Tag: law

Wars, Crimes, and Underpants Bombers

I’ve been meaning to follow up on Gene Healy’s post from last week on the interrogation and prosecution of terror suspects.  I share Gene’s bemusement at the howls emanating from Republicans who have abruptly decided that George Bush’s longstanding policy of dealing with terrorism cases through the criminal justice system is unacceptable with a Democrat in the White House.  But I also think it’s worth stressing that the arguments being offered – both in the specific case of Umar Farouk Abdulmutallab and more generally – aren’t very persuasive even if we suppose that they’re not politically motivated.

Two caveats.  First, folks on both sides would do well to take initial reports about the degree of cooperation terror suspects are providing with a grain of salt. For reasons too obvious to bother rehearsing, investigators won’t always want to broadcast accurately or in detail the precise degree of cooperation a suspect is providing.   Second, as Gene noted, given that it seems unlikely we’ll need to use Abdulmutallab’s statements against him at trial, the question of whether the civilian or military system is to be preferred can be separated from the argument about the wisdom of Mirandizing him. That said, the facts we have just don’t seem to provide a great deal of support for the conclusion that, warning or no, criminal investigators are somehow incapable of effectively questioning terrorists.

Certainly if you ask veteran FBI interrogators, they don’t seem to share this concern that they won’t be able to extract intelligence their military counterparts would obtain. You might put that assessment down to institutional pride, but it’s consistent with the evidence, as the FBI has had impressive successes on this front already. And if you don’t want to take their word for it, you can always ask Judge Michael Mukasey who, before becoming attorney general under George W. Bush, ruled that military detainees were entitled to “lawyer up” – as critics of the Bush/Obama approach are wont to put it – explicitly concluding that “the interference with interrogation would be minimal or nonexistent.”

Nor, contra the popular narrative, does it appear to have interfered in the Abdulmutallab case.  Republicans leapt to construe sketchy early reports as implying that the failed bomber had been talking to investigators, then clammed up upon being read his Miranda rights and provided with counsel. But that turns out to have gotten the order of events wrong. In reality, Abdulmutallab was initially talkative – perhaps the shock of having set off an incendiary device in his pants overrode his training – but then ceased cooperating before being Mirandizied. Rather, it was the urging of his family members that appears to have been crucial in securing his full cooperation – family members whose assistance would doubtless have been far more difficult to secure without assurances that he would be treated humanely and fairly within the criminal justice system. It’s possible, one supposes, that the emo terrorist might have broken still more rapidly in military custody, but it seems odd to criticize the judgment of the intelligence professionals directly involved with the case, given that their approach has manifestly worked, on the basis of mere speculation about the superior effectiveness of an alternative approach.

Stepping back from this specific case, there seem to be strong reasons to favor recourse to the criminal systems in the absence of some extraordinarily compelling justification for departing from that rule in particular cases. Perhaps most obviously, few terror suspects are quite so self-evidently guilty as Abdulmutallab, and so framing the question of their treatment as one of the due process rights afforded “terrorists” begs the question. The mantra of those who prefer defaulting to military trial is that “we are at war” – but this is an analytically unhelpful observation.  We’re engaged in a series of loosely connected conflicts, some of which look pretty much like conventional wars, some of which don’t. This blanket observation tells us nothing about which set of tools is likely to be most effective in a particular case or class of cases – any more than it answers the question of which battlefield tactics will best achieve a strategic goal.

For the most part, the insistent invocation of the fact that “we’re at war” seems to be a kind of shibboleth deployed by people who want to signal that they are Very, Very Serious about national security without engaging in serious thought about national security. If it came without costs, I would be loath to begrudge them this little self-esteem boosting ritual. But conflict with terrorists is, by definition, a symbolic conflict, because terrorism is first and foremost a symbolic act. As Fawaz Gerges documents in his important book The Far Enemy, jihadis had traditionally been primarily concerned with the fight to impose their rigid vision in the Muslim world, and to depose rulers perceived as corrupt or too secular.  The controversial – and even among radical Islamists,quite unpopular – decision to strike “the Far Enemy” in the United States was not motivated by some blind bloodlust, or a desire to kill Americans as an end in itself. Rather, Osama bin Laden and Ayman al-Zawahiri hoped that a titanic conflict between Islam and the West could revive flagging jihadi movement, galvanize the ummah, and (crucially) enhance the prestige of Al Qaeda, perceived within jihadi circles as a fairly marginal organization.

This has largely backfired. But it’s important to always bear in mind that attacks on the United States, especially by sensational methods like airplane bombings, are for terror groups essentially PR stunts whose value is ultimately instrumental. They don’t do it for the sheer love of blowing up planes; they do it as a means of establishing their own domestic credibility vis a vis more locally-focused Islamist groups (violent and peaceful) with whom they are competing for recruits. While our response to these attempts will often necessarily have some military component, there is no reason to bolster their outreach efforts by making a big public show of treating Al Qaeda in the Arabian Peninsula as tantamount to a belligerent foreign state.  Better, when it’s compatible with our intelligence gathering and security goals, to treat Abdulmutallab and his cohorts as just one more band of thugs.

How ObamaCare Would Keep the Poor Poor

Suppose you’re a family of four at or near the federal poverty level.  Under current law, if you earn an additional dollar, you get to keep around 60-70 cents.

Under the House and Senate health care bills, however, you would get to keep maybe 38 cents.  Or 26 cents.  Or maybe just 18 cents.

The following graph (from my recent study, “Obama’s Prescription for Low-Wage Workers: High Implicit Taxes, Higher Premiums”) shows that under the House and Senate bills, the combination of (1) a mandate tax and (2) subsidies that disappear as income rises would impose implicit tax rates on poor families that reach as high as 82 percent over broad ranges of income.

This graph actually smooths out some rather bumpy implicit tax rates that spike as high as 174 percent.

In the 1980s and 1990s, the public saw that too-generous government subsidies can actually trap people in a cycle of poverty and dependence.  President Obama and his congressional allies seem not to have learned that lesson.

Talking about Terrorism

Terrorists are named after an emotion for a reason. They use violence to produce widespread fear for a political purpose. The number of those they kill or injure will always be a small fraction of those they frighten. This creates problems for leaders, and even analysts, when they talk publicly about terrorism. On one hand, leaders need to convince the public that they are on the case in protecting them, or else they won’t be leaders for long. On the other hand, good leaders try to minimize unwarranted fear.

One reason is that we shouldn’t give terrorists what they want. Another is that fear is a real social harm, particularly when it is exaggerated. Stress from fear harms health. It causes bad decisions. For example, if people avoid flying and drive instead the number of added fatalities on the road will quickly surpass the dead from a typical terrorist attack. Most important, excessive fear causes policy responses that often damage the economy without much added safety. Measured in lives on dollars, reactions to terrorism often cost more than the attack themselves.

If leaders talk only about the danger of terrorism and everything they are doing to fight it, without putting danger in context, they may be on safe political ground, but they risk causing or prolonging groundless fear and encouraging all sorts of harmful overreactions. That is the Bush Administration’s counterterrorism record, in a nutshell. If leaders just say “calm down and worry about something more likely to harm you,” they will be butchered politically.

So a reasonable approach is to sound concerned but reassuring. You want to convince people that they are mostly safe without appearing complacent. I don’t like many of this administration’s counterterrorism policies, starting with Afghanistan, but thus far its communication about terrorism is far more sensible than the last administration’s. That includes the aftermath of this attempted Christmas Day attack.

The administration made it clear that it is unacceptable that a guy we just got warned about got onto a plane wearing explosives. But the President also said Americans should be generally confident in their safety from terrorism. He didn’t act as if this incident was the most important thing on his schedule this year or compare the Al Qaeda affiliate in Yemen to the Third Reich or what have you, exaggerating their capability and power. I wish he had gone further and said that detonating explosives smuggled on to a plane is tricky and that flying remains incredibly safe. (Jim Harper will soon have more to say here on the security failures and how to talk about them.)

In a different political universe, the President could describe the terrorist threat honestly. He would say that recent attempted terrorist attacks in the United States show more amateurism and failure than skill and success. He could add that we are fortunate that our greatest enemy, al Qaeda and its fellow-travelers, are scattered and weak compared the sorts of enemies we historically faced. He would sound more like Michael Bloomberg, who told New Yorkers that they had a better chance of being struck by lightening than killed by terrorists, after a particularly inept terrorist plot on JFK airport was uncovered. He could even quote Nate Silver, who calculates that in the last decade of US flights, there was one terrorist incident per 11,569,297,667 miles flown. It’s true, as Kip Viscusi demonstrates, that people don’t think like actuaries. They rightly value different sorts of deaths in different ways, and want more protection against terrorism than other dangers. But knowing the odds is still important in weighing the appropriate amount of concern and forming policy preferences. The president could also have treated voters like grown-ups and pointed out that whatever flaws in airline security that this attempted attack reveals, there is no such thing as perfect safety, and sooner or later even the finest security systems fail.

I also disagree with the argument that the trouble with our airline security or national security policy-making in general is insufficient presidential attention. Overall, we could do with a little more masterly inactivity in security policy, to use an old British phrase. Aviation security is another matter, but I struggle to see how presidential involvement would have fixed this problem. The 9-11 Commission did claim that September 11 occurred because leaders failed to pay sufficient attention to al Qaeda, but there, as in other matters, the Commission is wrong. At least in the executive branch, the attention paid to the threat in the 1990s was quite substantial, as you can see in this essay by Josh Rovner or in my contribution to this book. The historical record shows that the threat was well understood by security officials and the reading public. Time, for example, called Osama bin Laden the most wanted man in the world when they interviewed him in 1998. The trouble, in my opinion, was not misperception but our policies and the difficult and unprecedented nature of problem–a terrorist group ensconced in hostile country that refused to do anything about it.

Getting the line between confidence and vigilance right is not easy, but it starts with acknowledgment that there is such a thing as overreaction. That subject will be the on the agenda for our January 13 counterterrorism forum with James Fallows, State Department Counterterrorism Coordinator Daniel Benjamin, Paul Pillar and others.

*My attempts to explain this stuff to Politico yesterday resulted in some confused and inaccurate uses of my quotes in this story by Carol E. Lee, which unconvincingly compares the Obama’s response to this terrorist attempt to his silly involvement in the Henry Louis Gates arrest fiasco. First, Lee absurdly uses me as example of “predictable” attacks from the right on Obama, when I said I was glad that the President said Americans should feel confident but that I’d have preferred if he’d done it more forcefully by saying flying remains safe and al Qaeda weak. That is more or less the opposite of the predictable take on the right. Then, she says that my views on the President’s response to the attacks referred to his post-press conference golf outing. I was talking about his overall response, or lack thereof, over the last several days. I can’t decipher the meaning of presidential golf.

A Civil Liberties Roundup

Here are some interesting new items on the web:

  • Cato Senior Fellow Nat Hentoff is interviewed by John W. Whitehead of the Rutherford Institute.  Nat says “Obama has little, if any, principles except to aggrandize and make himself more and more important.”  And “Obama is possibly the most dangerous and destructive president we have ever had.”  Go here for the full interview.
  • Cato adjunct scholar Harvey Silverglate is blogging this week over at the Volokh Conspiracy on his new book, Three Felonies a Day.
  •  Cato Adjunct Scholar Marie Gryphon, who is also a Senior Fellow with the Manhattan Institute, has just put out a new paper, It’s a Crime: Flaws in Federal Statutes That Punish Regular Businesspeople.
  • Cato Media Fellow Radley Balko takes a look at the pathetic machinations in the Chicago Police Department.  Reminds me of the proud boast from a patronage worker in the political machine: “Chicago ain’t ready for reform!”

Good stuff here.  For more Cato scholarship, go here.

Keeping Pandora’s Box Sealed

In today’s Washington Times, Ken Klukowski and Ken Blackwell co-authored an op-ed about McDonald v. Chicago and the Privileges or Immunities Clause titled, “A gun case or Pandora’s box?

If that title sounds familiar, it should. Josh Blackman and I have co-authored a forthcoming article called “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.“  As Josh put it in his reply to the Kens, “imitation is the most sincere form of flattery.”

Going beyond the title, there are several errors in the piece,  which I will briefly recap:

First, the Kens argue that the Supreme Court should uphold the Slaughter-House Cases, out of a fear that reversal – and thereby a reinvigoration of Privileges or Immunities – would empower judges to strike down state and local laws. What they neglect to mention is that it has been the role of the judiciary since Marbury v. Madison to strike down laws that violate the Constitution. There is near-universal agreement across the political spectrum that Slaughter-House was wrongly decided, causing the Supreme Court to abdicate its constitutional duty by ignoring the Privileges or Immunities Clause for 125 years. The Kens want to continue this mistaken jurisprudence.

Next, the Kens describe the Privileges or Immunities Clause as a general license for courts to strike down any law they do not like. This is not accurate. Neither the Privileges or Immunities Clause nor any other part of the Fourteenth Amendment empowers judges to impose their policy views. Instead, “privileges or immunities” was a term of art in 1868 (the year the Fourteenth Amendment was ratified) referring to a specific set of common law, pre-existing rights, including the right to keep and bear arms. The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause – the exact vehicle the Kens would use to “incorporate” the Second Amendment.

To set the record straight, Josh and I are working on an op-ed – not so much to respond to the Kens’ flawed analysis but to present the correct historical and textual view of the Privileges or Immunities Clause. To see our arguments in greater detail, read our article and Cato’s McDonald brief, both of which I’ve previously blogged about here , here, and here.

10 Rules for Dealing With the Police

Our friends at Flex Your Rights have a new film that is about to be released.  It’s called 10 Rules for Dealing with Police. Trailer for the film here.  I have seen the entire film and it is an outstanding work–accurate and useful information, great screenplay, and great acting.

Believe it or not, the police can lie to you and can try to trick you into giving up your constitutional rights.  Happens every day.  In less than 45 minutes, this film teaches you what you need to know about police encounters.  Every citizen should take an interest in learning about constitutional rights.  And experienced lawyers will tell you that you can save thousands of bucks in legal fees by avoiding common mistakes.  But you need to know the traps.   If you have teenagers in the family, make them watch it.  Knowledge is power.  Spread the word.

Tuesday Links

  • Why the Supreme Court should strike down the Public Company Accounting Oversight Board: “Imagine a government agency with the authority to create and enforce laws, prosecute and adjudicate violations, and impose criminal penalties. Then throw in the power to levy taxes to pay for all the above. And for good measure, make the agency independent of political oversight.”