And Good Riddance…
The Department of Homeland Security is scrapping the color-coded terror alert system. The color-code system meant to serve as a way of keeping the public informed, but because it signaled some ambiguous sense of “threat” without providing a scintilla of information the public could use, it merely kept Americans ignorant and addled.
Scrapping the color-coded threat system is only the beginning. The next step is to begin informing the public fully about threats and risks known to the U.S. government. We’re adults. We can handle it. In fact, we can help.
Ghailani Gets Life without Parole
In November, a New York jury found Al Qaeda bomber Ahmed Ghailani guilty on only one of 285 charges for his role in the Kenya and Tanzania embassy bombings. I called it “a good outcome” for a number of reasons, largely agreeing with Ben Wittes.
I’ve disagreed with Wittes on lawfare issues before, but he and Chesney are right on this case: (1) the defendant will serve a minimum of twenty years in jail, possibly life; (2) it’s not certain that the military commissions would have allowed evidence obtained by coercion (Charlie Savage also made this point in his article for the New York Times), (3) the conspiracy conviction in civilian court is solid on appeal, but not necessarily so in a military commission (conspiracy is not a traditional law of war violation, and three sitting Supreme Court justices have questioned its application in that forum); (4) the forum of conviction is less ripe for attack in courts of law and public opinion.
As it turns out, getting convicted on one of 285 serious charges still gets you a serious sentence… life without parole. Regardless of what Andy McCarthy and Marc Thiessen think, chalk this up as a win.
Investigate All Air Travelers, Say Experts in Dog Food Rebranding
Washington Post staff writers Anne Kornblut and Ashley Halsey cite “experts” six times in a story today about the nascent pendulum swing in airport security policy back toward government investigation of travelers.
“[M]ore than a dozen U.S. officials, lawmakers and experts interviewed said they would like to move to a system that relies more on passenger data than on airport checkpoint screening,” they write. “[I]f the security system were allowed to access even more — such as personal information collected by companies that do credit ratings — suspicious passengers would be more readily identified, experts say.”
Without irony, they cite these methods as a way of closing gaps in current airport security. But no system would be quite so gapped as a system of mass investigations. As I wrote recently with regard to the “Trusted Traveler” notion, which has the same provenance:
[P]recisely 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?
Kornblut and Halsey have turned up what appears to be a new idea by citing only experts who have not thought through the weaknesses, due process issues, and privacy costs in identity-based security. Mass investigation of air travelers is rebranded dog food. We don’t need to run to the bowl and drive our snouts into it.
The Appeal of Trusted Traveler
There is a natural appeal to “trusted traveler” programs. We all see ourselves as trustworthy, and getting into such a program might improve our experience at the airport. This video captures the notion—and some of the difficulties—entertainingly.
I would fly on a plane even knowing that Jimmy Johnson had brought a machete on board. But what level of trust should attach to a Super Bowl ring?
Dave Meggett helped the New York Giants win Super Bowl XXV. He was sentenced to 30 years in prison last month after being convicted of criminal sexual misconduct and burglary. Super Bowl MVP Ray Lewis was charged with murder in 2000, avoiding trial by agreeing to testify against others. The point is not to beat up on the NFL, but to beat up on the idea that you can trust a large-scale “trusted traveler” program.
Having some weakness is not fatal to the trusted traveler idea. A trusted traveler program might reduce costs and inconveniences without reducing risks by a greater amount. Indeed, it might make sense to trust all travelers more than the TSA does under its strip/grope policy.
In a recent, less entertaining post, I argued that the TSA shouldn’t do “trusted traveler.” Airlines should be free to implement trusted traveler systems, winning the rewards for getting it right and paying the costs for getting it wrong.
TSA’s Strip/Grope: Unconstitutional?
Writing in the Washington Post, George Washington University law professor Jeffrey Rosen carefully concludes, “there’s a strong argument that the TSA’s measures violate the Fourth Amendment, which prohibits unreasonable searches and seizures.” The strip/grope policy doesn’t carefully escalate through levels of intrusion the way a better designed program using more privacy protective technology could.
It’s a good constutional technician’s analysis. But Professor Rosen doesn’t broach one of the most important likely determinants of Fourth Amendment reasonableness: the risk to air travel these searches are meant to reduce.
Writing in Politico last week, I pointed out that there have been 99 million domestic flights in the last decade, transporting seven billion passengers. Not one of these passengers snuck a bomb onto a plane and detonated it. Given that this period coincides with the zenith of Al Qaeda terrorism, this suggests a very low risk.
Proponents of the TSA’s regime point out that threats are very high, according to information they have. But that trump card—secret threat information—is beginning to fail with the public. It would take longer, but would eventually fail with courts, too.
But rather than relying on courts to untie these knots, Congress should subject TSA and the Department of Homeland Security to measures that will ultimately answer the open risk questions: Require any lasting security measures to be justified on the public record with documented risk management and cost-benefit analysis. Subject such analyses to a standard of review such as the Adminstrative Procedure Act’s “arbitrary and capricious” standard. Indeed, Congress might make TSA security measures APA notice-and-comment rules, with appropriate accomodation for (truly) temporary measures required by security exigency.
Claims to secrecy are claims to power. Congress should withdraw the power of secrecy from the TSA and DHS, subjecting these agencies to the rule of law.
Strip-Search Machines as the Downfall of the ‘War on Terror’
Here’s Wall Street Journal editorial page editor Paul Gigot on NBC’s Meet the Press:
I think the danger here is that the public begins to revolt against these kinds of security procedures. And then you risk losing public support, not just for airport screenings, but for the whole war on terror and the whole national security regime post-9/11.
Exactly.
The “danger” Gigot is talking about is that the government might lose control of counterterrorism policy, ceding that control back to a frustrated and increasingly restless American populace. The “War on Terror” theme supports a host of policies—most acutely, these airport searches—that are at best unexplained by the goverrnment and likely not merited by actual security conditions. As I noted in an earlier post, in seven billion domestic passenger trips over the last decade, there have been zero bombings. Yet we are to be searched like prison inmates at the whim of the TSA. That simply doesn’t comport with common sense.
(Top government officials and people I know and respect sometimes say things like, “If you knew what I’d learned in secret briefings . . . .” I don’t accept these assertions. Just like in a courtroom, facts not put into evidence are not facts in the public debate either. “War on Terror” secrecy policies are a failing pillar of post-9/11 security policy.)
There is not real danger in shifting from today’s overreactive, fear-based security regime to one that exploits terrorism’s many weaknesses to secure the country cost-effectively, confidently, and consistently with Americans’ liberty and prosperity. The Cato book, Terrorizing Ourselves: Why U.S. Counterterrorism Policy is Failing and How to Fix It, contains the thinking that undergirds a new, better approach.
The Ghailani Verdict
You’ve probably heard that a jury found Al Qaeda bomber Ahmed Ghailani guilty on only one out of 286 charges associated with the 1998 embassy bombings in Kenya and Tanzania.
A predictable debate followed. Glenn Greenwald cited the outcome as proof that the system works, while Liz Cheney, Debra Burlingame and Bill Kristol described the trial as a reckless experiment. Thomas Joscelyn called the trial a miscarriage of justice.
The most insightful commentary I’ve seen is over at Lawfare. Benjamin Wittes and Robert Chesney summed things up pretty well: “Trial in federal court didn’t work out the way the Obama administration wanted, but it wasn’t a disaster–and we can’t honestly say it worked out worse than the military commission alternative would likely have done.”
I’ve disagreed with Wittes on lawfare issues before, but he and Chesney are right on this case: (1) the defendant will serve a minimum of twenty years in jail, possibly life; (2) it’s not certain that the military commissions would have allowed evidence obtained by coercion (Charlie Savage also made this point in his article for the New York Times), (3) the conspiracy conviction in civilian court is solid on appeal, but not necessarily so in a military commission (conspiracy is not a traditional law of war violation, and three sitting Supreme Court justices have questioned its application in that forum); (4) the forum of conviction is less ripe for attack in courts of law and public opinion.
That’s a good outcome.
The Security Logic Clarifies the Question
A new post on the TSA blog gets the logic behind the strip/grope combination correct.
[I]f you’re selected for AIT and choose to opt-out, we still need to check you for non-metallic threats. That’s why a pat-down is required. If you refuse both, you can’t fly.
Any alternative allows someone concealing something to decline the strip-search machine, decline the intimate pat-down, and leave the airport, returning another day in hopes of not being selected for the strip-search machine. The TSA reserves the right to fine you $11,000 for declining these searches.
So the question is joined: Should the TSA be able to condition air travel on you permitting someone to look at or touch your genitals?
I’ve argued that the strip/grope is security excess not validated by risk management. It’s akin to a regulation that fails the “arbitrary and capricious” standard in adminstrative law. But the TSA is not so constrained.
Body Scanner Blues
I’ve got a piece in today’s New York Post that points out some inconvenient truths about the body scanners now installed at airports across the country. Building on Jim Harper’s excellent post, body scanners are not being installed because of a well-reasoned risk analysis.
As Timothy Carney pointed out in the Washington Examiner, this is a sop to the companies that make the body scanners. The machines don’t work as well as advertised – a March GAO Report determined that it is not certain the technology would have found Farouk Abdulmutallab’s suspicious package, and that a cost-benefit analysis needed to be conducted before spending $340 million each year to run the labor-intensive equipment.
The same report found that cargo screening was a weak spot that ought to be addressed, but it took terrorist cargo bomb plots to get the TSA to momentarily escape the clutches of regulatory capture and tend to this threat. The British have been much more candid about the limitations of this technology as applied to low-density explosives, noting that the scanners probably wouldn’t have stopped the 2006 liquid bomb plot at Heathrow.
Of course, you can always opt out of the body scanners in favor of a groping on par with the one that motivated my colleague Penn Jillette to report his sexual assault to the police.
You could opt out entirely. TSA Director John Pistole says you won’t fly, but if you publicize your objections, the TSA may try to fine you $11,000.
Keep a stiff upper lip. I’m sure that this will all be much smoother and less invasive when TSA screeners unionize.
Try the 9/11 Conspirators in Both Federal Courts and Military Commissions?
That’s the proposal Benjamin Wittes makes in today’s Washington Post. Wittes says that by splitting the legal baby, by “charging the 9/11 case in both military commissions and federal court,” the Obama administration can satisfy political considerations on both sides of the aisle.
This is a path fraught with legal issues. The constitutional bar against double jeopardy would prevent a trial in one forum and re-trial in the other for the same actions. Wittes spells out his proposal in greater detail in this post at the Lawfare blog, and he acknowledges this risk. The same sovereign cannot try someone twice for the same crime and Wittes acknowledges that the “John Allen Muhammed Model,” named after one of the Beltway snipers, used the separate sovereigns doctrine in ways that do not apply to Guantanamo. The Beltway snipers were liable for separate crimes in Maryland and Virginia in a way that does not translate directly to the 9/11 conspirators.
Wittes recognizes these legal issues and proposes that federal prosecutors and military commissions prosecutors clearly separate the crimes they respectively charge.
I’d go further. The clearest way to make this work is not to “charg[e] the 9/11 case in both military commissions and federal court.” This proposal only works if you charge pre-9/11 conduct in an Article III court and the 9/11 attacks in a military commission.
The Double Jeopardy Clause of the Fifth Amendment would prevent “charging the 9/11 case in both military commissions and federal court.” Federal prosecutors charged Khalid Sheikh Mohammed well before 9/11 for his participation in the Bojinka Plot, a plan to blow up airliners over the Pacific Ocean. To the extent that he and other 9/11 co-conspirators can be charged with crimes related to Bojinka or other pre-9/11 attacks, this would pass constitutional muster. Otherwise, this is a not an advisable course of action.
Pre-Crime Software?
It sounds a little bit like the “pre-crime” unit featured in the 2002 film “Minority Report,” but news that Washington, D.C. will implement software to “predict” crime is not quite as worrisome as it might seem at first blush.
Beginning several years ago, the researchers assembled a dataset of more than 60,000 various crimes, including homicides. Using an algorithm they developed, they found a subset of people much more likely to commit homicide when paroled or probated. Instead of finding one murderer in 100, the UPenn researchers could identify eight future murderers out of 100.
Berk’s software examines roughly two dozen variables, from criminal record to geographic location. The type of crime, and more importantly, the age at which that crime was committed, were two of the most predictive variables.
Unlike applying data mining to detection of terrorism planning or preparation, which is exceedingly rare, using tens of thousands of examples of recidivism to discover predictive factors is a good way to focus supervision resources where they are most likely to be effective.
The article describes use of this software for monitoring parolees and probationers. Using data mining to justify anything approaching extra punishment would be a misuse, and many far more difficult issues would arise if it were used on the general population.
On the Wisdom Not to Do Wrong
Jim Harper may be “put off by the domestic political ramifications” of the continuing Ground Zero mosque debate — linking to my three POLITICO Arena posts over the weekend, when the story broke, and Chris Preble’s very different Cato@Liberty post on Monday — but that’s what this debate is all about. It’s not about the law or the Constitution, at bottom, because the law is clear: we respect the right to build that mosque there, even if it would not be prudent or wise to do so.
Thus, he misses the point when he cites “conservative icon Ted Olson” who, Jim says, “expresses well how standing by our constitutional values is good counterterrorism signaling.” That may or may not be good counterterrorism signaling, but those of us who oppose this mosque being situated there are standing by our constitutional values, contrary to the implication of Jim’s contention. We’re defending the right the Constitution protects, while engaging in the robust debate it equally protects — arguing that building the mosque there, as Charles Krauthammer put it in this morning’s Washington Post, “is not just insensitive but provocative,” given the facts of the matter.
But that’s not the only non-sequitur in Jim’s argument. He goes on to say:
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.
Who’s saying that? Does Jim believe that those of us on the other side cannot distinguish the 19 long-dead “tiny band of thugs” — and all who supported them and continue to support what they did, as manifest around the world almost daily — from the great majority of Muslims who do not support Islamic terrorism?
There is a problem in the other direction, however, with those who minimize or dismiss “our vestigial fears.” The war against terrorism, which we are likely to be in for some time, requires a sober assessment of the circumstances we’re facing, neither understating nor overstating them. And one aspect of that is public opinion, including opinion, in particular, in the Muslim-American community. This morning’s New York Times has a page-one story about the divide in that community over the mosque issue. It’s those in that community who understand this issue that we need to encourage to come forward and stand for true American principles — including the principle that not everything a person has a right to do is right to do. It’s no more complicated than that.
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