” In other words, Congress makes the rules, and the president executes them. Relative to detainees, the Constitution even gives Congress the explicit power to “make Rules concerning Captures on Land and Water.” Congress has done exactly that.

In banning transfers of dangerous terrorists into the United States, Congress is exercising a legitimate legislative function. We saw with the June escape of dangerous criminals in upstate New York that it is impossible to guarantee Guantanamo Bay detainees will remain confined. Congress has the right to legislate to protect against this risk and to protect the emotional security of Americans who may feel justifiably concerned about living in close proximity to enemy combatants responsible for the deadliest attack on the United States since Pearl Harbor.

Moreover, in United States v. Verdugo-Urquidez, the Supreme Court held that the Constitution does not protect noncitizens outside our country. If the president were to unilaterally move alien terrorists into the United States, those terrorists could argue for constitutional protections. Congress has the right to protect against this possibility, especially because Congress, not the president, has the authority to determine how and when the domestic criminal laws should be applied.

Craig and Sloan wrote that Congress can pass military regulations, authorize detentions and military tribunals and broadly regulate the treatment of prisoners of war. But for some reason they emphatically denied that it can prevent known terrorists from being transferred to U.S. soil.

In so arguing, they did not mention Youngstown Sheet & Tube Co. v. Sawyer — the seminal Supreme Court decision on the relative powers of the executive and legislative branches of government.

In Youngstown, a labor dispute led to a strike that threatened to close the nation’s steel mills in the midst of the Korean War. President Harry S. Truman believed this would cripple the war effort and ordered that the U.S. government take control of the nation’s steel mills to prevent their closure. In passing the Taft-Hartley Act, however, Congress specifically considered and rejected an amendment that would authorize government seizures in cases of emergency.

Truman’s order was in direct contravention of congressional will, but he argued it was justified because it was necessary to avoid national catastrophe in a time of war. The Supreme Court disagreed.

In a concurrence that has become a foundation of constitutional law, Justice Robert H. Jackson described executive authority as ebbing and flowing in conjunction with congressional will. When the president acts with congressional authority, this power is “at its maximum.” When the president acts in the absence of either a congressional grant or denial of authority, there is a “zone of twilight” where Congress may have concurrent authority. When the president acts against the express will of Congress, however, his power is at its “lowest ebb.”

Jackson presciently warned of the danger of allowing the president to ignore Congress: “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

With these stakes, and against this precedent, Craig and Sloan concluded that the president can and should ignore the expressed will of Congress and transfer the Guantanamo Bay detainees to the United States. I disagree. Hopefully, as a constitutional scholar, President Obama does as well.
View the op-ed online here.
Next month, President Obama heads to Paris for the United Nations Climate Change Conference, and he isn’t going empty-handed. In coordination with Environmental Protection Agency (EPA) Administrator Gina McCarthy, the President has created his Clean Power Plan, a dangerous and costly climate change initiative that would leave America at an international economic disadvantage for little environmental gain. As the conference gets closer, here are three things to remember about the President’s Clean Power Plan: 

1. Similar legislation could not pass in 2009
In 2009, President Obama was riding a wave of popularity and turned his focus from his campaign victory to the legislative wish list given to him by liberal lobbyists and the radical base of the Democratic Party. A top priority was climate change, but despite his personal popularity, overwhelming democratic majorities in both chambers, and help from then Senate Majority Leader Harry Reid and then Speaker of the House Nancy Pelosi, he could not pass the American Clean Energy and Security Act, also known as the Waxman-Markey Bill. The failure of that bill was a severe example of just how disastrous the legislation was. 

2. The Clean Power Plan, and the President’s climate agreements, will put America at a disadvantage 
President Obama is intent on reaching stringent emissions agreements in Paris next month, but in his negotiations, it’s imperative that any agreement include equal commitments from other countries. If not, he will put America at a severe economic and technological disadvantage. Enacting stricter regulations for the U.S., while allowing competing nations to advance under lax emissions standards, would reduce incentives for American businesses to develop responsible environmental technologies. It would also give our competitors an economic edge on the international market while simultaneously killing American jobs. We saw this previously in his negotiations with China. Under that terrible agreement, China was allowed to continue increasing their emissions through 2030, while the U.S. agreed to cut emissions. 

3. The Clean Power Plan would increase energy prices for the American taxpayer 
Energy prices are guaranteed to increase under the Clean Power Plan, and the United States Chamber of Commerce estimates that the initiative will cost American taxpayers $51 billion. That means much higher energy prices for the people of Southeastern Wisconsin. When you consider that our national debt is already at a crippling $18 trillion, the President’s plan unnecessarily puts additional financial burdens on hardworking middle class families and businesses – burdens that have increasingly become too heavy to bear – burdens that hit Wisconsin families harder than most due to the state’s reliance on coal. 

President Obama’s Clean Power Plan is a bad deal for America. If we want to continue being an international leader while building our economy and protecting the hardworking taxpayers, it’s critical we oppose this failed policy and ensure the President cannot cause further damage to this country in his last months as Commander-in-Chief.

WASHINGTON, D.C. – Today, Congressman Sensenbrenner released the following statement regarding the alarming indications that UnitedHealth Group, the nation’s largest health insurer, may be opting out of the Obamacare exchanges:

Congressman Sensenbrenner: “UnitedHealth Group’s recent threats of leaving the Obamacare exchanges are not surprising, but they’re indicative of what we already knew –the Affordable Care Act is a disastrous policy that harms Americans. Increased deductibles, fewer options in healthcare providers, and a general lack of coverage are not only hurting American businesses, but also the most vulnerable in our society. This terrible initiative was doomed from its conception and should be completely repealed and replaced with a true, free-market system that would provide the first rate healthcare that our citizens need and deserve.”


WASHINGTON, D.C. – Today, Congressman Sensenbrenner released the following statement on H.R. 4038, the American Security Against Foreign Enemies (SAFE) Act:

Congressman Sensenbrenner: “Protecting the safety of American citizens should not be a political issue. The American SAFE Act will temporarily halt the admission of Syrian and Iraqi refugees into the United States until the Obama Administration successfully creates a thorough vetting, identification, and monitoring process. America’s top security experts have voiced their concerns over the current system, which should make the President take pause. This country has always been a world leader in helping those in need, but we simply cannot take a casual approach to our own safety.”