Mojo - May 2013

Why the Government Surveillance of Fox's James Rosen Is Troubling

| Tue May 21, 2013 10:05 AM EDT

On Friday, I wrote a piece for Mother Jones speculating that government spying on press communications may not be "unprecedented," as Associated Press head Gary Pruitt put it, but simply rarely disclosed. The rules requiring disclosure of such surveillance, after all, only appear to apply to "subpoenas" for "telephone toll records"; they do not cover other secret tools deployed by federal law enforcement, such as National Security Letters. Even outside the shadowy world of intelligence, as federal magistrate judge Stephen Smith has observed, court orders granting government access to electronic communication records routinely remain secret indefinitely. I suggested that there could be quite a few other cases like the AP story that we've never learned about, even if the Justice Department has been scrupulously following its own rules, because such cases might not involve grand jury subpoenas for phone logs.

It is rare for someone who writes about the intelligence community to have speculation of this sort confirmed almost instantly, but a report in the Washington Post Monday has shined a spotlight on another hitherto unreported leak investigation in which the Justice Department obtained a warrant to read the email of Fox News reporter James Rosen. The warrant in that case was sealed for over a year; it appears to have remained publicly unnoticed until today—nearly three years after the search of Rosen's email was authorized. Should anyone believe this is the only such instance of the government snooping into a reporter's email that hasn't yet come to light?

The Rosen case is especially unsettling because the warrant affidavit suggests that Rosen himself could be subject to prosecution under the Espionage Act, on the grounds that his alleged encouragement to a source to provide classified information amounted to "conspiracy." The attempt to redefine a routine and necessary part of national security reporting as crime is unprecedented.

Whether Rosen is prosecuted or not, the Justice Department targeting a reporter as a possible "co-conspirator" is troubling. The case against National Security Agency whistleblower Thomas Drake—who revealed massive waste in the agency's deals with intelligence contractors—ultimately collapsed. The information he'd revealed was embarrassing to the government, not dangerous to national security. But Drake's life was shattered, and a clear message sent to others who might seek to embarrass the government. A similar dynamic is at play in this case. Reporters are already feeling the chilling effects of the AP leak investigation. The government may or may not succeed in jailing leakers (or, perhaps at some point, reporters), but the point is to ensure that government sources are too scared to talk to press without approval.

That might sound like a fine idea if at risk were only vital national security secrets whose publication would endanger the United States. But as even top intelligence officials have acknowledged, overclassification is rampant in government. Much basic information, without which effective national security reporting would be impossible, is reflexively classified, whether or not it poses any realistic security risks, and reporters routinely discuss such information with sources. In practice, that means the government can pick and choose which leakers to go after—and which ones to wink at, because they're serving the administration's interests. No doubt, the government does have an interest in—and an obligation—to protect legitimate secrets, but an aggressive campaign that targets reporters and subjects them to broad and secret intrusions (and maybe prosecutions as well) will undermine a necessary check on government power and prevent the public from learning crucial information about what is done in its name.

A version of this post was first published on Cato at Liberty.

Advertise on MotherJones.com

4 Ways Apple CEO Tim Cook Spins Tax Avoidance

| Tue May 21, 2013 9:56 AM EDT

"I've never seen anything like this and we don't know anybody who has ever seen anything like this," Sen. Carl Levin (D-Mich.) said yesterday of Apple's baroque tax avoidance strategies. But Apple CEO Tim Cook, who will testify before the Senate Subcommittee on Investigations today, is  aggressively spinning what Levin called "gimmickry" as patriotic, commonsensical, and no big deal. Here are the most remarkable talking points from his pre-released Senate testimony:

1. Apple's taxes are straightforward.
Spin: "Apple does not use tax gimmicks."
Reality: Yet somehow, according to an analysis by Citizens for Tax Justice, Apple has paid almost no income taxes to any country on its $102 billion in offshore holdings. Between 2009 and 2012, Apple avoided paying US taxes on some $74 billion in income, an amount equal to the entire budget of Florida.

2. Paying American salaries through a subsidiary based in Ireland saves American jobs.
Spin:
Apple and its Irish subsidiaries are engaged in a "cost sharing agreement" whereby the subsidiaries "partially fund R&D costs incurred by Apple Inc." The agreements "play an important role in encouraging companies like Apple to keep R&D efforts in the US."
Reality: This is how Apple brings back money from overseas without having to pay federal taxes on it.

3. Apple is awesome because it runs huge data centers right here in the United States.
Spin: "In 2010, Apple built one of the country's largest data centers in North Carolina, and it is in the process of constructing two additional data centers in Oregon and Nevada."
Reality: Apple only agreed to build the North Carolina data center after getting a $46 million state tax break, its local property taxes halved, and  local taxes on its assets slashed by 85 percent—all for creating 50 jobs. To build its data center in deficit-plagued Nevada, it extracted an $88 million state tax break, the largest in state history. And Apple chose to build a data center in Prineville, Oregon, because Oregon has no sales tax and Prineville is in a "rural enterprise zone" that offers a 15-year property tax exemption.

4. "Apple supports comprehensive corporate tax reform."
Spin: "Apple recognizes that these and other improvements in the US corporate tax system may increase the company's taxes."
Reality: Cook wants to reduce the tax that corporations pay when they repatriate profits, which could save Apple a lot of money considering that 61 percent of its profits are earned overseas. But lowering the repatriation tax probably wouldn't benefit most Americans. After Congress enacted a one-time repatriation holiday in 2004, a study by the National Bureau of Economic Research found that 92 percent of the repatriated cash was used to pay for dividends, share buybacks, or executive bonuses.

"Mark Is Not Going To Die In Vain": New Yorkers Rally After Murder of Gay Man

| Tue May 21, 2013 6:00 AM EDT
The site where Mark Carson was shot on West 8th Street, New York. Police say the killing was a hate crime. James West

Blinding afternoon sun lit the biggest gay rights demonstration in years in New York's West Village Monday. The LGBT community and its supporters, including a couple of mayoral candidates, marched in the wake of a murder that has capped a month-long spate of homophobic violence.

Demonstrators—police say 1,500, organizers say many hundreds more—marched through the leafy streets that gave birth to the gay rights movement to the  corner where Mark Carson, 32, was shot in the face and killed Friday night as he walked with a friend. Police have charged Elliot Morales, 33, with second-degree murder and a hate crime, accusing him of hurling homophobic slurs at Carson.

Flourine Bompars, Carson's aunt, addressed the crowd, calling Carson "a loving and caring person" who will not be forgotten.

The audience applauded and cheered loudly after Bishop Zachary Jones of Unity Fellowship Church of Christ, East New York, shouted, "There is room for everyone at the table of love... and we will march and we will come closer together to make sure everyone has the right to be who they are."

Protestors march through New York's west village. Police and community groups say there has been an upwing in "bias" crimes. James West

The randomness of Carson's death has sent a  jolt through the gay community. "It's clear that the victim here was killed only because and just because he was thought to be gay," the police commissioner, Ray Kelly, said on Sunday.

Community leaders say Carson's death is part of a worrying citywide trend: an uptick in violence against gay people, with five incidents this month alone. Police say "bias crimes" have risen this year compared to the same period last year, from 13 to 22, and advocates say that was on top of rising reports of violence from the previous year.

"The most pain is emotional," said Nick Porto, a 27-year-old fashion designer from Brooklyn, who was assaulted this month with his boyfriend Kevin Atkins, 22, as they walked near Madison Square after a Knicks game. (Police have released a video of the suspects).

"Mark is not going to die in vain. We are not going to get beat up in vain," Porto said after the rally. "Gay rights, we're still fighting for them, and the fight is not over. We need to protect each other."

Nick Porto (L) and Kevin Atkins, a couple, were assaulted after a Knicks game on May 5th. James West

But the source of the increase in violence is hard to pin down, say community leaders. Some who spoke at the rally blamed the increased visibility of gay rights: With a greater presence comes greater pushback, the reasoning goes. Sharon Stapel, executive director of the New York Anti-Violence Project, says victims are also feeling more comfortable reporting such crimes.

"But I also think we're still living in a country where it's lawful to discriminate against LGBT people, and that sends a message that it's OK to be hateful towards LGBT people," she said.

The protest also formed the backdrop to the race for New York City mayor. City Council Speaker Christine Quinn, herself a lesbian, marched alongside relatives of Mark Carson at the head of the rally, but did not speak to the crowd. John Liu, the hyperactive city comptroller who is also a candidate, was at the rally shaking hands and introducing himself.

Nick Porto, the assault victim, admitted he was moved when he looked out across the crowd that filled 8th Street, "My knees got weak, I almost fell, I was just a mess," he said. "It's proof, it's absolute hope in our community, that we will survive this."

"Gay rights isn't just about gay marriage," he told the cheering crowd. "We need to live long enough to share in that opportunity."

John Liu (L), and Christine Quinn with members of the Carson family. Both are running for New York City mayor. James West

 

Virginia Republicans Have a Vagina Problem

| Mon May 20, 2013 5:53 PM EDT

On Saturday, Virginia state Sen. Mark Obenshain clinched his party's nomination for attorney general in the November election. And much like the rest of the GOP ticket, he's got some baggage. ThinkProgress swiftly unearthed a bill he authored in 2009 that would subject women to legal penalties if they fail to report a miscarriage to the police.

Here's the relevant portion of his bill:

When a fetal death occurs without medical attendance upon the mother at or after the delivery or abortion, the mother or someone acting on her behalf shall, within 24 hours, report the fetal death, location of the remains, and identity of the mother to the local or state police or sheriff's department of the city or county where the fetal death occurred. No one shall remove, destroy, or otherwise dispose of any remains without the express authorization of law-enforcement officials or the medical examiner. Any person violating the provisions of this subsection shall be guilty of a Class 1 misdemeanor.

The penalty for a class 1 misdemeanor is up to 12 months in jail and $2,500 in fines. Obenshain's deputy campaign manager, Jared Walczak, told the Huffington Post that the bill (which never passed) was in response to a 2008 case in which a Virginia college student disposed of her reportedly stillborn baby in a dumpster:

"As sometimes happens, the legislation that emerged was far too broad, and would have had ramifications that neither he nor the Commonwealth's attorney's office ever intended," Walczak said. "Sen. Obenshain is strongly against imposing any added burden for women who suffer a miscarriage, and that was never the intent of the legislation."

Thinking through the legal ramifications of a proposed law seems like it should be standard procedure for someone who wants to be attorney general, but maybe I'm too optimistic.

Obenshain's nomination is only the latest outgrowth of Virginia's vagina obsession, though. In 2012, the state passed an invasive ultrasound law and set ultra-strict new building codes for abortion providers. Rev. E.W. Jackson, the party's nominee for lieutenant governor, has compared Planned Parenthood to the KKK. And then, not to be outdone, there's attorney general Ken Cuccinelli, the Republican gubernatorial nominee, who thinks abortion is just like slavery.

After Girl Expelled From High School and Charged Over Lesbian Relationship, Anonymous Goes on the Offensive

| Mon May 20, 2013 4:14 PM EDT
Kaitlyn Hunt

When Florida high school student Kaitlyn Hunt was a senior in high school, she began dating a 15-year-old teammate on her school's girls' basketball team.* Kaitlyn's parents say the parents of the 15-year-old never complained to them about the (consensual) relationship. But halfway through the school year, the younger girl's parents had her arrested. She was charged with a felony—"lewd and lascivious battery of a child 12-16 years old." The girl's parents also succeeded in getting her expelled from school by appealing to the school board after the school and a judge refused to grant their request, according to Kaitlyn's mother, Kelly Hunt Smith.

"That is absolutely ludicrous," Smith wrote on Facebook last Friday in a widely shared plea for help. "We need justice in this situation, not to feed into these parents' hates and insanity."

Enter Anonymous, the global hacker collective, which recently has raised eyebrows by pursuing justice for rape victims. In this case, some of the same Anonymous members are rallying behind a girl they feel has been wrongly accused of sexual misconduct. On Saturday, they launched the twitter hashtag #OPJustice4Kaitlyn, and a press release that begins: "Greetings, Bigots."

"The truth is, Kaitlyn Hunt is a bright young girl who was involved in a consensual, same-sex relationship while both she and her partner were minors," reads the release.* "She has a big future ahead of her and there are people, thousands of people in fact, that have no intention of allowing you to ruin it with your rotten selective enforcement."

Poverty Flees to the Suburbs

| Mon May 20, 2013 11:38 AM EDT

Poor residents in cities and suburbs, 1970 - 2010 (millions)

Brookings Institution analysis and ACS data

Suburbs such as Highland Park (Detroit), Carol Stream (Chicago), and Forest Park (Atlanta) once stood for escape from the hard times of the inner city. Now their deceptively bucolic names conceal a national epidemic of suburban poverty. According to a report released today by the Brookings Institution, the suburban poor now far outnumber the rural and urban poor: Their ranks grew by 64 percent during the aughts to 16.4 million—a rate of increase more than twice that seen in America's cities.

What's going on here? Well, for one, Ward and June Cleaver's house wasn't exactly built to last. And as retiring baby boomers downsize and young millennials flock to hip inner cities, not that many people want to live in a half-century-old suburban tract home—except people with no other options.

Advertise on MotherJones.com

Obamacare Doesn't Make Employers Cover Spouses. Does That Matter?

| Mon May 20, 2013 6:00 AM EDT

Despite the 37 bills to repeal it and the scores of lawsuits filed against it, Obamacare, a.k.a. the Affordable Care Act, is going to be in full swing soon. But the historic health insurance reform law is going to face many more bumps in the road as it is rolled out. One corner of Obamacare that hasn't gotten much attention is the fact that it will not require employers to cover spouses, which experts say could lead some employers to drop coverage for Americans' significant others.

The Affordable Care Act mandates that employers offer health insurance to workers and their dependents. But the law defines dependents as children, not spouses. And although some health care law experts say this is not going to result in any big changes in the way that employers provide insurance for husbands and wives, others contend that implementation of the law could end up leaving some spouses out of family plans, forcing them to buy insurance elsewhere.

"Right now there are virtually no employers that just offer coverage for the employee and their children," says Tim Jost, a health care law scholar at the Washington and Lee University School of Law who regularly consults with Obama administration officials on implementation of the Affordable Care Act. "Whether that will change or not, who knows. We will probably see at least some employers who will offer individual and child coverage, but not coverage for spouses."

If you live in a household that is in the upper-income range—one that takes in more than $94,000 a year (above 78 percent of households)—and you get dropped from your spouse's coverage, you won't be able to get a government subsidy to purchase insurance on the government-run insurance exchanges being set up by the health law. So, say there's a family in which each parent makes $47,000 a year, but only one has coverage. The spouse that is not covered would have to buy private insurance, which costs hundreds of dollars a month.

If you're middle income or poor, and your spouse's employer drops you from her health coverage, you'll be able to shop on the exchange with a subsidy. Even though your coverage would not be free, the idea is that at least it would be kind of affordable. Unless it's not. When people buy coverage on the exchange, their subsidy will be based on household income. As Jost points out, the problem is that household income for people using the exchanges will be measured before the household pays for the employer-provided health insurance. So the employee could be paying up to 9.5 percent of her income on health insurance for herself (the most that Obamacare will allow insurers to charge for employer-sponsored plans), or an even greater share of her income for individual and child coverage, and still her spouse's subsidy on the exchange would be based on that much higher pre-health-care-costs income level.

"It's a potential problem," says Ethan Rome, executive director of Health Care for America Now, a group that backs Obamacare. "There could be some folks that get lost in the shuffle. And that is not insignificant…If you're one of few people adversely affected by something, it doesn't matter that everyone else on the planet is getting the benefit." (The Department of Health and Human Services declined to comment for the story.)

But Rome adds that the situation "has to be put in context." He points out that this potential glitch doesn't change the fact that some 30 million people currently without insurance will get coverage under Obamacare. And Jonathan Gruber, an MIT economist who helped craft Obama's health care law, notes that "we're still a hell of a lot better off than we are today."

Judy Solomon, vice president for health policy at the nonpartisan Center on Budget and Policy Priorities, adds that it's unlikely that too many employers will drop spouses anyway. "Family coverage is valued employee benefit," she says. "I don't see that this provision is going to change what employers do." Rome agrees: "If you are an employer and you provide good quality health care for your employees, including dependent coverage, it's because you understand that a good benefits package is the best way to recruit and retain top-notch employees."

Still, Rome says that Obamacare advocates would like to be able to address technical issues in the law, such as this potential spousal coverage problem, but that the Republican-controlled House makes that impossible. "It is an imperfection in the law and there are some things many of us want to fix," Rome says. "And we could if we did not have a GOP House of Representatives obsessed with repealing the law."

Elizabeth Warren Slams Wall Street Again

| Fri May 17, 2013 5:29 PM EDT

On Thursday, bank-basher Sen. Elizabeth Warren (D-Mass.) slammed several bills headed for the House floor that would severely weaken Wall Street reform.

The Dodd-Frank Act, the 2010 law aimed at preventing another financial crisis, "put in place a variety of measures that work together as a system to protect consumers, hold big banks accountable, and reduce the risk of future crises," Warren said in a statement. "It is dangerous for Congress to amend the derivatives provisions of the Dodd-Frank Act." (Derivatives are financial products that have values based on underlying numbers, like crop prices or interest rates; some economists believe these products helped cause the 2007 financial collapse.)

Warren's condemnation of the bills, which just passed out of the House Financial Services Committee (HFSC), echoes a May 6th letter from Treasury secretary Jack Lew to House Financial Services Chair Jeb Hensarling attacking the bills. "The derivatives provisions in the Wall Street Reform Act constitute an important part of the reforms being put into place to strengthen our financial system by improving transparency and reducing risk for market participants," Lew wrote in the letter. "These reforms should not be weakened or repealed." Last year, former Treasury Secretary Tim Geithner  denounced a series of nearly identical bills.

One of the bills now headed to the House floor would expand the types of trading risks that banks can take on. Another would allow certain derivatives that are traded within a corporation to be exempt from almost all new Dodd-Frank regulations. Financial reform advocates say these kinds of trades can still pose a risk to the wider financial system. A third bill would allow big, multinational US-based banks to escape US regulations by operating through international arms.

"Wall Street's aggressive determination paid off last week" when the bills passed out of committee, Warren said. The bills also have bipartisan support, and have a good chance of being taken up in the Senate. If they do, Warren says she'll go to battle: "Now is no time to go backwards," she said. "I will do what I can in the United States Senate to stand up to those who would chip away at reform."

Ad Slams Arizona Sen. Flake for Flaking on Background Checks

| Fri May 17, 2013 3:40 PM EDT

Last month, Republican Sen. Jeff Flake broke with his Arizona colleague John McCain to vote against the background check compromise brokered by Sens. Joe Manchin (D-W.Va.) and Pat Toomey (R-Pa.). Soon after, Caren Teves, the mother of Aurora mass shooting victim Alex Teves, went public with a note she had received from Flake the week before he, well, flaked. In the note, the junior senator wrote that "strengthening background checks is something we agree on."

On Friday, Michael Bloomberg's Mayors Against Illegal Guns (MAIG) released an ad featuring Caren Teves that will air in Phoenix and Tucson through the end of the month. In the ad, Teves shows the handwritten letter Flake sent her. "The issue isn't just background checks," she says. "It's keeping your promise. And Senator Flake didn't."

Flake has disputed the ad's claim in a Facebook post. "If you are anywhere close to a television set in Arizona in the coming days, you’ll likely see an ad about gun control financed by NYC Mayor Bloomberg," he wrote. "Contrary to the ad, I did vote to strengthen background checks," referring to his vote for the alternate gun amendment introduced by Sen. Chuck Grassley (R-Iowa) that included weaker measures to strengthen background checks (and was also voted down).

MAIG and other gun reform groups have vowed to hit Manchin-Toomey opponents hard. Opponents of the compromise have seen their poll numbers drop, and polling by MAIG and other organizations has consistently shown overwhelming support for expanded background checks.

There have been quiet discussions on the Hill about reintroducing an amendment with further concessions to Republicans. But in a meeting with reporters at the Capitol on Wednesday, Sen. Harry Reid (D-Nev.) said that although he'd been in daily talks with senators about bringing background checks back for a vote, the Democrats still didn't have the 60 votes needed to get it passed. Asked if there were any new supporters, Reid replied, "Maybe."

IRS Speaks Out: We Messed Up, But We Would've Scrutinized Tea Partiers Anyway

| Fri May 17, 2013 2:35 PM EDT

Finally, the IRS is giving a full accounting of how and why its staffers singled out tea partiers and other conservative groups seeking tax-exempt status. The quick version: We had the right idea but went about it all wrong.

On Friday morning, Steven Miller, the acting IRS commissioner set to resign due to the scandal, appeared before the House ways and means committee and testified that several IRS employees made "foolish mistakes" by using catchwords like "tea party" and "patriots" as they picked through hundreds of nonprofit applications from groups that might be involved in politics. Miller described his agency's behavior as "obnoxious." Yet he denied that the IRS vetters who handled all those applications for groups wanting 501(c)(4) nonprofit status—who were working out of a field office in Cincinnati—acted out of political bias. Instead, he said the agency's errors "were made by people trying to be more efficient in their workload selection."

Prior to Miller's testimony, the IRS itself took the unusual step of posting on its website 14 questions related to the tea party debacle and the agency's official response to each one. It's an interesting and useful document.

The IRS insists that its staffers, as Miller emphasized, were wrong to target groups with "tea party" or "patriots" in their name. However, the agency says that it would've zeroed in on tea partiers and other conservative groups anyway, as it looked for applicants that might be getting too involved in politics. They sought out politically-inclined groups because 501(c)(4) nonprofits are allowed to dabble in politics but cannot make it their "primary activity." But as they looked for groups that might be too political, they used inappropriate shortcuts.

"IRS employees had seen cases of organizations with the name Tea Party in which political activity was an issue that needed to be reviewed for compliance with legal requirements," the agency says. "Because of the increased inventory of applications, this inappropriate criterion was used as a shortcut to centralize similar cases." In other words, as a booming number of tea party outfits across the country were filing for tax-exempt status, the folks in charge of reviewing such applications—and making sure applicants were not engaged in so much political action that they would not qualify for this tax status—found it convenient to flag groups with "tea party," "patriot," and "9/12 Project" in their name.

The agency also says on its website that it found "no indication of political bias"—echoing the Treasury Department inspector general who investigated the tea party mess. The IRS staffers in Cincinnati didn't have a grudge for the tea party; they felt, it seems, that tea partiers were simply more prone to get involved in politics.

The agency also offered a few basics on how it handles nonprofit applications. All applications go through Cincinnati, where there are less than 200 people who directly handle those files. Because the agency saw an increase in 501(c)(4) applications from potentially politically active groups, staffers there pooled all those applications together and gave a few selected employees the job of scrutinizing those applications.

Some more interesting nuggets in the Q-and-A:

  • Not only has the IRS seen an uptick in the number of 501(c)(4) applications, it says the number of groups applying that could become involved in politics has risen as well.
     
  • The IRS admits it mistakenly caused "inappropriate delays" for groups applying for tax-exempt status, and made "over-expansive information requests" of the groups it singled out for extra scrutiny. The IRS blamed this on "ineffective processes."
     
  • In 2010 and 2011, as we've reported, IRS staffers specifically looked for groups with "tea party" or "patriots" in their name. However, of the nearly 300 groups with applications flagged by IRS staffers, the vast majority did not have either of those words in their name.

The IRS Q-and-A links to a list of almost 170 nonprofit groups given special scrutiny by IRS staffers but later approved for 501(c)(4) status. The entities on that list run the political gamut and include local tea party groups, statewide progressive organizations such as Progress Texas and Progress Missouri Inc., former Sen. Russ Feingold's Progressives United outfit, and issue-based organizations such as Californians Against Higher Health Costs and Homeless But Not Powerless.

Here is the full list from the IRS' website: