Archives: 09/2012

Incoherent Politicians Lag Public Opinion on TSA

If you needed proof of politicians’ sensitivity to, and encouragement of, persistent terrorism fears, look no further than today’s hearing in the House Homeland Security Subcommittee on Transportation Security. It’s called “Eleven Years After 9/11 Can TSA Evolve To Meet the Next Terrorist Threat?” and it’s being used to feature—get this—a report arguing for a “smarter, leaner” Transportation Security Administration.

Could the signaling be more incoherent? The hearing suggests both that unknown horrors loom and that we should shrink the most visible federal security agency.

Lace up your shoes, America—we’re goin’ swimmin’!

Our federal politicians still can’t bring themselves to acknowledge that terrorism is a far smaller threat than we believed in the aftermath of the September 11, 2001, attacks, and that the threat has waned since then. (The risk of attack will never be zero, but terrorism is far down on the list of dangers Americans face.)

The good news is that the public’s loathing for the TSA is just as persistent as stated terrorism fears. This at least constrains congressional leaders to do make gestures toward controlling the TSA. Perhaps we’ll get a “smarter, leaner” overreaction to fear.

Public opprobrium is a constraint on the growth and intrusiveness of the TSA, so I was delighted to see a new project from the folks at We Won’t Fly. Their new project highlights the fact that the TSA has still failed to begin the process for taking public comments on the policy of using Advanced Imaging Technology (strip-search machines) at U.S. airports, even though the D.C. Circuit Court of Appeals ordered it more than a year ago.

The project is called TSAComment.com, and they’re collecting comments because the TSA won’t.

The purpose of TSAComment.com is to give a voice to everyone the TSA would like to silence. There are many legitimate health, privacy and security-related concerns with the TSA’s adoption of body scanning technology in US airports. The TSA deployed these expensive machines without holding a mandatory public review period. Even now they resist court orders to take public comments.

TSAComment.com has gotten nearly 100 comments since the site went up late yesterday, and they’re going to deliver those comments to TSA administrator John Pistole, Homeland Security secretary Janet Napolitano, and the media.

The D.C. Circuit Court did require TSA to explain why it has not carried out a notice-and-comment rulemaking on the strip-search machine policy, and assumedly it will rule before too long.

Getting the TSA to act within the law is important not only because it is essential to have the rule of law, but because the legal procedures TSA is required to follow will require it to balance the costs and benefits of its security measures articulately and carefully. Which is to say that security policy will be removed somewhat from the political realm and our incoherent politicians and moved more toward the more rational, deliberative worlds of law and risk management.

Hope springs eternal, anyway…

There could be no better tribute to the victims of 9/11 than by continuing to live free in our great country. I won’t shrink from that goal. The people at TSAComment do not shrink from that goal. And hopefully you won’t either.

Learning Nothing, Forgetting Nothing: The Useless Laments About Allies’ Contributions to Defense

Today in the Los Angeles Times, Gary Schmitt argues that America’s Western allies are not spending enough on their militaries. This is not news. But Schmitt offers no solution to the problem.

Smaller countries free ride on larger countries’ security guarantees because it is the rational thing to do. Almost two years ago, Schmitt authored a very similar piece in the Wall Street Journal. If he was concerned then, or is concerned now, with the inadequate spending of our allies, the best way to change that is to revoke our commitment to defend them. As I wrote in response to Schmitt’s Wall Street Journal article:

In their 1966 article “Economic Theory of Alliances,” Mancur Olson Jr. and Richard Zeckhauser solved this puzzle. Olson and Zeckhauser explained the disproportionate contributions of NATO members with a model that showed that in the provision of collective goods (like security) in organizations (like the NATO alliance), the larger nations will tend to bear a “disproportionately large share of the common burden.” Due in part to these dynamics, Kenneth Waltz concluded by 1979 that “in fact if not in form, NATO consists of guarantees given by the United States to its European allies and to Canada.” As Waltz pointed out, France’s withdrawal in 1966 from NATO’s integrated military command failed to “noticeably change the bipolar balance” between NATO and the Soviet-sponsored WTO.

The implication of the Olson-Zeckhauser model, which has held up remarkably well over time, is that the only way to force Europe to spend more would be to make clear that the United States views European security as a private, not a collective, good, and that consequently its provision was rightly Europe’s responsibility. Given U.S. policymakers’ extreme reticence to adopt this conclusion, likely because a more independent Europe would be more independent, we should expect European defense spending to stay low and U.S. defense intellectuals to keep complaining about European free-riding, all to no avail. (I have previously written about this subject here and here.)

If we maintain a commitment to defend our European wards, they’ll keep free riding and Uncle Sucker will keep paying. Think tankers writing earnest op-eds and policymakers giving stern speeches isn’t going to change this dynamic.

Obama’s Foreign Policy Free Ride

Today Politico Arena asks:

Has Romney cornered himself with his treatment of national security issues? Or was he correct to focus more heavily on the economy?

My response:

The charge from the Obama camp—echoed, of course, by the mainstream media—that Romney is “cornered on foreign policy” has grown from a single fact—that he didn’t mention “Afghanistan” in his convention acceptance speech. What nonsense! It’s akin to the singular obsession with his taxes—while the nation spirals into economic decline and out-of-control debt.

Thus we find Politico’s Mike Allen and Jim Vandehei writing this morning that “For Romney, according to top [unnamed] Republicans, the danger is that he has dug an even deeper hole for himself in an area that was already an Obama strength and looks oblivious to the concerns of a crucial Republican constituency — military families and veterans.” An Obama strength? He’s got one accomplishment—dispatching Osama bin Laden—and that rested on intelligence put in place long before he ever took office. Meanwhile, he spends most of his time campaigning, as he has for years, while American soldiers continue to die at the hands of the very people we’re supposed to be helping. And for what? Does anyone know what those deaths are supposed to be accomplishing? Is anyone in the mainstream media asking that question?

Let’s remember that, unlike Romney, Obama hadn’t a shred of executive experience when he took office. And the record speaks for itself, in both foreign and domestic policy. But you have to put it together yourself. The mainstream media won’t do it for you.

Eleven Years after 9/11, Terror Effects Persist

A couple of years ago, Cato published a book, Terrorizing Ourselves, that critically examined American counterterrorism efforts.

Since that time, the United States was able to put Osama bin Laden to rest. But even this dramatic and yearned-for development, already the stuff of fable, hasn’t been able to temper the level of self-terrorization in the American public.

I’ve been sorting through poll data about terrorism from 9/11 to the present day. Although there are some temporary bumps and wiggles in reaction to events during the course of those 11 years, there has been very little, if any, decline in the degree to which Americans express anxiety about terrorism.

That is, for the most part there has been little change since late 2001 in the numbers who say they are worried that they will become a victim of terrorism, consider another major attack in the near future to be likely, are willing to trade civil liberties for security, have confidence in the government’s ability to prevent or to protect them from further terrorism, or think the United States is winning in the war on terrorism.

I have written a fuller account here in Sunday’s Philadelphia Inquirer. And there are some more extensive ruminations on what I call the “terrorism delusion” in the current International Security. That article deals with the exaggerations of the threat presented by terrorism and with the distortions of perspective these exaggerations have inspired—distortions that have in turn inspired a determined and expensive quest to ferret out, and even to create, the nearly nonexistent. It also supplies a quantitative assessment of the costs of the terrorism delusion.

Several of the poll trends I use for my conclusions are posted here.

As the Inquirer piece points out, the lack of change is quite remarkable given that no Islamist terrorist has been able to detonate even the simplest of bombs in the United States, there has been no sizable attack in the country, bin Laden is dead, alarmist hype coming out of Washington has declined (though Harvard continues to give it the old college try), and an American’s chance of being killed by a terrorist is about one in 3.5 million per year.

I conclude in the Inquirer piece that it seems to suggest that the public is

likely to continue uncritically to support extravagant counterterrorism expenditures including incessant security checks, civil liberties intrusions, expanded police powers, harassment at airports, and militarized forays overseas if they can convincingly be associated with the quest to stamp out terrorism.

Both pieces use a quote from anthropologist Scott Atran: “Perhaps never in the history of human conflict have so few people with so few actual means and capabilities frightened so many.” Much of that fright, it appears, has proven to be perpetual.

Testing “The Most Transparent Administration in History”

Barack Obama pledged to preside over the “most transparent administration in history,” drawing an explicit contrast with the extreme secrecy of his predecessor. The Web site of the Department of Justice highlights that pledge, declaring its commitment to faithfully carry out a presidential directive encouraging such transparency, especially with regards to Freedom of Information Act requests, which are a vital tool for public accountability and informed democratic deliberation about government’s activities. Earlier this summer, I decided I’d put that commitment to what should have been an easy test.

When Congress passed the controversial FISA Amendments Act of 2008, granting the NSA broad power to conduct sweeping electronic surveillance of Americans’ international communications without individualized search warrants, it wisely required the Justice Department to issue semi-annual reports to Congress on the government’s implementation of the law, evaluating compliance with the various rules, guidelines, and procedures in place to reduce the risk of civil liberties abuses. While these reports are classified, redacted versions of several previous installments have been released to the public in response to Freedom of Information Act requests. The most recent is from May of 2010, which means that by now there are three or four further reports on the government’s use of its new spying powers which haven’t been seen by the public.

Since the FAA is set to expire at the end of this year, and Congress is rapidly steamrolling toward reauthorizing the law for another five years, it seems like now would be a good time to let the public see the latest versions of these reports—with any specific references to operational details removed, of course. That’s especially true given that we’ve recently learned that at least one ruling by the secretive FISA Court found some surveillance under the FAA had violated the Fourth Amendment. The latest reports, even in redacted form, might give us further insight into the scale and seriousness of this violation of Americans’ constitutional rights. If, on the other hand, we find no mention of this in the official reports, it would be powerful evidence that Congress is getting a whitewashed account, and that internal oversight may not provide adequate protection for our privacy and liberties. Again, the government has already released several previous installments of this report—though the ACLU ultimately had to file a lawsuit before they agreed to do so—so there should be no doubt now as to whether these are documents they’re obligated to release.

On June 26, therefore, I sent a FOIA request to the Justice Department asking for the release of the newer installments of this important report—specifically asking for expedited review, given the importance of informing the public about the use of the law before Congress renews it. On July 6, I got a response acknowledging that my request had been received and forwarded to the FOIA office of the DOJ’s National Security Division. Federal law requires agencies to reply to these requests within 20 business days. I was still waiting when, a few days ago, a bill extending FAA spying authority was scheduled for consideration before the House of Representatives this week. I did, however, have a brief phone conversation with the NSD’s FOIA officer confirming that she was evaluating my request, and that she understood clearly exactly which reports I was requesting.

This morning, September 10—more than two months after acknowledging receipt of my request for these three or four documents—I finally got a reply (my emphasis added), denying my request with the following unhelpful boilerplate:

The Office of Intelligence (OI) maintains operational files which consist of copies of all FISA applications, as well as requests for approval of various foreign intelligence and counterintelligence collection techniques such as physical searches.  We did not search these records in response to your request because the existence or nonexistence of such records on specific persons or organizations is properly classified under Executive Order 13526.  To confirm or deny the existence of such materials in each case would tend to reveal which persons or organizations are the subjects of such requests.  Accordingly, we can neither confirm nor deny the existence of records in these files responsive to your request pursuant to 5 U.S.C. §552(b) (1).

This is, in a word, ridiculous. The “existence” of the reports I asked for is required by federal law. To the extent they contain passing references to any specific persons or organizations under investigation, these can easily be redacted, and have been redacted for previous public releases of the same documents. No reasonable person could believe that this reply is applicable to my request. If it had been sent immediately, you could at least put it down to sloppiness or inattention, but remember, it took them two months to send out a denial based on the preposterous claim that it is classified information whether a report mandated by federal statute even exists.

I can appeal—and of course, I intend to—but since that’s likely to drag out the process for at least another month or two, the reports are likely to come too late to be relevant to the debate over FAA reauthorization. Try as I might, it’s almost impossible for me to see this as a good faith response to my request. Instead, it looks an awful lot like a stalling tactic calculated to drag out the process until it’s too late for the documents to be relevant to the debate over the FAA. I suppose this shouldn’t be terribly surprising: DOJ’s modus operandi, at least when it comes to anything controversial or potentially embarrassing to the government, seems to be to force FOIA requesters to waste time, energy, and money going to court even when it’s painfully obvious there’s no legitimate legal basis for sustaining a denial. That this is routine enough to be predictable, however, shouldn’t make it any more acceptable in a democracy.

Ronald Hamowy and the Lion’s Dentist

As David Boaz has written, we mourn this weekend’s loss of one of the great libertarian scholars, Ronald Hamowy, a historian of scintillating erudition, acute judgment, and formidable breadth of interests. Bryan Caplan has an appreciation that includes a Liberty Fund link to the entire online run of the Hamowy-edited New Individualist Review (1961-68), by common consent the best libertarian student journal ever, and notes also the friendly intellectual quarrel that eventually arose between Hamowy and one of his own mentors, Friedrich von Hayek.

Hayek in his social theorizing didn’t always get everything right, but his fellow advocates of liberty weren’t always keen to point that out in print, for the same reason that there are few volunteers to perform dentistry on the lion. But if anyone can perform the delicate operation without fear of the jaws snapping shut, it is one who knows as of instinct how the lion thinks. Such was Hamowy, whose commitment to individual liberty was if anything more ardent than Hayek’s own, and who as a specialist in the Scottish enlightenment of Adam Smith, David Hume and Adam Ferguson had thought long and deeply about the conditions under which spontaneous orders emerge and freedom can generate successful social complexity.

Here is Daniel Klein, reviewing a 2005 volume in which Hamowy takes issue deftly with the master on several issues notably (from my perspective) including the evolution of law:

The final critical essay concerns Hayek’s tale of the common law. Hayek’s idea of spontaneous order is most prominently applied to the complex workings of the economy — “the incredible bread machine” — but also finds application in the evolution of customs, language, law, and science. Hayek was keen to show the viability of capturing a dynamic system of law under the conceptual umbrella of spontaneous order. In making his case, he portrayed the English common law as such a system. Hamowy looks hard at the history and character of English common law, and concludes that Hayek’s historic tale fails on two counts: first, its substance was not all that libertarian, and second, its evolution was not all that spontaneous. Hamowy advises us against citing the English common law as an example of spontaneous-order law.

Hamowy’s scholarship was full of such unexpected, fearless, and provocative acts of judgment.

Class and the Fourth Amendment

Most students learn in history class that our Fourth Amendment emerged from the hostility of the American colonists to “general warrants” and “writs of assistance” authorizing intrusive, discretionary searches of private homes. What they’re seldom taught is how strongly that hostility was bound up with undisguised class-based contempt for the officers who conducted those searches—so much so that the scathing rhetoric deployed in the speeches and documents recognized as the Fourth Amendment’s inspiration can be a bit of a shock to modern ears.

A list of complaints against British abuses, adopted by Bostonians at a town meeting and then widely-circulated as an influential pamphlet, lamented that under writs of assistance “our houses and even our bedchambers are exposed to be ransacked, our boxes, chests, and trunks broke open, ravaged, and plundered by wretches, whom no prudent man would venture to employ even as menial servants.” A legendary speech against he writs by the attorney James Otis—recorded and summarized by a young John Adams, who declared himself profoundly influenced by it—similarly complained that search authority was conferred upon “not only deputies, &c. but even THEIR MENIAL SERVANTS ARE ALLOWED TO LORD IT OVER US — What is this but to have the curse of Canaan with a witness on us, to be the servant of servants, the most despicable of God’s creation.”

The Monitor alleged that general warrants “empower mean, Low-lif’d ignorant men to enter, and to act at discretion.” Maryland’s “Farmer and Planter” was outraged that discretionary search powers would be granted excise officers, who were drawn from the “scruf and refuse of mankind.” The “Father of Candor” sniffed at the notion that “any common fellow” might presume to search a home on the basis of gossip from his (presumably similarly “common”) acquaintances. A writer styling himself “Freeman” asked rhetorically: “What are the pleasures of the social table, the enlivening countenances of our family and neighbors in the fire circle or any domestic enjoyment if not only Custom House Officers but their very servants may break in upon and disturb them?” These “servants,” Freeman assured he reader, were “a gang of villains, who for meaness [sic] rapacity and corruption may be stiled the very dreggs and sediment of human nature in the last and highest stage of its possible depravity.” In comparison, “Regulus” seems positively restrained in characterizing these officers as “the most despicable wretches.”

There’s loads of commentary in the same vein. While it was scarcely the primary consideration, one reason specific judicial warrants seemed less offensive than the general warrant was that when magistrates rather than deputies had discretion over which homes could be searched, the indignity of the search was not compounded by the insult of being subject to the will of a social inferior.

You can, of course, find plenty of remarks casting the right of privacy as a great equalizer as well, such as William Pitt’s famous defense of the sanctity of the home:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!

In a way, these apparently quite different sentiments were probably mutually reinforcing: At a visceral and emotional level, elite opposition to general warrants was strengthened by the ghastly prospect of these crude peasants breaking a gentleman’s doors, but when that sentiment is translated into a universal principle, it also entails the right of the “poorest man” to defy the King.

The extraordinary dilution of Fourth Amendment in recent decades—powerfully chronicled in Stephen Schulhofer’s new book More Essential than Ever—is routinely ascribed to a wide variety of causes, all with some justice: The rise of regular, professionalized police forces; changing technologies; evolving social norms and a culture of exposure; our ongoing Wars on Drugs and Terror (and probably Digital Piracy too—give it a few years). But I’d wager that a significant and subtle role has been played by subliminal class considerations—often in tandem with these other factors.

In Colonial America, recall, policing was largely carried out by amateurs and part-timers, along with such volunteers as they might deputize to help carry out a search. These days they’re professionals, often college graduates, who wear suits to court and often appear before the same judge regularly.

The general searches that so incensed Bostonians were meant to aid in the collection of excise taxes, which meant their targets were often respectable merchants and businessmen. Drug dealers are a primary targets of searches today—nearly 90 percent of wiretaps are sought for narcotics investigations—which means, innocent or guilty, they’re seldom folks from a social class that naturally inspires judges to identify with them.

Finally, the central mechanism for enforcing the ban on unreasonable searches and seizures was a common-law trespass suit. An “officer” who searched without warrant was treated like any other private citizen and personally liable for damages. A warrant would typically immunize the agent who carried out the search—since he was only obeying the court’s instructions—but the officer or citizen whose affidavit gave rise to the warrant could still be liable if no contraband was found. For a variety of reasons, that’s no longer how it works. Now courts primarily enforce Fourth Amendment restrictions—unevenly, and with a growing list of exceptions—via the exclusionary rule, which bars the use of evidence derived (directly or indirectly) from illegal searches in criminal prosecutions. The predictable consequence is that virtually the only time an appellate judge sees a Fourth Amendment case is when a guilty criminal is trying to get a conviction overturned.

Perhaps it’s no surprise, then, that courts often seem to bend over backwards looking for ways to accommodate police and other government officials, explicitly assuming—utterly contrary to the spirit of the Fourth Amendment—that these upstanding professionals can and must be routinely trusted with substantial individual discretion over who, how, and when to search. We certainly don’t need a return to the hostile view that government investigators are “despicable wretches”—but it would be nice to see more recognition that they are, after all, “common fellows” whose intrusions on the privacy and dignity of their fellow citizens require judicial supervision, whether that citizen is an affluent merchant or “the poorest man… in his cottage,” and regardless of whether the investigator is a “menial servant” or a clean-cut middle-class professional.