Category Archives: Government

Why would anyone trust Wickr

I’d not heard of Wickr until yesterday, when I came across FT.com’s hilarious report “US spying fuels popularity of secure messaging app Wickr (free registration required).” According to the report, Wickr is funded by Gilman Louie, former head of the CIA venture capital fund In-Q-Tel, and advised by former CIA employee and U.S. ambassador Joseph DeTrani.

So we’re supposed to believe that we can obstruct the privacy invasions of the police state by using ‘secure’ software backed by two of the state’s leading brownshirts and promoted by one of the state’s media shills? That’s chutzpah.

Spiegel Online Comment Nails Grave Threat of NSA Spying

Commenting on the Spiegel Online report “NSA Snoops on 500 Million German Data Connections,” rightsreserved puts NSA’s unlawful surveillance program in proper perspective:

“People dont seem to be getting what this is all really about or the monumental implications of it. This information awareness system is the largest gold mine in human history. Politically-favored corporations/governments/private entities who have access to this can quickly and easily dominate nearly every financial market on the planet, or send it spiraling. Imagine for one second knowing the details of every Report or research paper before it is published, every discovery or disaster before any news report can even be broadcast, every lawsuit or Patent before it is filed, every merger/sale/acquisition/bankruptcy/scandal/hiring/firing/contract/marriage/divorce/retirement etc etc etc before it is announced, and so on and so on. In todays world of high volume micro-trading with sophisticated algorithms running on supercomputers, anyone with even partial access to this could position themselves to extract as much wealth and value out of the markets as they desired. Its the ultimate system of insider information and corporate espionage. It is an economic Doomsday Device, and it is already fully operational… and no one appears to realize or be talking about THAT. It is conspicuously absent from all the debates, even though the Patriot Act and the NDAA are positively littered with cryptic references to financial systems and economies. This thing has been purpose-built for it. None of the so-called “safeguards” address it, there is no Public oversight in that aspect at all, much less any accountability. Obviously, there are many tin-foil-hat-wearing Legitimacy Theorists that still foolishly Trust the federal U.S. government and the multinational corporations & banking interests that run it will never, ever allow anything like that to go on…”

U.S. Surveillance Is Not Aimed at Terrorists – Bloomberg

The debate over the U.S. government’s monitoring of digital communications suggests that Americans are willing to allow it as long as it is genuinely targeted at terrorists. What they fail to realize is that the surveillance systems are best suited for gathering information on law-abiding citizens.

U.S. Surveillance Is Not Aimed at Terrorists – Bloomberg.

FBI Concocted Bomb Plot Against NYSE to Mute NSA Surveillance Criticism

Federal Bureau of Investigation Deputy Director Sean M. Joyce mislead the American people last week when he testified before Congress that NSA’s various programs for warrantless surveillance of U.S. citizens had thwarted an Al Qaeda plot to bomb the New York Stock Exchange.

Joyce cited this supposed plot and its interception by NSA as evidence that mass-surveillance programs protect Americans from terrorism. Joyce claimed the NYSE bombing plan was one of fifty terror plots that these programs have interrupted. But in fact, Joyce manufactured the threat against the NYSE.

According to Joyce, NSA surveillance led to the discovery of Khalid Ouazzani of Kansas City, a conspirator helping to plan the NYSE bombing. When a member of Congress asked Joyce whether Ouazzani’s bomb plan posed a serious threat, Joyce – speaking of Ouazzani and his alleged co-conspirators – testified “I think the jury considered it serious since they were all convicted.”

Joyce’s answer was doubly deceptive. Ouazzani never faced a jury. Instead, he entered into a plea agreement [PDF] with the U.S. Department of Justice, in lieu of trial. And neither that plea agreement nor the FBI’s press release contained any reference to bombs, the NYSE, or even New York more broadly. Rather, Ouazzani pled guilty to bank fraud, money laundering, and conspiracy to provide material support to a terrorist organization.

In reality, the FBI has charged no one in connection with this supposed NYSE bomb plot. And, at least according to the FBI’s sentencing memorandum for one of the supposed bombing conspirators, there was no plot. Rather, a mysterious Yemeni codenamed the “Doctor” allegedly asked Sabirhan Hasanoff, former accountant for KPMG and PwC and apparent acquaintance of Ouazzani, to report to the Doctor on security measures surrounding the NYSE and other locations. According to the FBI’s memorandum, Hasanoff disappointed the “career jihadist” Doctor by providing only useless, publicly available information concerning the exchange’s surroundings. Further, the memorandum says nothing about a prospective bombing of the exchange, but instead refers more vaguely to a possible “attack.”

Before trumpeting Joyce’s claims concerning the efficacy of the NSA programs, news organizations could have learned easily that his testimony was dubious. A Google search for “Khalid Ouazzani” would have yielded both his plea agreement and the FBI press release in the first page of results, both dating to 2010. Within minutes and with minimal effort, reporters could have learned that neither the FBI nor the Justice Department had even alleged a link between Ouazzani and any kind of plot against the NYSE or any other target for that matter. At the very least, such due diligence would have given news organizations pause about the truthfulness of Joyce’s testimony.

To date, neither the FBI nor the Justice Department has produced any evidence that anyone planned to bomb the stock exchange. Similarly, neither organization has produced any evidence that NSA’s mass surveillance programs prevented such a crime. But Joyce’s deceptive testimony had a pronounced effect.

Newspapers and television news operations jumped on the NYSE bombing tale. Headlines blared that NSA’s secret spying operation thwarted an attack on the exchange. These reports buttressed government claims that mass-surveillance programs keep the American people safe and countered criticism of the programs from those concerned about violations of individual rights.

Though Joyce’s testimony was deceptive, it pleased NSA Director General Keith B. Alexander, who appeared at Joyce’s side in the same congressional hearing.

When the hearing concluded, an open microphone captured an ebullient Alexander telling Joyce appreciatively, “Tell your boss [FBI Director Robert Mueller] I owe him another friggin’ beer.

The Joyce deception is evidence that the government is terrorizing New Yorkers and Americans more broadly in order to justify its warrantless surveillance program. Whether the purpose of these fanciful claims is to justify social control measures or the enormous budget for “national security” is anyone’s guess. A combination of motives is most likely at work.

From the government’s standpoint, conjuring terror plots in New York – the media capital of the world – makes perverse sense. They alarm those individuals in the best position to amplify the supposed threats. In turn, the news reports induce fear that iconic institutions may be destroyed.

But these false alarms have devastating effects aside from the fear and anxiety they induce. They cause customers of the NYSE, the people of New York, and people everywhere to suffer unnecessary security costs. And they divert enormous resources from other, more productive uses.

While General Alexander and Robert Mueller chortle over their “friggin’ beer,” the rest of us should begin taking government reports of terror plots with a grain of salt. There is strong evidence that many of these are manufactured, usually with the assistance of government informants.

The world has enough problems without creating new ones. And causing people to live in a state of fear only harms their ability to enjoy their lives.

Congress should hold Mr. Joyce to account for his deceptions, and we should all hold the media to account for rushing stories into the public consciousness that simple fact checking would have shown to be suspicious, if not false. The FBI routinely denies employment applications on grounds of apparent deceptiveness. A fair question is whether Mr. Joyce can be credible as the chief operating officer for the FBI when he has been deceptive himself. He has a history of holding agents he commands to account for their shortcomings. Certainly he deserves to be held to the same standards.

Finally, if the Yemini “Doctor” the FBI memorandum describes was indeed a “career jihadist,” the NSA should have had no difficulty obtaining a legitimate search warrant and authorization to monitor his communications. Lawful means alone would have led to those communicating with him about any plots. It would not have been necessary for the personal information of hundreds of millions of innocent people to stolen in the process.

How Ferdinand Pecora Helped Destroy Our Markets

As astounding as it is that anyone would accede to statutes criminalizing the raising of crops on one’s own land for personal consumption or invoking mythical creatures to justify the destruction of the free market, the brazen ease with which Leviathan’s handmaidens seduced the American people to acquiesce in such degradations is even more astonishing.

But apparently, second-hand exposure to phony spectacle can work wonders in making people feel better about government control of their markets or other interventions in the natural order. And so to promote public acceptance of the subversive Exchange Act and fulfill the progressive goal of destroying private control of the New York Stock Exchange, Ferdinand Pecora entered the U.S. political stage.

Pecora, a Sicilian-born, New York lawyer, began his professional career as a Wall Street clerk. After completing law school, he worked as a competition suppressor for big Wall Street firms (that is, a local prosecutor of smaller “bucket shop” operations) and gained national fame in 1933 as fourth and final counsel to the U.S. Senate’s Committee on Banking and Currency for its investigation of stock exchange practices.

The Senate retained Pecora initially to write a report of the evidence, so called, that three prior inquisitors had gathered in hearings begun in April 1932, during the final months of the Hoover administration. But Pecora persuaded committee chairman Duncan U. Fletcher that the record was incomplete and additional hearings were necessary. Pecora proved so captivating as impresario and leading actor in the ensuing charade that newspapers adopted “Pecora Investigation” as shorthand notation for the entire affair.

Recall that in Hill v. Wallace, 259 U.S. 44 (1922), the Supreme Court gave Congress a formula for promulgating exchange regulations immune to constitutional challenge. The court prescribed in pertinent part that Congress conduct public hearings to elicit evidence in support of its usurpations.

The court presumably intended that Congress hold the show trial before executing the prisoner. But Congress had no time for such formalities. Leaders in all three branches of government, in both major parties – progressives all – had decided to scrap laissez faire in favor of the fascist or corporatist arrangement of economic relations. The Roosevelt administration preferred to act while its electoral mandate was fresh. And so, while a purported investigation of exchange practices played out on the public stage under Pecora’s direction, New Deal lawyers James Landis, Benjamin Cohen, and Thomas Corcoran wrote the Exchange Act backstage.

Pecora excelled at fallacious argumentation. His style of witness interrogation would be familiar to modern-day fans of Jon Lovitz skits on Saturday Night Live. Assuming a dramatic, accusatory tone, Pecora would ask ridiculous questions having obvious answers in the vein of “So, Mr. Jones, is it fair to say that when people trade on the New York Stock Exchange, they seek to profit from these activities?”

When Mr. Jones would affirm innocently the obvious, a cigar-chomping Pecora would respond in the manner of a homicide detective who had just tricked his suspect into making a confession. “Aha! You admit, then, that people trade on the exchange to make money!”

Pecora conducted hearings not as an impartial inquiry but to adduce “facts” in support of the legislation that Landis, Cohen, and Corcoran were drafting behind the scenes. No matter what witnesses said – no matter how contrary was their testimony to the need for or wisdom of the Exchange Act – Pecora spun their answers into confirmation of the righteousness of the progressive cause.

[To see an example of such deceitful conduct, read Pecora’s questioning of NYSE President Richard Whitney and the accompanying analysis, beginning at page 30 of Stock Exchange Practices, the Report of the Committee on Banking and Currency Pursuant to S.Res. 84 (72d Congress) and S.Res. 56 and S.Res. 97 (73d Congress) (the “Pecora Report“) [PDF, 43 MB]. Nothing in Whitney’s answers affirmed the points that Pecora sought to make. Yet Pecora declared victory nonetheless.]

Fortunately for progressives, many Americans were no longer inclined to suffer the terrible burdens of independence.

As the Pecora show enjoyed its run in Senate chambers amid rave reviews in establishment papers, the United States suffered under a widespread depression, the third since the turn of the century. The Federal Reserve System, federal income tax, and federal deposit insurance were as yet new creatures. A credit-fueled boom in stock markets cracked up in September 1929, leaving at least twenty-eight exchanges to compete for a trickle of the pre-crash volume of order flow.

Further, an influx of enterprising Irish, Italian, and Jewish immigrants in the nineteenth and early twentieth centuries had yielded many successful merchant and trading operations, as well as banking businesses to support them. They resented limits on their opportunities borne of ethnic or religious bigotry. With immigrant populations now large enough to act as powerful political blocs, some of these institutions developed the capacity to use government power to overcome their market frustrations and chose to do so, quaint notions of freedom of association be damned.

Investment and commercial banks, particularly those headed by recent European immigrants or associated with Rockefeller interests, chafed under the domination of the New York Stock Exchange and Federal Reserve Bank of New York by their arch-rival, the waspy Morgan firm.

Under these conditions, the Pecora investigation played well to the public, no matter how farcical it was. People throughout the country followed news accounts of the hearings closely. As such no one seemed to notice, much less complain, that the Exchange Act became law two days before Pecora even concluded his scandal mongering.

Aside from the factors frustrating the public at large, the New York Stock Exchange’s natural monopoly on securities trading galled progressives. Their irritation with the exchange’s freedom dated to the late nineteenth century.

Monopolies that derive their competitive advantages from network effects – such as the New York exchange prior to the Exchange Act or Microsoft in the 1990s – have little use for politicians. Unlike the state, they enjoy voluntary patronage and refute the statist argument that economic goods such as security and communications cannot be trusted to market forces.

Not surprisingly, statists loathe natural monopolies and seek inevitably to destroy them and to erect state-dependent oligopolies (or “cartels”) in their stead.

The hearings fueled jealousy and hatred of wealthy “banksters,” as Pecora called them, but revealed nothing about the commercial interests pushing for regulation. Masterfully, the demagogic Pecora left Americans both thirsty for revenge and ignorant of the Exchange Act’s dangers. He set the stage for power lust and ethnic rivalry to join forces in replacing the free market with a government-imposed cartel.

Suggestions that markets were lawless dens of iniquity in the 1920s and early 1930s were false. Governments already regulated stock markets. All states had “blue sky” laws and agencies for their enforcement. What progressives sought was not the regulation of markets, but their nationalization.

Acting as fascist revolutionaries out to destroy centuries-old traditions of economic freedom and rule of law, Pecora and his co-conspirators gave Congress the institutional, political, and constitutional cover it required in order to effect the nationalization of our markets under the Exchange Act – the true purpose of the act all along.

Pecora admitted in his 1939 memoir that the New York Stock Exchange had been a battlefield for the progressive agenda – the “real center of warfare” – and confessed to the dirty, underhanded tactics he and his cohorts had employed to destroy the exchange as a private institution.

“When open mass resistance fails,” Pecora crowed, “there is still the opportunity for traps, stratagems, intrigues, undermining – all the resources of guerilla warfare.”

TabbForum published a version of this essay today, with only modest differences in content and formatting, under the heading The Nationalization of Our Markets: Welcome to the Pecora Theater(free registration required). I am grateful to Marc Beauchamp, Les Kovach, and Robert Zorn for their helpful suggestions concerning this essay.

The Exchange Act rests on a false premise

The U.S. Congress contrived a fraudulent device in order to usurp the rights of the people to conduct their own affairs in the trading of securities. The U.S. Supreme Court abetted this unlawful act and served as accessory, both before and after the fact. Through their wrongdoing, these supposed public servants harmed our market relations and effectively destroyed the free enterprise system.

This device was a congressional declaration that what amounts to a supernatural being – a national public interest – affects securities transactions. The Supreme Court instructed Congress in the creation of this device and preordained its constitutionality so as to prevent the parties it injured from obtaining relief in courts of law. Through these coordinated steps the federal government seized total power and control over securities transactions, firms, and markets.

Congress premised the legal necessity and propriety of the Exchange Act on its assertion that “transactions in securities as commonly conducted upon securities exchanges and over-the-counter markets are affected with a national public interest” (original Exchange Act [PDF], Title 1, Sec. 2). It derived this language from the Supreme Court’s majority opinion in Board of Trade of City of Chicago v. Olsen, 262 U.S. 1 (1923).

Prior to Olsen, multiple congressional attempts to wrest control of exchange regulation from private exchange governors and the states failed to survive legal challenges on constitutional grounds. But then an activist Supreme Court, determined to break free of the chains of common law and logic and to engage instead in the making of social and economic policy, intervened.

In Hill v. Wallace, 259 U.S. 44 (1922), a case testing the constitutionality of the Future Trading Act of 1921, the court reluctantly overturned the act as a violation of Congress’s tax powers. But the court spelled out a procedure Congress could follow and a new theory it could use so that comparable, future acts would survive legal challenge.

Two weeks later, Congress followed the court’s guidance in Wallace. It made cosmetic modifications to the Future Trading Act and rebranded it as the Grain Futures Act. This nearly identical act would also find its way to the highest court, but this time the outcome would be different.

In Olsen, the Supreme Court for the first time upheld Congress’s taking of regulatory authority over exchanges and dealer markets from private parties and the states. The majority held in doing so that “The Chicago Board of Trade is engaged in a business affected by a public national interest, and subject to national regulation as such.”

This conjuring by the highest court of a “public national interest” was odd, even for a court bored with traditional jurisprudence. Even stranger was the court’s assertion that this anthropomorphic creature it dubbed a national interest affected the business of a local exchange. But for the court to subject the object of the creature’s actions to federal control was despotic.

The court’s imaginative rulings in Wallace and Olsen freed Congress to extend its sphere of control from a grain market in Chicago to all exchanges. Congress exercised its newfound freedoms with abandon in creating the Exchange Act.

By that act, the mythic, national public interest came to lurk behind every securities transaction in the United States, distorting markets and limiting innovation, raising prices and barriers to entry, and creating haves and have-nots, among other ill effects.

If we restate the Exchange Act’s premise in active voice for clarity – a national public interest affects transactions in securities as commonly conducted upon securities exchanges and over-the-counter markets – its absurdity becomes obvious. But as imagined by its storytellers, this “national public interest” creature thinks and acts autonomously, though millions of individuals with disparate interests comprise it. And a chosen few – chiefly lawmakers, judges, and bureaucrats who serve as a priesthood of sorts – know the creature’s will and do its bidding faithfully.

In reality, the set of factors that may affect or influence transactions in securities is numerous, ranging from fear to greed, from the size of a trading floor to the processing power of a matching engine, from Regulation ATS to Regulation T, from the rate of capital gains taxes to clearing fees to preferences for other goods. So large is this set that a complete enumeration of its members is impossible.

But the set includes only real factors of production, objectives, preferences, and constraints, whether owned or felt by actual individuals or firms, even if irrationally. And even though we cannot list all of its members, the set most definitely excludes Santa Claus, the Easter Bunny, and the national public interest totem, no matter how fervently the priesthood protests otherwise.

Seventy-six years after the Exchange Act’s passage, the Dodd-Frank Wall Street Reform and Consumer Protection Act [PDF] (“Dodd-Frank”) amended the Exchange Act’s original premise by striking the word “affected” and inserting “effected” in its place (Dodd-Frank, Title IX, Sec. 985(b)(1)). The words affected and effected are homophones but not synonyms – that is, they sound alike but have different meanings. By substituting one for the other, the government changed the Exchange Act’s legal premise.

To appreciate the significance of this change, observe that only twice in history has Congress amended Sec. 2 of the Exchange Act. The Securities Acts Amendments of 1975 [PDF] made the first such amendment, creating the national market system controversy that rages to this day. More than three decades later, on July 21, 2010, came the second, Dodd-Frank.

In a November 1975 speech [PDF] to the Joint Securities Conference in Boston, Commissioner Phillip A. Loomis, Jr., of the Securities and Exchange Commission (“SEC” or “Commission”) referred to Sec. 2 of the Exchange Act as “the traditional standard for Commission actions, the public interest and the protection of investors.”

Given the importance of Sec. 2 and the continuing controversy attending the first amendment to it in 1975, what are we to make of the deafening silence surrounding the second amendment under Dodd-Frank in 2010? The government ordered the substitution of effected for affected in the “Technical corrections to Federal securities laws” section of Dodd-Frank. The report of the conference committee that produced the final version of Dodd-Frank contains no discussion of the matter. Google appears to contain no index of legal analysis or newspaper coverage of this amendment. And in signing Dodd-Frank into law, President Barack Obama made no comment on the change.

If the Exchange Act’s original premise was merely absurd, the new premise was positively stupefying. Stated in active voice, Congress now demanded that we accept this proposition as justification for federal regulation of securities markets:

A national public interest effects transactions in securities as commonly conducted upon securities exchanges and over-the-counter markets.

Yes, the priesthood would now have us believe, the imaginary being national public interest actually trades. Its powers are not merely influential, inspirational, or motivational, but kinetic. Just as God parted the Red Sea, the national public interest matches buy and sell orders and pronounces them “Done!”

Let us set aside for now that in substituting “effected” for “affected,” Congress deviated from the exquisitely fallacious formula the Supreme Court devised in Wallace and then ratified in Olsen for testing the constitutionality of federal exchange regulation (see part 1 <LINK>). As I will describe in my next essay, even with a Supreme Court acting as nursemaid for its usurpations, Congress struggled to craft the original Exchange Act in a way that would survive court challenge.

What is inexcusable is that we allow this officious priesthood to utter such claptrap, that we listen to it and take it seriously, and then act as if the nonsense made sense.

A desire for profit may affect transactions in securities markets, and the New York Stock Exchange may effect transactions undertaken for such motive, but the national public interest neither affects nor effects anything: it doesn’t exist, except as a deceptive construct conjured by activist judges and then aped by legislators in defiance of common sense and law.

Responsible adults do not knowingly harbor or act on false premises; they reject them and correct their ways accordingly. They do not acquiesce in bad laws, but repeal them. Repeal of the Exchange Act is long overdue. The sooner we get after the business of doing so, the sooner our markets will heal and the benefits of vigorous competition under a system of free enterprise be restored.

TabbForum recently published a version of this essay in two parts, with only modest differences in content and formatting, under the headings “The Exchange Act Destroyed Our Markets, Part 1: A False Premise” and “The Exchange Act Destroyed Our Markets, Part 2: Justice Demands Repeal (free registration required).