“What we obtain too cheap,” Thomas Paine famously wrote, “we esteem too lightly”—and it turns out that the converse holds true as well. It’s a well known and robustly confirmed finding of social psychology that people tend to ascribe greater value to things they had to pay a high cost to obtain. So, for instance, people who must endure some form of embarrassing or uncomfortable hazing process or initiation rite to join a group will report valuing their participation in that group much more highly than those admitted without any such requirement—which is one reason such rituals are all but ubiquitous in human societies as a way of creating commitment. Studies suggest that people are more likely to read automobile reviews after purchasing a new car than before—suggesting that people are sometimes less concerned with spending money in the most judicious fashion than with convincing themselves, after the fact, that they have done so. More morbidly, relatives of soldiers killed in action sometimes become much more fervent supporters of the war that cost them a loved one—because the thought that such a grave loss served no good purpose is too much to stomach.

I suspect that this phenomenon may help explain the dispiriting state of affairs described by an airline industry insider in an important Wired piece on airport security. The short version: we’ve spent some $56 billion on “enhancing” airport security over the past decade, with almost no actual security enhancement to show for it. We’re spending huge amounts of money and effort on burdensome passenger screening that doesn’t seem very effective, while neglecting other, far more vulnerable attack surfaces. It is, when you think about it, a somewhat strange priority given the abundance of highly vulnerable domestic targets. Reinforced cockpit doors and changed passenger behavior pretty much made a repeat of a 9/11-style suicide hijacking of a domestic flight infeasible—at negligible economic and privacy cost—long before we started installing Total Recall style naked-scanners, which makes explosives the real remaining risk. Yet the notable bombing attempts by passengers we’ve seen since 9/11 have (a) originated outside the United States, and (b) been foiled by alert passengers after the aspiring bomber slipped through the originating country’s formal screening process.

This shouldn’t be terribly surprising: when a terror group has already managed to get an operative into the United States, a domestic flight (that can’t be turned into a missile) would be one of the stupider, riskier targets to select, given the enormous array of much softer target options that would be available at that point, even assuming pre-9/11 airport security protocols. As far as I’m aware, the last time a passenger successfully detonated a bomb on a U.S. domestic flight was in 1962. This presents something of a puzzle: Why have we focused so disproportionately on this specific attack vector, at such disproportionate cost, when the terrorists themselves have not? Why haven’t we reallocated scarce resources to security measures (such as better screening of airline employees) that would provide greater security benefit at the margins? One possibility is that, having accustomed ourselves to submitting to the hassle and indignity of ever more aggressive passenger screening, we become more disposed to believe that these measures are necessary.

It’s become commonplace to refer to many aspects of airport screening—the removal of shoes, the transparent plastic baggies for your small allotment of shampoo—as “security theater.” Security guru Bruce Schneier coined the term to refer to security measures whose ritualistic purpose is to make passengers feel safer, even though they do almost nothing to actually increase safety. But on reflection, this seems wrong. It probably holds true in the immediate aftermath of a high-profile attack or disaster. Once the initial heightened fear subsides, however, these visible and elaborate security measures probably do more to increase our perception of risk than to assuage our fears. It is, after all, something of a cliche that hyperprotective parents tend to end up raising children who see the world as a more dangerous place. Overreacting to childhood illnesses is one reliable way of producing adult hypochondriacs down the road.

Security theater, then, isn’t only—or even primarily—about making us feel safer. It’s about making us feel we wouldn’t be safe without it. The more we submit to intrusive monitoring, the more convinced we become that the intrusions are an absolute necessity. To think otherwise is to face the demeaning possibility that we have been stripped, probed, and made to jump through hoops all this time for no good reason at all. The longer we pay the costs—in time, privacy, and dignity no less than tax dollars—the more convinced we become that we must be buying something worth the price. Hence, the Security Theater Cycle: the longer the ritual persists, the more normal it comes to seem, the more it serves as psychological proof of its own necessity.

The Security Theater Cycle is a post from Cato @ Liberty - Cato Institute Blog

Earlier this week, the House Armed Services Committee Republican staff released a video using the anniversary of September 11 to argue for higher military spending while pretending that lately we have cut the defense budget. Chris Preble and I rebutted these outlandish claims, and Evan Banks made our comments into a cool video:

Hawks like HASC Chairman Buck McKeon (R-CA)—who thinks that “power in benevolent hands is a virtue, not a vice,”—pretend that we are about to slash military spending thanks to the Budget Control Act, the deficit deal legislated early last month. Reporters abet them by repeating the White House PR myth that the bill’s security budget cap will cut Pentagon spending by $350 billion over ten years, and writing that the sequestration provision will probably cut another $500 billion. But as I explained here, the BCA will likely produce either a miniscule defense cut in the near term or no cuts at all. That is because I consider a “cut” to mean spending less than we do now, not less than plans say, because agencies other than defense can absorb the cuts required by the security cap, and because the bill encourages lawmakers to move capped base defense funds into the uncapped war bill.

The Senate Appropriations Committee’s proposed funding levels (302b allocations in budget speak) released earlier this week bear out those concerns. Because they come after the BCA, the Senate spending levels are likely to guide those set by the House. Compared to 2011, the committee would cut just under $3 billion from the base defense budget, which is less than one percent. That cut comes entirely from the military construction and family housing account, which was recently bloated by the Base Realignment and Closure (BRAC) process. The senators get another chunk of the $4.5 billion in security spending cuts required by the BCA from State, which would lose $3.5 billion, and Homeland Security, which loses a half billion. The National Nuclear Security Administration and the Veterans Administration get minor increases. For more on these allocations, see Stimson’s The Will and the Wallet blog, especially Matthew Leatherman and Russell Rumbaugh’s recent posts.

So that’s a minor defense cut, right? Maybe not. The Senate appropriators seem to have slipped a larger amount of base defense spending into the war bill (Overseas Contingency Operations funding). The committee’s markup press release brags that it fully funded the president’s war request of $117.8 billion, but then claims that they cut $6.6 billion from that request by trimming funding for U.S. and native forces in Afghanistan. What that most likely means is that the committee, probably in league with the Pentagon, cut the war bill by that amount and shifted the same amount over from the base, keeping the war bill flat and maintaining the fiction of a minor base defense cut. We won’t know for sure until the appropriations bills are published.

The longer term prospects for the BCA cutting defense spending are a story for another time. For now, suffice it to say that the prospects of the bill’s current spending limits staying in place for ten years are slim. Future Congresses easily free themselves from legislative bonds set by prior ones, and democracies with two-to-six-year election cycles can’t stick to ten-year plans.

Make-Believe Defense Cuts is a post from Cato @ Liberty - Cato Institute Blog

I dislike our national obsession with anniversaries and tendency to convert solemn occasions into maudlin ones; to fetishize perceived collective victimization rather than simply recognizing real victims. That kept me from joining in the outpouring of September 11 reflection, now mercifully receding. But I have reflections on the reflections.

The anniversary commentary has, happily, included widespread consideration of the notion that we overreacted to the attacks and did al Qaeda a favor by overestimating their power and making it easier for them to terrorize. Even the Wall Street Journal allowed some of the bigwigs they invited to answer their question of whether we overreacted to the attacks to say, “yes, sort of.”

Unsurprisingly, however, the Journal’s contributors, like almost every other commentator out there, did not define overreaction. It’s easy and correct to say we’ve wasted dollars and lives in response to September 11 but harder to answer the question of how much counterterrorism is too much. So this post explains how to do that, and then considers common objections to the answer.

That answer has to start with cost-benefit analysis. As I put it in my essay in Terrorizing Ourselves, a government overreaction to danger is a policy that fails cost-benefit analysis and thus does more harm than good. But when we speak of harm and good, we have to leave room for goods, like our sense of justice, that are harder to quantify.

Cost-benefit analysis of counterterrorism policies requires first knowing what a policy costs, then estimating how many people terrorists would kill absent that policy, which can involve historical and cross-national comparisons, and finally converting those costs and benefits into a common metric, usually money. Having done that analysis, you have a cost-per-life-saved-per-policy, which can be thought of as the value a policy assigns to a statistical life—the price we have decided to pay to save a life from the harm the policy aims to prevent.

Then you need to know if that price is too high. One way to do so, preferred by economists, is to compare the policy’s life value to the value that the target population uses in their life choices (insurance purchases, salary for hazardous work, and so on). These days, in the United States, a standard range for the value of a statistical life is four to eleven million dollars. If a policy costs more per life saved than that, the market value of a statistical life, then the government could probably produce more longevity by changing or ending the policy. A related concept is risk-risk or health-health analysis, which says that at some cost, a policy will cost more lives than it saves by destroying wealth used for health care and other welfare-enhancing activities. One calculation of that cost, from 2000, is $15 million.

In a new book, Terror, Security, and Money: Balancing the Risks, Benefits, and Costs of Homeland Security,* John Mueller and Mark Stewart use this approach to analyze U.S. counterterrorism’s cost-effectiveness, generating a range of estimates for lives saved for various counterterrorism activities. I haven’t yet read the published book, but in articles that form its basis, they found that most counterterrorism policies, and overall homeland security spending, spend exponentially more per-life saved than what regulatory scholars consider cost-effective.

That is a strong indication that we are overreacting to terrorism. It is not the end of the necessary analysis however, since it leaves open the possibility that counterterrorism has benefits beyond safety that justify its costs. More on that below.

Objections to this mode of analysis have four varieties. First, people have a visceral objection to valuing human life in dollars. But as I just tried to explain, policies themselves make such valuations, trading lives lost in one way for lives lost in another. So this objection amounts to an unconvincing plea to keep such tradeoffs secret and make policy in the dark.

Second, people challenge the benefit side of the ledger by arguing that terrorists are actually far more dangerous than the data says. Analysts say that weapons of mass destruction mean that future terrorists will kill far more than past ones. One response is that you should be suspicious anytime someone tells you that history is no guide to the present. It tends to be the best guide we have, for terrorism and everything else. Our analysis of terrorists’ danger should acknowledge that the last ten years included no mass terrorism, contrary to so many predictions. Another response is that one can, as Mueller and Stewart have, include high-end guesses of possible lives saved to show the upwards bounds of what counterterrorism must accomplish to make it worthwhile. The results tend to be so far-fetched that they demonstrate how excessive these policies are.

A third objection is to claim that some counterterrorism costs are actually terrorism’s costs. Government should spend heavily to avoid terrorism, this logic says, because our reaction to the attacks we would otherwise fail to prevent will cost far more. In other words, if an expensive overreaction is inevitable, it helps justify the seemingly excessive up-front cost of defenses.

One problem with this objection is that it approaches tautology by treating a policy’s cost as its own justification. See, for example, Atlantic writer Jeffrey Goldberg’s recent response to John Mueller’s observation in the Los Angeles Times that more people die annually worldwide from bathtub drowning than terrorism and the article’s suggestion that we might therefore be overreacting to the latter. Goldberg argues, essentially, that we have to overreact to terrorism lest we overreact to terrorism. Then, after his colleague James Fallows points out the logical trouble, Goldberg, without admitting error, switches to argument two above, while failing to acknowledge, let alone respond to, Mueller’s several books and small library of articles shooting that argument down.

Another problem with the inevitable overreaction argument is that overreaction might happen only following rare, shocking occasions like September 11. Future attacks might be accepted without strong demand for more expensive defenses. Moreover, the defenses might not significantly contribute to preventing attacks and overreaction.

The best objection to Mueller and Stewart’s brand of analysis is to point out counterterrorism’s non-safety benefits. The claim here is that terrorism is not just a source of mortality or economic harm, like carcinogens or storms, but political coercion that offends our values and implicates government’s most traditional function. Defenses against human, political dangers provide deterrence and a sense of justice. These benefits may be impossible to quantify. These considerations may justify otherwise excessive counterterrorism costs.

I suspect that Mueller and Stewart would agree that this argument is right except for the last sentence. Its logic serves any policy said to combat terrorism, no matter how expansive and misguided. We may want to pay a premium for our senses of justice and security, but we need cost-benefit analysis to tell us how large that premium now is. Nor should we assume that policies justified by moral or psychological ends actually deliver the goods. Were it the case that our counterterrorism policies greatly reduced public fear and blunted terrorists’ political strategy, they might indeed be worthwhile. But something closer to the opposite appears to be true. Al Qaeda wants overreaction—bragging of bankrupting the United States—and our counterterrorism policies seem as likely to cause alarm as to prevent it.

*Muller and Stewart will discuss their book at a Cato book forum on October 24. Stay tuned for signup information.

(Cross-posted from TNI’s The Skeptics.)

Bathtubs, Terrorists, and Overreaction is a post from Cato @ Liberty - Cato Institute Blog

My Washington Examiner column this week celebrates 10 years without a major follow-up attack on American soil, and argues that the main reason the United States has been terror-free for a decade isn’t the unparalleled competence of the federal government’s terror warriors—it’s the fact that al Qaeda was never an “existential threat.”

I’ve written a number of columns and blogposts making the same point over the years, and yet, every time I write something that says “al Qaeda’s not so terrifying,” I feel compelled to knock wood, genuflecting to the superstition that merely saying ”we’re pretty safe” out loud will jinx us, and the moment a piece is published, the terrorists will morph into villains worthy of TV’s 24, moving from ineffectual gas-can bombs to nukes.

So far, though, it seems there wasn’t much reason to worry.

Last week, the Washington Post ran a piece entitled, “Who got 9/11 right, and who got it wrong? A pundit score card.” The Post erred badly by not including the distinguished political scientist and friend of Cato, John Mueller, who started making the case that the al Qaeda threat was overblown back when duct tape alerts were the “new normal.” I can’t think of any other prominent figure who got it right as early and as often as Mueller did.

As long as we’re giving credit for prescience, though, I’d like to toot my own horn (sure, it’s graceless, but nobody else is volunteering for the job).

As a larval pundit pecking away in obscurity through the early aughties, I suspected, before I’d ever read Mueller, that the al Qaeda threat was overblown—and I made that case wherever I could.

In September 2002, I reviewed Peter Bergen’s Holy War, Inc. for Liberty magazine:  “Osama bin Laden: Not as Scary as You Think” (.pdf ). In it, I asked whether al Qaeda was “as dangerous as federal powergrabbers have led us to believe.”

After recounting what Bergen reported about Mohamed Odeh, an al Qaeda operative involved in the 1998 bombing of the U.S. embassy in Tanzania—who botched his own escape by trying to convince Pakistani immigration officials that terrorism was “the right thing to do for Islam,”—I ventured that “a lot of these folks don’t sound all that bright.” (Since then, I’ve become even more convinced that these guys were never the sharpest scimitars in the shed.)

In December 2002, when my now-defunct blog was young and DC was waiting for the other shoe to drop after 9/11, I wondered “What if There Isn’t Another Shoe?”: “If the American Jihad/mullahs under the bed/the-country-is-riddled-with-sleeper-cells theory is correct, then why so quiet?” I suggested: “maybe there aren’t that many of them,” which turned out to be true. (Here’s a reference, and you can find the original if you go here and scroll down.)

Ten years later, it’s heartening to know that what was once a fringe position—and a marker of being “unserious” about terrorism—is fast becoming the conventional wisdom.

Al Qaeda: Never an ‘Existential Threat’ is a post from Cato @ Liberty - Cato Institute Blog

The mythical al Qaeda is a hierarchical organization. After losing its haven in Afghanistan, it cleverly decentralized authority and shifted its headquarters to Pakistan. But central management still dispatches operatives globally and manages affiliates according to a strategy.

The real al Qaeda is a fragmented and unmanageable movement. In the 1990s, it achieved limited success in getting other jihadists to join in attacking the West. It was not managerial innovation but the U.S. invasion of Afghanistan and other governments’ pressures that destroyed  the limited hierarchy al Qaeda Central had achieved. Its scattered remnant in Pakistan controls little locally and less abroad. The leaders have cachet but lack the material incentives that real managers distribute to exercise authority. Al Qaeda became bunches of guys with diminished capability.*

The myth is destructive to counterterrorism. Because tightly-run organizations are better at mass violence than disparate movements, the myth creates needless fear that encourages overly ambitious and expensive policies, like the war in Afghanistan. The myth increases the number of enemies we face, taking focus from real ones. Most jihadist militants hate Americans but don’t try to kill us. They fight locally. Attacking them risks making them into what we fear they are and stoking nationalistic resentment that increases their popularity.

My anecdotal sense is that events since 9/11 have increasingly brought commentators around to truth. Even so, the media, for simplicity’s sake, tends towards the myth. And the Obama administration, despite improving upon its predecessors’ absurdly broad definition of our terrorist enemies, still overstates al Qaeda Central’s unity and control of affiliates. More importantly, U.S. policies still pay insufficient attention to the distinction among various al Qaeda entities.

Here are three recent examples of this rhetorical error and its consequences:

(1) Since bin Laden’s death, U.S. officials, analysts, and pundits have claimed that the cache of emails found in his compound contradict recent intelligence reports downplaying his control. The emails, we are told, show that he was still running the show and that al Qaeda Central remained potent.

Last week, however, McClatchy quoted more anonymous officials suggesting that to al Qaeda types in Pakistan and beyond, bin Laden was like a “cranky old uncle” that you respectfully listen to and ignore. The Washington Post reported that the emails show al Qaeda leaders in Pakistan complaining about depleted funds, declining popularity, and CIA drones decimating their ranks.

The White House seems conflicted about which view of al Qaeda to take. It commendably wants to belittle al Qaeda, robbing it of mystique by portraying bin Laden as pathetic and weak. On the other hand, it needs the threat of a powerful al Qaeda to justify the war in Afghanistan and other controversial policies.

(2) Media reports often give the impression that al Qaeda in the Arabian Peninsula (AQAP) are the core of the militant group (Ansar al-Sharia) revolting in Yemen’s south. The implication is al Qaeda could soon control territory for the first time. Too little attention is given to the uncertain role AQAP plays among Yemen’s militants and its limited ties to al Qaeda Central. Bin Laden apparently asked AQAP’s leader to attack Americans rather than gathering territory locally, suggesting that its commitment to attacking us may be limited.

The point is not that we should ignore al Qaeda terrorists in Yemen. But uncertainty about their role in Yemen and intent cautions against undifferentiated assaults on their leaders, let alone those of Ansar al-Sharia.

(3) Since our recent drone strike in Somalia on leaders of the al-Shabab insurgent group, the administration has claimed that Shabab’s leaders are plotting terrorism against American or western targets. The only evidence given for this assertion is vague claims of Shabab’s ties to Yemeni militants and its claim of responsibility for a 2010 terrorist bombing in Uganda. But that bombing came because Ugandan troops are in the African Union force fighting al-Shabab. While reprehensible, the attack does not show a desire to terrorize Americans.

At the risk of sounding quaint, Congress should make the administration substantiate its claims that Shabab is targeting Americans before we bomb them further. We have enough insurgents to fight these days outside Somalia.

*These positions are roughly those taken by Bruce Hoffman and Marc Sageman, respectively. My aim is not to perfectly state their views, however, but to describe general views in terrorism commentary.

Cross-posted from The National Interest.

Al Qaeda’s Mythical Unity is a post from Cato @ Liberty - Cato Institute Blog

Writing on Reason’s Hit & Run blog, Robert Poole argues that the Transportation Security Administration should use a risk-based approach to security. As I noted in my recent “‘Strip-or-Grope’ vs. Risk Management” post, the Department of Homeland Security often talks about risk but fails to actually do risk management. Poole and I agree—everyone agrees—that DHS should use risk management. They just don’t.

With the pleasure of remembering our excellent 2005 Reason debate, “Transportation Security Aggravation,” I must again differ with Poole’s prescription, however.

Poole says TSA should separate travelers into three basic groups (quoting at length):

1. Trusted Travelers, who have passed a background check and are issued a biometric ID card that proves (when they arrive at the security checkpoint) that they are the person who was cleared. This group would include cockpit crews, anyone holding a government security clearance, anyone already a member of the Department of Homeland Security’s Global Entry, Sentri, and Nexus, and anyone who applied and was accepted into a new Trusted Traveler program. These people would get to bypass regular security lanes  upon having their biometric card checked at the airport, subject only to random screening of a small fraction.
2. High-risk travelers, either those about whom no information is known or who are flagged by the various Department of Homeland Security (DHS) intelligence lists as warranting “Selectee” status. They would be the only ones facing body-scanners or pat-downs as mandatory, routine screening.
3. Ordinary travelers—basically everyone else, who would go through metal detector and put carry-ons through 2-D X-ray machines. They would not have to remove shoes or jackets, and could travel with liquids. A small fraction of this group would be subject to random “Selectee”-type screening.

He believes, and has argued for years, that dividing ”good guys” from “bad guys” will effectively secure. It’s certainly intuitive. Poole’s a good guy. I’m a good guy. You’re a good guy (in a non-gender-specific sense).

Knowing who people are works for us in every day life: Because we can find people who borrow our stuff, for example—and because we know that we can be found—we husband our behavior and generally don’t steal things from each other, we, the decent people with a stake in society.

Poole’s thinking takes our common experience and scales it up to a national program. Capture people’s identities, link enough biography to those identities, and—voila!—we know who the good guys are and who are the (potential) bad.

But precisely what biographical information assures that a person is “good”? (The proposal is for government action: it would be a violation of due process to keep the criteria secret and an equal protection violation to unfairly divide good and bad.) How do we know a person hasn’t gone bad from the time that their goodness was established?

The attacker we face with air security measures is not among the decent cohort whose behavior is channeled by identification. That attacker’s path to mischief is nicely mapped out by Poole’s proposal: Get into the Trusted Traveler group, or find someone who can get in it. (It’s easy to know if you’re a part of it. They give you a card! You can also test the system to see if you’ve been designated “high-risk” or “ordinary.”)

With a Trusted Traveler positioned to do wrong, chances are good that he or she won’t be subjected to screening and can carry whatever dangerous articles onto a plane. The end result? Predictable gnashing of teeth and wailing about a “failure to connect the dots.”

All this is not to say that Poole’s plan should not be adopted. If he can convince an airline of its merits, and the airline can convince its shareholders, insurers, airports, and their customers, they should implement the program to their heart’s content. They should reap the economic gain, too, when they prove that they have found a way to better serve the public’s safety, convenience, privacy, and transportation needs.

It is the TSA that should not implement this program. Along with what are significant security defects, it is the creation of a program that the government might use to control access to other goods, services, and infrastructure throughout society. The TSA would migrate toward conditioning all travel on having a government-issued biometric identity card. Fundamentally, the government should not be making these decisions or operating airline security systems.

A very interesting paper surfaced by recent public attention to this issue predicts that annual highway deaths will increase (from an already significant number) by between 11 and 275 because of people’s avoidance of privacy-invasive airport procedures. But what caught my eye in it were the following numbers:

During the past decade, terrorist attacks, with respect to air travel in the United States, have occurred three times involving six aircraft. Four planes were hijacked on 9/11, the shoe bomber incident occurred in December 2001, and, most recently, the Christmas Day underwear bomber attempted an attack in 2009. In that same span of time, over 99 million planes took off and landed within the United States, carrying over 7 billion passengers.

Especially because 9/11′s ”commandeering” attack on air travel has been essentially foreclosed by hardened cockpit doors and passenger/crew awareness, these numbers suggest the smallness of the chance that somone can elude worldwide investigatory pressure, prepare an explosive and detonator that actually work, smuggle both through conventional security, and successfully use them to take down a plane. It hasn’t happened in nearly 100 million flights.

This is not an argument to “let up” on security or to stop searching for measures that will cost-effectively drive the chance of attacker success even closer to zero.  But more thorough risk management analysis than mine or Bob Poole’s would probably show that accepting the above risk is preferable to either delaying and invading the bodily privacy of travelers or creating a biometric identity and background-check system.

Does Risk Management Counsel in Favor of a Biometric Traveler Identity System? is a post from Cato @ Liberty - Cato Institute Blog

There are many facets to the debate about the Muslim community center and mosque proposed for the site of a former Burlington Coat Factory near Ground Zero in southern Manhattan. My colleague David Boaz’s observation on the United States pluralist founding tradition was a delight. Important as they are, I’m put off by the domestic political ramifications (1, 2, 3, 4), if only because of the crassness and opportunism that inhabit all politics.

There is a strategic dimension to the story. This episode is signaling to audiences around the world the current relationship between the United States and Islam. These audiences might support or oppose the United States and act accordingly to undermine or support terrorist groups. For these people, knowledge of a Muslim community, active in New York and proximate to Ground Zero, would help put the lie to the “clash of civilizations” narrative sought by al-Qaeda and its franchises, undercutting their support.

The debate itself sends signals: If the United States were predominantly anti-Muslim, this debate wouldn’t be happening. If our political leaders had the power to decide matters of religious observance, this debate wouldn’t be happening. The debate is helping to show Muslim populations around the world—who might not know otherwise—that we think and debate about these things, that we are a functioning democratic republic, and that our country is undecided about the position of Muslims in the United States or, at worst, weakly anti-Muslim. 

In the video clip after the jump, conservative icon Ted Olson expresses well, I think, how standing by our constitutional values is good counterterrorist signaling.

These strategic considerations may not be dispositive, but my preference is for this project to go forward and communicate to worldwide audiences that we are still the pluralistic, welcoming, confident society we have been in the past.

Islam did not attack the United States on 9/11. It is simple collectivism—the denial of individual agency that libertarians reject—to believe that the tiny band of thugs who perpetrated the 9/11 attacks speak for an entire religion, culture, or creed. Our sympathy to families of 9/11 victims and our vestigial fears should not allow us to indulge gross and wrong generalizations about individuals of any faith.

A recent Cato Capitol Hill briefing is relevant to all this. You can review “Strategic Counterterrorism: The Signals We Send” on the Cato web site. Cato’s recent publication, “Terrorizing Ourselves: Why U.S. Counterterrorism Policy Is Failing and How to Fix It,” addresses many dimensions of the terrorism and homeland security problems, including the strategic logic of terrorism, to which we respond (whether we mean to or not) during debates about Muslims in America.

The Strategic Dimension of the Mosque Debate is a post from Cato @ Liberty - Cato Institute Blog

Some leaders within the Republican Party seem to have fixed on a useful club with which to bludgeon the president and his fellow Democrats — Cordoba House, aka the “Ground Zero” Mosque. Over the weekend, Republican strategist Ed Rollins explained how the party would use the issue in the coming months:

ROLLINS: Intellectually, the president may be right, but this is an emotional issue, and people who lost kids, brothers, sisters, fathers, what have you, do not want that mosque in New York, and it’s going to be a big, big issue for Democrats across this country.

“Face the Nation” Host Bob SCHIEFFER: So you see it as an issue that’s going to continue?

ROLLINS: Absolutely. No question about it. Every candidate — every candidate who’s in the challenge districts are going to be asked, how do you feel about building the mosque on the Ground Zero sites? 

This strategy, exploiting still-raw emotion and implicitly demonizing Muslims, threatens to trade short-term political gain for medium-term political harm to the party. And it most certainly will translate into long-term harm for the country at large.

Opposing the construction of a mosque near the Ground Zero site plays into al Qaeda’s narrative that the United States is engaged in a war with Islam, that bin Laden and his tiny band of followers represent something more than a pitiful group of murderers and thugs, and that all American Muslims are an incipient Fifth Column that must be either converted to Christianity or driven out of the country, else they will undermine American society from within.

It isn’t a political slam-dunk, either. Though 64 percent of Americans think a mosque near Ground Zero is ”inappropriate“, 60 percent of all respondents in the same survey, including 57 percent of Republicans, believe that the organizers have a right to build in that location, and presumably would not favor a government prohibition on this activity. (h/t  Nate Silver at fivethirtyeight) If anyone were to show evidence that the parties building the center were in any way linked to the 9/11 terrorists, or funded by or funding these same  terrorists, then the issues at stake would change.  But they haven’t done so, and are unlikely to do so. In the meantime, those GOP leaders who oppose the mosque betray a basic inability to discern public attitudes, even as they propel this country on a ruinous course, headlong into a civilizational war which pits all Americans against all Muslims.

A number of public officials and commentators, not all of them Obama supporters, have staked out a position that walks this country back from that precipice. NYC Mayor Michael Bloomberg’s courageous and eloquent statementon this issue should be read by all, not just Republicans. But Bloomberg is unlikely to swing opinion within the GOP base. So too with Fareed Zakaria, who nonetheless deserves enormous credit for distancing himself from any organization that would adopt a public position of thinly veiled bigotry, especially one whose mission is “to put an end forever to unjust and unfair discrimination against and ridicule of any sect or body of citizens.” Dan Drezner’s take is aimed squarely at right-of-center readers, and sprinkled with a tone of sarcasm; but he is a pointy-headed intellectual, so he’ll have a hard time convincing the most skeptical of the lot.

A more convincing spokesman for sensible voices on the Right is former Bush speechwriter Michael Gerson, who wisely opposes a short-sighted and cynical political strategy to exploit anti-Muslim sentiments. Likewise, Mark Halperin recognizes the political salience of an anti-mosque stance, but advises party leaders to steer clearof that position. Josh Barro at National Review Online renders a devastating refutation of all the dubious arguments erected to block the mosque. 

Indeed, George W. Bush himself set the tone in the immediate aftermath of the 9/11 atrocities, counseling against retaliation against innocent Muslims who had nothing to do with the attacks, and noting that a number of Muslims were killed on 9/11. Other conservative organizations and institutions took notice of Bush’s leadership, and wisely sacked the few voices who preached violence against all Muslims because nineteen of their coreligionists had perpetrated the attacks.

Not quite nine years later, we’ve come full-circle. With Bush enjoying retirement in Texas, who within the GOP will affirm the party’s position that declaring a war on Islam does not advance our nation’s security?

The GOP and the “Ground Zero” Mosque is a post from Cato @ Liberty - Cato Institute Blog

As Tim Lynch notes, Judge Vaughn Walker has ruled in favor of the now-defunct Al-Haramain Islamic Foundation—unique among the many litigants who have tried to challenge the Bush-era program of warrantless wiretapping by the National Security Agency because they actually had evidence, in the form of a document accidentally delivered to foundation lawyers by the government itself, that their personnel had been targeted for eavesdropping.

Other efforts to get a court to review the program’s legality had been caught in a kind of catch-22: Plaintiffs who merely feared that their calls might be subject to NSA filtering and interception lacked standing to sue, because they couldn’t show a specific, concrete injury resulting from the program.

But, of course, information about exactly who has been wiretapped is a closely guarded state secret. So closely guarded, in fact, that the Justice Department was able to force the return of the document that exposed the wiretapping of Al-Haramain, and then get it barred from the court’s consideration as a “secret” even after it had been disclosed. (Contrast, incidentally, the Supreme Court’s jurisprudence on individual privacy rights, which often denies any legitimate expectation of privacy in information once revealed to a third party.) Al-Haramain finally prevailed because they were ultimately able to assemble evidence from the public record showing they’d been wiretapped, and the government declined to produce anything resembling a warrant for that surveillance.

If you read over the actual opinion, however it may seem a little anticlimactic—as though something is missing. The ruling concludes that there’s prima facie evidence that Al-Haramain and their lawyers were wiretapped, that the government has failed to produce a warrant, and that this violates the Foreign Intelligence Surveillance Act. But of course, there was never any question about that. Not even the most strident apologists for the NSA program denied that it contravened FISA; rather, they offered a series of rationalizations for why the president was entitled to disregard a federal statute.

There was the John Yoo argument that the president essentially becomes omnipotent during wartime, and that if we can shoot Taliban on a foreign battlefield, surely we can wiretap Americans at home if they seem vaguely Taliban-ish. Even under Bush, the Office of Legal Counsel soon backed away from such… creative… lines of argument. Instead, they relied on the post-9/11 Authorization for the Use of Military Force (AUMF) against al-Qaeda, claiming it had implicitly created a loophole in the FISA law. It was David Kris, now head of DOJ’s National Security Division, who most decisively blew that one out of the water, concluding that it was “essentially impossible” to sustain the government’s reading of the AUMF.

Yet you’ll note that none of these issues arise in Walker’s opinion, because the DOJ, in effect, refused to play. They resisted the court at every step, insisting that a program discussed at length on the front pages of newspapers for years now was so very secret that no aspect of it could be discussed even in a closed setting. They continued to insist on this in the face of repeated court rulings to the contrary. So while Al-Haramain has prevailed, there’s no ruling on the validity of any of those arguments. That’s why I think Marcy Wheeler is probably correct when she predicts that the government will simply take its lumps and pay damages rather than risk an appeal. For one, while Obama administration has been happy to invoke state secrecy as vigorously as its predecessor, it would obviously be somewhat embarrassing for Obama’s DOJ to parrot Bush’s substantive claims of near-limitless executive power. Perhaps more to the point, though, some of those legal arguments may still be operative in secret OLC memos. The FISA Amendments Act aimed to put the unlawful Bush program under court supervision, and even reasserted FISA’s language establishing it as the “exclusive means” for electronic surveillance, which would seem to drive a final stake in the heart of any argument based on the AUMF. But we ultimately don’t know what legal rationales they still consider operative, and it would surely be awkward to have an appellate court knock the legs out from under some of these secret memoranda.

None of this is to deny that the ruling is a big deal—if nothing else because it suggests that the government does not enjoy total carte blanche to shield lawbreaking from review with broad, bald assertions of privilege. But I also know that civil libertarians had hoped that the courts might be the only path to a more full accounting of—and accountability for—the domestic spying program. If the upshot of this is simply that the government must pay a few tens, or even hundreds of thousands of dollars in damages, it’s hard not to see the victory as something of a disappointment.

State Secrets, Courts, and NSA’s Illegal Wiretapping is a post from Cato @ Liberty - Cato Institute Blog

A modest proposal: Suppose that we decide to streamline our inefficient criminal justice system by treating people under suspicion of involvement with violent crime—whether or not they’ve been arrested, charged, or even informed of this suspicion—as equivalent to convicted felons.  Suppose, then, that we permit them to be stripped of certain constitutionally protected rights at the discretion of the executive branch.

Outrageous?  Some depraved brainchild of the Bush administration’s Office of Legal Counsel?  Actually, it’s the editorial position of The New York Times:

Under federal law, people who pose a heightened risk of violence cannot buy or own firearms, including convicted felons, domestic abusers, the seriously mentally ill and several other categories. Suspected terrorist is not one them.

Individuals on the government’s terrorist watch list can be barred from boarding airplanes, but not from purchasing high-powered guns or explosives. Bipartisan legislation in both houses of Congress would end this ridiculous loophole, commonly known as the “terror gap.

The Times does note, before dismissing the fact with the wave of a hand, that “thousands” of people have been found to be on the list improperly.  But let’s linger a bit longer over this.  The terrorist watch list, at last count, boasted about a million entries.  When you eliminate variant spellings and duplicate entries—and rest assured that this would be another enormous source of problems—there are about 400,000 unique individuals on the list, of whom some 20,000 are Americans. Thousands more are nominated for inclusion on the list each week.

Employ, for a moment, some common sense and arithmetic. The 9/11 attacks were carried out by 19 people. (I should add: 19 people armed with box cutters.) If even one percent of those 20,000 were truly intent on staging violent domestic attacks, doesn’t it seem likely we would have noticed? To be sure, some small subset of them really are serious threats. They are probably the very people the government is actively investigating, and would prefer not to tip off by, say, having their attempted gun purchases denied.

There’s also, of course, an almost heartwarming faith in formal process here.  I can imagine circumstances where blocking someone at a point of sale might prevent bloodshed—some guy in the heat of passion or the haze of liquor acting on impulse to settle a score. But trained and fanatically committed terrorists, backed by the resources of an international network, who typically spend months or even years plotting significant operations? Are they serious? How does that conversation go? “No, no, I’m sorry Osama.  Yes, the Wal-Mart clerk, she would not sell us a pistol! I know, and after Ayman went to all that trouble making our fake passports by hand. I was disappointed too.  But I guess we’d better scrap the plan and head back to Yemen.”

What the other categories of “risky” people the Times lists have in common is  that they’ve been determined to be dangerous by a court, which is normally the process by which we go about depriving people of their rights. It seems perverse to depart from that principle precisely for the category of suspects least likely to be hampered by these sorts of limitations.

The John Yoo Theory of Gun Control is a post from Cato @ Liberty - Cato Institute Blog

Michael Crowley, senior editor at The New Republic, recounts some nightmare episodes with the 911 Emergency Response System in the current issue of Reader’s Digest.  Here’s an excerpt:

If there’s one thing we think we can count on, it’s that a frantic call to 911 will bring a swift and effective response.  Government’s first priority, after all, is protecting its citizens.  But a spate of recent cases reveal shocking flaws in our national emergency response system–at a cost measured in lives.

One of those cases involved a young college student at the University of Wisconsin.  She dialed 911 and then hung up without saying anything.  Before the line was disconnected, however, there were screams and sounds of a struggle caught on tape.  The operator claims she could hear no noise–so she did not dispatch the police or try to call back.  Later that day, the college student, Brittany Zimmerman, was found beaten to death in her apartment.  An audio recording of some of the 911 nightmares can be found here.

Michael Crowley stresses the need for better trained operators and perhaps penalties for the people who tie up the lines with frivolous calls.  That’s all well and good, but more importantly, we must all acknowledge the limits of the 911 system and take responsibility for our own safety.  As the libertarian sheriff, Bill Masters, points out “If you rely on the government for protection, you are going to be at least disappointed and at worst injured or killed.”

For related Cato work, go here.

Update: New Jersey State Police are reviewing how a recent 911 call was handled. A Catholic priest called 911 as he came under criminal attack in his church.

Problems with 911 is a post from Cato @ Liberty - Cato Institute Blog

This is a reminder, citizen: Only cranks worry about vastly increased governmental power to gather transactional data about Americans’ online behavior. Why, just last week, Rep. Lamar Smith (R-TX) informed us that there has not been any “demonstrated or recent abuse” of such authority by means of National Security Letters, which permit the FBI to obtain many telecommunications records without court order. I mean, the last Inspector General report finding widespread and systemic abuse of those came out, like, over a year ago! And as defenders of expanded NSL powers often remind us, similar records can often be obtained by grand jury subpoena.

Subpoenas like, for instance, the one issued last year seeking the complete traffic logs of the left-wing site Indymedia for a particular day. According to tech journo Declan McCullah:

It instructed [System administrator Kristina] Clair to “include IP addresses, times, and any other identifying information,” including e-mail addresses, physical addresses, registered accounts, and Indymedia readers’ Social Security Numbers, bank account numbers, credit card numbers, and so on.

The sweeping request came with a gag order prohibiting Clair from talking about it. (As a constitutional matter, courts have found that recipients of such orders must at least be allowed to discuss them with attorneys in order to seek advise about their legality, but the subpoena contained no notice of that fact.) Justice Department officials tell McCullagh that the request was never reviewed directly by the Attorney General, as is normally required when information is sought from a press organization. Clair did tell attorneys at the Electronic Frontier Foundation, and  when they wrote to U.S. Attorney Timothy Morrison questioning the propriety of the request, it was promptly withdrawn. EFF’s Kevin Bankston explains the legal problems with the subpoena at length.

Perhaps ironically, the targeting of Indymedia, which is about as far left as news sites get, may finally hep the populist right to the perils of the burgeoning surveillance state. It seems to have piqued Glenn Beck’s interest, and McCullagh went on Lou Dobbs’ show to talk about the story. Thus far, the approved conservative position appears to have been that Barack Obama is some kind of ruthless Stalinist with a secret plan to turn the United States into a massive gulag—but under no circumstances should there be any additional checks on his administration’s domestic spying powers.  This always struck me as both incoherent and a tragic waste of paranoia. Now that we’ve had a rather public reminder that such powers can be used to compile databases of people with politically unorthodox browsing habits, perhaps Beck—who seems to be something of an amateur historian—will take some time to delve into the story of COINTELPRO and other related projects our intelligence community busied itself with before we established an architecture of surveillance oversight in the late ’70s.

You know, the one we’ve spent the past eight years dismantling.

Who Reads the Readers? is a post from Cato @ Liberty - Cato Institute Blog

Glenn Greenwald has a good post about Arrar v. Ashcroft, an appeals court ruling that came down the other day.  Here’s an excerpt:

Maher Arar is both a Canadian and Syrian citizen of Syrian descent.  A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old.  In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” – despite his pleas that he would be tortured — to Syria, to be interrogated and tortured.  He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured.  Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.  I’ve appended to the end of this post the graphic description from a dissenting judge of what was done to Arar while in American custody and then in Syria.

Read the whole thing.   Also, the ACLU has put together a short film about the experiences of some prisoners released from Guantanamo.

Greenwald on the Arrar Ruling is a post from Cato @ Liberty - Cato Institute Blog

Last night I spoke at “The Little Idea,” a mini-lecture series launched in New York by Ari Melber of The Nation and now starting up here in D.C., on the incredibly civilized premise that, instead of some interminable panel that culminates in a series of audience monologues-disguised-as-questions, it’s much more appealing to have a speaker give a ten-minute spiel, sort of as a prompt for discussion, and then chat with the crowd over drinks.

I’d sketched out a rather longer version of my remarks in advance just to make sure I had my main ideas clear, and so I’ll post them here, as a sort of preview of a rather longer and more formal paper on 21st century surveillance and privacy that I’m working on. Since ten-minute talks don’t accommodate footnotes very well, I should note that I’m drawing for a lot of these ideas on the excellent work of legal scholars Lawrence Lessig and Daniel Solove (relevant papers at the links). Anyway, the expanded version of my talk after the jump:

Since this is supposed to be an event where the drinking is at least as important as the talking, I want to begin with a story about booze—the story of a guy named Roy Olmstead.  Back in the days of Prohibition, Roy Olmstead was the youngest lieutenant on the Seattle police force. He spent a lot of his time busting liquor bootleggers, and in the course of his duties, he had two epiphanies. First, the local rum runners were disorganized—they needed a smart kingpin who’d run the operation like a business. Second, and more importantly, he realized liquor smuggling paid a lot better than police work.

So Roy Olmstead decided to change careers, and it turned out he was a natural. Within a few years he had remarried to a British debutante, bought a big white mansion, and even ran his own radio station—which he used to signal his ships, smuggling hooch down from Canada, via coded messages hidden in broadcasts of children’s bedtime stories. He did retain enough of his old ethos, though, that he forbade his men from carrying guns. The local press called him the Bootleg King of Puget Sound, and his parties were the hottest ticket in town.

Roy’s success did not go unnoticed, of course, and soon enough the feds were after him using their own clever high-tech method: wiretapping. It was so new that they didn’t think they needed to get a court warrant to listen in on phone conversations, and so when the hammer came down, Roy Olmstead challenged those wiretaps in a case that went all the way to the Supreme Court—Olmstead v. U.S.

The court had to decide whether these warrantless wiretaps had violated the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” But when the court looked at how a “search” had traditionally been defined, they saw that it was tied to the common law tort of trespass. Originally, that was supposed to be your remedy if you thought your rights had been violated, and a warrant was a kind of shield against a trespass lawsuit. So the majority didn’t see any problem: “There was no search,” they wrote, “there was no seizure.” Because a search was when the cops came on to your property, and a seizure was when they took your stuff. This was no more a search than if the police had walked by on the sidewalk and seen Roy unpacking a crate of whiskey through his living room window: It was just another kind of non-invasive observation.

So Olmstead went to jail, and came out a dedicated evangelist for Christian Science. It wasn’t until the year after Olmstead died, in 1967, that the Court finally changed its mind in a case called Katz v. U.S.: No, they said, the Fourth Amendment protects people and not places, and so instead of looking at property we’re going to look at your reasonable expectation of privacy, and on that understanding, wiretaps are a problem after all.

So that’s a little history lesson—great, so what? Well, we’re having our own debate about surveillance as Congress considers not just reauthorization of some expiring Patriot Act powers, but also reform of the larger post-9/11 surveillance state, including last year’s incredibly broad amendments to the Foreign Intelligence Surveillance Act. And I see legislators and pundits repeating two related types of mistakes—and these are really conceptual mistakes, not legal mistakes—that we can now, with the benefit of hindsight, more easily recognize in the logic of Olmstead: One is a mistake about technology; the other is a mistake about the value of privacy.

First, the technology mistake. The property rule they used in Olmstead was founded on an assumption about the technological constraints on observation. The goal of the Fourth Amendment was to preserve a certain kind of balance between individual autonomy and state power. The mechanism for achieving that goal was a rule that established a particular trigger or tripwire that would, in a sense, activate the courts when that boundary was crossed in order to maintain the balance. Establishing trespass as the trigger made sense when the sphere of intimate communication was coextensive with the boundaries of your private property. But when technology decoupled those two things, keeping the rule the same no longer preserved the balance, the underlying goal, in the same way, because suddenly you could gather information that once required trespass without hitting that property tripwire.

The second and less obvious error has to do with a conception of the value of privacy, and a corresponding idea of what a privacy harm looks like.  You could call the Olmstead court’s theory “Privacy as Seclusion,” where the paradigmatic violation is the jackboot busting down your door and disturbing the peace of your home. Wiretapping didn’t look like that, and so in one sense it was less intrusive—invisible, even. In another sense, it was more intrusive because it was invisible: Police could listen to your private conversations for months at a time, with you none the wiser. The Katz court finally understood this; you could call their theory Privacy as Secrecy, where the harm is not intrusion but disclosure.

But there’s an even less obvious potential harm here. If they didn’t need a warrant, everyone who made a phone call would know that they could whenever they felt like it. Wiretapping is expensive and labor intensive enough that realistically they can only be gathering information about a few people at a time.  But if further technological change were to remove that constraint, then the knowledge of the permanent possibility of surveillance starts having subtle effects on people’s behavior—if you’ve seen the movie The Lives of Others you can see an extreme case of an ecology of constant suspicion—and that persists whether or not you’re actually under surveillance.  To put it in terms familiar to Washingtonians: Imagine if your conversations had to be “on the record” all the time. Borrowing from Michel Foucault, we can say the privacy harm here is not (primarily) invasion or disclosure but discipline. This idea is even embedded in our language: When we say we want to control and discipline these police powers, we talk about the need for over-sight and super-vision, which are etymologically basically the same word as sur-veillance.

Move one more level from the individual and concrete to the abstract and social harms, and you’ve got the problem (or at least the mixed blessing) of what I’ll call legibility. The idea here is that the longer term possibilities of state control—the kinds of power that are even conceivable—are determined in the modern world by the kind and quantity of information the modern state has, not about discrete individuals, but about populations.  So again, to reach back a few decades, the idea that maybe it would be convenient to round up all the Americans of Japanese ancestry—or some other group—and put them in internment camps is just not even on the conceptual menu unless you have a preexisting informational capacity to rapidly filter and locate your population that way.

Now, when we talk about our First Amendment right to free speech, we understand it has a certain dual character: That there’s an individual right grounded in the equal dignity of free citizens that’s violated whenever I’m prohibited from expressing my views. But also a common or collective good that is an important structural precondition of democracy. As a citizen subject to democratic laws, I have a vested interest in the freedom of political discourse whether or not I personally want to say–or even listen to–controversial speech. Looking at the incredible scope of documented intelligence abuses from the 60s and 70s, we can add that I have an interest in knowing whether government officials are trying to silence or intimidate inconvenient journalists, activists, or even legislators. Censorship and arrest are blunt tactics I can see and protest; blackmail or a calculated leak that brings public disgrace are not so obvious. As legal scholar Bill Stuntz has argued, the Founders understood the structural value of the Fourth Amendment as a complement to the First, because it is very hard to make it a crime to pray the wrong way or to discuss radical politics if the police can’t arbitrarily see what people are doing or writing in their homes.

Now consider how we think about our own contemporary innovations in search technology. The marketing copy claims PATRIOT and its offspring “update” investigative powers for the information age—but what we’re trying to do is stretch our traditional rules and oversight mechanisms to accommodate search tools as radically novel now as wiretapping was in the 20s. On the traditional model, you want information about a target’s communications and conduct, so you ask a judge to approve a method of surveillance, using standards that depend on how intrusive the method is and how secret and sensitive the information is. Constrained by legal rulings from a very different technological environment, this model assumes that information held by third parties—like your phone or banking or credit card information—gets very little protection, since it’s not really “secret” anymore. And the sensitivity of all that information is evaluated in isolation, not in terms of the story that might emerge from linking together all the traces we now inevitable leave in the datasphere every day.

The new surveillance typically seeks to observe information about conduct and communications in order to identify targets. That may mean using voiceprint analysis to pull matches for a particular target’s voice or a sufficiently unusual regional dialect in a certain area. It may mean content analysis to flag e-mails or voice conversations containing known terrorist code phrases. It may mean social graph analysis to reidentify targets who have changed venues by their calling patterns.  If you’re on Facebook, and a you and bunch of your friends all decide to use fake names when you sign up for Twitter, I can still reidentify you given sufficient computing power and strong algorithms by mapping the shape of the connections between you—a kind of social fingerprinting. It can involve predictive analysis based on powerful electronic “classifiers” that extract subtle patterns of travel or communication or purchases common to past terrorists in order to write their own algorithms for detecting potential ones.

Bracket for the moment whether we think some or all of these methods are wise.  It should be crystal clear that a method of oversight designed for up front review and authorization of target-based surveillance is going to be totally inadequate as a safeguard for these new methods.  It will either forbid them completely or be absent from the parts of the process where the dangers to privacy exist. In practice what we’ve done is shift the burden of privacy protection to so-called “minimization” procedures that are meant to archive or at least anonymize data about innocent people. But those procedures have themselves been rendered obsolete by technologies of retrieval and reidentification: No sufficiently large data set is truly anonymous.

And realize the size of the data sets we’re talking about. The FBI’s Information Data Warehouse holds at least 1.5 billion records, and growing fast, from an array of private and government sector sources—some presumably obtained using National Security Letters and Patriot 215 orders, some by other means. Those NSLs are issued by the tens of thousands each year, mostly for information about Americans.  As of 2006, we know “some intelligence sources”—probably NSA’s—were  growing at a rate of 4 petabytes, that’s 4 million Gigabytes—each month.  Within about five years, NSA’s archive is expected to be measured in Yottabytes—if you want to picture one Yottabyte, take the sum total of all data on the Internet—every web page, audio file, and video—and multiply it by 2,000. At that point they will have to make up a new word for the next largest unit of data.  As J. Edgar Hoover understood all too well, just having that information is a form of power. He wasn’t the most feared man in Washington for decades because he necessarily had something on everyone—though he had a lot—but because he had so much that you really couldn’t be sure what he had on you.

There is, to be sure, a lot to be said against the expansion of surveillance powers over the past eight years from a more conventional civil liberties perspective.  But we also need to be aware that if we’re not attuned to the way new technologies may avoid our would tripwires, if we only think of privacy in terms of certain familiar, paradigmatic violations—the boot in the door—then like the Olmstead court, we may render ourselves blind to equally serious threats that don’t fit our mental picture of a privacy harm.

If we’re going to avoid this, we need to attune ourselves to the ways modern surveillance is qualitatively different from past search tools, even if words like “wiretap” and “subpoena” remain the same. And we’re going to need to stop thinking only in terms of isolated violations of individual rights, but also consider the systemic and structural effects of the architectures of surveillance we’re constructing.

Some Thoughts on the New Surveillance is a post from Cato @ Liberty - Cato Institute Blog

• How Washington’s plans may result in even higher executive pay.
  “In 1993, Congress intervened in corporate compensation and messed things up. Now it’s the White House’s turn.”

• The case for allowing insider trading: “Want to keep companies honest, make the markets work more efficiently and encourage investors to diversify? Let insiders buy and sell.”

• Cato v. Heritage on the Patriot Act, Round III: “In hindsight, did Congress and the president react too hastily in 2001 by passing the Patriot Act just weeks after the 9/11 attacks?”

• Instead of fixing the Patriot Act, President Obama is protecting it.

• Twenty years later: Why the Berlin Wall fell.

• Podcast: “Financial Privacy and Freedom” featuring Prince Michael of Liechtenstein.

Wednesday Links is a post from Cato @ Liberty - Cato Institute Blog

There is a useful math lesson buried near the end of Greg Jaffe and Karen DeYoung’s widely discussed story on an Afghan war game that the Obama administration is using to weigh the costs and risks of competing strategies.

One question being debated is whether more U.S. troops would improve the performance of the Afghan government by providing an important check on corruption and the drug trade, or would they stunt the growth of the Afghan government as U.S. troops and civilians take on more tasks that Afghans might better perform themselves. Another factor is cost. The Pentagon has budgeted about $65 billion to maintain a force of about 68,000 troops, meaning that each additional 1,000 U.S. soldiers in Afghanistan would cost about $1 billion a year.

I haven’t seen this figure before, and it is based upon a back-of-the-envelope calculation that might be undone by economies of scale. It is not obvious, for example, that the first 1,000 troops would cost the same as the last 1,000. Still, it is a reasonable estimate that is apparently being used inside of the Obama administration.

Accepting the number as basically accurate, the question then turns to “Is it worth it?” That can only be answered by weighing the opportunity costs.

If the Obama administration goes along with Gen. Stanley McChrystal’s request for more troops, and therefore chooses to spend additional money on this mission, the administration is saying, in effect, that an expanded troop presence will do more to prevent a repeat of 9/11 than if the money had been spent on countless other missions and programs ostensibly directed to the same purpose.

Count me a skeptic. There is considerable evidence that a large-scale and open-ended troop presence is counterproductive to fighting terrorism. Meanwhile, there have been a number of highly effective counterterrorism programs that cost far, far less than even $1 billion a year. The proponents of a huge troop increase in Afghanistan obviously disagree, and thus implicitly claim that $40 billion is money well spent (for reference, the entire Dept. of Homeland Security budget for FY 2010 will total $42.8 billion).

Let the advocates for a larger troop presence attempt to make that case. At least now we have a tangible measure for weighing competing options. Thanks to Jaffe and DeYoung for shedding some light on a previously under-reported statistic.

1,000 Troops = $1 Billion/Year is a post from Cato @ Liberty - Cato Institute Blog

I don’t regularly read the Guardian, but when I do it is usually because someone else has called attention to Simon Jenkins’ latest column. Such is the case today. After reading this, I’m adding him to my Google reader subscriptions.

This graf pertaining to “Why are we in Afghanistan?” really stood out for me:

The excuse that we are preventing another 9/11 is ludicrously thin. That event, whose plotting and training were in Europe and America, will cause the US to spend what Congress puts at a staggering $1.3 trillion in wars and related security by 2019. And still no one has arrested Bin Laden. It must be the most extravagant punitive expedition to the Asian mainland since Agamemnon set off for Troy.

For the many people whose sense of history doesn’t extend much before the last winner of “American Idol”, that reference won’t register. For the people who understand the reference, and who nonetheless would persist in this open-ended nation-building folly, I defy them to prove Jenkins wrong.

Hubris in Afghanistan is a post from Cato @ Liberty - Cato Institute Blog

Right on the heels of my post the other day discussing the error in inviting terrorism reporting, here’s another video (and suspicious-activity-reporting Web site) produced by the Los Angeles Police Department.

The production values in this video are hipper, and L.A. appears to have its share of actors willing to look concerned about terrorism. But really, the attacks of September 11, 2001 were all the Public Service Announcement we needed to encourage reporting of genuine suspicions.

Asking amateurs for tips about terrorism will have many wasteful and harmful results, like racial and ethnic discrimination, angry neighbors turning each other in, and—given the rarity of terrorism—lots and lots of folks just plain getting it wrong. People with expertise—even in very limited domains—can discover suspicious circumstances in their worlds almost automatically when they find things “hinky.”

My impressions of the LAPD were formed up in the late 80′s and early 90′s when I lived in southern California. To encourage reporting, what that department needs most is to make the community confident of its own fairness and competence. Reporting of meritorious suspicions will naturally follow that. There’s no need for it to artificially gin up crime or terrorism reporting.

9/11: All the PSA We Needed is a post from Cato @ Liberty - Cato Institute Blog

Pat Tillman, who gave up a lucrative NFL career to join the Army after 9/11, was a true patriot:  he wanted to defend America, not conduct social engineering overseas.  That led him to oppose the Iraq war.

Reports the Daily Telegraph:

According to a new book, Tillman, who was killed by friendly fire in 2004 and hailed as an all-American hero by the former president, was disillusioned by Mr Bush and his administration’s “illegal and unjust” drive to war.

In Where Men Win Glory: The Odyssey of Pat Tillman, by Jon Krakauer, the author relates the strong views of Tillman – who gave up his NFL football career to serve his country – and his brother Kevin, who joined the same Rangers unit.

The war “struck them as an imperial folly that was doing long-term damage to US interests,” Krakauer claims.

“The brothers lamented how easy it had been for Bush, Cheney, and Rumsfeld to bully secretary of state Colin Powell, both the houses of Congress, and the majority of the American people into endorsing the invasion of Iraq.”

Tillman was a true citizen soldier.  Not only did he leave private life to serve in the military after his nation was attacked, but he believed it was his responsibility to look beyond the self-serving rhetoric of politicians to judge the wisdom of the wars which they initiated.  The rest of us should remember his skepticism when confronted with the willingness of politicians of both parties to continue sacrificing American lives in conflicts with little or no relevance to American security.

Pat Tillman Saw the Iraq War as Folly is a post from Cato @ Liberty - Cato Institute Blog

Andrew C. McCarthy has an article up  at National Review criticizing a recent decision by Obama administration officials to improve the detention procedures in Bagram, Afghanistan.

McCarthy calls the decision an example of pandering to a “despotic” judiciary that is imposing its will on a war that should be run by the political branches. McCarthy’s essay is factually misleading, ignores the history of wartime detention in counterterrorism and counterinsurgency, and encourages the President to ignore national security decisions coming out of the federal courts.

More details after the jump.

McCarthy is Factually Misleading

McCarthy begins by criticizing a decision by District Judge John Bates to allow three detainees in Bagram, Afghanistan, to file habeas corpus petitions testing the legitimacy of their continued detention. McCarthy would have you believe that this is wrong because they are held in a combat zone and that they have already received an extraordinary amount of process by wartime detention standards. He is a bit off on both accounts.

First, this is not an instance where legal privileges are “extended to America’s enemies in Afghanistan.” The petition from Bagram originally had four plaintiffs, none of whom were captured in Afghanistan – they were taken into custody elsewhere and moved to Bagram, which is quite a different matter than a Taliban foot soldier taken into custody after an attack on an American base. As Judge Bates says in his decision, “It is one thing to detain t

hose captured on the surrounding battlefield at a place like Bagram, which [government attorneys] correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries – far from any Afghan battlefield – and then bring them to a theater of war, where the Constitution arguably may not reach.”

Judge Bates also took into account the political considerations of hearing a petition from Haji Wazir, an Afghan man detained in Dubai and then

moved to Bagram. Because of the diplomatic implications of ruling on an Afghan who is on Afghan soil, Bates dismissed Wazir’s petition. So much for judicial “despotism” and judicial interference on the battlefield, unless you define the world as your battlefield.

Second, the detainees have not been given very much process. Their detentions have been approved in “Unlawful Enemy Combatant Review Boards.” Detainees in these proceedings have no American representative, are not present at the hearings, and submit a written statement as to why they should be released without any knowledge of what factual basis the government is using to justify their detention. This is far less than the Combatant Status Review Tribunal procedures held insufficient in the Supreme Court’s Boumediene ruling.

Yes, Fix Detention in Afghanistan

McCarthy then chides the Obama administration for trying to get ahead of the courts by affording more process to detainees: “See, we can give the enemy more rights without a judge ordering us to do so!”

Well, yes. We should fix the detention procedures used in Afghanistan to provide the adequate “habeas substitute” required by Boumediene so that courts either: (1) don’t see a need to intervene; or (2) when they do review detention, they ratify the military’s decision more often than not.

Thing is, the only substitute for habeas is habeas. Habeas demands a hearing, with a judge, with counsel for both the detainee and the government, and a weighing of evidence and intelligence that a federal court will take seriously. If the military does this itself, then the success rate in both detaining the right people and sustaining detention decisions upon review are improved.

This is nothing new or unprecedented. Salim Hamdan, Usama Bin Laden’s driver, received such a hearing prior to his military commission. The CSRT procedures that the Bagram detainees are now going to face were insufficient to subject Hamdan to a military commission, so Navy Captain Keith Allred granted Hamdan’s motion for a hearing under Article V of the Geneva Conventions to determine his legal status.

Allred found that Hamdan’s service to Al Qaeda as Osama Bin Laden’s driver and occasional bodyguard, pledge of bayat (allegiance) to Bin Laden, training in a terrorist camp, and transport of weapons for Al Qaeda and affiliated forces supported finding him an enemy combatant. Hamdan was captured at a roadblock with two surface-to-air missiles in the back of his vehicle. The Taliban had no air force; the only planes in the sky were American. Hamdan was driving toward Kandahar, where Taliban and American forces were engaged in a major battle. The officer that took Hamdan into custody took pictures of the missiles in Hamdan’s vehicle before destroying them.

Hamdan’s past association with the Ansars (supporters), a regularized fighting unit under the Taliban, did not make him a lawful combatant. Though the Ansars wore uniforms and bore their arms openly, Hamdan was taken into custody in civilian clothes and had no distinctive uniform or insignia. Based on his “direct participation in hostilities” and lack of actions to make him a lawful combatant, Captain Allred found that Hamdan was an unlawful enemy combatant.

Hamdan’s Article V hearing should be the template for battlefield detention. Charles “Cully” Stimson at the Heritage Foundation, a judge in the Navy JAG reserves and former Bush administration detainee affairs official, wrote a proposal to do exactly that, Holding Terrorists Accountable: A Lawful Detention Framework for the Long War.

The more we legitimize and regularize these decisions, the better off we are. Military judges should be writing decisions on detention and publishing declassified versions in military law reporters. One of the great tragedies of litigating the detainees from the early days in Afghanistan is that a number were simply handed to us by the Northern Alliance with little to no proof and plenty of financial motive for false positives. My friends in the service tell me that we are still running quite a catch-and-release program in Afghanistan. I attribute this to arguing over dumb cases from the beginning of the war when we had little cultural awareness and a far less sophisticated intelligence apparatus. Detention has become a dirty word. By not establishing a durable legal regime for military detention, we created lawfare fodder for our enemies and made it politically costly to detain captured fighters.

The Long-Term Picture

McCarthy, along with too many on the Right, is fixated on maintaining executive detention without legal recourse as our go-to policy for incapacitating terrorists and insurgents. In the long run we need to downshift our conflicts from warmaking to law enforcement, and at some point detention transitions to trial and conviction.

McCarthy might blast me for using the “rule of law” approach that he associates with the Left and pre-9/11 counterterrorism efforts. Which is fine, since, just as federal judges “have no institutional competence in the conduct of war,” neither do former federal prosecutors.

Counterterrorism and counterinsurgency are not pursued solely by military or law enforcement means. We should use both. The military is a tool of necessity, but in the long run, the law is our most effective weapon.

History dictates an approach that uses military force as a means to re-impose order and the law to enforce it. The United States did this in Iraq, separating hard core foreign fighters from local flunkies and conducting counterinsurgency inside its own detention facilities. The guys who were shooting at Americans for a quick buck were given some job training and signed over to a relative who assumed legal responsibility for the detainee’s oath not to take up arms again. We moved detainees who could be connected to specific crimes into the Iraqi Central Criminal Court for prosecution. We did all of this under the Law and Order Task Force, establishing Iraqi criminal law as the law of the land.

We did the same in Vietnam, establishing joint boards with the Vietnamese to triage detainees into Prisoner of War, unlawful combatant, criminal defendant, and rehabilitation categories.

The Washington Post article on our detention reforms in Afghanistan indicates that we are following a pattern similar to past conflicts. How this is a novel and dangerous course of action escapes me.

Who’s the Despot Here?

McCarthy points to FDR as a model for our actions in this conflict between the Executive and Judiciary branches. He says that the President should ignore the judgments of the courts in the realm of national security and their “despotic” decrees. I do not think this word means what he thinks it means.

FDR was the despot in this chapter of American history, threatening to pack the Supreme Court unless they adopted an expansive view of federal economic regulatory power. The effects of an expansive reading of the Commerce Clause are felt today in an upending of the balance of power that the Founders envisioned between the states and the federal government.

McCarthy does not seem bothered by other historical events involving the President’s powers as Commander-in-Chief in the realm of national security. The Supreme Court has rightly held that the President’s war powers do not extend to breaking strikes at domestic factories when Congress declined to do so during the Korean War, trying American citizens by military commission in places where the federal courts are still open and functioning, and declaring the application of martial law to civilians unconstitutional while World War II was under way.

The Constitution establishes the Judiciary as a check on the majoritarian desires of the Legislature and the actions of the Executive, even during wartime. To think otherwise is willful blindness.

Bagram, Habeas, and the Rule of Law is a post from Cato @ Liberty - Cato Institute Blog