Archives: 03/2008

Stewart Baker Should Start at the Beginning

Department of Homeland Security Assistant Secretary for Policy Stewart Baker has posted the second in a series on the REAL ID Act at the DHS Leaderhip blog. I assessed his first try here.

This one raises the privacy issues with REAL ID, and it claims that privacy advocates “can’t and won’t tell you precisely how REAL ID threatens privacy.” Knowing his smarts and savvy, I’m confident that Stewart is feigning unawareness of my book Identity Crisis and the hearings in Congress that have exposed the many threats to privacy from REAL ID specifically, and national ID systems generally. He has also had the opportunity to read the DHS Privacy Committee’s report, which cited and discussed “serious risks” to privacy from the REAL ID program.

It’s true that privacy is a complex subject, and the complexity is preserved by the fact that a number of different interests are often lumped together under the “privacy” heading. But Stewart has certainly had the opportunity to read the Privacy Committee’s “framework document,” which articulates each of these interests. For a more thorough study of privacy in its strongest sense (control over personal information), he could re-read (or perhaps just read) my 2004 study “Understanding Privacy—and the Real Threats to It.”

The claim that privacy advocates won’t articulate the privacy problems with REAL ID is a shift from earlier public comments where Baker reportedly expressed puzzlement about privacy concerns with REAL ID, or his failure to understand them. One can’t be puzzled by the privacy concerns with REAL ID at one point in time and later claim that privacy concerns haven’t been articulated. There’s something else afoot.

I suspect it’s the fact that Baker gives higher priority to implementing REAL ID than to protecting Americans’ privacy. He just can’t bring himself to say so because it wouldn’t be popular or politic. (To be clear: He makes claims that REAL ID will protect privacy, but they do not pass muster.)

Baker should address the privacy consequences of REAL ID in a way that is not feigned ignorance or dismissiveness, but he should do something else first: Tell us what REAL ID is good for. The burden of proof in the debate over REAL ID is not on privacy advocates to say why not, but on proponents of the national ID law to say why.

No proponent of REAL ID, including Stewart Baker, has ever articulated how the program will cost-effectively secure the country against any threat. In fact, the Department of Homeland Security declined to articulate how REAL ID works to benefit the country in its analysis of the REAL ID regulations it issued. This is something I discussed, along with the privacy concerns, in my May 2007 testimony to the Senate Judiciary Committee:

The Department of Homeland Security has had two years to articulate how REAL ID would work. But the cost-benefit analysis provided in the proposed rules issued in March … helps show that implementing REAL ID would impose more costs on our society than it would provide security or other benefits. REAL ID would do more harm than good.

This is true if you assign no value to privacy at all. Americans do value their privacy and civil liberties, but the conversation should start at the beginning–with an articulation from Stewart Baker of how REAL ID provides cost-effective security.

Newt: Schools Are a ‘National Security Issue.’

Newt Gingrich gave a luncheon talk about education at the American Enterprise Institute today.  Among other things, he said he’d “argue with any conservative” about the role of the federal government with respect to education.  It’s a matter of national security, he said.  He called on the secretary of defense to give a speech every year on the state of our schools. 

Just the latest indication of the drift on the right.  Ronald Reagan promised to abolish the Department of Education.  In 1996, after the GOP captured the Congress, Bill Bennett and Lamar Alexander urged Congress to abolish the Department of Education.  Within a few years, the GOP was supporting Bill Clinton’s proposal to hire 100,000 teachers.  Then Bush came along with his “Leave No Child Behind” law, which expanded the role of the federal government further.  Now this. 

Will the GOP ticket be McCain-Gingrich? 

Teachers: “All Your Money Are Belong to Us”

The Georgia legislature is currently considering a scholarship donation tax credit program that would allow individuals and businesses to give money to non-profit scholarship granting organizations that make it easier for parents to afford independent schooling for their kids.

In arguing against the bill, the head of the state’s public school employee organization, Jeff Hubbard, had this to say: “Our opposition is [to] taking state funds, taxpayer income, and giving it over to private schools.”

Umm…. The thing is, state funds and taxpayer income are not interchangeable terms, however much public school employee organizations might wish them to be. You see, you aren’t entitled to all taxpayer income – or even to all state funds – but just to those funds appropriated by the state in taxes and then allocated to the business of running public schools. When taxpayers claim a tax credit for a donation to help low income kids, no money ever enters the state’s coffers. So you see, these are in fact private funds.

For a good discussion of all this, see the Arizona Supreme Court’s ruling in Kotterman v. Killian (.pdf), upholding that state’s scholarship donation tax credit program, in part, on the grounds that the donated funds are not state money.

Bush Opponents Upset That Bush Lost in the Supreme Court

In an interesting side-note to the Medellin decision, the case’s convoluted procedural history made for some rather strange political bed fellows.  The Court’s decision, anchored by the “conservative wing” (Roberts, Scalia, Thomas, Alito) and joined by the “moderate” Kennedy and (writing separately) the “liberal” Stevens effectively clears the last remaining roadblock to Texas’s imposition of the death penalty on the murderer Jose Erenesto Medellin.  Consequently, Tuesday’s result disappointed death penalty abolitionists, who join on the losing side those who want international law to have direct applicability in the United States.  That’s right, by ruling against President Bush’s executive overreach – which at least three members of the Court’s “liberal” wing implicitly ratified – the Court angered cosmopolitan liberals.  Go figure.

It’s Almost Like You Can’t Have One-Size-Fits-All Day

Apparently, Florida’s Hillsborough County School District has tried to take religion off the calendar, resulting in almost everyone—religious or not—taking Good Friday off. As reported in the St. Petersburg Times on Monday:

After most Hills­borough students skipped classes on Good Friday, superintendent MaryEllen Elia initially used religion to explain the huge disparities in absentee rates between schools.

“Schools reflect their particular community. You may have in a community a particular religious affiliation that is strong,” Elia said.

This morning, the Times’ editors saw things differently:

The Hillsborough County School District should be embarrassed by the mess it made of classes on Good Friday. This was a regular school day, included on the calendar. Yet rather than function as normal, the district made clear to religious conservatives and overindulgent parents that students and staff could blow off the school day.

This issue should have been settled. Hillsborough spent two years wrangling in the national limelight over the calendar before agreeing to a secular schedule that recognized no religious holidays. Yet rather than hold fast to a decision already made and vetted by a committee of school officials and parents, the district gave a wink and a nod to treat Good Friday as an unofficial holiday.

The massive confusion over whether Good Friday was really a holiday led not only to many kids missing school for religious activities, but lots heading to the malls and beaches for more secular observances. It’s a somewhat extreme example of what regularly happens with one-size-fits-all public schooling: When you try to legislate away the values held by one group, you often end up creating havoc for everyone, whether with school calendars, textbook adoptions, freedom of speech, and the list goes on.

But how can we avoid these constant clashes and crashes? Oh, right: Instead of forcing everyone to support a single system, we could let parents use their public education dollars to choose their children’s schools. Then religious folks could pick schools with acceptable calendars, mathematical traditionalists could get the “old” math, conservative parents could choose which penguins their children read about, and so on.

But, of course, all that freedom would never work, right? It would just lead to chaos…

Paul Krugman’s Fallacious Forecast of a $6-7 Trillion Drop in Housing Wealth

The Case-Shiller index of house prices covers just 20 major metropolitan areas. It shows house prices down by 10.7% between January 2007 and 2008, but that largely reflects the fact that Los Angeles, San Diego and San Francisco account for 27.4% of the index.

In Fortune magazine’s March 17 interview, economist Paul Krugman says “We’re probably heading for $6 trillion or $7 trillion in capital losses in housing.”

Such estimates begin by assuming the S&P Case-Shiller index of house prices (which is now down 12.5% from its peak month) has a lot further to fall, and that it accurately represents the value of all real estate held by U.S. households throughout the 50 states.

The Federal Reserve’s Survey of Consumer Finances (updated with flow-of-funds data by David Malpass of Bear Stearns), shows U.S. real estate worth $22.5 trillion in the fourth quarter—up 2.5% from a year earlier and accounting for 31.2% of household wealth.

If you think the Case-Shiller index will eventually fall by 30% (Krugman said 25%), then 30% of $22.5 trillion would yield an estimate of $6-7 trillion capital losses “in housing.” But the $22.5 trillion is not just single-family homes—it includes commercial property, apartments and farm land. More important, even single-family housing wealth is not located in only 20 major metropolitan areas.

The Office of Federal Housing Oversight (OFHEO) index covers all 50 states, including nonmetropolitan areas, but not the most expensive homes (which is not where Case-Shiller finds the biggest declines). The OFHEO index shows house prices down 3% in January, compared with a year before. But even that average is by no means typical of all housing (much less real estate) in the entire nation.

Between the fourth quarters of 2006 and 2007, house prices rose in all but two of the many states excluded by Case-Shiller, and the increase averaged 3.8 percent.

Economists and journalists who use gloomy predictions about the Case-Shiller index to predict a comparable loss of real estate wealth are making several serious mistakes.

I Am the Very Model of a Modern Attorney General

Yesterday, in addition to announcing its decision in the Medellin case (which I blogged about here), the Supreme Court heard argument in two cases relating to the War on Terror. 

First, in Munaf v. Geren, two U.S. citizens (also citizens of Jordan and Iraq, respectively) held captive in Iraq by U.S. forces – as part of Multi-National Force-Iraq, which may but should be a key determinant – challenged their detention and potential transfer to Iraqi authorities for what they fear will be torture as part of criminal prosecution in Iraqi courts.  This seems to be an easier case than Boumediene, a case argued in December wherein Guantanamo detainees challenge their containment and the military commissions by which they are to be tried.  (My colleague Tim Lynch blogged about that case here and here, and also filed an amicus brief.) 

Whatever hope the detainees had was probably dashed by the incoherent presentation made by Northwestern Law School Clinical Professor Joseph Margulies on their behalf.  As Lyle Denniston of SCOTUSblog put it, “when several Justices of the Supreme Court tell an attorney they do not understand his argument, and they do so because the argument was, indeed, fundamentally confusing, the chances of winning may be significantly reduced.”  Ouch.  Margulies turned what should be relatively straightforward issues into a convoluted maze, and those of us in the audience were not the only ones shaking our heads.

The second argument, and the one relating to the title of this blog post, involved the prosecution of the guy who was caught smuggling explosives into the U.S. from Canada in an attempt to blow up LAX at the turn of the century.  (Is it ok to use that expression for the 1999-2000 period yet?)  In United States v. Ressam, Attorney General Mukasey exercised the AG’s historical (but not much used of late) prerogative to argue before the high court, defending the 10-year additional prison term slapped on the Milennial bomber for “carrying an explosive” while “committing a felony” – the felony being lying to the border guard.  Having learned from Margulies’s example, Mukasey did a workmanlike job and sat down with 14 minutes remaining in his allotted time.  The case will turn on some rather technical statutory analysis which I’ll spare you, but it was refreshing to see an appellate advocate who was clearly not there to hear his own voice.