Tag: national security

How Many 215 Orders?

There was an interesting exchange during a Senate Intelligence Committee hearing yesterday concerning the use of the Patriot Act’s §215 orders for business records and other tangible things. FBI Director Robert Mueller hinted that the orders may have been used to track purchases of hydrogen peroxide purchases in the investigation of aspiring bomber Najibullah Zazi, while Sen. Ron Wyden (D-Oreg.) asserted that there is “a huge gap today between how you all are interpreting the PATRIOT Act and what the American people think the PATRIOT Act is all about and it’s going to need to be resolved.”

Let’s leave our curiosity about that by the wayside for the moment, though. I’m curious about one simple empirical claim Mueller made in his testimony: That the provision has been used over 380 times since 2001. I assume he’d know, but that seems inconsistent with what’s been publicly reported to date. It’s worth noting that there are actually minor discrepancies between the numbers provided in Congressional Research Service reports, audits from the Office of the Inspector General, and the Justice Department’s annual reports to Congress. But there are plenty of legitimate reasons these numbers might vary depending on how you count, and the total variance is a difference of about 17 orders total over the years.

We know from those Inspector General reports that the majority of those 215 orders issued were “combination” orders issued in tandem with another type of surveillance order called a “pen register” so that investigators could get subscriber information about the people whose communications patterns they were tracking. When Congress amended the Patriot Act in 2006, it built that authority right into the pen register statute, making it unnecessary to seek those “combination” orders. Prior to the amendment, the government got 173 of those “combination” orders. “Pure” 215 orders, which are now the only type needed, have been used much more sparingly. None were issued at all until 2004, and from 2004 through 2009 (depending on whose tally you want to use) there were between 75 and 92 orders issued (for an average of 12–15 annually since 2004). Throw in the combination orders and the upper-bound number through the end of 2009 is 265 orders.

Unless I’ve miscounted or missed something significant—you can get the reports at the links above and check my math—that leaves 115 orders unaccounted for, assuming Mueller’s number is accurate. There are two possibilities, then: Either the government got ten times as many orders in 2010 as the historical average (the figures should be out sometime in April) or there are a whole lot of these missing from the public reporting. Possibly these have something to do with the “sensitive collection program” in which these orders play a key role, alluded to in a Justice Department official’s testimony at a hearing during the 2009 reauthorization debate. Either alternative seems like it would merit additional scrutiny. I sent an e-mail seeking clarification this morning to some of the experts at the Congressional Research Service responsible for keeping legislators informed on these issues, but haven’t yet heard back.

I’m not belaboring this because it’s inherently hugely significant whether the government has used this authority 265 times or 380. Ideally, in the coming months we’ll see a substantial narrowing of National Security Letter authority, which would predictably lead to a large increase in the number of 215 orders issued. And that would be entirely proper, since it would mean more information being sought pursuant to a judicial order rather than FBI fiat. What I do think is significant, however, is that this reminds us how little we know—and how little the vast majority of legislators know—about the use of these powers. In contrast with criminal investigative tools, these powers are entirely covert: People whose records are swept up by the government almost never learn about it, and the recipients of the orders are subject to an effectively permanent gag on speaking about them. Rulings of the secret FISA Court interpreting the scope of these authorities are never made public. Our assurance that they have been or will continue to be used properly rests entirely on the minimal required reporting to Congress and the findings of internal audits. And yet it’s hard to pin down the facts on even this most elementary factual question about 215 orders: How many times have they been used?

Despite this, we have legislators confident enough that these expanded powers are both so necessary and so well controlled that they’re advocating making them permanent. I wish I were as confident.

Robert Kagan for the Defense

The calls for cutting the federal budget continue to build in Congress as the new GOP members try to make good on their promise to rein in the deficit.  And, right on time, the latest issue of the Weekly Standard features an article by Robert Kagan critiquing the chorus of calls for cuts to military spending. 

I think Kagan’s critique is reasonably fair, certainly more so than others of the recent past.  But his basic premise, that national security spending is unrelated to the national debt, simply is not true.  At the The Skeptics, I address this:

It is of course true that entitlements and mandatory spending pose the greatest threat to the nation’s fiscal health, but $700+ billion [in defense spending] isn’t chump change. The question of what we should spend on the military ought to take into account the trade-offs, an argument that Dwight Eisenhower advanced in his farewell address just over 50 years ago, and that Charles Zakaib and I highlighted last week. (See also James Ledbetter’s discussion on this point.)

Actually, it is a question of fairness, but not the one that [Kagan] proposed. Because security is a core function of government (I think one of the only core functions of government), it would be a mistake to treat military spending as synonymous with spending on, say, farm subsidies. But Kagan’s writings presume that other countries’ governments do not – and should not – see their responsibilities in the same way. Kagan contends that American taxpayers should be responsible for the security of people living in Europe or East Asia or the Middle East. Or anywhere in the world, really… It simply isn’t fair to ask Americans to pay for something that other people should pay for themselves. For reference, the average American—every man, woman and child—spends two and a half times more on national security than the French or the British, five times more than citizens living in other NATO countries, and seven and a half times as much as the average Japanese.

Justin Logan is in the process of authoring a lengthier response for publication, but in the mean time click here to read the full post at The National Interest.

The Sun Never Sets on the PATRIOT Act

A year ago, the protracted wrangling in Congress over the re-authorization of several expiring provisions of the PATRIOT ACT made plenty of headlines. Most observers expected the sunsetting powers to be extended, but civil libertarians hoped serious and sorely needed reforms might be part of the package. The House and Senate Judiciary Committees held multiple hearings on the topic, and an array of competing reform and reauthorization bills (PDF) were proposed, adding extra safeguards (of varying stringency) to the greatly expanded surveillance powers Congress had approved in the aftermath of the 9/11 attacks.

But Congress had a full plate, and so it punted—approving a straight one-year reauthorization without any modifications at the last minute. (You’d be forgiven for not noticing: The extension passed under the heading of the “Medicare Physician Payment Reform Act.”) As I
noted in December, however, the Justice Department has promised Congress that it will voluntarily adopt some of the measures that had been floated in those reform bills—which would be a fine thing in itself, but I worried that the move seemed calculated to reduce the impetus for binding legislation.

Well, I’ve just noticed—quite serendipitously, as there doesn’t appear to have been a whisper in the press—that the new House Intelligence Committee Chair, Mike Rogers (R-Mich.), has introduced yet another one-year extension, which would push the sunset of the expiring provisions back to the end of February 2012. Given the very limited number of days Congress has in session before the current deadline, and the fact that the bill’s Republican sponsor is only seeking another year, I think it’s safe to read this as signaling an agreement across the aisle to put the issue off yet again. (I’ve asked Rogers’s office for a comment and will update this post if I hear back.)

In the absence of a major scandal, though, it’s hard to see why we should expect the incentives facing legislators to be vastly different a year from now. Heck, we’ve had a pretty big scandal involving the misuse of National Security Letter powers, but even right on the heels of the Inspector General’s report documenting those abuses, the mildest reforms proffered last year died on the vine. I’d love to be proven wrong, but I suspect this is how reining in the growth of the surveillance state becomes an item perpetually on next year’s agenda.

Deficit Reduction Commission Says Military Spending Can and Must be Cut

President Obama’s Fiscal Commission’s report is out and they have wisely kept military spending on the table. Having not seen the accompanying list of specific cuts, it seems that rather than micromanage DoD’s decisions with respect to which weapons systems to cut or keep, the commissioners have laid down a different marker: find the cuts that make sense, but understand that the business-as-usual of the past decade is over.

The report fixes on a number of spending cuts and reforms that Benjamin Friedman and I call for in the Cato Policy Analysis “Budgetary Savings from Military Restraint” including cuts to the civilian workforce (see recommendation 1.10.4). They also hold fast to the proposition that all spending must be on the table, and reject out of hand the notion that military spending must be held sacrosanct. This is bad news for the “defending defense” crowd.

I am not going to comment on the Commission’s other proposals with respect to taxes, social security, health care, etc.  As for specific military spending cuts, this report is less detailed than the preliminary report issued a few weeks ago by Co-chairs Bowles and Simpson. It is appropriate, however, to task the Department of Defense with identifying additional savings (as they do in recommendation 1.11). Responsible cuts can be made if the Pentagon and the White House adopt a strategy of restraint, one that husbands American resources, focuses on a few core missions vital to U.S. national security, and requires other countries to take primary responsibility for their defense.

Will the Deficit Compel Congress to Cut Military Spending?

Over at National Journal’s National Security Experts blog, Megan Scully notes the military spending cuts contained within a proposal by Erskine Bowles and Alan Simpson, the co-chairs of the president’s deficit reduction commission. Scully asks: “How feasible would it be for lawmakers to make these kinds of cuts to defense?…What kind of sway will fiscal hawks have in the next Congress - and will it be enough to push through sweeping defense cuts over the objections from pro-defense members of their party?”

Government spending across the board must be cut, I explain, beginning especially with entitlements.  I continue:

Other spending must also be on the table, however, and that includes the roughly 23 percent of the federal budget that goes to the military. This often poses a particular challenge for Republicans given their traditional support for military spending and their professed commitment to fiscal discipline. But it need not be particularly difficult. If Republicans reaffirm that the core function of government, many would say one of the only core functions of government, is defense (strictly speaking), then the path to a politically sustainable and economically sound defense posture is clear: a military geared to defending the United States and its vital national interests, and not permanently deployed as the world’s policeman and armed social worker. Such a posture would allow for a smaller Army and Marine Corps as the wars in Iraq and Afghanistan are drawn to a close (as they should be), deep cuts in the Pentagon’s civilian work force, which has grown dramatically over the past 10 years, and sensible reductions in the nuclear arsenal. More modest cuts are warranted in intelligence and R&D. Finally, significant changes in a number of costly and unnecessary weapons and platforms, including terminating the V-22 Osprey and the Expeditionary Fighting Vehicle, and greater scrutiny of the F-35 program, for example, must also be in the mix….

Serious cuts to military spending… must be part of a broader strategic reset that ends the free-riding of wealthy and stable allies around the world, and that takes a more balanced and objective view of our relative strategic advantages and our enviable security.

 You can read the rest of my response here.

And Of Course They Won’t, No Not Until The Next Time

Here is the test of whether we still live in a society governed by the rule of law: Will anyone at the FBI be fired over the latest report out of the Office of the Inspector General?

Let’s review. Earlier this year, a comprehensive OIG report revealed that for years the FBI had ignored the paper-thin procedures demanded by our National Security Letter statutes to obtain sensitive telecommunications records of thousands of Americans, not just without a court order—because apparently we’re fine with that now—but without any kind of legitimate process at all. With nothing more elaborate than a Post-It Note requesting the data. As far as the public record is concerned, nobody has suffered any consequences for this massive abuse of the public trust.

Now we learn that an FBI supervisor, in an exercise of spectacularly poor judgment, sent a rookie out to monitor an antiwar rally—evading the charge of monitoring Americans based exclusively on the basis of First Amendment protected activity only because of the laughable pretext that said rookie was there to eye the crowd for any international terrorists who might be in attendance. Fine.  But when Congress got wind of this and began to inquire into why this had occurred—and why said rookie had filed a report on “antiwar activity” that focused on whether any persons of apparent “Middle Eastern descent” had been involved—the OIG found that someone at the FBI had utterly fabricated a retroactive justification for the investigation, involving dubious “terror suspects” that nobody had actually believed at the time might be present at this rally.

According to the FBI, this fabrication was then offered up by FBI Director Robert Mueller before the Bureau’s overseers in Congress. This leaves us with a limited number of possibilities. One is that the head of the FBI was aware of and welcomed what the OIG determined to be a complete invention designed to cover up for an improper investigation. If that’s what happened, the head of the FBI committed perjury and should be prosecuted for it. But the OIG doesn’t believe that’s how it went, and I’m inclined to believe them: It would be irrational to risk perjuring oneself before the Senate Judiciary Committee over a minor error like this, however foolish.

But then someone gave the FBI director a pack of lies to feed to Congress, and the OIG was inexplicably unable to trace this fabrication to its source—which even allowing for the FBI’s massively dysfunctional computer systems seems implausible. So now we have a pressing question: If we don’t think the head of the FBI decided to lie to Congress, who concocted the lies he told them? Are we to believe that the nation’s top cops are either so inept or so indifferent to the question that they can’t answer it? I suspect they very well could find out if they were so inclined. If they don’t, and if there are no consequences for this clumsy cover-up, why should we believe that congressional oversight of intelligence will ever discover or check abuse of investigative power? The message will be clear: Concoct lies to protect your bosses, and your colleagues will wink at your deception, perhaps grateful for having been spared the obligation of making up their own lies.  One lie out of a hundred might be called out in an OIG report—they only have so much time and so many resources—but even if it is, no harm will come of it. The investigators will be mysteriously unable to identify the liar, and everything will blow over. Why risk telling the truth? The initial fuss will subside, and Americans will soon enough be distracted by the next episode of Jersey Shore.

I think we’ve had quite enough of that.  Someone at the FBI decided that it was a good idea to lie to Congress in order to cover up improper monitoring of an unpopular political group.  In this case, it was pacifists, but who knows who’ll be next. If brazen lies aren’t punished the one case out of a dozen or a hundred that draw the attention of the overseers, why should they ever bother to observe the rules? So watch the Department of Justice.  If someone is fired over this, maybe we still live in a country governed by the rule of law. If not, they’re convinced we’re so dim and besotted by reruns of Friends that they no longer even feel obliged to put up a good show.

U.S. Military Power: Preeminence for What Purpose?

Over at National Journal’s National Security Experts blog, this week’s question focuses on the recently released Hadley-Perry “alternative QDR.”

Sydney J. Freedberg Jr. of NationalJournal.com asks:

The U.S. military is already unaffordable – and yet it needs to be larger to sustain America’s global leadership, especially in the face of a rising China. That’s the bottom line from a congressionally chartered bipartisan panel, co-chaired by Stephen Hadley, George W. Bush’s national security adviser, and William Perry, Bill Clinton’s Defense secretary. The report, released July 29, is the independent panel’s assessment of and commentary on the Pentagon’s own Quadrennial Defense Review, released earlier this year.

Frequent expert blog contributor Gordon Adams, among others, has already blasted the Hadley-Perry report for making the underlying assumption that the U.S. can and should continue to invest heavily in being a “global policeman.” Is Adams right that the Hadley-Perry report calls for an unaffordable answer to the wrong question? Or are the report’s authors correct when they argue that the U.S. must be the leading guarantor of global security? And if the U.S. must lead, has the Hadley-Perry panel laid out the right path to doing so?

My response:

Dan Goure says that U.S. military preeminence is not unaffordable. That is probably correct. Even though we spend in excess of $800 billion annually on national security (including the cost of the wars in Iraq and Afghanistan, and the Departments of Homeland Security and Veterans Affairs) we could choose to spend as much, or more, for a while longer. We could choose to shift money out of other government programs; we could raise taxes; or we could continue to finance the whole thing on debt, and stick our children and grandchildren with the bill.

But what is the point? Why do Americans spend so much more on our military than does any other country, or any other combination of countries?

Goure and the Hadley-Perry commissioners who produced the alternate QDR argue that the purpose of American military power is to provide global public goods, to defend other countries so that they don’t have to defend themselves, and otherwise shape the international order to suit our ends. In other words, the same justifications offered for American military dominance since the end of the Cold War.

Most in Washington still embraces the notion that America is, and forever will be, the world’s indispensable nation. Some scholars, however, questioned the logic of hegemonic stability theory from the very beginning. A number continue to do so today. They advance arguments diametrically at odds with the primacist consensus. Trade routes need not be policed by a single dominant power; the international economy is complex and resilient. Supply disruptions are likely to be temporary, and the costs of mitigating their effects should be borne by those who stand to lose – or gain – the most. Islamic extremists are scary, but hardly comparable to the threat posed by a globe-straddling Soviet Union armed with thousands of nuclear weapons. It is frankly absurd that we spend more today to fight Osama bin Laden and his tiny band of murderous thugs than we spent to face down Joseph Stalin and Chairman Mao. Many factors have contributed to the dramatic decline in the number of wars between nation-states; it is unrealistic to expect that a new spasm of global conflict would erupt if the United States were to modestly refocus its efforts, draw down its military power, and call on other countries to play a larger role in their own defense, and in the security of their respective regions.

But while there are credible alternatives to the United States serving in its current dual role as world policeman / armed social worker, the foreign policy establishment in Washington has no interest in exploring them. The people here have grown accustomed to living at the center of the earth, and indeed, of the universe. The tangible benefits of all this military spending flow disproportionately to this tiny corner of the United States while the schlubs in fly-over country pick up the tab.

In short, we shouldn’t have expected that a group of Washington insiders would seek to overturn the judgments of another group of Washington insiders. A genuinely independent assessment of U.S. military spending, and of the strategy the military is designed to implement, must come from other quarters.