Archives: October, 2009

Tuesday Links

  • Why Congress should not renew the PATRIOT Act’s “lone wolf” provision.
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Are We Sticking Around in Afghanistan to Deny al Qaeda a Talking Point?

Defense Secretary Robert Gates offered some interesting thoughts on the war in Afghanistan last night in a talk at DC’s George Washington University.  As Adam Rawnsley notes, Gates says we need to stay in Afghanistan because al Qaeda will get a propaganda win if we leave:

The Afghanistan-Pakistan border area, Gates said, represents the “modern epicenter of jihad.”  A place “where the Mujahedeen defeated the other superpower,” and in his estimation of the Taliban’s thinking, “they now have the opportunity to defeat a second superpower.”

Defining al-Qaeda as both an ideology and an organization, Gates said their ability to successfully “challenge not only the United States, but NATO — 42 nations and so on” on such a symbolically important battlefield would represent “a hugely empowering message” for an organization whose narrative has suffered much in the eight years since 9/11.

This is tantamount to saying we have to stay in Afghanistan because we’re in Afghanistan.  The recent evidence on this sort of thing is not encouraging.  Recall, for example, that Israel spent almost 40 years in possession of the Gaza Strip.  Ariel Sharon decided to pull Israelis out of the Gaza Strip in 2005, unilaterally.  When that happened, Khaled Meshaal, the leader of Hamas, was all smiles.

meshaalDespite the time that had passed, despite the wreckage in Gaza, Meshaal sneered that the pullout constituted “the beginning of the end for the Zionist program in the region.”  He went on to say “it is unthinkable that our people will renounce the resistance, which made the enemy retreat. This is our only guarantee to force the enemy to withdraw from the other territories.”

Now that’s a “hugely empowering message,” to use Gates’ term.  But what it shows is that it is virtually impossible to do enough damage to a group like al Qaeda – or Hamas – that prevents it from claiming a propaganda victory once you leave somewhere.  Issuing press releases and crowing isn’t very hard.

Propaganda aside, though, the underlying material reality is unchanged.  The withdrawal from Gaza did not, of course, signal anything like “the beginning of the end for the Zionist program in the region.”  Hamas may try to use terrorism to “force the enemy to withdraw from the other territories,” but it’s far from clear that’s actually going to work.

That is to say, Gates is being a bit too postmodern for my tastes here.  We have interests.  We should make clear that we will defend them.  Then, we should defend them.  But to say that we’re so concerned about lending al Qaeda a propaganda victory that we can’t leave Afghanistan is a bridge too far.  There will always be somebody to declare victory for al Qaeda, whether we leave Afghanistan next year or 20 years from now.  Staying until you feel comfortable no one can claim a moral victory as we depart is a recipe for staying forever.

Supreme Court Mulls Gladiators and the “Human Sacrifice Channel”

Following up on David’s post about the Stevens “depictions of animal cruelty” case, my takeaway from this morning’s argument is that there’s not a single vote to uphold the law.  The closest the government came to sympathy for its position came when Chief Justice Roberts wondered whether, if a narrower statute proscribing the “crush videos” that were the ostensible target of this legislation, the Court might uphold this broad statute on its face but also welcome many as-applied challenges in instances of prosecutorial overreach.  (For a pithy discussion of facial versus as-applied challenges, noting that the Court generally favors facial attacks in First Amendment cases, see Roger Pilon’s foreword to this year’s Cato Supreme Court Review.)

A less technical line of questioning involved the constitutionality of a statute banning a hypothetical “human sacrifice channel” or the broadcast of fight-to-the-death gladiatorial battles – from a foreign country where that sort of thing is legal.  (Justice Scalia quipped that the rule cannot be that you satisfy the broad legislation’s “historical value” exception if you dress up as an ancient Roman.)

Much of the analysis about these types of extreme scenarios turns on whether the broadcast/depiction creates a market for such activities – which is the rationale for banning child pornography (i.e., fewer children are subject to sexual abuse if there is not a legal market for pictures and videos of children being sexually abused).  Thus, a narrow statute banning the aforementioned crush videos would be kosher, as it were, but not the broad legislation at issue – which could potentially sweep in, to take one example, promotional videos put out by the Spanish board of tourism that include bullfighting clips.

For a more detailed report, see Lyle Denniston on SCOTUSblog (whom you can also see all week on C-SPAN’s excellent Supreme Court documentary mini-series).  And again, to read Cato’s view, see our amicus curiae brief.

Your Choices Are Unacceptable

Through my work on agriculture, I get occasional media calls on obesity and the agri-industrial complex supposedly behind it.  On Sunday, for example, I gave an interview on NPR about the USDA’s push for – and subsidisation of – farmers markets and “eating locally” as the solution to poor nutrition. (This a recurrent theme of the Obama administration: Michelle Obama has made people’s food habits her business, growing a White House Garden and driving in a convoy of 36 vehicles to the H Street farmers’ market in a photo-op to promote it. The USDA even has a “People’s Garden”.)

So an article in today’s New York Times caught my eye. According to a recent study, the push for calorie postings in restaurants has had no affect on people’s eating habits in certain low-income areas of New York City.  People’s choices are, apparently, pretty impermeable to the information that nutrition and public health advocates assured us was the key to better choices.

You would be forgiven for thinking that was the end of the matter and we could go on eating what we like unharassed. Think again:

“I think it does show us that labels are not enough,” Brian Elbel, an assistant professor at the New York University School of Medicine and the lead author of the study, said in an interview.

I hope I’m not coming across as hyperbolic, but I find it difficult to believe that healthy eating advocates will be content to accept that people are making choices, unpalatable though they may be to the ”slow food” movement, based on the benefits and costs of the alternatives available to them. If people won’t voluntarily submit to the food police – even when information is available – then I suspect calls for regulation will soon follow.

(HT: Radley Balko)

If You Can’t Trust a Spy, Who Can You Trust?

As I noted last week, it looks like top Democrats in the Senate are folding on even fairly mild PATRIOT Act reform for fear of disrupting ongoing investigations—and in particular a “sensitive collection program” involving Section 215 “tangible things” orders. The impulse to defer to executive branch claims of necessity is powerful, and even understandable, but it ought to be resisted. We normally impose neutral magistrates between law officers and search warrants precisely because we understand that the investigators, precisely because of the admirable vigor and single-mindedness we want and expect from them, are not necessarily the best judges of how much power they require.  The classic “not enough power” story used to justify the so-called “lone wolf” provision turned out not to hold up under scrutiny, but as I was mulling the current debate, I suddenly remembered a curious story from my days as a tech journalist.

In July of 2005, the Bureau was investigating Magdy Mahmoud Mostafa el-Nashar, a one-time associate of the men who had recently bombed London’s public transit system. (It was soon determined that el-Nashar had not been involved in the plot.) According to a 2007 summary of the investigation, an agent was sent with a grand jury subpoena to recover records from North Carolina State University at Raleigh on July 13.

But then, it appears, something odd happened.”After receiving the subpoena,” the documents recount, the agent “served the subpoena and had some records in hand when he received a call” from his supervisor, who “had been notified by FBIHQ… that we were not to utilize a Grand Jury subpoena and that we must obtain a National Security Letter (NSL).” The agent apparently returned the records (though there appears to be some confusion about whether the agent had actually finished serving the subpoena), and the Bureau’s Charlotte office got to work drafting an NSL.

That was an exceedingly odd thing to do, because the law is totally unambiguous about the kinds of records and institutions that are subject to National Security Letters. And while they’re extraordinarily broad tools, anyone even passingly familiar with them should know they don’t apply to educational records. The school’s lawyers, doubtless perplexed about why they were getting an invalid request for records they’d already happily turned over, nevertheless properly refused to honor the illicit NSL. Agents are supposed to voluntarily report any improper NSL requests, even accidental ones, to an oversight board within 14 days. This one, for some reason, took over a year to make its way up the chain. And yet within a week of the event, FBI Director Robert Mueller was conspicuously well informed about the little mishap with el-Nashar’s school records:

A July 21 e-mail to the North Carolina office explained: “The director would like to use this as an example tomorrow as to why we need administrative subpoenas’s [sic] to fight the war on terror. In particular, he would like to know how much extra time was spent having to get the Grand Jury subpoena.”

So to review, a legally proper request is issued, the records sought are in hand, when suddenly the call comes down to give them back and use an obviously inappropriate NSL request, costing several days. The head of the bureau is instantly aware of this—though apparently not of the flagrant impropriety—and eager to cite it as evidence that, of course, investigators need more power or their vital efforts to protect us from terrorists will be stymied.

Now, I’m happy to suppose that the initial mix-up was just an honest mistake. But it also very clearly wasn’t evidence to cite in favor of the proposition that the Bureau needed broader powers. Yet nobody, at the time—neither Mueller nor the legislators before whom he testified—seemed to have the time or inclination to get particular about the facts. It was, for the purposes of all concerned, one of those stories that’s “too good to check.” Now that it has been checked, it’s a story to bear in mind when the boys at Justice cry “necessity.”

Newt Gingrich Takes a Bold Stand against Information

Related to my post on Gov. Bobby Jindal’s prescription for health care reform over at Politico’s Health Care Arena

Conservatives and Republicans need a better way to talk about cost-containment than the typical anti-comparative-effectiveness-research argument advanced (most recently) by Newt Gingrich in The Economist.

The Economist asked Gingrich to defend the motion:

This house believes that the widespread use of comparative effectiveness reviews and cost/benefit analyses will stifle medical innovation and lead to an unacceptable rationing of health care.

On its face, that motion is absurd and indefensible.  Of course comparative-effectiveness reviews and cost-benefit analyses would limit medical innovation and enable rationing.  And thank goodness.  If we didn’t limit medical innovation or ration medical care, we would spend 100 percent of GDP on medical care and there would be no money left over for shoes and ships and sealing wax, or food, education, and the internet. Another word for “comparative-effectiveness research” or “cost-effectiveness studies” is “information.”  Such research produces information that helps people limit medical innovation and ration medical care in the best possible way.

Yet Gingrich took the bait.  He pooh-poohs comparative-effectiveness research and even describes it as “dangerous” – at the same time he assumes knowledge that only research can provide (e.g., “smaller groups [of patients] may have responded best to drug X, Y, or Z”).

What Gingrich actually opposes is government rationing.  And with good reason: people get hurt when government rations care, because government’s one-size-fits-all rules cannot take patients’ unique physiologies and preferences into account.

The public knows that, and the Left knows that they know it.  The Left therefore tries to distract attention from the question “Who decides?”, and instead shifts the debate to the question, “Do we want better information?”

Gingrich and many others have fallen right into that trap.  Gingrich should have rejected the above motion as absurd and attacked government rationing head-on.  Instead, he portrays information (!) as a dark and sinister force.

If that’s the approach conservatives and Republicans take, then they deserve to lose the health care debate.

(Cross-posted at Politico’s Health Care Arena.)

Think Tanks Should Be Able to Opine on Public Policy Without Running Afoul of Campaign Finance Regulations

In 2005, political opponents filed a complaint against the Independence Institute for not complying with the Colorado constitution and other campaign finance regulations when it spoke against a state ballot initiative. These regulations require, among other things, disclosure of the identity of anyone who has donated more than $20 to a cause and imposes registration and contribution limits on groups who have major interests in ballot issues.

The Independence Institute challenged the constitutionality of Colorado’s state ballot issue requirements and the issue is petitioning the Supreme Court for certiorari in Independence Institute v. Buescher. Cato has filed an amicus brief, in cooperation with Wyoming Liberty Group, the Center for Competitive Politics, the Sam Adams Alliance, the Montana Policy Institute, and the Goldwater Institute in support of the Independence Institute. We argue that Colorado’s ballot campaign regulations run roughshod over constitutional protections for political speech and association, which lie at the very heart of the First Amendment—particularly for think tanks and other organizations that regularly comment on public policy matters. Loss of these First Amendment protections will chill think tanks’ future attempts to educate the public about issues that are the subject of ballot campaigns. The Court should thus review this case and ensure that citizens maintain their associational rights—including the right to remain anonymous when donating to non-profits—and associations their freedom of expression.

You can download the entire brief here. A special thanks to Cato Legal Associate Travis Cushman for his assistance on this brief.