Archives: 05/2010

The Wall Street Journal’s Surveillance Fantasies

There are too few periodical venues for good short fiction these days, so I’d normally be enthusiastic about the Wall Street Journal’s decision to print works of fantasy. Unfortunately, they’ve opted to do so on their editorial page—starting with a long farrago of hypotheticals concerning the putative role of the Foreign Intelligence Surveillance Court in hindering the detection and apprehension of failed Times Square bomber Faisal Shahzad. In fairness to the editors, they acknowledge near the end of the piece that much of it is unvarnished speculation, but their flights of creative fancy extend to many claims presented as fact.

Let’s begin with the acknowledged fiction. The Journal editors wonder whether Shahzad might have been under surveillance before his botched Times Square attack, and posit that the NSA might have intercepted communications from “Waziristan Taliban talking about ‘our American brother Faisal,’ which could have been cross-referenced against Karachi flight manifests,” or “maybe Shahzad traded seemingly innocuous emails with Pakistani terrorists, and minimization precluded analysts from detecting a pattern.”  Anything is possible. But it’s a leap to make this inference merely because investigators appear to have had fairly specific knowledge about his contacts with terrorists after he had already been identified.  They would not have needed to “retroactively to reconstruct his activities from other already-gathered foreign wiretaps:” Once they had zeroed in on Shahzad, his calling patterns could have been reconstructed from phone company calling records whether or not he or his confederates were being targeted at the time the communications occurred, and indeed, those records could have been obtained by means of a National Security Letter without any oversight from the FISA Court.

This is part of a more general strategy we often see deployed by advocates of expanded surveillance powers. After the fact, one can always tell a story about how a known terrorist might have been detected by means of more unfettered spying authority, just as one can always tell a story about how any particular calamity would have been averted if the right sort of regulation were in place. Sometimes the story is even plausible. But if we look at the history of recent intelligence failures, it’s almost invariably the case that the real problem was the inability to connect the right set of data points from the flood of data already obtained, not insufficient ability to collect. The problem is that it’s easy and satisfying to call for legislation lifting the restraints on surveillance—and lifting still more when intelligence agencies fail to exhibit perfect clairvoyance—but difficult if not impossible, certainly for those of us without high-level clearances, to say anything useful about the internal process reforms that might help make better use of existing data. The pundit in me empathizes, but these just-so stories are a poor rationale for further diluting civil liberties protections.

Let’s move on to the unacknowledged fictions, of which there are many.  Perhaps most stunning is the claim that “U.S. intelligence-gathering capability has been substantially curtailed in stages over the last decade.” They mean, one supposes, that Congress ultimately imposed a patina of judicial oversight on the lawless program of warrantless wiretapping and data program authorized by the Bush administration in the aftermath of the 9/11 attacks. But the claim that somehow intelligence gathering is more constrained now than it was in 2000 just doesn’t pass the straight face test. In addition to the radical expansion of the aforementioned National Security Letter authorities, Congress approved roving wiretaps for domestic intelligence, broad FISA orders for the production of “any tangible thing,” so-called “sneak and peek” searches, looser restraints on existing FISA wiretap powers, and finally, with the FISA Amendments Act of 2008, executive power to authorize broad “programs” of surveillance without specified targets. In a handful of cases, legislators have rolled back slightly their initial grants of power or imposed some restraints on powers the executive arrogated to itself, but it is ludicrous to deny that the net trend over the decade has been toward more, rather than less, intelligence-gathering capability.

Speaking of executive arrogation of power, here’s how the Journal describes Bush’s warrantless Stellar Wind program:

Via executive order after 9/11, the Bush Administration created the covert Terrorist Surveillance Program. TSP allowed the National Security Agency to monitor the traffic and content of terrorist electronic communications overseas, unencumbered by FISA warrants even if one of the parties was in the U.S.

This is misleading.  There was no such thing as the “Terrorist Surveillance Program.”  That was a marketing term concocted after the fact to allow administration officials to narrowly discuss the components of Stellar Wind initially disclosed by the New York Times.  It allowed Alberto Gonzales to claim that there had been no serious internal dissent about the legality of “the program” by arbitrarily redefining it to exclude the parts that had caused the most controversy, such as the vast data mining effort that went far beyond suspected terrorists. It was this aspect of Stellar Wind, and not the monitoring of overseas communication, that occasioned the now-infamous confrontation at Attorney General John Ashcroft’s hospital bed described in the editorial’s subsequent paragraph. We continue:

In addition to excessive delays, the anonymous FISA judges demanded warrants even for foreign-to-foreign calls that were routed through U.S. switching networks. FISA was written in an analog era and meant to apply to domestic wiretaps in the context of the Cold War, not to limit what wiretaps were ever allowed.

Forgive me if I’m a broken record on this, but the persistence of the claim in that first sentence above is truly maddening.  It is false that “FISA judges demanded warrants even for foreign-to-foreign calls that were routed through U.S. switching networks.”  Anyone remotely familiar with the FISA law would have known it was false when it was first bandied about, and a Justice Department official confirmed that it was false two years ago. FISA has never required a warrant for foreign-to-foreign wire communications, wherever intercepted, though there was a narrower problem with some e-mail traffic.  To repeat the canard at this late date betrays either dishonesty or disqualifying ignorance of elementary facts. Further, while it’s true that a great deal of surveillance has always, by design, remained beyond the scope of FISA, it is clearly false that it was “meant to apply to domestic wiretaps” if by this we mean only “wiretaps where all parties to the communication are within the United States.” The plain text and legislative history of the law make it clear beyond any possible doubt that Congress meant to impose restraints on the acquisition of all U.S.-to-foreign wire communications, as well as radio communications targeting U.S. persons. (The legislative history further suggests that they had hoped to tighten up the restraints on radio communications, though technical considerations made it difficult to craft functional rules.) We continue:

The 2008 FISA law mandates “minimization” procedures to avoid targeting the communications of U.S. citizens or those that take place entirely within the U.S. As the NSA dragnet searches emails, mobile phone calls and the like, often it will pick up domestic information. Intelligence officials can analyze, retain and act on true smoking guns. But domestic intercepts must be effectively destroyed within 72 hours unless they indicate “a threat of death or serious bodily harm to any person” or constitute “evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.”

This means that potentially useful information must be discarded if it is too vague to obtain a traditional judicial warrant. Minimization is the FISA equivalent of a fishing license that requires throwing back catches that don’t meet the legal limit. Yet the nature of intelligence analysis is connecting small, suggestive and often scattered clues.

The kernel of truth here is that the FISA Amendments Act did impose some new constraints on the surveillance of Americans abroad. But the implication that “minimization” is some novel invention is just false. Minimization rules have always been part of FISA, and they exist precisely because the initial scope of FISA acquisition is so incredibly broad. And those minimization rules give investigators enormous latitude.  As the FISA Court itself explained in a rare published ruling:

Minimization is required only if the information “could not be” foreign intelligence. Thus, it is obvious that the standard for retention of FISA-acquired information is weighted heavily in favor of the government.

Similarly, the redaction of identifying information about U.S. persons is not required when that information is needed to properly interpret the intelligence, so the idea that analysts would have scrubbed mention of “our American brother Faisal” from an intercept of Taliban communications cannot be taken too seriously.  It’s not entirely clear what the editors are referring to when they say “domestic intercepts must be effectively destroyed within 72 hours:” Do they mean “inadvertent” intercepts of entirely domestic communications, or one-end domestic communications legitimately acquired under the FAA, or what? Either way, that’s not really consistent with what we know about FISA minimization in practice: At least as of 2005, it appears that “minimized” communications were at least sometimes retained in ultimately retrievable form, though not logged.  In any event, if I’m reading them correctly, the Journal is suggesting that NSA should be broadly sweeping up and retaining even the apparently innocent domestic communications of Americans, on the off chance that they might later prove useful? I can imagine being that consumed by terror, but I think I would be ashamed to admit it in public.  Moving on:

Meanwhile, the FISA court reported in April that the number of warrant applications fell to 1,376 in 2009, the lowest level since 2003. A change in quantity doesn’t necessarily mean a change in intelligence quality—though it might.

As it happens, I covered this in a post just the other day.  As a Justice Department official explained to the bloggers at Main Justice, the numerical decline is due to significant changes in the legal authorities that govern FISA surveillance — specifically, the enactment of the FISA Amendments Act in 2008 — and shifting operational demands, but the fluctuation in the number of applications does not in any way reflect a change in coverage.”  Finally:

These constraints are being imposed at the same time that domestic terror plots linked to, or inspired by, foreigners are increasing. Our spooks did manage to pre-empt Najibullah Zazi and his co-conspirators in a plot to bomb New York subways, but they missed Shahzad and Nidal Hasan, as well as Umar Farouk Abdulmutallab’s attempt to bring down Flight 253 on Christmas Day.

Abdulmutallab was a non-U.S. person who didn’t set foot in the country until after setting his underpants aflame; there is no reason whatever to believe that FISA restrictions would have posed an obstacle to monitoring him. As for Nidal Hasan, investigators did intercept his e-mails with radical cleric Anwar al Awlaki. While it seems clear in retrospect that the decision not to investigate further was an error in judgment, they were obviously not destroyed after the fact, since they were later quoted in various press accounts. Maybe those exchanges really did seem legitimately related to Hasan’s research at the time, or maybe investigators missed some red flags. Either way, the part of the process the Journal is wringing its hands about worked: The intercepts were retained and disseminated to the Joint Terrorism Task Force, which concluded that Hasan was “not involved in terrorist activities or terrorist planning” and, along with Army officials, declined to open an investigation. Rending already gossamer-thin minimization requirements is not going to avoid errors of that sort.

The Journal closes out their fantasy by melodramatically asking “whether FISA is in practice giving jihadists a license to kill.” But the only “license” I see here is of the “creative” variety; should they revisit the topic in the future, the editors might consider taking less of it.

A Response to Jonathan Gruber on ObamaCare & Health Care Costs

In this week’s New England Journal of Medicine, MIT health economist and Obama administration consultant Jonathan Gruber responds to claims that ObamaCare will increase health care costs.  Gruber acknowledges the Obama administration’s estimates that ObamaCare will increase health care spending, but compares that to the administration’s estimate that 34 million otherwise uninsured U.S. residents will obtain coverage under the law:

[B]y 2019, the United States will be spending $46 billion more on medical care than we do today. In 2010 dollars, this amounts to only $800 per newly insured person — quite a low cost as compared (for example) with the $5,000 average single premium for employer-sponsored insurance.

What a bargain!  Of course, Gruber is being sneaky.  The cost per newly insured person is not $800.  It will be higher than $5,000.  But only $800 of that cost will appear as new health care spending.  The rest of that cost will be borne largely by people who already had coverage, but find their access to care reduced.  These include Medicare enrollees who will receive fewer benefits through (or who will be ousted from) their private Medicare plans; Medicare enrollees who will have a harder time accessing care because some hospitals, skilled nursing facilities, home health agencies and other providers “might end their participation in the program,” according to the Obama administration; and maybe even some (currently) privately insured people who find themselves in Medicaid.  (The administration itself says it is “probable” that ObamaCare “could result…in some of this demand being unsatisfied.”)  Other costs include the economic growth and opportunity that is destroyed by ObamaCare’s tax increases, and the costs associated with trapping workers in low-wage jobs.

And that’s if everything goes as planned.  Gruber remains convinced that future Congresses will not undo ObamaCare’s tax increases or downward adjustments to Medicare’s price controls, as Congress has consistently undone scheduled reductions in the prices that Medicare pays physicians.  Gruber’s sometime employer – the Obama administration – itself contradicts his argument when it writes that the bulk of those reductions in Medicare spending are “doubtful” and “unrealistic.”  Gruber inadvertently shows why critics are right to be skeptical about the tax increases and spending reductions when he writes:

The cuts in spending and increases in taxes are actually “back-loaded,” with the revenue increases rising faster over time than the spending increases, so that this legislation improves our nation’s fiscal health more and more over time.

The fact that the austerity measures had to be backloaded is a sign of their implausibility.  If they were popular, they could take full effect tomorrow.  But their implementation had to be delayed to head off significant political resistance – resistance that will express itself between now and when those austerity measures take effect.

On the broader issue of reducing the growth of health care spending, Gruber claims that ObamaCare “cautiously pursue[s] many different approaches toward cost control and stud[ies] them to see which ones work best.” Yet each approach is all but guaranteed to fail. The tax on high-cost health plans? Unlikely to survive. (But at least Gruber now admits it is a tax.)  The rationing board designed to curtail each congresscritter’s ability to keep the money flowing to health care providers in their districts? Also unlikely to survive, for obvious reasons.  Pilot programs experimenting with different government price and exchange controls? Even successful pilot programs get nixed.  Comparative-effectiveness research?  A pipe dream that fails every time the government tries it.

To the extent that these spending cuts fail to materialize, health care spending will rise, and deficits will deepen. Congress will need to impose additional tax increases, and/or find sneakier ways to ration medical care curb health care spending.  Gruber’s Massachusetts enacted ObamaCare four years ago, and that’s exactly what state officials are doing.

Since President Obama signed this law, the Congressional Budget Office has announced that its cost, including the so-called “doc fix” and spending subject to appropriations, is already about $200 billion higher than previously believed.  As I’ve written elsewhere:

ObamaCare would create new constituencies for government spending, hook existing constituencies on even more government spending, and promise implausible cuts in existing subsidies to constituencies that are highly organized and vocal.

Gruber gets chutzpah points for arguing that the same law would actually contain health care costs.

England Is the New France

The chart below shows everything you need to know about why the United Kingdom is a fiscal disaster. Over the past 10 years, the burden of government spending has skyrocketed from 36.6 percent of GDP to more than 53 percent of GDP. Taxes, meanwhile, have remained largely unchanged, averaging about 40 percent of GDP.

Since the OECD numbers show that the fiscal crisis in the U.K. is solely the result of a bloated public sector, the obvious solution is … you guessed it, higher taxes.

David Cameron’s new coalition government has announced support for a higher capital gains tax and is signalling that this will be followed by an increase in the value-added tax.

There are some proposals to curtail the growth of spending, including some pay cuts for Prime Minster Cameron and other political figures, but I will be very surprised if those amount to more than window dressing. The United Kingdom, I fear, has gone past the point of no return in the journey toward becoming indistinguishable from the decrepit welfare states so common in the rest of Europe.

Now International Curriculum Standards?

Mark Schneider, a former National Center for Education Statistics commissioner and current American Enterprise Institute scholar, has put together a very insightful – and disturbing – four-part blog series on the oft-cited Programme for International Student Assessment (PISA) and its creator, the Organization for Economic Cooperation and Development. Basically, Schneider writes, the much-hyped PISA figures very prominently in the “international benchmarking” of coming national curriculum standards – which the Obama Administration is coercing states to adopt – despite the paucity of meaningful evidence that doing well on PISA actually translates into desirable educational outcomes.

Now, Schneider throws out some debatable stuff himself. For instance, he emphasizes early-grade progress on the federal, National Asessessment of Educational Progress while ignoring utterly flat results for 17-year-olds. He also reiterates several things that I have already pointed out in “Behind the Curtain: Assessing the Case for National Curiculum Standards.” Still, his points overall are generally very fresh, and very important.  It is also heartening to see growing critiques, even if somewhat oblique, of the national standards that many on the left and right are hoping to impose on us in the coming months.

Let’s Get Serious about Immigration Reform

The controversy over America’s immigration policy does not allow for easy answers, as the post below by Roger Pilon demonstrates. Even among those of us who advocate limited government and free markets, there is room for debate about what our immigration policy should be and the order in which needed reforms should be pursued.

Roger gives a welcome nod to the argument for “a serious guest-worker program,” which I’ve argued is essential to any successful reform effort. He also acknowledges that its implementation should be in concert with serious enforcement rather than delayed indefinitely by demands that we “control the border first.”

One place where I differ with my dear colleague is in his assertion that: “We no longer control our southern border, and Congress seems unable or unwilling to do anything about it.”

I’m not sure there ever was a time, at least in recent decades, that the U.S. government exerted “control” over the southern border in the sense that illegal entry was largely prevented. Sealing a 2,000-mile border remains a daunting challenge to those who advocate it.

If anything, our border with Mexico is more under control today than at any time in recent years. According to estimates by the Pew Hispanic Center and the Department of Homeland Security, the number of people living in the United States illegally has dropped by more than 1 million in the past two years. That strongly implies that the net inflow of illegal immigrants across the border has declined sharply.

The main reason for the drop in net illegal immigration is probably the recession, but increased enforcement has arguably played a role as well. According to a recent paper by Dr. Raul Hinojosa-Ojeda of UCLA, the federal government has dramatically increased the resources it spends to “control the border.”

Consider: The U.S. Border Patrol’s annual budget has shot up by 714 percent since 1992, from $326 million to $2.7 billion. During the same period, the number of Border Patrol agents stationed along the southwest border has grown from 3,555 to 17,415. Hundreds of miles of fencing has been constructed along the border, much of it across private property.

If this is the mark of a government “unwilling to do anything,” I would shudder at the cost and intrusion of a more concerted effort.

The bottom line is that our “enforcement only” approach to controlling the border has failed, and it will continue to fail until we create a legal alternative to illegal immigration.

Another View on Immigration

With all due respect to my colleague Roger Pilon, I can’t say I share his views on immigration. This is an old, old argument among libertarians, so it should come as no surprise that someone takes the opposing view here. Roger writes,

We no longer control our southern border, and Congress seems unable or unwilling to do anything about it. It hardly needs saying that a welfare state, in the age of terrorism, cannot have open borders.

It’s never really been the case, though, that we did control that southern border. Passage has always been relatively easy, at least aside from the natural dangers. This may be a good thing or a bad thing, but it’s a matter of historical fact. We can certainly change that, but it will only be by doing something relatively new.

As to the welfare state, don’t expect me to shed any tears. Our welfare state is already well on the path to bankruptcy, with or without illegal immigrants. Compared to the damage being done by native-born U.S. citizens and their cursedly long lifespans, the immigrants’ overall effects are quite small. It would be unkind of us to set up such an ill-considered system and then pin its inevitable demise on others.

And as to terrorism, there are measures we could take that would both combat it and increase individual liberty – like legalizing recreational drugs. Without the black market in drugs, we’d have a lot less to fear from terrorists, particularly on our southern border. I can’t say I favor a liberty-restricting policy to quash terrorism when a liberty-increasing policy seems to do even better.