Tag: Wall Street Journal

‘Perfect Citizen’: Congress’ Perfect Failure

Reliable national security reporter Siobhan Gorman at the Wall Street Journal has broken a story about an Internet surveillance program called “Perfect Citizen” to be managed by the National Security Agency.

Reading about it is frustrating, and for me blame quickly settles on Congress. Our legislature is utterly supine before the national security bureaucracy, which exaggerates cybersecurity threats and consistently uses the secrecy trump card to defy oversight.

If there is to be a federal government role in securing the Internet from cyberattacks, there is no good reason why its main components should not be publicly known and openly debated. Small parts, like threat signatures and such—the unique characteristics of new attacks—might be appropriately kept secret, but no favor is done to any potential attackers by revealing that there is a system for detecting their activities.

A cybersecurity effort that is not tested by public oversight will be weaker than ones that are scrutinized by private-sector experts, academics, security vendors, and watchdog groups.

Benign intentions do not control future results, and governmental surveillance of the Internet for “cybersecurity” purposes may warp over time to surveillance for ideological and political purposes.

These abstract criticisms of “Project Citizen” are all that publicly available information allows. Far better would come from me and others more qualified if Congress were to do its job.

Congress owes it to us, the United States’ true citizens, to have public hearings on “Perfect Citizen.” Congress should reject broad assertions of secrecy so that the whole body politic can participate in securing our country from all threats.

Congressional and public oversight—searching oversight that tests assumptions and asks hard questions—would strengthen any government cybersecurity effort we find warranted. It would also ameliorate the threat of such programs to our civil liberties, democratic processes, and privacy.

Two Cheers for the U.S. Economy

Two articles in today’s Wall Street Journal deal with the housing sector.  They complement each other. Journal reporters note that “Industry Speeds Recovery, And Housing Slows It Down.”  The story notes that that “ground-breaking for new homes and applications for building permits both plunged last month.”  Meanwhile, U.S. industrial output showed strong growth in May.

Bravo for both numbers, which are inter-related.  The headline (over which reporters have no control) reflects conceptual confusion.  U.S. industrial production is strong at least in part because construction of new homes is weak.   The bloated home sector is no longer absorbing a disproportionate share of economic resources.  The new homeowners tax credit has mercifully expired, ending that bit of misguided stimulus.

David Wessel’s article, “Rethinking Home Ownership,” further clarifies the reallocation of resources taking place in the U.S. economy.  Beginning in the 1990s, the federal government adopted a number of policies to stimulate home ownership.  As Wessel makes clear, it was a bipartisan effort.  Home ownership rates rose from around 65% to a peak of 69.4% in 2004.  It was an unsustainable policy, a true asset bubble.

Home ownership rates have now fallen back to where they began, or even below.  The experience of the 1990s and early 2000s in housing demonstrates why government stimulus is not a permanent source of demand, nor the path to sustainable economic growth. Lest we forget, the folly of these programs is measured not just in housing numbers, but in shattered dreams and hopes and ruined lives. And the terrible financial crisis to which these programs contributed

New York State Should Cut Property Taxes

The New York Times editorialists are at it again.  June 12th’s lead editorial, “The Latest Work Dodge: A Shutdown,” frets over the specter of the New York state government being shut down because Albany’s legislators can’t agree on a budget.  Well, the Times must have breathed a collective sigh of relief late Monday (June 14th).  That’s when the State Senate passed Governor Paterson’s 11th temporary budget extender, which allowed state offices to hang out “open for business” signs on Tuesday.

But, the Times wants a final state budget and claims that more taxing and borrowing and maybe some cuts in school aid will do the trick.  One item that the Times wants off the table in Albany is property taxes.  According to the Times, Democratic state senators outside New York City should stop pushing for restrictions on the rate of growth of property taxes.  I agree.  Instead, the legislators should start pushing for sharp cuts in New York’s oppressive property taxes.  When every U.S. county is ranked according to its average property-tax bill, as a percent of home values, 14 of the highest 15 are in New York state.

As Prof. Steve Walters and I concluded in “A Property Tax Cut Could Help Save Buffalo” (Wall Street Journal, December 6, 2008),  New York should follow California and Massachusetts and cut property taxes.  Voters capped property taxes in California at 1% of market value with Proposition 13 in 1978. That forced San Francisco to cut its rate by 57% overnight and brought forth a tidal wave of investment, even amidst a recession. By 1982, inflation-adjusted city revenues were two-thirds higher than they had been before Prop. 13. Massachusetts voters passed Prop 2 ½ in 1980, forcing Boston’s property tax rate down by an estimated 75% within two years. Massive reinvestment, repopulation and urban renewal followed.

Perfidious Albion?

Today’s Wall Street Journal excerpted a Peter Hitchens Daily Mail column and then inexplicably tried to stick it behind the pay wall on their website.  (Peter is the “Anti-War, Pro-God” Hitchens, not the “Pro-War, Anti-God” Hitchens.)

Because I’m feeling subversive–and because the column was a good piece of prose–let’s take a look.  Hitchens is talking about the Obama White House vs. BP in the context of the US-England relationship, and lets loose:

…Far too many people – many of them academics, many politicians – continue to jabber about a supposed ‘special relationship’ between our two countries.

I used to think that no such thing existed. Recently, I have become convinced that it does, and that it is in fact a Specially Bad Relationship.

Americans may say they love our accents (I have been accused of sounding ‘like Princess Di’) but the more thoughtful ones resent and rather dislike us as a nation and people, as friends of mine have found out by being on the edge of conversations where Americans assumed no Englishmen were listening.

And it is the English, specifically, who are the targets of this. Few Americans have heard of Wales. All of them have heard of Ireland and many of them think they are Irish. Scotland gets a sort of free pass, especially since Braveheart re-established the Scots’ anti-English credentials among the ignorant millions who get their history off the TV.

Words such as ‘arrogant’ and ‘snobbish’ occur – and the ceaseless use of English actors in Hollywood movies to portray haughty, cruel villains is not accidental. Sometimes it bursts out into the open. Mel Gibson’s atrocious anti-English propaganda film The Patriot pretty much equated the Redcoats with the Nazi SS. And it played to full and enthusiastic houses.

Some of this is deep-buried. The American national anthem, The Star-Spangled Banner, is a des­cription of a British naval bombardment of Baltimore. It refers to the presence of British troops on American soil as ‘their foul footsteps’ pollution’. There’s always been a rough, republican anti-English spirit, well expres­sed by the Mayor of Chicago, Big Bill Thompson, who threatened to punch King George V ‘in the snoot’ if he ever came that way. His Majesty didn’t.

Apart from the war of 1812 to 1814, the two countries have almost come to blows many times. It was American pressure that forced us out of the first rank of naval powers in the Washington Naval Treaty of 1922, which led to our defeat at Singapore 20 years later. The last physical clash was in 1956 when the US Sixth Fleet harassed the Royal Navy on its way to Suez, deliberately steering destroyers dangerously close to our battle line. But by then Washington had learned money spoke louder than guns, and Dwight Eisenhower forced us to abort the operation by threatening to bankrupt us.

During an assignment in Washington I watched Bill Clinton fawn over the grisly IRA apologist Gerry Adams. I learned that White House officials regarded us as on a level with, say, Yugoslavia – an annoying, backward European nation to be ordered about and forbidden to control its internal affairs.

That’s how it really stands. I would like a British Government to behave as if it understood this, instead of mouthing outdated and meaningless fake Chur­chillian ‘Finest Hour’ rubbish.

What Would Reagan Do on Immigration?

Former Reagan speechwriter Peter Robinson tries to answer that very good question in an op-ed in today’s Wall Street Journal. It’s a question my conservative Republican friends should ask themselves as the party tries, once again, to turn public opposition to illegal immigration into political success at the polls.

Robinson correctly observes that Reagan would have had nothing to do with the anger and inflamed rhetoric that so often marks the immigration debate today. “Ronald Reagan was no kind of nativist,” he concludes, noting that Reagan was always reaching out to voters beyond the traditional Republican base, including the fast-growing Hispanic population.

It’s worth remembering that Reagan signed the 1986 Immigration Reform and Control Act (IRCA), which opened the door to citizenship for nearly 3 million people who had been living in the country illegally. Robinson is confident Reagan would have supported the kind of comprehensive immigration reform championed by President George W. Bush and approved by the Senate in 2006.

For the record, I made similar observations and included a few of the same Reagan quotes in an op-ed I wrote soon after Reagan’s passing in June 2004

My only quibble with Robinson is his assertion that Reagan would have insisted that we successfully enforce the current immigration law first before contemplating any changes. It’s true that the 1986 IRCA contained new enforcement measures and launched an exponential rise in spending on border enforcement. But by all accounts the 1986 law failed to stem the inflow of illegal immigration.

My hunch is that President Reagan would not have simply favored spending more money on an approach that has so clearly failed to deliver. Although he embraced the conservative label, Reagan was always ready to challenge the status quo and change the law to further his vision of a free society and limited government.

I wish more of the Gipper’s admirers today shared his benevolent attitude toward immigration.

New Crime Stats Contradict Anti-Immigrant Hype

FBI crime figures reported in today’s Wall Street Journal challenge the perception that illegal immigrants have unleashed a crime wave in Arizona.

One of the clinching arguments for Arizona’s tough new law aimed at illegal immigration has been the perception in that state that crime has been rising, and that undocumented workers are largely to blame. Yet the Journal reports that the incidence of violent crime in Phoenix last year plunged 16.6 percent compared to 2008, a rate of decline that was three times the national average.

According to the Phoenix Police Department, the downward trend in crime has continued into 2010 even as the “illegal immigrant crime wave” story reverberates on cable TV and talk radio. As the Journal story reports:

In Phoenix, police spokesman Trent Crump said, “Despite all the hype, in every single reportable crime category, we’re significantly down.” Mr. Crump said Phoenix’s most recent data for 2010 indicated still lower crime. For the first quarter of 2010, violent crime was down 17% overall in the city, while homicides were down 38% and robberies 27%, compared with the same period in 2009.

Arizona’s major cities all registered declines. A perceived rise in crime is one reason often cited by proponents of a new law intended to crack down on illegal immigration. The number of kidnappings reported in Phoenix, which hit 368 in 2008, was also down, though police officials didn’t have exact figures.

The new crime figures confirm what I wrote in a column in today’s Washington Times under the headline, “Unfounded fear of immigrant crime grips Arizona,” and what I explored in a longer think piece, “Higher Immigration, Lower Crime,” in Commentary magazine a few months ago.

The president and Congress need to fix our immigration system, but we need to do it in the right way and for the right reasons.

The Wall Street Journal’s Surveillance Fantasies

There are too few periodical venues for good short fiction these days, so I’d normally be enthusiastic about the Wall Street Journal’s decision to print works of fantasy. Unfortunately, they’ve opted to do so on their editorial page—starting with a long farrago of hypotheticals concerning the putative role of the Foreign Intelligence Surveillance Court in hindering the detection and apprehension of failed Times Square bomber Faisal Shahzad. In fairness to the editors, they acknowledge near the end of the piece that much of it is unvarnished speculation, but their flights of creative fancy extend to many claims presented as fact.

Let’s begin with the acknowledged fiction. The Journal editors wonder whether Shahzad might have been under surveillance before his botched Times Square attack, and posit that the NSA might have intercepted communications from “Waziristan Taliban talking about ‘our American brother Faisal,’ which could have been cross-referenced against Karachi flight manifests,” or “maybe Shahzad traded seemingly innocuous emails with Pakistani terrorists, and minimization precluded analysts from detecting a pattern.”  Anything is possible. But it’s a leap to make this inference merely because investigators appear to have had fairly specific knowledge about his contacts with terrorists after he had already been identified.  They would not have needed to “retroactively to reconstruct his activities from other already-gathered foreign wiretaps:” Once they had zeroed in on Shahzad, his calling patterns could have been reconstructed from phone company calling records whether or not he or his confederates were being targeted at the time the communications occurred, and indeed, those records could have been obtained by means of a National Security Letter without any oversight from the FISA Court.

This is part of a more general strategy we often see deployed by advocates of expanded surveillance powers. After the fact, one can always tell a story about how a known terrorist might have been detected by means of more unfettered spying authority, just as one can always tell a story about how any particular calamity would have been averted if the right sort of regulation were in place. Sometimes the story is even plausible. But if we look at the history of recent intelligence failures, it’s almost invariably the case that the real problem was the inability to connect the right set of data points from the flood of data already obtained, not insufficient ability to collect. The problem is that it’s easy and satisfying to call for legislation lifting the restraints on surveillance—and lifting still more when intelligence agencies fail to exhibit perfect clairvoyance—but difficult if not impossible, certainly for those of us without high-level clearances, to say anything useful about the internal process reforms that might help make better use of existing data. The pundit in me empathizes, but these just-so stories are a poor rationale for further diluting civil liberties protections.

Let’s move on to the unacknowledged fictions, of which there are many.  Perhaps most stunning is the claim that “U.S. intelligence-gathering capability has been substantially curtailed in stages over the last decade.” They mean, one supposes, that Congress ultimately imposed a patina of judicial oversight on the lawless program of warrantless wiretapping and data program authorized by the Bush administration in the aftermath of the 9/11 attacks. But the claim that somehow intelligence gathering is more constrained now than it was in 2000 just doesn’t pass the straight face test. In addition to the radical expansion of the aforementioned National Security Letter authorities, Congress approved roving wiretaps for domestic intelligence, broad FISA orders for the production of “any tangible thing,” so-called “sneak and peek” searches, looser restraints on existing FISA wiretap powers, and finally, with the FISA Amendments Act of 2008, executive power to authorize broad “programs” of surveillance without specified targets. In a handful of cases, legislators have rolled back slightly their initial grants of power or imposed some restraints on powers the executive arrogated to itself, but it is ludicrous to deny that the net trend over the decade has been toward more, rather than less, intelligence-gathering capability.

Speaking of executive arrogation of power, here’s how the Journal describes Bush’s warrantless Stellar Wind program:

Via executive order after 9/11, the Bush Administration created the covert Terrorist Surveillance Program. TSP allowed the National Security Agency to monitor the traffic and content of terrorist electronic communications overseas, unencumbered by FISA warrants even if one of the parties was in the U.S.

This is misleading.  There was no such thing as the “Terrorist Surveillance Program.”  That was a marketing term concocted after the fact to allow administration officials to narrowly discuss the components of Stellar Wind initially disclosed by the New York Times.  It allowed Alberto Gonzales to claim that there had been no serious internal dissent about the legality of “the program” by arbitrarily redefining it to exclude the parts that had caused the most controversy, such as the vast data mining effort that went far beyond suspected terrorists. It was this aspect of Stellar Wind, and not the monitoring of overseas communication, that occasioned the now-infamous confrontation at Attorney General John Ashcroft’s hospital bed described in the editorial’s subsequent paragraph. We continue:

In addition to excessive delays, the anonymous FISA judges demanded warrants even for foreign-to-foreign calls that were routed through U.S. switching networks. FISA was written in an analog era and meant to apply to domestic wiretaps in the context of the Cold War, not to limit what wiretaps were ever allowed.

Forgive me if I’m a broken record on this, but the persistence of the claim in that first sentence above is truly maddening.  It is false that “FISA judges demanded warrants even for foreign-to-foreign calls that were routed through U.S. switching networks.”  Anyone remotely familiar with the FISA law would have known it was false when it was first bandied about, and a Justice Department official confirmed that it was false two years ago. FISA has never required a warrant for foreign-to-foreign wire communications, wherever intercepted, though there was a narrower problem with some e-mail traffic.  To repeat the canard at this late date betrays either dishonesty or disqualifying ignorance of elementary facts. Further, while it’s true that a great deal of surveillance has always, by design, remained beyond the scope of FISA, it is clearly false that it was “meant to apply to domestic wiretaps” if by this we mean only “wiretaps where all parties to the communication are within the United States.” The plain text and legislative history of the law make it clear beyond any possible doubt that Congress meant to impose restraints on the acquisition of all U.S.-to-foreign wire communications, as well as radio communications targeting U.S. persons. (The legislative history further suggests that they had hoped to tighten up the restraints on radio communications, though technical considerations made it difficult to craft functional rules.) We continue:

The 2008 FISA law mandates “minimization” procedures to avoid targeting the communications of U.S. citizens or those that take place entirely within the U.S. As the NSA dragnet searches emails, mobile phone calls and the like, often it will pick up domestic information. Intelligence officials can analyze, retain and act on true smoking guns. But domestic intercepts must be effectively destroyed within 72 hours unless they indicate “a threat of death or serious bodily harm to any person” or constitute “evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.”

This means that potentially useful information must be discarded if it is too vague to obtain a traditional judicial warrant. Minimization is the FISA equivalent of a fishing license that requires throwing back catches that don’t meet the legal limit. Yet the nature of intelligence analysis is connecting small, suggestive and often scattered clues.

The kernel of truth here is that the FISA Amendments Act did impose some new constraints on the surveillance of Americans abroad. But the implication that “minimization” is some novel invention is just false. Minimization rules have always been part of FISA, and they exist precisely because the initial scope of FISA acquisition is so incredibly broad. And those minimization rules give investigators enormous latitude.  As the FISA Court itself explained in a rare published ruling:

Minimization is required only if the information “could not be” foreign intelligence. Thus, it is obvious that the standard for retention of FISA-acquired information is weighted heavily in favor of the government.

Similarly, the redaction of identifying information about U.S. persons is not required when that information is needed to properly interpret the intelligence, so the idea that analysts would have scrubbed mention of “our American brother Faisal” from an intercept of Taliban communications cannot be taken too seriously.  It’s not entirely clear what the editors are referring to when they say “domestic intercepts must be effectively destroyed within 72 hours:” Do they mean “inadvertent” intercepts of entirely domestic communications, or one-end domestic communications legitimately acquired under the FAA, or what? Either way, that’s not really consistent with what we know about FISA minimization in practice: At least as of 2005, it appears that “minimized” communications were at least sometimes retained in ultimately retrievable form, though not logged.  In any event, if I’m reading them correctly, the Journal is suggesting that NSA should be broadly sweeping up and retaining even the apparently innocent domestic communications of Americans, on the off chance that they might later prove useful? I can imagine being that consumed by terror, but I think I would be ashamed to admit it in public.  Moving on:

Meanwhile, the FISA court reported in April that the number of warrant applications fell to 1,376 in 2009, the lowest level since 2003. A change in quantity doesn’t necessarily mean a change in intelligence quality—though it might.

As it happens, I covered this in a post just the other day.  As a Justice Department official explained to the bloggers at Main Justice, the numerical decline is due to significant changes in the legal authorities that govern FISA surveillance — specifically, the enactment of the FISA Amendments Act in 2008 — and shifting operational demands, but the fluctuation in the number of applications does not in any way reflect a change in coverage.”  Finally:

These constraints are being imposed at the same time that domestic terror plots linked to, or inspired by, foreigners are increasing. Our spooks did manage to pre-empt Najibullah Zazi and his co-conspirators in a plot to bomb New York subways, but they missed Shahzad and Nidal Hasan, as well as Umar Farouk Abdulmutallab’s attempt to bring down Flight 253 on Christmas Day.

Abdulmutallab was a non-U.S. person who didn’t set foot in the country until after setting his underpants aflame; there is no reason whatever to believe that FISA restrictions would have posed an obstacle to monitoring him. As for Nidal Hasan, investigators did intercept his e-mails with radical cleric Anwar al Awlaki. While it seems clear in retrospect that the decision not to investigate further was an error in judgment, they were obviously not destroyed after the fact, since they were later quoted in various press accounts. Maybe those exchanges really did seem legitimately related to Hasan’s research at the time, or maybe investigators missed some red flags. Either way, the part of the process the Journal is wringing its hands about worked: The intercepts were retained and disseminated to the Joint Terrorism Task Force, which concluded that Hasan was “not involved in terrorist activities or terrorist planning” and, along with Army officials, declined to open an investigation. Rending already gossamer-thin minimization requirements is not going to avoid errors of that sort.

The Journal closes out their fantasy by melodramatically asking “whether FISA is in practice giving jihadists a license to kill.” But the only “license” I see here is of the “creative” variety; should they revisit the topic in the future, the editors might consider taking less of it.