Profiting from the opioid crisis

The Washington Times

By Bob Barr – – Tuesday, March 6, 2018

ANALYSIS/OPINION:

Whether one labels it a “crisis” or an “epidemic,” or understates it simply as a “problem,” no reasonable observer can consider the human and monetary cost of opioid abuse anything other than a matter of the utmost national importance.

In 2016 alone, more than 64,000 people died from drug overdoses in America; the highest number ever recorded. The opioid crisis has cost the United States more than $1 trillion since 2001. President Trump appropriately has declared it a “public health emergency.” To try and end the epidemic and obtain for addicts the help they need, the demand for opiate-treatment drugs has skyrocketed; unfortunately, a result not without its own set of problems.

It is well-known that the drug buprenorphine, properly administered, can manage opioid dependency. The drug reduces craving for opioids, and in a properly managed regimen, truly can reverse the tide of addiction and death.

However, one drug company — Indivior, which produces buprenorphine under the patent Suboxone — has viewed the opioid crisis as nothing more than a profit-making opportunity. Rather than increasing the quantity of opiate treatment drugs available, Indivior has done everything possible to keep its own prices high and lock competitors out of the market. This profit-driven effort has been called a “shocking scheme to profit off of heroin addicts,” with the drug maker’s actions leading to “nearly a billion dollars in undeserved profits.”

This scheme appears not only to violate state and federal antitrust laws, but every notion of common decency and ethics in coming together to solve our country’s current drug epidemic.

Indivior’s actions, like the opioid crisis itself, began years ago, but at least now are beginning to garner the public’s attention. When Suboxone entered the market in tablet form in 2002, it was granted patent exclusivity for seven years; meaning no generic copies could enter the market during that time. As this exclusivity neared its expiration, the company engaged in a “product-hopping” scheme, in which it made slight, medically-unnecessary alterations to its product in order to preserve patent protections and box out competitors; in short, to maintain its product monopoly.

Although its tablet seemed to work fine, the company touted “unfounded pediatric safety concerns” and began to develop a dissolvable film version, like a breath strip. These small changes allowed Indivior to expand the length of its patent and repel generic competitors who could, and were ready to, enter the market and charge lower prices. Indivior’s claims also appear hypocritical — although the tablet form of the drug was removed from the U.S. market, the company continued to sell the drug in tablet form overseas with no problem, and even increased its marketing.

This sort of naked, profit-minded behavior in a true health emergency is unconscionable. This is why, in September 2016, a bipartisan group of 36 state attorneys general announced that they were suing Indivior for illegally driving up the cost of a key treatment for opioid addiction. The company is charged with manipulating Suboxone to extend its patent and discourage lower-priced competitors to enter the market for buprenorphine.

However, while the lawsuit by the attorneys general has been pending for nearly a year and a half, no tangible results or relief has been seen. The opioid crisis has only worsened; to the degree that overall life expectancy in the U.S. dropped last year, driven by the increasing number of drug deaths. Now, drug overdoses — not heart disease — are the leading killer of Americans under the age of 55.

While the federal government has a legitimate role to play, the real leadership must come from the state attorneys general; primarily by being far more aggressive in pressing legal action. Simply filing a lawsuit and issuing a news release does little but raise expectations; real commitment must come through seeking injunctive relief and emergency hearings to get the ball rolling.

The Congress, however, has an important role to play; especially given the lack of movement in the courts. On Feb. 28, that effort came into focus with a hearing on the opioid crisis by a subcommittee of the House Energy and Commerce Committee. Hopefully, this congressional effort will not only continue, but accelerate.

Among the options on the table should be ending predatory pricing and monopolistic behavior by the very companies that claim to be cohorts in the battle to end opioid addiction. Congress — and the Department of Justice — must prioritize and deal with anti-competitive practices by drug manufacturers that place profits above competition, sound pharmaceutical ethics and patient outcomes.

If this effort to save a generation of our fellow citizens requires criminal prosecutions in addition to legislative and civil remedies, then so be it. The alternative is far too dread to allow.

• Bob Barr, a lawyer in Atlanta, Georgia, was a federal prosecutor and a Republican U.S. representative from Georgia.

Are Schools Less Important Than Sports Events and Concerts?

Townhall.com

Bob Barr

2/28/2018 12:01:00 AM – Bob Barr

This is the second of a two-part series by former Congressman Barr on issues relating to Parkland, Florida, and other recent mass shootings.

We now know more about the tragedy in Parkland, Florida, in which 17 high school students and employees were murdered by a former student. We know that the local police, led by the questionable leadership of Broward County Sheriff Scott Israel, utterly failed the citizens they were supposed to protect. We know that the same can be said for the Federal Bureau of Investigation, which failed to investigate reports that the shooter was deeply disturbed. And, we know that gun control advocates still are trying to force the same, tried and failed “common sense” gun control proposals onto the American public.

All of this new (and unsurprising) information only reinforces the need which I outlined last weekfor a broader and deeper understanding of mass shootings that only President Donald Trump is in a position to deliver; in the form not of a Tweet, but of a presidential commission staffed with experts from a variety of fields. However, while Congress, and the president himself, should refrain from making any sweeping changes before such a commission releases its findings, thereby ensuring such changes are more than just knee-jerk reactions, there are a number of meaningful steps that can be taken immediately.

Arming teachers has been a popular idea in conservative circles, which likely is an idea a presidential commission would investigate; but a more measured and immediate solution is ensuring there is a uniformed, armed, trained, and ready police officer at each school. School officials should also ensure there are proper, physical safeguards in place to prevent unauthorized persons with firearms from coming into schools. The image of metal detectors greeting students is not an image we ever wished we would see, but it reflects the world in which we now live.

We go through such entry mechanisms at airports, sports events, concerts, and public buildings.  What does it say about our fiscal and social priorities as a country that we place more value on sporting events and music performances than on the safety of our children?

Secondly, Republicans should seriously consider raising the age of purchasing semi-automatic rifles built on the AR, AK, and similar platforms, to 21. Raising the age of purchasing any firearm to 21, like that proposed by nervous politicians such as Florida Governor Rick Scott is unnecessary and unproductive. However, there are clear differences in both the physical components and projectile characteristics of such rifles, that make them inherently more dangerous than bolt- or lever-action hunting rifles, or pump-action shotguns (all of which are appropriate for responsible young men and women between the ages of 18 and 21). Such characteristics make the AR-type platform far more like a semi-automatic handgun than traditional rifles or shotguns.

The AR-15 platform is the most popular sporting rifle in America, and in spite of the hysteria peddled by Democrats, the millions of such rifles in circulation are, with extremely few exceptions, used safely and legally every day. A blanket ban on them as proposed by Democrats and groups of students, is uncalled for; but raising the age of purchase for this specific class of rifles by three years is a modest restriction without undue burden on Second Amendment rights of young citizens desiring a firearm for sport, hunting, or self-defense.

Thirdly, Republicans should look further into the current system of data-basing mental health issues, and provide additional funding to improve record keeping and national access, as a part of the National Instant Criminal Background Check System (NICS). This should be approved unanimously, and with little debate.

Finally, Republicans should consider – carefully — a proposal proffered by National Review writer David French earlier this month, for a “Gun Violence Restraining Order.” In short, the GVRO gives law enforcement officials the legal teeth to confiscate firearms from those proven to be an immediate threat, but only if the procedures provide — in law — full due process to any individual sought to be restrained.

Even though on the surface a GVRO seems like a no-brainer, the gravity of its effect should not to be taken lightly, as First, Second, Fourth, Fifth, Sixth and Fourteenth Amendments are all at play. Such a powerful tool for law enforcement will no doubt invite abuse from corrupt public officials who could use ex parte hearings to their advantage, which is why any GVRO legislation must contain critical protections, including but not limited to those outlined by French, such as: narrow standing for those proposing the GVRO (such as family members), high burden of proof, quick due process for the defendant (especially in the case of emergency, ex parte hearings), and a short and defined effective period that must be renewed only with another hearing.

Although no law or regulation comes with an ironclad guarantee of stopping evil people from committing egregious acts, these are just a few steps Congress, as well as state and local governments, can begin immediately taking to reduce the risk of mass shootings, without emburdening Second Amendment rights lurking in the current proposals by Democrats and Nervous Nelly Republicans, like Gov. Scott.

Federally, it is essential that Congress, not the president, take these steps. Congressional action will remove doubt that inevitably would accompany unilateral executive action, and that would open the door to further erosion of the principle of separation of powers which, in conjunction with our Bill of Rights, forms a firm foundation against the excesses that gun control pundits constantly are attempting to force on us.

Fixing America’s ‘Invisible’ Infrastructure — The Wireless Spectrum

Investor’s Business Daily

America’s wireless spectrum — that long-neglected part of our vital national infrastructure – finally is receiving much needed attention by the Congress and the Federal Communications Commission (FCC).

XChanges that are important for broadband modernization, however, could be short-circuited by Washington’s continuing budgetary mess. The changes also could become an unintended victim to debates surrounding the creation of a new, “5G” network.

Citizens everywhere, especially those in rural parts of the country, have a stake in ensuring that neither contingency occurs.

Most of the attention paid to “infrastructure,” including by President Trump in his recent state of the union address, focuses on our physical infrastructure — bridges, highways, water systems, and rail.  Just as important, but far less noticed, is a vital but largely invisible component of America’s infrastructure — the wireless spectrum.

Just like a concrete interstate highway, the wireless spectrum has a finite capacity. Sooner or later, only so many users can “ride” its frequencies before it becomes overcrowded, clogged, and eventually, unusable.

Unfortunately, while a highway can be widened and more lanes added, the wireless spectrum used by broadcasters cannot.

There are only so many megahertz “lanes” or frequencies available for use. Because demand for space has skyrocketed in this digital age — with cell phones, social media, television, radio, law enforcement, 911 emergency systems, and more competing for signal strength — something had to be done to modernize the spectrum so it did not “collapse” under the weight of massively increased demand.

These problems demanded the attention of the federal government, which controls the wireless spectrum in the “public interest,” and in 2012 the Congress responded appropriately, by authorizing the FCC to auction off large segments of the spectrum to private companies.

The plan was that, through such a process, a significant amount of wireless spectrum would be made available to businesses that could then provide new and improved services to consumers as market forces dictated.

This process — “repurposing” in government-speak — in fact accomplished its purpose when the auction concluded in March 2017; benefiting companies like T-Mobile, AT&T, and many others, as well as Uncle Sam, which took in nearly $20 billion and allocated $7.0 billion for “deficit reduction.” The process, however, was not without a downside.

Costly upgrades are necessary for wireless broadcasters to modernize their equipment, realign broadcast channels, and incur other, related expenses. Congress in 2012 anticipated such a problem, and authorized $1.75 billion in what can be considered eminent domain reparations, so television broadcasters could adjust their equipment and facilities to operate on the realigned spectrum.

Unfortunately, that $1.75 billion has proved insufficient for necessary infrastructure improvements resulting from the spectrum realignment.  Thus, nearly a thousand television stations — mostly locally owned — and more than 600 “forgotten” radio stations that use those same towers to broadcast their programs, are facing significant costs that the congressional planners failed to fully foresee nearly six years ago.

In other words, an unintended, but still costly, unfunded mandate.

The potential consequences for American consumers, especially those residing in rural America, are severe. The Rust Belt relies on these local TV and radio stations for business, especially farming.

Unlike the vast array of choices found in most cities, some local communities are entirely dependent on just one or two local stations. Consequently, without correction, the government’s spectrum reallocation would unjustly select winners and losers within the country.

Fortunately, a bipartisan group of House and Senate members has addressed this shortfall by proposing legislation to allow these affected TV and radio broadcasters to use a small fraction of the auction’s profits for ensuring they can continue broadcasting on the new wireless spectrum.

Current FCC Chairman Ajit Pai also has recognized that the Congress needs to authorize additional funding for these broadcasters so they can remain on the air.

Leaders in both the Congress and the administration recognize that the only fair thing to do is to provide funds for this overlooked unfunded mandate problem.  Furthermore, the funds are there; in the form of the $7.0 billion “profit” the government realized from the auction.

Unfortunately, what would appear to be a no-brainer could fall victim to the ongoing budgetary stalemate in the nation’s capital; and the waters in which these issues will be considered could be severely muddied by the recent debate about whether the government should be involved in the development of a new “5G” broadband network.

Either contingency would indeed be a shame, as it would undercut a rare instance in which the government is trying to do the right thing for the right reason at the right time. And time is running out.

• Barr served as a congressman from Georgia from 1995 to 2003.

School Shootings Demand Deep Study, Not Faux Solutions

Townhall.com

Bob Barr

2/21/2018 7:57:00 AM – Bob Barr

This is the first in a two-part series on issues relating to and arising out of the mass murders at the high school in Parkland, Florida last week.  The second piece by Congressman Barr will appear next Wednesday. 

The Los Angeles Times, a newspaper with the fourth-largest circulation in the country, published an editorial on last week’s mass murder in Florida.  The newspaper’s long-time columnist George Skelton opined that “[m]ass shootings will continue in this country until we finally ban mass-shooting weapons.”

Skelton’s missive was as philosophically deep and intellectually cogent as an attempt by a middle school student to analyze the intricacies of national defense strategies in a multi-polar world order. While I do not doubt that this writer takes his work and his analysis seriously, the views he expresses add absolutely nothing of true substance to the ongoing debates about either what motivates and facilitates mass murderers, or understanding the tools with which these evil acts are committed. In this regard, Skelton reflects nothing but the emerging world view that simplistic solutions will solve complex problems.

Skelton’s approach mimics that of gun-control advocates such as “Everytown USA,” an entity supported by well-known gun control hypocrite Michael Bloomberg.  This approach rests on the belief that outlawing this, that, or some other gun will stop evildoers such as the individual who visited such horrors on innocent boys, girls, men and women in Parkland, Florida last week.

The Los Angeles-based writer resides also in the company of countless Democrat office holders who trip over themselves to be the first to propose the same failed gun control initiatives in the hours, if not the minutes, after such a tragic event.  Their views and analyses are no more relevant to arriving at or even near solutions to the problem of mass shooting in our country, than would be postulating the future of global weather patterns based on peering out the window at a thermometer each morning.

Rather, such views as expressed by Skelton and his fellow gun control apologists spring forth as pre-packaged ideas in large measure because their real target is not the evil inside the heart and mind of the individual perpetrator or his enablers; but the far-better known and much larger target — the National Rifle Association.

In the minds of such faux experts, the NRA controls virtually all levers of power at all levels of government, especially in Washington; and is therefore to blame for the failure of government to “stop” mass murders committed with a firearm. Skipping over the fact that no single entity “controls” the Congress – indeed, in terms of outside spending in elections, the NRA does not even make the top five list (or even the top 450 in direct contributions to candidates who support its mission) – blaming government for instilling the evil that obviously resides in the minds of mass murderers, is so illogical as to be laughable.  But laughable, it is not; as witnessed by the number of otherwise knowledgeable persons who continue to jump on the “gun control” bandwagon.

Despite the child-like “solutions” proposed by Skelton, et al., the problem we face in terms not so much of gun violence writ large (which has dropped steeply from just a decade ago), but of mass shootings, is serious in the extreme; and demands leadership at the highest level of government on down to the local sheriff, police chief, and ultimately, the family.

For President Trump, the first move should be immediately establishing a commission on mass shootings. Unlike that established by George W. Bush, which consisted mainly of law enforcement and educational authorities, and focused primarily on defensive strategies for schools, Trump’s commission should consist of real experts from across the spectrum: law enforcement, educators, psychologists, criminologists, FBI profilers and threat assessors, constitutional experts (since this issue spans the First, Second and Fourth amendments), and others.

The commission must have a defined term of six months to a year, along with subpoena power.  It must be given the congressionally-appropriated resources to fully execute its mandate.  That mandate must be as broad as the problem our society faces, without preconceived or political agendas, and importantly, with “nothing off the table.”  If it is a commission on “gun control” or on “the Second Amendment,” it will be a waste of time and money.

The commission must grapple with the most difficult and elusive of problems:  Who are these killers? Do they have anything in common? What drives them to violence? Why do some act quickly, while others plan for years? Were they flagged before the violence, and if so, what institutional safety checks failed to stop them, and why? What are the mechanics of their plans?

Then and only then – once these experts have truly tackled these fundamental questions – can we begin to construct solutions.  Otherwise, we are simply deluding ourselves with a false sense of accomplishment, even as we essentially guarantee future tragedies.

Stop Sessions’ anti-pot crusade — Let states regulate marijuana

What does marijuana have in common with Schedule I controlled substances like heroin, LSD, and “date-rape” drugs? “Nothing,” the average American would likely reply. I agree. Unfortunately, U.S. Attorney General Jeff Sessions holds the opposite view and continues to lump pot in with far more dangerous drugs.

It appears that Sessions is using federal law enforcement to further his personal view that all marijuana use is wrong. This is the same mindset behind the prohibition of alcoholic beverages in the U.S. from 1920 to1933. That proved unsustainable, just as the total federal ban on marijuana has been shown to be a failure.

Since President Nixon launched the War on Drugs more than four decades ago, billions of taxpayer dollars have been spent each year fighting the perceived scourge of marijuana, employing the same fundamental strategy decade after decade. And year after year, Americans continue to smoke marijuana in increasing numbers, according to the government’s own figures.

Common sense tells us that not all illegal drugs are alike. Heroin is far more dangerous and addictive than marijuana. LSD is powerful hallucinogen that is far more incapacitating than pot. And anyone using a drug to leave a woman helpless so he can rape her is committing a terrible crime far more serious than smoking a joint.

Moreover, Americans generally are aware that numerous medical studies have established that THC (tetrahydrocannabinol), the primary active ingredient in marijuana, possesses significant positive properties for certain maladies, including glaucoma, cancers, seizures and post-traumatic stress disorder. Even many people who oppose recreational marijuana use don’t want to deny the drug to sick people who could benefit from it medically.

Yet Sessions remains an adamant foe of all marijuana use. Full disclosure: I held the same view when I was a U.S. attorney in Georgia from 1986 to 1990 and when I served as a Republican congressman from Georgia from 1995 to 2003. But as more evidence emerged about marijuana in the past 15 years I reevaluated my position. I now believe states should determine how they want to regulate marijuana, without federal interference.

Sessions continues to maintain that marijuana is a “dangerous drug” that the federal government must “combat,” regardless of whether a state’s citizens have voted to legalize it.

In taking such a hardline approach to even medical marijuana legalization, the attorney general seems to have placed himself at odds with his boss. In numerous interviews in 2016, then-candidate Donald Trump was quite clear that questions regarding “medicinal use” of marijuana should be decided by the states and not the federal government.

This position, which President Trump has not expressly disavowed, reflects the fundamental principle of federalism: that matters affecting the citizens of a state should be decided by each state, unless they are clearly national issues or delegated to the federal government by the Constitution.

President Trump’s position is in accord with a wide swath of the American electorate – 94 percent of adults (including 90 percent of Republicans) support legalized adult use of marijuana for medical purposes, according to a recent Quinnipiac Poll. And a majority of Republicans favor legalization of marijuana in general, according to a Gallup Poll released in October.

President Trump’s analysis also is in accord with the view of the Justice Department in the Obama administration – that using limited federal resources to prosecute people who use marijuana makes no sense.

Importantly, President Trump’s view is also consistent with a majority of members of the U.S. House of Representatives. The House has voted every year since 2014 to prohibit the federal government from using any appropriated funds to prosecute medical marijuana cases in states where it has been legalized. This is the latest flashpoint between Sessions and the Congress.

Congressional supporters of this extremely limited exception to broad federal prosecution of offenses involving “controlled substances” are at a loss to understand the attorney general’s position.

As an American citizen, Jeff Sessions is free to espouse whatever opinions he likes on marijuana and marijuana users. And under current federal law, he is correct that a state law legalizing marijuana use does not legally override federal law.

But Sessions is going beyond his proper role when he employs the power of his position as our nation’s top law enforcement official to use taxpayer resources as a cudgel with which to misalign federal policies and forcibly override the decisions of 30 states and the District of Columbia to legalize some form of marijuana use – medicinal, recreational or both.

Moreover, Sessions’ actions are not remotely consistent with the long-accepted principles underlying our constitutional republic. And his position is not supported by factual analysis.

Sessions and other marijuana hardliners contend that prosecuting users of medicinal marijuana in states that have legalized it is necessary because such use leads to violence, gang activity and funding of other criminal enterprises. But there is no evidence to support this conclusion, and even were it so, there are more than sufficient laws still on the books with which the feds can attack such activities.

Virtually everyone in Washington purports to support the principle of federalism, at least in word. Under federalism, the national government and state governments each possess a large degree of sovereignty. The Constitution grants few express powers to the federal government, reserving the remaining powers for the state.

Both Republican House Speaker Paul Ryan of Wisconsin and Democratic House Leader Nancy Pelosi of California, for example, issued a statement last May endorsing the principle of federalism. And the most recent Republican Party Platform re-emphasizes the GOP’s firm commitment to federalism as its governing lodestar. But brush away the smoke and quite a different reality emerges.

Ultimately, if President Trump and the Republicans in Congress refuse to halt the attorney general’s mean-spirited and philosophically hollow policy, they will show themselves to be true faux federalists, and will pay a price in electoral battles to come.

Then there is the question of priorities. Neither the Department of Justice nor the federal government as a whole enjoy unlimited resources (thank goodness!). Prioritizing those resources – whether as a federal prosecutor, a member of Congress, or the attorney general of the United States – is and should be a primary responsibility of the officeholder.

Priorities change over time and circumstances. Failing to recognize this reality and continuing to adhere rigidly to yesterday’s priorities when facing today’s (or tomorrow’s) threats is not only costly but irresponsible.

To me – and to a significant majority of Americans – major threats facing our country today that are within the federal government’s portfolio of responsibilities do not and should not include pursuing marijuana users. This is true whether individuals light up for medical or less noble reasons, and regardless of whether earlier times might have supported such a priority.

My concern for the principle of federalism always has served as a filter through which I have endeavored to evaluate government powers and actions.

Finally, there is the underlying and indisputable fact that the ways in which the government invades and undermines individual liberty today are far more numerous and invasive than when I last took an oath as a member of Congress. The War on Drugs has spawned many of these liberty-limiting powers – including the huge expansion of financial crimes and the massive use of electronic surveillance.

Our Founding Fathers recognized that every instance in which the government takes and uses power necessarily means individuals have lost a degree of liberty. This was problematic 15 years ago when I left Congress. It is frightening now. As a result, my decision to oppose the federal government’s anti-marijuana crusade was an easy one to make.

Former Rep. Bob Barr was a member of the U.S. House of Representatives from Georgia from 1995 to 2003. He now practices law and heads Liberty Strategies, a consulting firm in Atlanta.

Where Were All the FISA Critics When We Really Needed Them?

Bob Barr

2/7/2018 12:01:00 AM – Bob Barr

It was to be the “Memo heard round the world”; one that would rival the impact of the “Pentagon Papers” disclosures that ultimately brought down a president in the Watergate scandal. The “explosive” memo was “set to rock D.C.” as headlines screamed, building the anticipation for its release.

Instead, like most “[insert buzz word]-gates” peddled by Beltway bureaucrats and Mainstream Media gossip queens who fancy themselves dramatic and knowledgeable actors on an international stage, the memo came and went, with each side jockeying for camera time to claim its earth-shattering importance or its triviality. Sadly, once again amidst the partisan squabbling, the real point of it all has been largely missed.

Whether the memo vindicates Republican claims that Donald Trump’s presidential campaign was targeted out of partisan corruption, or as Democrats suggest, it is merely a work of political fiction designed to discredit Robert Mueller’s “Russia Probe,” depends entirely on a subjective and political interpretation of the memo’s contents. In other words, those reading the memo for partisan points will extract from it precisely what they wish.  In so doing, however, these readers will miss a far more important – and chilling – undercurrent, with substantive implications considerably more important than who, or which party, wins the next election.

Here is what the “Nunes Memo,” named after its original author, California Rep. Devin Nunes, objectively tells us. The Federal Bureau of Investigation (FBI), using a widely discredited and unsubstantiated “dossier” created for use in the 2016 presidential election against Trump, served as the basis for obtaining a Foreign Intelligence Surveillance Act (FISA) warrant, which gave the agency power to surreptitiously surveil the campaign. Partisan pundits can debate the politics til the proverbial cows come home; but such conversations do nothing to change the fact that federal law currently permits federal agents, in the middle of a presidential campaign and transition, to seek and obtain a secret FISA order apparently based on nothing more than a piece of campaign-opposition research.

Where the Nunes Memo might be short on partisan ammo, it certainly makes up for – in spades – in damning evidence of a Surveillance State run amok; in particular, the FISA process itself. If an unproven piece of campaign propaganda can serve as the basis for a secret surveillance operation against the highest-level opponent of the party currently in control of government power, then clearly we have a serious problem that transcends political squabbling.

If this problem represented a new and unforeseen controversy with which the Congress now had to deal, one might forgive its lack of focus and forethought. But the problem reflected in this “Memogate” is not new; it was not unforeseen; and its impact far overshadows one political party, any individual, or an election.

The controversy reflects a disgraceful lack of concern, understanding and action by the leadership of the House and the Senate, in coming to grips with a fundamental question of civil liberties:  Why does the Congress continue to permit the National Security Agency (NSA), the FBI, and other intelligence and law enforcement agencies, to surreptitiously surveil individuals – pursuant to a one-sided and secret procedure – and gather information that can be used to prosecute American citizens, in complete and utter disregard for the protections against such actions in the Fourth Amendment to the Constitution?

In the aftermath of the memo’s release, Republicans are bemoaning the FISA process that allowed for the surveillance of the Trump campaign and transition, and of individuals connected thereto.  But, where were these critics two months ago?  Where were they just one month ago, when they had a perfect opportunity to rein in FISA; to ensure that its constitutionally-deficient provisions were made subject to our Bill of Rights?

Sadly, the vast majority of Republican members of Congress, including Nunes himself and many of his colleagues now wailing against FISA, were tripping over themselves to reauthorize and in fact expand the law’s reach.  Republican supporters of unfettered government surveillance were joined in that rush to judgment by many Democrats in both houses of Congress, in a bipartisan stampede to protect government surveillance powers from having to be concerned with the “technicalities” of the Fourth Amendment, designed to protect against warrantless and baseless secret collection of citizens’ communications.

At the end of the day – January 19, 2018 to be precise – President Trump joined the Surveillance Club and signed into law a six-year extension (and expansion) of the very FISA powers about which he and his supporters now are so angry.

So please, spare us the false indignation about FISA.  If Republicans and Democrats are actually serious about FISA, they should go back and undo the damage for which they voted less than a month ago; and quit the superficial, partisan theatrics.

Trump’s “Quiet Revolution”

Bob Barr

1/31/2018 12:01:00 AM – Bob Barr

Depending who you ask about the success or failure of President Donald Trump’s first year in office, you are likely to either get an earful about all the offensive things he has said as president, or hear about all the “winning,” delivered as promised. The reason for the dichotomy in responses certainly is related to one’s partisan beliefs; but, perhaps more important is whether the observer is able to separate Trump the Man, from Trump the Manager.

As a man, Trump is brash, turbulent, and lurches from one gaffe to another as he speaks and tweets whatever appears to occupy his mind. Trump the manager, however, is calculated, driven, and while superficially engaged in squabbles with his opponents, has expertly flouted the D.C. establishment to start a regulatory upheaval unlike anything we have ever seen from a Republican president; including Ronald Reagan.

The reason for Trump’s resounding regulatory successes is no accident. While critics fully expected Trump to surround himself with inexperienced yes-men meant to do nothing more than fluff his ego, Trump instead modeled his administration as an elite football program; where as head coach he could focus on the big picture, leaving the execution of his vision to talented support staff heading the various agencies and positions within the Executive. Almost immediately, they quietly went to work.

Mick Mulvaney, while serving in the cabinet as the director of the Office of Management and Budget, also has made quick work of gutting the onerous Consumer Financial Protection Bureau as its interim director. Trump’s pick for Interior Department Secretary, Ryan Zinke, recently announced “revolutionary” plans to reduce the amount of land owned by the federal government, and return control back to states. Zinke also, from day one, helped open more federal lands to hunters and fishers by eliminating regulatory statutes blocking access to supposedly “public” lands. Scott Pruitt, picked to head the Environmental Protection Agency, has greatly reduced the agency’s budget and staff, while rolling back Obama-era regulations and muzzling the agency’s inappropriate political posturing about global warming. At Education, Secretary Betsy DeVos reversed the Obama administration’s “Dear Colleague” letter policy; thereby restoring the Fourth Amendment to college campuses.

These are but a handful of the more public examples of how Trump’s appointees have gone nuclear on D.C.’s regulatory state. More impressively, they have done so almost completely under the radar as the Mainstream Media chooses to focus its attention on smearing Trump at every turn. What has been sour grapes for liberals, however, has provided ample cover for a quiet, conservative revolution in the halls of agencies responsible for billions upon billions of dollars in regulatory red tape.

“There is so much noise in this town that I think it obscures the real work that’s being done,” Heritage Foundation President Kay Coles James, told the New York Times. “This administration is doing quite well in terms of advancing a conservative agenda — clearly, quite well.”

Outside the excellent work of his Cabinet, Trump also deserves credit for Nikki Haley, who has proven to be a fierce and deft ambassador of U.S. interests among the vipers nestled at the United Nations. Kudos are due Trump as well as for the appointment of Neil Gorsuch to the Supreme Court, who was perhaps the very best successor to the seat vacated by the late Justice Antonin Scalia.

Then there are also his legislative victories, including a historic tax cut immediately prompting huge corporate investments back into the economy (and into American workforces in the form of bonuses and raises), and killing the odious “Obamacare tax.” Together, these wins along with those from his appointees, amount to as much as conservatives could have hoped for in a first year, especially given initial concerns with Trump during the campaign.

To be sure, Trump’s first year has certainly come with its disappointments; for example, Attorney General Jeff Sessions’ obsession with reviving antiquated Drug War era law enforcement on medicinal and recreational marijuana. And, there certainly is ample room for improvement, such as working with Congress to pass dramatic cuts to spending to help offset Year One’s tax cuts, and yet-to-be-passed legislation enhancing firearms rights (e.g. Concealed Carry Reciprocity Act, and the Hearing Protection Act). Nevertheless, an objective look at Trump’s first year proves that all the “winning” he promised during the campaign, even if in different and surprisingly positive ways than many of us thought, is very real.

Government Snooping Survives Government “Shutdown”

Bob Barr

1/24/2018 12:01:00 AM – Bob Barr

In Washington’s theatrical production of “Shutdown: 2018” – directed by Sen. Chuck Schumer, produced by the Mainstream Media, and featuring all of Congress’ top stars – we saw Republicans and Democrats hopelessly mired in an intractable partisan gridlock.  As the hours trickled by in the 24-hour news cycle, the audience waited with bated breath for our heroes to reach a last-minute, temporary compromise that saved the day, and our country. It was a story written for the headlines, and although enjoying only a limited run of one weekend, the drama captivated the attention of a nation, and distracted us from the actual problems facing the country – such as the warrantless electronic surveillance of American citizens.

In the thick of the “Shutdown” theater, and unaffected by it, the Congress quietly passed, and the president quietly signed, legislation that extended for six full years Section 702 of the Foreign Intelligence Surveillance Act.  This in effect allows the government to continue gathering and using electronic communications by American citizens unsuspected of any criminal activity, and without bothering to ask a court for permission.

This was the first reauthorization of FISA surveillance powers since Edward Snowden revealed in 2013 just how dark and pervasive these programs had become.  It also came in the wake of recent evidence that these powers were employed by the Obama administration against then-candidate and president-elect Donald Trump.  One might have hoped that with this background, there would have been meaningful debate about reauthorizing Section 702. Or, at the very least, amendments to finally bring it into compliance with the Fourth Amendment.  But it was not to be.

Instead, debate was attempted, but was quickly shut down; and, amendments presented, but were rejected by both parties. At the end of the process, FISA reauthorization sailed through the House and Senate late last week with bipartisan support. 

Despite the popular narrative in Washington of inter party intransigence, Republicans joined hands with Democrats to again allow unconstitutional surveillance of American citizens; barely pausing to consider curtailments of these powers despite overwhelming evidence of abuse. Neither party was willing to “shut down” government over it; nor was there a need, with overwhelming support coming from both aisles.  Both sides had their priorities: protecting illegal aliens was more important to the Democrats, and keeping “non-essential” government workers in place took precedence for Republicans.

As to the slight tweaks to the law providing “protections” in the post-Snowden world (or, more likely, to assuage the guilt of lawmakers rushing to reapprove legislation they know is widely abused against their constituents) — they provide no substantial burdens to agencies involved. They merely continue an environment in which the former head of National Security, James Clapper, felt emboldened enough to perjure himself in front of Congress knowing full well he either would not be caught, or if he was, nothing would ever come from it because of the nature of his work (“national security”). 

It was a good bet. The statute of limitations runs out on him this year.

While the new version of Section 702 pays lip service to the Fourth Amendment — for example, “requiring” law enforcement to obtain a warrant to search the results of data-based intercepts, it carves out virtually limitless exceptions for the Attorney General to otherwise use this information in criminal proceedings, making such warrants more of a formality, not a necessity. And, given that anything the FISA court does is secret and ex parte, and the reasons for granting a court order for surveillance are as broad as the latitude given to attorneys general, a formality it certainly is. 

As for oversight of these agencies, one need only look to the recent “memo” outlining what the public has been told are extraordinary abuses of FISA power by one administration against the man who would become President of the United States. Was this memo made public, even to Congress, before the vote to reauthorize FISA; notwithstanding that disclosure was well within the power of Congress or the White House to do so? No. Why not? As noted privacy advocate Judge Andrew Napolitano suggested on FOX News recently, it would have undermined support for the very same spy powersabused in the worst way imaginable. Napolitano suggests this was also the same reason why Trump had a sudden and radical reversal on his criticisms of FISA. 

“I suspect that leaders in the intelligence community hurriedly convinced the president that if he sets aside his personal unhappy experiences with them and any constitutional qualms,” Napolitano noted, “they will use the carte blanche in the FISA amendments to keep us safe.”

So much for taking a bite out of the Deep State.

Twitter Bad, Government Worse

Bob Barr

1/17/2018 12:01:00 AM – Bob Barr

When it comes to the Internet, people often take for granted “free” access to online products and services, such as Facebook, Google, and Twitter.  We tend to think that our use alone of such services, bolstering metrics like their “daily average user” figures, is what allows them to generate greater ad revenue. Yet, as undercover journalist James O’Keefe revealed this week in a Project Veritas investigation of Twitter, this is pure delusion; proving, once again, that if something is free, you’re the product.

As with much of O’Keefe’s work the findings, while revealing, are not shocking since the targets of his investigations become “targets” because they are suspected of engaging in unethical (or illegal) dealings. So, for example, to hear Twitter engineers and security experts talk of unfettered access to personal correspondences (called “direct messages” or “DMs” for short), and essentially how nothing transmitted across the platform is private or erasable, confirms what we have known all along about online privacy — there is none; particularly on platforms that make their money harvesting data from its users.

“So, what happens is like, you like, write something or post pictures on line, they never go away,” Pranay Singh, a Direct Messaging Engineer for Twitter, tells an undercover investigator for Project Veritas. “Because even after you send them, people are like analyzing them, to see what you are interested in, to see what you are talking about.”

“And they sell that data,” Singh adds; in a not-so-shocking revelation.

So what exactly do Twitter employees see? Everything. Private conversations, lurid photos, clicked links, and location data are just the tip of the iceberg to what information can be collected on users. Then, according to Twitter employees, all of this information is assembled into a private profile of users, to be sold to the highest bidder; or, far too often, hacked and stolen.

Of course, as uncomfortable and, perhaps, creepy as it is to have our deepest fears about online privacy confirmed so directly, it is important to remember that social media platforms are still private-sector entities (cozy relationships with federal law enforcement not withstanding). In other words, digital profiles of users compiled by sites such as Facebook, Twitter, and Google are primarily used to monetize online activities via advertisers, and not, as in the case of federal agencies that also are actively building digital profiles of people, used to put people in prison.

However, the disparate reactions to O’Keefe’s most recent exposé, and the speed with which the U.S. House passed an expansion of domestic surveillance powers last week with nary a bit of public concern, demonstrates that our anger is far too narrow.

Just as it is true in the tech world, the end goal of government surveillance programs and data sharing is to build as comprehensive and exhaustive a profile of citizens as possible. This harvesting of data is not confined to suspected terrorists or criminal organizations; but includes also private digital conversations and transmissions between innocent Americans swept up in the process, without any meaningful safeguards against abuse; actions ranging from illegally snooping on paramours, to targeting firearms owners, and worse.

Moreover, even when the data is not handled directly by humans, and instead analyzed by computer algorithms designed to look for suspicious patterns in the data, the potential for abuse is very real. Innocent Americans can easily come under investigation for perfectly legal activities that suddenly appear suspicious according to secret, predictive pattern-matching formula; with “probable cause” deemed unnecessary because Uncle Sam is “fighting terrorism” with such powers.

So why is it that especially in conservative circles, Twitter elicits more scorn and anger than federal agencies and their enablers in Congress? Given how often (and easily) innocent Americans are swept into the clutches of the federal justice system, we have much more to fear from government snoops than social media engineers; and, more to be concerned about with digital profiles used by law enforcement than those used by advertisers.

Granted, the Leftist agendas of social media platforms, and their schemes to silence conservative users have made these tech giants an understandable political foe for conservatives. However, the fact that only 45 Republicans voted against the reauthorization of Foreign Intelligence Surveillance Act (FISA) powers (and only 55 supported Rep. Justin Amash’s privacy protection amendment), signals a massive imbalance in our priorities in a party that ostensibly claims privacy rights as a core tenet.

Fortunately, in the person of Sen. Rand Paul, we have an opportunity to at least put the brakes on the speeding FISA locomotive. But regardless, and over the longer run, if users of social media platforms remain ignorant of, or uncaring about how both the private and the government sectors are collecting, data-basing, and using our private information, there’s precious little one U.S. Senator can do.

Outrageous Prosecutorial Misconduct Comes Home to Roost in the Cliven Bundy Case

Bob Barr

1/10/2018 12:01:00 AM – Bob Barr

There is an old Latin proverb, “Fiat justitia, ruat caelum,” which means, roughly translated, “Let justice be done, though the heavens may fall.”  On Monday, January 8, 2018, the heavens fell on the United States Department of Justice.  More specifically, on that day a United States District Court Judge, Gloria Navarro, dismissed the criminal charges that had been pending against Nevada rancher Cliven Bundy, two of his sons, and a third defendant, for nearly four years.

What made this action especially significant is not simply that the judge dismissed the charges, but that she did so with prejudice, meaning the federal government cannot later retry the defendants.

Such steps by a federal judge – dismissing charges and doing so with prejudice – are not routine, but they are unusual; not so significant, perhaps, as to warrant special attention by persons not directly involved. What happened in the Bundy case, however, is that important.

Monday’s announcement in the federal courtroom in Las Vegas should concern every American who carries with him or her an understanding of, and appreciation for, the rule of law.  The judge’s findings should frighten every American.  Why?  Because they document and confirm how easily any one of us could wind up like Cliven Bundy — the victim of overzealous, dishonest and vindictive government employees; including, most disturbing, those within the Department of Justice.

What makes the Judge’s ruling so important, are the reasons underlying the decision.  In her ruling, Judge Navarro found that the government (including the United States Attorney’s office in Nevada and the FBI, among others) not only had withheld evidence from the defendants and their lawyers – evidence that was potentially exculpatory and could establish their innocence – but that it had done so repeatedly and willfully; that is, deliberately and maliciously.

A fair question might be posed, as to “why” the government had behaved in such a despicable manner; what was at stake that drove federal lawyers and law enforcement officers to engage in what the Judge noted was “outrageous” and “unconstitutional” behavior?

Was it money?  After all, the federal Bureau of Land Management (a subsidiary of the Interior Department) was seeking over a million dollars from the Bundys; which, it claimed, was owed Uncle Sam because the ranchers’ cattle grazed on land claimed to be owned by the U.S. government.  But is there a dollar amount beyond which the Bill of Rights does not apply?

Was it an egregious violation of the Endangered Species Act as claimed by the feds; grazing that threatened the very existence of a tortoise that inhabited this particular patch of sagebrush?  But is a tortoise more important in the eyes of our Constitution, that human beings; does it, too, trump the Bill of Rights?

Was it because the government had conducted a fair and objective “threat analysis” of the Bundys and their activities leading up to the stand-off that took place (and ended peaceably) on April 12, 2014, and found credible evidence that the family and its supporters posed a clear and present threat to federal officials?  Is it now impermissible to peaceably assemble on any plot of soil claimed by the government to belong to the government?

The Judge noted that the Bundys’ fear of federal surveillance and snipers, which preceded the 2014 stand-off, were in fact justified and well-founded; even though the government deliberately hid evidence of such actions and derided such assertions as fictions and “urban myths” conjured up by over-imaginative defendants.

The government claimed repeatedly that its agents “feared” for their lives in part because a “threat analysis” concluded that the Bundys and their supporters posed a very real and imminent danger of violent opposition.  In fact, as the Judge found, the so-called “threat analyses” were based on nothing factual; and actually concluded just the opposite.

What appears to have been at the heart of the Justice Department’s unconscionable behavior was sheer hubris; the arrogance that comes from a superior sense of status and power, built on decades of legislative and judicial decisions concluding that the federal government can do whatever it wants, whenever it wants, to whoever it wants and that its actions are not to be questioned.

A thorough investigation of this sorry incident is due by the Attorney General, the Secretary of the Interior, the head of the FBI, and perhaps most important, by those in the Congress responsible for ensuring that our Constitution and laws are carried out with a far higher degree of integrity and respect than that which has been afforded the Bundy family. Moreover, unless those responsible are punished appropriately, surely other American citizens will find themselves the targets of future witch hunts.

And, incidentally, why is this case largely being downplayed, if not ignored, by most media outlets?