Archives: 02/2011

Discussing Afghanistan at CPAC

I’m speaking on a panel at CPAC tomorrow discussing Afghanistan (“How to Think about Afghanistan,” Marriott Ballroom, 2:30 to 3:15 pm), and I’m inclined to include a few new data points, and one fresh anecdote, in my brief remarks.

The first piece of information has to do with money. Our deepening military presence in Afghanistan will cost American taxpayers in excess of $100 billion in FY 2011. Some estimates put the figure closer to $120 billion. This in a country with an official GDP of about $16.6 billion (and not more than $30 billion using purchasing power parity).

The second thing to consider is the current mission in Afghanistan. President Obama claimed in his December 2010 policy review that the focus of the U.S. mission is al Qaeda, but it doesn’t take 100,000 U.S. troops and a few tens of thousands more of allied troops and civilians to hunt a couple hundred al Qaeda, most of whom are in Pakistan. Claims that al Qaeda and the Taliban are synonymous, and therefore that preventing the Taliban from returning to power is essential to preventing future terrorist attacks in the United States, were always dubious. A just-released report casts still further doubt, and recommends renewed attempts to peel the two unlikely allies apart from one another. That wise strategy would not require us to build a capable, credible government on the shaky foundation that is Hamid Karzai.

I’m likely to close with some recent polling statistics that reveal deepening public discontent with the Afghan mission. (For example, here and here.) Even many conservatives, a majority in some surveys, question the known cost and the anticipated benefit. They worry that the mission — standing up a functioning nation-state, complete with a national army — is likely to fail and would not be worth the time and money that would be required to eventually succeed. (“Eventually” being synonymous with “many decades.”)

An episode from Cato’s hugely successful City Seminar in Naples, FL earlier this week supports the polling data. Cato President (and Beloved Founder) Ed Crane reports that his call to abolish the Department of Education, HUD, agriculture subsidies, and countless other unnecessary federal programs elicited predictable cheers from the overflow crowd of mostly affluent, conservative voters.

Then I said we could save untold billions by bringing the brave young men and women in our armed forces home from that godforsaken hell hole known as Afghanistan. Loudest applause of the day.

Who will attempt to capitalize on this simmering discontent? Which aspiring presidential candidate will see the potential in appealing to conservatives frustrated with nation-building in the Hindu Kush? Most important, irrespective of the politics, which would-be commander-in-chief will realize that spending nearly $10 billion every month in Afghanistan undermines rather than advances U.S. national security? Who can articulate a credible alternative that focuses laser-like on al Qaeda, on disrupting its operations, and on killing or capturing its leaders, and leaves wooly-headed nation building to the do-gooders?

Strategy should not be dictated by politics, but I think that the people who claim public support is faltering because President Obama hasn’t spoken often enough (or forcefully enough, or earnestly enough, or whatever) about Afghanistan are themselves fighting a losing battle. At the end of the day the problem is the product, not the pitchman. The nation-building mission in Afghanistan is unwise, unnecessary, and deeply unconservative.

Anyway, if you happen to be at CPAC, or are able to watch the proceedings online, you might want to check out the discussion. Other speakers include Anthony Cordesman of Center for Strategic and International Studies, former Assistant Secretary of Defense Bing West, and former Ambassador Zalmay Khalilzad, as moderator. Should be interesting.

TSA’s Pistole Says ‘Risk-Based,’ Means ‘Privacy Invasive’

There is one thing you can take to the bank from TSA administrator John Pistole’s statement that he wants to shift to “risk-based” screening at airports: it hasn’t been risk-based up to now. That’s a welcome concession because, as I’ve said before, the DHS and its officials routinely mouth risk terminology, but rarely subject themselves to the rigor of actual risk analysis.

What Administrator Pistole envisions is nothing new. It’s the idea of checking the backgrounds of air travelers more deeply, attempting to determine which of them present less of a threat and which prevent more. That opens security holes that the risk-averse TSA is unlikely to actually tolerate, and it has significant privacy and Due Process consequences, including migration toward a national ID system. 

I wrote about one plan for a “trusted traveler”-type system recently. As the details of what Pistole envisions emerge, I’ll look forward to reviewing it.

The DHS Privacy Committee published a document several years ago that can help Pistole with developing an actual risk-based system and with managing its privacy consequences. The Privacy Committee itself exists to review programs like these, but has not been used for this purpose recently despite claims that it has.

If Pistole wants to shift to risk-based screening, he should require a full risk-based study of airport screening and publish it so that the public, commentators, and courts can compare the actual security benefits of the TSA’s policies with their costs in dollars, risk transfer, privacy, and constitutional values.

Wal-Mart Could Help DC in More Ways than One

It’s good news for residents of Washington, D.C., that Wal-Mart is planning on opening four stores in the District. Yet Washington Post columnist Robert McCartney reports today on one curious source of opposition:

“There’ll probably be a lot of shoplifting going on. They’ll need a lot of security,” Terriea Sutton, 35, said.

Brenda Speaks, a Ward 4 ANC commissioner, actually urged blocking construction of the planned store in her ward at Georgia and Missouri avenues NW partly because of that risk. Addressing a small, anti-Wal-Mart rally at City Hall on Monday, Speaks said young people would get criminal records when they couldn’t resist the temptation to steal.

Of course, that’s a rationale for banning all stores, not just Wal-Mart. Perhaps we should isolate these youths and consign them to abject poverty, so they’ll never be around anything worth stealing.  (A Wal-Mart spokesman commented that with regard to crime, “there is no more concern over these District locations than any other store locations.”)

Or we could recognize that Wal-Mart helps pull people out of poverty.  As Obama economic adviser Jason Furman reminds us:

Wal-Mart’s low prices help to increase real wages for the 120 million Americans employed in other sectors of the economy. And the company itself does not appear to pay lower wages or benefits than similar companies, or to cause substantially lower wages in the retail sector…

[T]o the degree the anti-Wal-Mart campaign slows or halts the spread of Wal-Mart to new areas, it will lead to higher prices that disproportionately harm lower-income families…

By acting in the interests of its shareholders, Wal-Mart has innovated and expanded competition, resulting in huge benefits for the American middle class and even proportionately larger benefits for moderate-income Americans.

Wal-Mart could do even more good for District residents if these four new stores sold guns.  That would quintuple the number of firearms retailers in the District, make self-defense affordable for low-income residents, and might just add some lobbying heft to the campaign to roll back D.C.’s ridiculous gun regulations.

HSR: Joe Biden Channels The Simpsons

In his customary salesman style, Vice President Joe Biden recently made a pitch to a Philadelphia crowd for a plan to spend $53 billion over the next six years on a national system of high-speed rail.

Biden’s performance brings to mind the classic Simpsons episode “Marge vs. the Monorail” in which con-man Lyle Lanley convinces the town’s residents to waste money on an exciting-sounding high-speed train that turns out to be a boondoggle.

The full episode can be viewed here, but here’s the scene in which Lanley whips the crowd into frenzied support of his plan:

There are some uncanny parallels between the two pitches.

Biden says that “If we don’t get a grip, folks, they’ll not only be teaching us, they’re gonna own our kids.” The VP is referring to other countries that have built or are building high-speed rail systems, such as China.

Lanley gains his audience’s attention by threatening to take his “greatest idea” to the next town over. Lanley then proceeds to point out other towns across the country that he has allegedly “put on the map” with a high-speed train. (Biden cites the city of Meridian, MS, which is a stop on Amtrak’s money-losing Crescent Line, as an example of the magic of federal rail subsidies.)

Biden promises what every politician promises when talking about the latest, greatest way to spend other people’s money: jobs! The VP says “We’re going to insist … that there be a strong ‘Buy America’ requirement which can help us create tens of thousands of middle-class jobs… These are real live jobs that pay real good money.”

Lanley makes the same promise. Barney, the town drunk, asks him, “What about us brain-dead slobs?” Lanley responds, “You’ll be given cushy jobs!”

Lanley’s promises never pan out, as he’s really a con-artist who suckered the town into buying a faulty train that doesn’t work. Joe Biden means well, but his train isn’t going to work either — not without wasting hundreds of billions, and perhaps a trillion, taxpayer dollars.

A Cato essay on high-speed rail explains why the Obama administration’s high-speed rail dreams make little practical and economic sense, especially when the government’s finances are already like a train headed off a cliff.

Fortunately, new House Transportation Committee Chairman John Mica (R-FL) dismissed Biden’s announcement as being akin to “giving Bernie Madoff another chance at handling your investment portfolio.” Rep. Bill Shuster (R-PA), chairman of the House Railroads Subcommittee, labeled it “insanity.”

However, Shuster recently penned an op-ed in a Connecticut newspaper in which he supports the idea of a federally-funded high-speed New Haven-Hartford-Springfield line. That’s right, Springfield — the name of the fictional town in The Simpsons. Like Biden, Shuster expresses the same overblown concern that the United States is “behind the international curve” when it comes to government subsidy-dependent high-speed rail.

D’oh!

The Heritage Foundation on the Patriot Act

If you wonder why House Republicans were so keen on ramming through an extension of the Patriot Act without hearings or debate, take a gander at the Heritage Foundation’s blog post and Web memo on the topic. I want to run through the latter in some detail, because I think it’s telling just how poorly the case against reform stands up to scrutiny in the rare instances when the law’s defenders feel obliged to make an argument more sustained than “Boo! Terrorists!” 

Here’s how they begin:

With at least 36 known plots foiled since 9/11, the United States continues to face a serious threat of terrorism. As such, national security investigators continue to need these authorities to track down terror leads and dismantle plots before the public is in any danger. These three amendments—which have been extensively modified over the years by Congress and now include significant new safeguards, including substantial court oversight—are vital to this success.

I’ve debated co-author Jena McNeil Baker on Patriot a few times, and she invariably leads off with a running tally of foiled terror plots. I’m not sure exactly which cases make her current list, but in the past she’s cited yahoos like the Lackawanna Six, who don’t appear to have had any actual plot to dismantle, and since our last exchange the FBI has augmented the count via its innovative strategy of planning terror attacks for itself to foil.

But let’s all agree the terror threat is real and serious even without this sort of inflation. What evidence do the authors have that any of the three expiring authorities were “vital” in any of those cases? There just isn’t any. Even if it were true, the authors would have no basis in the public record for the assertion. The evidence we do have, however, suggests just the opposite. Lone Wolf has never been used, so it certainly wasn’t vital. FISA roving authority has been granted an average of 22 times per year since Patriot, and in many of those cases, investigators found they didn’t end up needing to use it. And none of the reports I can recall reading on apprehended wannabe-terrorists suggested that they were practicing sophisticated countersurveillance tactics. The Office of the Inspector General couldn’t find any major case developments attributable to 215 business record orders, which also don’t seem to be used that frequently.

If one of the sunsetting powers had played an important role in disrupting a concrete plot or attack, though, you’d think Justice Department officials would have every incentive to say so loudly and unambiguously, even if they couldn’t get into operational specifics. While these facts are suggestive, of course, I can’t say with certainty that the two powers that have actually been used definitely didn’t play a vital role in any of those (let’s be generous) 36 cases. It would be more convenient if I could say so, but I’m at something of a disadvantage here: In the absence of evidence, I lack the panache needed to make whatever sweeping assertions would help my position. I can only say that all the evidence we do have cuts against that bold claim.

We move to roving wiretaps, which we’re told are a “garden variety” surveillance tool used “routinely” in criminal investigations. The authors seem to be operating with highly idiosyncratic definitions of those terms: In 2009, there were 2,376 wiretap warrants issued for criminal investigations, of which 16 were roving. But routine or not, pretty much everyone in fact agrees that roving authority should be available for intelligence investigations. Astonishingly, the Heritage memo never even mentions the actual issue civil libertarians have with this provision: that unlike the parallel criminal authority, it permits roving warrants that don’t name an individual target. So the authors spend five paragraphs mounting an irrelevant defense of a power nobody contests in principle, but never informs their readers about the real point of controversy, let alone argue for the asymmetry.

Next, business record orders. The blog post summarizing the Web memo confusingly claims that there was no FISA authority to compel the production of records before Patriot, which isn’t true. There just had to be some factual basis (not even “probable cause”) for thinking the records belonged to a terrorist or foreign agent. Oddly, while the Heritage memo does reference Patriot’s expansion of the types of records that could be obtained, it fails to mention the elimination of this key requirement—which, again, is precisely the change to which critics have objected. We’re also told that heightened standards apply to demands for records that “might have the slightest relation to freedom of speech and expression,” which is ridiculous. Library and bookstore records get a bit more protection because librarians raised an admirable fuss about this provision, but there’s no similar protection for records of people’s online reading habits, which have at least as much bearing on modern speech and expression as someone’s library borrowing. There’s the usual analogy between this authority and prosecutorial or grand jury subpoenas, but (perhaps you’re noticing a pattern here) the big, glaring difference between them is not even mentioned: Those processes are ultimately public, and that publicity serves as the strongest practical check on prosecutors who might be tempted to sweep too broadly, while giving third-party record holders a far stronger incentive to challenge improper requests on behalf of their customers.

By the time we get to Lone Wolf, it feels like they’re not even trying anymore:

While the FBI has confirmed that this section has never actually been used, it needs to be available if the situation arises where a lone individual may seek to do harm to the United States.

Why can’t they use the same criminal authority they’re forced to rely on when a lone individual who’s a citizen seeks to do harm to the United States? Why are the extraordinary breadth and secrecy of FISA surveillance, designed for dealing with state-sponsored espionage agencies and global terror networks, necessary when the adversary is some guy acting alone? Crickets.

Finally, we get these two howlers in the conclusion:

Little evidence has ever been proffered to demonstrate any PATRIOT Act misuse…. The act has been narrowed and refined continuously, contributing to the fact that no single provision of the PATRIOT Act has ever been found unconstitutional.

Now, as it happens, both of those claims are pretty clearly false. Federal courts have, in fact, found the gag provisions of the National Security Letter statutes to be unconstitutional—though the court opted to impose its own set of requirements rather than voiding the statutes outright. As for misuse, I’ll defer to the Inspector General of the Department of Justice, who characterized the FBI misuse of that authority uncovered by his office as “widespread and serious.”

But these are, in any event, absurd standards. Covert surveillance whose targets are never informed about it turns out to be rather difficult to challenge in court—harder still when the government can assert a state secrecy privilege that prevents courts from reaching the merits of the challenges that do arise. The identification of rule violations mostly relies on self-policing by intelligence agencies—which report plenty, though they often take their sweet time about it. More importantly, if the intended use of these authorities is to allow the government to siphon up vast amounts of information about thousands of mostly innocent Americans, and retain that information forever in massive classified databases, focus on “misuse” is something of a red herring. The “correct” use is too intrusive.

So this is what the best case for Patriot reauthorization without reform looks like, apparently: bold assertions offered without supporting evidence, and a persistent refusal to engage the actual objections raised by critics. No wonder they’re so anxious to bypass a debate.

The Growing Chorus for Criminal Justice Reform

The American criminal justice system has long been flawed. This probably isn’t news to you. What is news is the emergence of a broad chorus of organizations and leaders from across the political spectrum speaking out in support of serious reform. A few examples:

The Smart on Crime Coalition released its recommendations (and in pdf) for the 112th Congress, providing ways that the federal government can help fix the criminal justice system. Congress creates, on average, a new criminal offense every week. The urge to overcriminalize just about everything needs to be replaced with serious thought about how broadly Congress writes laws so that the drive to lock up a few bad actors does not make felons of a large portion of the citizenry.

The Smart on Crime report also points out the need for reform of asset forfeiture laws, building on the excellent Policing for Profit report produced by the Institute for Justice last year.

Conservatives see the need for reform as well. Right on Crime makes the case for a number of policy changes that not only focus law enforcement resources but aim to save taxpayer dollars.

Grover Norquist of Americans for Tax Reform, a signatory to Right on Crime’s Statement of Principles, points to recent reforms in Texas at National Review:

When the Lone Star State’s incarceration rates were cut by 8 percent, the crime rate actually dropped by 6 percent. Texas did not simply release the prisoners, however. Instead, it placed them under community supervision, in drug courts, and in short-term intermediate sanctions and treatment facilities. Moreover, it linked the funding of the supervision programs to their ability to reduce the number of probationers who returned to prison. These strategies saved Texas $2 billion on prison construction. Does this mean Texas has gotten “soft on crime”? Certainly not. The Texas crime rate has actually dropped to its lowest level since 1973.

The lesson from Texas is that conservatives can push reforms that both keep Americans safe and save money, but only if we return to conservative principles of local control, performance-based funding, and free-market innovation.

As Radley Balko recently wrote at Reason, there are points where libertarians and conservatives will differ, but there is cause for optimism in the recognition that we can’t continue to lock up so many of our citizens. The United States accounts for 5% of the world’s population, yet 23% of the world’s reported prisoners. Hopefully Jim Webb’s National Criminal Justice Commission Act will end his Senate career on a positive note, and prompt serious changes to the way that the states and federal government deal with crime.

To gain an appreciation of the scope of the problem, check out Tim Lynch’s In the Name of Justice: Leading Experts Reexamine the Classic Article “The Aims of the Criminal Law” and Harvey Silverglate’s Three Felonies a Day: How the Feds Target the Innocent.

Seattle Cop Caught on Tape

A Seattle police officer was caught on tape kicking a man who was lying face down on a sidewalk with his hands already handcuffed behind his back.   Whether the off-duty cop was drunk and badgering some women, as some witnesses claim, would make the incident even worse–because the handcuffed “suspect” may well have believed he was coming to the woman’s defense from some creepy guy.  In any event, kicking handcuffed persons who are not doing anything is unprofessional and illegal.

Cato held a forum on filming the police and that event can be viewed here.