Ashby 2008

Would you have broken the law if the President had asked you to, after 9/11? To me, that is what happened with AT&T and the other telecommunications companies. I am curious about just how much information on how many people the Administration actually gathered without a court order, and I agree that legal action is probably the best way to force this to be disclosed. However, I do not think it is fair to hold the shareholders of AT&T financially liable for their management’s decision to do something that the President said was a matter national security. A limited immunity, protection against punitive damages and attorney’s fees, would allow the courts to be used to force disclosure of the extent of the requests without exposing the telecommunications companies to significant financial risk.

I have to say, I have been curious about how, and how much, communications the government actually collected from the telecommunications companies. People in IT can be lazy, and data storage space is cheap. All forms of communications are now turned into data packets – phone calls, emails, videos…Did the government actually receive just the phone calls of a small number of people? Or did the government have the telecommunications companies capture and turn over every data packet going though certain data exchange points, with the idea of sorting through it after the fact? Is it possible that the Bush Administration actually received captured phone conversations of millions or tens of millions of people, just because it was easier?

Wanting to know the answer is not a matter of wanting to embarrass the President. In the aftermath of 9/11, the President did what he thought best to protect the country – he did what he thought was right at the time. That is all we can ask of any President – that he or she do what they believe to be best for the country. Nevertheless, it is critical that we are able to know the President’s decisions, even after the fact. In the private sector, Edward Deming popularized the idea of continuous improvement, the idea that it is possible to continuously evaluate inputs and outcomes and thus continually find and implement improvements to processes. The key to continuous improvement is good information – an enterprise has to understand its process, collect meaningful information on each portion of the process, and tie outcomes both good and bad back to those processes.

The same holds true for government. Our democracy and bureaucracy work better if we continually collect good information on the actions of government and the outcomes of those actions. This includes monitoring and evaluating how true we are to the principles of democracy and our Constitution. It is important that our government be transparent so that we as citizens can be sure it is working properly and within the bounds of the law. Sometimes President’s do overstep the bounds of the Constitution. President Lincoln arbitrarily arrested northern opponents of the Civil War. After the fact, the Supreme Court eventually held those actions unconstitutional. If in fact President Bush overstepped the bounds of the Constitution, he is in good company.

It would be nice to think that the political process itself will bring to light any overstepping. However, the next President, regardless of the party, will have his or her hands full just running the country; there will be little incentive or upside to delving into possible mistakes made over eight years ago. The discovery process that is part of a civil action through the courts still seems like the most likely way of ensuring that the actions of the President are disclosed. Again, not to embarrass him, but just to make sure we know.

However, I also don’t think it’s fair that the shareholders of AT&T and the others should have financial exposure because the company’s management said yes to a request from the President. In retrospect, it might have been the wrong call for management to make, but it was a judgment call. If the President had asked me to break a law in October 2001, I probably would have done it too. I’m pretty sure I would have given the President the benefit of the doubt.

It’s hard for me to imagine there were any actual damages that resulted from the warrant-less wiretaps, that it actually cost anyone a job or caused them to lose their savings. From a liability standpoint, the concern is over the punitive damages and possible attorney’s fees, which can be disproportionate to the size of any actual harm caused. Offering AT&T limited immunity, protection against punitive damages and attorney’s fees, seems a reasonable compromise. Well-intentioned attorneys can still pursue civil action, pro bono, and we can know just what the President ordered. The shareholders of AT&T would not be financially penalized for the actions of management, who when all is said and done were just trying to be good Americans responding to the direction of the President.

Congratulations to John McCain, almost assuredly the Republican candidate for the general election. I have to say, this election has been like no other presidential election I can remember (1980, Carter v. Reagan, was the first for me). To the candidates’ credit, we have been presented with far more policy options from clearly differentiated candidates than I imagined possible, and it was refreshing. Yes, it was even good to have Tancredo up there, offering his thoughts for the marketplace of ideas.

I have to say, I thought if the Republicans went against type, it would have been to the gay-loving, baby-killing ex-mayor of Sodom and Gomorrah. However, for the party to actually nominate an old-school, non-delusional traditional fiscal conservative, is, hopefully, proof that Republican voters are ready to move beyond the ideologically driven incompetence and profligacy that defined the party under Bush.

McCain is very much a traditional Republican, and, no matter what the economic fantasists of talk radio say, an actual fiscal conservative. The type of fiscal conservative that remembers that the U.S. government has a balance sheet like any other economic entity, and layering on trillions of dollars of debt is not good for the long-term health of the country. The type that actually knows the difference between a tax cut and a tax deferral. Back in the day, we didn’t have to talk about these variations of “fiscal conservative”, because every Republican believed in a balanced budget, (“What kind of a fool would think that borrowed money didn’t have to be repaid?”). Let’s hope McCain is taking the party back in that direction, and we can stop deluding ourselves that tax cuts pay for themselves and so don’t steal from our children. Supply Side, like that other famous economic fantasy, Socialism, needs to be relegated to the dustbin of history.

Surely, one of the best things about McCain being the nominee is that it takes the issue of Torture out of the election. We won’t be subjected to the moral blight of Romney bragging about the terrorists he’d torture, just to prove he’s tougher on terrorism than the Democrats. For this if nothing else, the Republican Party should be grateful – McCain will keep the Republican Party from sounding as if it is run by a bunch of eleven year-old boys trying to prove how cold-blooded they are.

Hope springs eternal, of course, but I am hoping McCain will actually campaign as an old-school, balanced budget conservative. There would be no surer proof of the Straight Talk Express than for him to eventually come out and say that we need to let the Bush tax cuts expire. For McCain to say that, yes, it will be a little painful, but it is much better for the long-term health of our country. For him to again affirm that the Republican Party believes deficit spending, along with all of its other problems, is morally wrong. Yes, I am hoping that McCain will just come out and say that the Supply Side experiment failed, and we need to go back to the boring old approach of actually paying for the government we use, when we use it. Our economy is strong enough to handle it. Our citizens are strong enough to handle it as well.

So Good Luck, Senator John McCain. I hope you do your values proud. I hope you do our country proud.