It took the Transportation Security Administration 20 months to comply with a D.C. Circuit Court of Appeals order requiring it to issue a justification for its policy of using strip-search machines for primary screening at airports and to begin taking comments from the public.

In that time, it came up with a 53-page (double-spaced) notice of proposed rulemaking. That’s 2.65 double-spaced pages per month.

This may be the most carefully written rulemaking document in history. We’ll be discussing it next week at an event entitled: “Travel Surveillance, Traveler Intrusion.” Register now!

The TSA’s strip-search machine notice will be published in the Federal Register tomorrow, and the public will have 90 days to comment. The law requires the agency to consider those public comments before it finalizes its policies. If the comments reveal the TSA’s policies to be arbitrary or capricious, the policies can be struck down.

But what is there to comment on? The TSA’s brief document defends a hopelessly vague policy statement instead of the articulation that the court asked for. And as to the policy we all know it’s implementing, TSA hides behind the skirts of government secrecy.

When the court found that the TSA was supposed to take comment from the public, it wanted a clearer articulation of what rules apply at the airport. The court’s ruling itself devoted several paragraphs to the policy and how it affects American travelers.

[T]he TSA decided early in 2010 to use the scanners everywhere for primary screening. By the end of that year the TSA was operating 486 scanners at 78 airports; it plans to add 500 more scanners before the end of this year.

No passenger is ever required to submit to an AIT scan. Signs at the security checkpoint notify passengers they may opt instead for a patdown, which the TSA claims is the only effective alternative method of screening passengers. A passenger who does not want to pass through an AIT scanner may ask that the patdown be performed by an officer of the same sex and in private. Many passengers nonetheless remain unaware of this right, and some who have exercised the right have complained that the resulting patdown was unnecessarily aggressive.

The court wanted a rulemaking on this policy. In the jargon of administrative procedure, the court demanded a “legislative rule,” something that reasonably details the rights of the public and what travelers can expect when they go to the airport.

Instead, the TSA has produced a perfectly vague policy statement that conveys nothing about what law applies at the airport. In the regulations that cover screening and inspection, the TSA simply wants to add:

(d) The screening and inspection described in (a) may include the use of advanced imaging technology. For purposes of this section, advanced imaging technology is defined as screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened.

Not a word about the use of strip-search machines as primary screening. Nothing about travelers’ options. Nothing about signage. Nothing about the procedures for opt-outs. Nothing about what a person can do if they have a complaint. It’s not a regulation. It’s a restatement of “we do what we want.”

That’s contemptuous of the court’s order requiring TSA to inform the public, take comments, and consider those comments in formulating a final rule. TSA is doing everything it can to make sure that the airport is a constitution-free zone, and this time it’s lifting a middle finger to the D.C. Circuit Court of Appeals.

It is possible, even in a relatively short document, to articulate how billions of dollars spent on exposing the bodies of millions of law-abiding Americans makes the country better off. What’s amazing about the document is how little it says. TSA doesn’t even try to justify its strip-search machine policy. Instead, it plays the govenment secrecy trump card.

Here is everything TSA says about how strip-search machines (or “AIT” for “advanced imaging technology”) make air travel safer:

[R]isk reduction analysis shows that the chance of a successful terrorist attack on aviation targets generally decreases as TSA deploys AIT. However, the results of TSA’s risk-reduction analysis are classified.

Balderdash.

Under Executive Order 135256, classification is permitted if “disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism.”

“If there is significant doubt about the need to classify information,” the order continues, “it shall not be classified.”

Assessing the costs and benefits of TSA’s policies cannot possibly result in damage to national security. The reason I know this? It’s already been done, publicly, by Mark G. Stewart of the University of Newcastle, Australia, and John Mueller of the Ohio State University. They published their findings in the Journal of Homeland Security and Emergency Management in 2011, and national security is none the worse.

Walking through how well policies and technologies produce security can be done without revealing any intelligence about threats, and it can be done without revealing vulnerabilities in the policy and technology. But the TSA is playing the secrecy trump card, hoping that a gullible and fearful public will simply accept their authority.

I anticipated that the agency might try this tactic when the original order to engage in a public rulemaking came down in mid-2011. In a Cato blog post, I wrote:

Watch in the rulemaking for the TSA to obfuscate, particularly in the area of threat, using claims to secrecy. “We can’t reveal what we know,” goes the argument. “You’ll have to accept our generalizations about the threat being ‘substantial,’ ‘ever-changing,’ and ‘growing.’” It’s an appeal to authority that works with much of the American public, but it is not one to which courts—a co-equal branch of the government—should so easily succumb.

If it sees it as necessary, the TSA should publish its methodology for assessing threats, then create a secret annex to the rulemaking record for court review containing the current state of threat under that methodology, and how the threat environment at the present time compares to threat over a relevant part of the recent past. A document that contains anecdotal evidence of threat is not a threat methodology. Only a way of thinking about threat that can be (and is) methodically applied over time is a methodology.

The TSA published nothing, and it hopes to get past the public and the courts with that.

Its inappropriate and undeniably overbroad use of secrecy will be in our comments to the agency and the legal appeal that will almost certainly follow.

Crucially, agency actions like this are subject to court review. When the TSA finalizes its rules, a court will “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Sooner or later, we’ll talk about whether TSA followed the court’s order, the lawfulness of wrapping its decision-making in secrecy, and the arbitrary nature of a policy that has no public justification.

Recent news reports have missed a major item on Afghanistan. Last week, the Independent reported on an internal study from the British government’s Ministry of Defence (MoD). The study, obtained under the Freedom of Information Act, examines the “extraordinary number of similar factors that surround both the Soviet and Nato campaigns in Afghanistan.” 

The study finds that despite their differences: 

Both interventions have been portrayed as foreign invasions attempting to support a corrupt and unpopular central government against a local insurgent movement which has popular support, strong religious motivation and safe havens abroad. In addition, the country will again be left with a severely damaged and very weak economic base, heavily dependent upon external aid. 

It goes on: 

The highest-level parallel is that both campaigns were conceived with the aim of imposing an ideology foreign to the Afghan people: the Soviets hoped to establish a Communist state while Nato wished to build a democracy,” it says. “Equally striking is that both abandoned their central aim once they realised that the war was unwinnable in military terms and that support of the population was essential. [Emphasis added.] 

In a questionable comment that one would expect a U.S. official to utter, the British government website states “We are in Afghanistan to protect our own national security by helping the Afghans take control of theirs.” The internal study, of course, comes to a contrary conclusion: “The military parallels are equally striking; the 40th Army [of the Soviet Union] was unable decisively to defeat the mujahedin while facing no existential threat itself, a situation that precisely echoes the predicament of Isaf [the Nato-led security mission].” 

To learn more about the international community’s inability to rescue Afghanistan—and why the international community made that grandiloquent pledge in the first place—register for the Cato Institute policy forum on Friday, April 5th , “The war in Afghanistan: What Went Wrong?” I will host Washington Post reporter Rajiv Chandrasekaran, the RAND Corporation’s Ambassador James Dobbins, and West Point Professor and COIN critic Colonel Gian Gentile to discuss America’s longest war.

With thanks to Mark Thompson at Time’s Battleland for calling this to my attention, the discussion yesterday on CNN’s “Reliable Sources” concerning the decision to invade Iraq was more interesting than the others that I’ve seen or read. 

Host Howard Kurtz noted that editors at the New York Times had admitted to having “printed too many credulous claims about Saddam and Iraq.” Kurtz explained that Len Downie, then the editor of the Washington Post, had admitted “he had made a mistake of not putting more skeptical stories on the front page. Even the people who ran the news organizations seem to acknowledge that they had fallen short.” Given all this, Kurtz asked the panelists, “Didn’t most of the media…get rolled by the Bush administration during this run-up to war?”

The panel, which included Thompson, and Fred Francis, formerly with NBC, explained why the press got the story wrong: Saddam fooled a lot of people, including his own people and his neighbors. He fooled many people in the U.S. government, too.

But the Washington Post’s Rajiv Chandrasekaran properly looked past the distractions of phony Iraqi connections to 9/11 and Iraq’s nonexistent nuclear weapons. Chandrasekaran agreed with Kurtz that “there was far more that we all could have done. You could go to Iraq. I was in Iraq for the bulk of the six months leading up to the war. What you couldn’t really do is get an independent assessment of what Saddam really had.”

But, he continued:

it wasn’t just the issue of weapons of mass destruction. It was the broader questions. What is the political transition plan? Truth squadding the White House’s claims that Iraq could pay for it, the reconstruction of its country, the questions of the long simmering tensions between the principal religious and ethnic groups in the country. These were questions that were all easily reportable. They should have had more coverage. We didn’t do enough in really aggressively looking at all of that.

Chandrasekaran (who will be speaking at Cato in a few weeks) is right. The greatest argument against launching a war to overthrow Saddam Hussein was what would come after him. The advocates for the war hyped the threat of Saddam’s weapons, and what he would do with them, to build a case for the benefits that would obtain from the war. We now know that they exaggerated these benefits because Saddam didn’t have nuclear weapons. But the claim that Saddam would use the weapons, or give them to terrorists, was also dubious, and was noted as such at the time (and well before) by some of the leading opponents of the war.

But the war hawks also downplayed the costs of invading Iraq by claiming that there would be no need for a long-term U.S. troop presence, and certainly not as large as Army leaders had estimated. They dismissed the overwhelming evidence that Iraq was beset by ethnic and sectarian divisions. Bill Kristol famously dismissed the notion that “somehow the Shia can’t get along with the Sunni” as so much “pop sociology.” I suspect that they were aware of these divisions, because it would have been far harder to convince the American people to support a conflict if they knew that it was going to be long and costly, instead of the “cakewalk” that the war’s supporters claimed.

I cannot prove the war hawks knew the truth about Iraq and concealed it. I’m certain that they should have known. But they weren’t trying to stop a war; they were trying to start one.

And that is why those who should have known better and did not speak up, or who lent their credibility as experts to the side making the case for war, deserve special scorn on the 10-year anniversary of the start of the Iraq war. They failed to stop the war. The news media’s coverage was inadequate and lazy. In retrospect they should have paid more attention to the vocal few who raised serious objections. But reporters cannot be blamed for not finding experts who did not speak publicly. Or at all.

That is where Colin Powell comes in. He is likely to be remembered for his crucial role in making the case for war at the United Nations on February 5, 2003. But Powell should also be remembered for his words of caution six months earlier, in August 2002.

It is known today as the Pottery Barn principle–“If you break it, you own it.” But what Powell actually said reflects a deep appreciation for the folly of regime change and preventive war: “You are going to be the proud owner of twenty-five million people,” Powell warned the president. “You will own all their hopes, aspirations, problems… . It’s going to suck the oxygen out of everything.”

We know about this exchange from Bob Woodward, and Powell was probably the veteran reporter’s source, so the words could be dismissed as self-serving, or simply invented after the fact. But they shouldn’t be. Because what Powell allegedly said to Bush then could just as easily have been said by Condoleezza Rice in 2007 with respect to war with Iran, or by Hillary Clinton in 2011 regarding Bashar al-Assad in Syria, or by John Kerry in response to North Korea’s latest antics today. And even if Powell never said them, the sentiment is spot on. I only wish he had said them in public.

Whenever reporters, scholars, academics–or anyone in the public at large, for that matter–hears someone making the case for preventive war, the Pottery Barn principle, Powell’s unspoken warning from a war that never should have happened, should be burned in their brain. I think that it is. And that explains why Bill Kristol’s modern-day Project for a New American Century has proved far less effective than its predecessor.

I sincerely wish that we didn’t have to suffer the loss of blood and treasure, the thousands of American dead, and tens of thousands wounded, to learn these lessons. But I especially hope that we’re not already forgetting them.