Tag: New York Times

FBI’s New Guidelines Further Loosen Constraints on Monitoring

The New York Times’s Charlie Savage reports that the FBI is preparing to release a new Domestic Investigations and Operations Guide (DIOG), further relaxing the rules governing the Bureau’s investigation of Americans who are not suspected of any wrongdoing.

This comes just three years after the last major revision of FBI manual, which empowered agents to employ a broad range of investigative techniques in exploratory “assessments” of citizens or domestic groups, even in the absence of allegations or evidence of wrongdoing, which are needed to open an “investigation.” The FBI assured Congress that it would conduct intensive training, and test agents to ensure that they understood the limits of the new authority—but the Inspector General found irregularities suggestive of widespread cheating on those tests.

Agents can already do quite a bit even without opening an “assessment”: They can consult the government’s own massive (and ever-growing) databases, or search the public Internet for “open source” intelligence. If, however, they want to start digging through state and local law enforcement records, or plumb the vast quantities of information held by commercial data aggregators like LexisNexis or Acxiom, they currently do have to open an assessment. Again, that doesn’t mean they’ve got to have evidence—or even an allegation—that their target is doing anything illegal, but it does mean they’ve got to create a paper trail and identify a legitimate purpose for their inquiries. That’s not much of a limitation, to be sure, but it does provide a strong deterrent to casual misuse of those databases for personal reasons. That paper trail means an agent who might be tempted to use government resources for personal ends—to check up on an ex or a new neighbor—has good reason to think twice.

Removing that check means there will be a lot more digging around in databases without any formal record of why. Even though most of those searches will be legitimate, that makes the abuses more likely to get lost in the crowd. Indeed, a series of reports by the Inspector General’s Office finding “widespread and serious misuse” of National Security Letters, noted that lax recordkeeping made it extremely difficult to accurately gauge the seriousness of the abuses or their true extent—and, of course, to hold the responsible parties accountable. Moreover, the most recent of those reports strongly suggests that agents engaged in illegal use of so-called “exigent letters” resisted the introduction of new records systems precisely because they knew (or at least suspected) their methods weren’t quite kosher.

The new rules will also permit agents to rifle through a person’s garbage when conducting an “assessment” of someone they’d like to recruit as an informant or mole. The reason, according to the Times, is that “they want the ability to use information found in a subject’s trash to put pressure on that person to assist the government in the investigation of others.” Not keen into being dragooned into FBI service? Hope you don’t have anything embarrassing in your dumpster! Physical surveillance squads can only be assigned to a target once, for a limited time, in the course of an assessment under the current rules—that limit, too, falls by the wayside in the revised DIOG.

The Bureau characterizes the latest round of changes as “tweaks” to the most recent revisions. That probably understates the significance of some of the changes, but one reason it’s worrying to see another bundle of revisions so soon after the last overhaul is precisely that it’s awfully easy to slip a big aggregate change under the radar by breaking it up into a series of “tweaks.”

We’ve seen such a move already with respect to National Security Letters, which enable access to a wide array of sensitive financial, phone, and Internet records without a court order—as long as the information is deemed relevant to an “authorized investigation.” When Congress massively expanded the scope of these tools under the USA Patriot Act, legislators understood that to mean full investigations, which must be based on “specific facts” suggesting that a crime is being committed or that a threat to national security exists. Just two years later, the Attorney General’s guidelines were quietly changed to permit the use of NSLs during “preliminary” investigations, which need not meet that standard. Soon, more than half of the NSLs issued each year were used for such preliminary inquiries (though they aren’t available for mere “assessments”… yet).

The FBI, of course, prefers to emphasize all the restrictions that remain in place. We’ll probably have to wait a year or two to see which of those get “tweaked” away next.

Oh, Where’d I Put Those Facts?

A few days ago the New York Times offered the following explanation for why public college and university students graduate with less debt than people attending for-profit schools:

[F]or-profit schools sometimes encourage students to borrow privately from the school, rather than from federal programs, which often have lower rates and loan forbearance for those who fall ill or become jobless.

Of course! Evil “subprime” education has teamed up with evil subprime lending to form the Dastardly Legion of Subprime Higher Ed!

Or maybe not. It could also be that the Old Grey Lady is losing her memory a bit and forgot about the, oh, $75 billion or so that public colleges get directly from state and local taxpayers to keep their prices down. 

Darn those meddling facts.

The NYT’s Weak Defense of Homeland Security Grants

Last week, the House passed a homeland security appropriations bill slashing funding for grants to states and localities. The New York Times has now noticed and unleashed an indignant editorial:

House Republicans talk tough on terrorism. So we can find no explanation — other than irresponsibility — for their vote to slash financing for eight antiterrorist programs. Unless the Senate repairs the damage, New York City and other high-risk localities will find it far harder to protect mass transit, ports and other potential targets.

The programs received $2.5 billion last year in separate allocations. The House has cut that back to a single block grant of $752 million, an extraordinary two-thirds reduction. The results for high-risk areas would be so damaging — with port and mass transit security financing likely cut by more than half — that the chairman of the House Homeland Security Committee, Peter King of New York, voted against the bill as “an invitation to an attack.”

Only a few months ago, Times editorials accused King of trying to “hype” and “stoke” fear of homegrown Muslim terrorism. It’s sort of touching to see them get behind his fearmongering when the beneficiaries are local firefighters, police, and other local interests.

But the editorial has trouble worse than hypocrisy. For starters, it’s light on facts. Its accounting seems to omit over $320 million in funds for local firefighters that a floor amendment put in the bill. It also fails to mention that the bill eliminates a formula that ensures that homeland security funds are distributed to every state. Because it means that counterterrorism spending is highest per-capita in rural areas where the threat from terrorism is lowest, homeland security watchers have long attacked that minimum funding provision. So while this bill would indeed cut homeland security funds going to New York, it would also mean that New York gets more of the remaining funds.

More importantly, the Times evidently did not try too hard to find an explanation for the cuts once they settled on irresponsibility, given that Republican appropriators readily offered one: the funds are wasteful. Rather than explain why they think the money is well spent (my definition of responsibility), the editorial conflates spending on security with security itself. It says the cuts will be “damaging,” but it cites only damage to the budgets of recipient agencies, not their purpose.

In fact, the threat of terrorism is so low in the United States and the efficacy of the funds in mitigating it so uncertain that the right amount of homeland security spending in most parts of the United States is none. That is especially true now that we are roughly a decade removed from the September 11 attacks, which spawned a massive increase in homeland security grant-making. That splurge was meant to bolster our ability to defend against what has proved a massively inflated threat of catastrophic terrorism; it was not meant to be a permanent subsidy to state and local governments.

New York City is uniquely threatened, but that does not mean that federal taxpayers should foot the bill. The federal government should collect intelligence on terrorists and hunt them down. Local and state officials should use that information to determine the right amount of local security spending. They have to ask whether normal policing funds, school spending, or slightly lower taxes are worth sacrificing for a new camera or chemical clean-up suit. Federal grants, because they are buried in a massive budget and partially deficit-funded, dilute our ability to perceive those tradeoffs. They also heighten fear of terrorism by encouraging state and local interests to overstate their peril to win the grants, as the editorial demonstrates.

It ends by instructing the Senate to “stand up for security over politics” and restore funding to past levels. But these decisions should be made politically. We give power over security policy to politicians — rather than leaving it exclusively to unelected bureaucrats — because these decisions are important. That is a product of design, not an accident. The notion that security is too important for politics is backwards.

Luckily, the attempt to divorce security policy from electoral politics is a pretense. The Times is engaging in politics by asking for funds. They aim to politically punish those that oppose their preferred policies. If the Senate restores most of the grant funds, as it likely will, it will do so for sound political reasons.

Cross-posted from The National Interest.

A Debate About Troops

The United States will begin drawing down troops in Afghanistan this July. The White House is desperately trying to seize the narrative of the withdrawal claiming that the cuts will be “real” even as Defense Secretary Robert Gates is arguing for the opposite.

This week, the New York Times revealed that some in President Obama’s national security team are seeking steeper reductions, particularly after the death of Osama bin Laden and the increasing costs of the war.

Steeper reductions are certainly warranted. A limited counterrorism mission must be on the table.

The president will try to claim credit for keeping his pledge to reduce the U.S. troop presence, but when we consider that there are three times as many troops in Afghanistan today compared to when Obama took office, a reduction of 3,000-5,000 (out of the roughly 100,000 U.S. troops there) won’t mean much.

Another fold in the Times story is that Secretary Gates and top military commanders in the field are arguing for gradual cuts—not steep reductions. Let’s remember last summer’s Rolling Stone article that profiled the now retired four-star U.S. Army Gen. Stanley McChrystal. He was asked to leave because he made comments that undermined civilian control of the military. Today, albeit in a far less severe manner, military commanders are walking the line of advocating a direction in policy that is at odds with civilians officials.

This underscores a far deeper problem with military policymaking: who controls what exactly?

What Obama decides on for reduction in groundtroops—a token withdrawal or steeper cuts—will partly reflect how confused the Constitutional roles and chain of command has become in the conduct of war.

Cross-posted from The National Interest.

Does Scholar Self-Interest Corrupt Policy Research?

The New York Times recently ran a story portraying the Gates Foundation as the puppeteer of American education policy, bribing or bullying scholars and politicians into dancing as it desires. Rick Hess, of the American Enterprise Institute, feels that the story misrepresented his position on the potentially corrupting influence of foundations, making it sound as though he were referring to the Gates Foundation in particular when in fact he was referring to the impact of foundations generally.

Hess told the Times, among other things, that

As researchers, we have a reasonable self-preservation instinct. There can be an exquisite carefulness about how we’re going to say anything that could reflect badly on a foundation. We’re all implicated.

Next Monday, the Cato Institute will publish a study titled: “The Other Lottery: Are Philanthropists Backing the Best Charter Schools?” In it, I empirically answer the titular question by comparing the academic performance of California’s charter school networks to the level of grant funding they have received from donors over the past decade. The results tell us how much we should rely on the pairing of philanthropy and charter schools to identify and replicate the best educational models. Considerable care went into the data collection and regression model. As for the description of the findings, it’s as simple and precise as I could make it. I doubt it will be hailed as exquisite.

E-Verify and Common Sense

This weekend, New York Times op-ed columnist Ross Douthat wrote a piece full of common sense thinking about immigration control and the E-Verify federal background check system.

“Common sense”—or “what most people think”—is an interesting thing: When generations of direct experience accumulate, common sense becomes one of the soundest guides to action. Think of common law, its source deep in history, molded in tiny increments over hundreds of years. Common law rules against fraud, theft, and violence strike a brilliant balance between harm avoidance and freedom.

When most people lack first-hand knowledge of a topic, though, common sense can go quite wrong. Such is the case with ”common sense” in the immigration area, which is not a product of experience but collective surmise. Douthat, who has the unenviable task of leaping from issue to issue weekly, indulges such surmise and gets it wrong.

Take, for example, the premise that American workers lose when immigration rates are high: “Amnesty,” says Douthat, would “be folly (and a political nonstarter) in this economic climate, which has left Americans without high school diplomas (who tend to lose out from low-skilled immigration) facing a 15 percent unemployment rate.”

On the whole, American workers do not lose out in the face of immigration. To the extent some do, it is penny-wise and pound foolish to retard our economy (in which displaced workers participate) and overall well-being (which affects displaced workers, too) in the name of protecting status quo jobs for a small number of native-borns.

Full immigration reform that includes generous opportunities for new low-skill workers is not folly, whatever its political prospects may be.

But I want to focus on Douthat’s conclusion that E-Verify is the way forward for immigration control. He cites a study finding that Arizona’s adoption of an E-Verify mandate caused the non-citizen Hispanic population of Arizona to fall by roughly 92,000 persons, or 17 percent, over the 2008–2009 period, and concludes:

[M]aybe — just maybe — America’s immigration rate isn’t determined by forces beyond any lawmaker’s control. Maybe public policy can make a difference after all. Maybe we could have an immigration system that looked as if it were designed on purpose, not embraced in a fit of absence of mind.

Though tentative, his implication is that a national E-Verify mandate is the solution. Everything that came before was the product of fevered impulses.  Maybe E-Verify is the most practical solution. Douthat’s calm tone sounds like common sense.

Ah, but neither Douhtat or the authors of the study have thought that problem all the way through (and the study doesn’t claim to): The decline in Arizona was not produced simply by moving illegal immigrants from Arizona back to Mexico and Central America. They went to Washington state and other places in the United States that are less inhospitable to immigrants. A national E-Verify mandate would offer no similar refuge, and the move to underground (or “informal”) employment would occur in larger proportion than it did in Arizona.

The report also cautions that the honeymoon in Arizona may not hold:

[T]he initial effects of the legislation are unlikely to persist if actors in the labor market learn that there are no consequences from violating these laws. Hence, for long-term effectiveness, policymakers should also consider the role of employer sanctions, which have not played a large role in Arizona’s results so far. However, policymakers must weigh the sought-after drop in unauthorized employment against the costs associated with shifting workers into informal employment.

That’s antiseptic language for: investigations of employers, raids on workers, heavy penalties on both, and growth in black markets and a criminal underground. “Balmy” is a way of describing the temperature potatoes pass through in a pressure cooker.

It’s hard, on analysis, to see Arizona’s experience being replicated or improved upon by an E-Verify mandate that’s national in scale without a great deal of discomfort and cost. I surveyed the demerits of electronic employment eligibility verification in “Franz Kafka’s Solution to Illegal Immigration.”

There is more not to love in the Douthat piece. Take a look at this shrug-o’-the-shoulders to the deep flaws in the concept of “internal enforcement” and E-Verify:

Arizona business interests called it unfair and draconian. (An employer’s business license is suspended for the first offense and revoked for the second.) Civil liberties groups argued that the E-Verify database’s error rate is unacceptably high, and that the law creates a presumptive bias against hiring Hispanics. If these arguments sound familiar, it’s because similar critiques are always leveled against any attempt to actually enforce America’s immigration laws. From the border to the workplace, immigration enforcement is invariably depicted as terribly harsh, hopelessly expensive and probably racist into the bargain.

We should disregard these problems because they’re familiar? With regard to E-Verify, they’re familiar because they are the natural consequence of dragooning the productive sector into enforcing maladjusted laws against free movement of people from a particular ethnic category to where their labor is most productive.

Problem-solving is welcome, and columnists like Ross Douthat have to at least point to a solution with regularity. But this effort, sounding in common sense, does not rise to the challenge. The solution is not even more enforcement of laws inimical to human freedom. The solution is reforming immigration laws to comport with … common sense!

Will Obama Comply with the War Powers Resolution?

Six Republican senators are challenging President Obama’s authority to conduct an open-ended war in Libya without congressional authorization. The six conservative lawmakers (Rand Paul (R-KY), Jim DeMint (R-SC), Mike Lee (R-UT), Ron Johnson (R-WI), Tom Coburn (R-OK), and John Cornyn (R-TX)) sent a letter to the president on May 18th asking if he intends to comply with the War Powers Resolution. The full text of the letter can be found here.

The law stipulates that the president must terminate military operations within 60 days, unless Congress explicitly authorizes the action, or grants an extension. The clock on the Libya operation started ticking on March 21, 2011. Congress has neither formally approved of the mission, nor has it granted an extension. Therefore, the 60-day limit expires tomorrow, May 20th.

Last week at The Skeptics, I noted Deputy Secretary of State James Steinberg’s testimony before the Senate Foreign Relations Committee, in which he suggested that the administration wanted to comply, but was consulting with Congress about how to do so. The New York Times presented some of the creative ideas that the administration was considering in order to adhere to circumvent the law. But the senators can read the Times, too. In their letter to the president, they write:

Last week some in your Administration indicated use of the United States Armed Forces will continue indefinitely, while others said you would act in a manner consistent with the War Powers Resolution. Therefore, we are writing to ask whether you intend to comply with the requirements of the War Powers Resolution. We await your response.

Let me be clear about one thing: I’m not a huge fan of the War Powers Resolution, per se. To me, it is silly, sort of like a law that affirmed the Congress’s authority to levy taxes, borrow and coin money, and establish Post Offices. In the same section where these powers are delegated, the Constitution clearly stipulates that Congress shall have the power to declare war. So why does there also need to be legislation?

Most presidents have complied with the spirit of the War Powers Resolution, but more out of deference to the notion that Congress has some role in whether the United States goes to war, not out of genuine conviction that Congress does/should have the most important role in deciding such things. By all appearances, President Obama is bypassing the charade.

I anxiously await his response to the senators’ letter, and am likewise curious to see if other senators raise questions about the administration’s intentions.