Topic: Foreign Policy and National Security

Ratifying NSA Spying, a Court Calls FISA ‘Courts’ Into Question

Two weeks ago, when D.C. District judge Richard Leon ruled that mass government surveillance of Americans’ telephone calling was likely unconstitutional, there was some well-poisoning about his opinion being “passionate.” The implication, of course, was that he was not being suitably judicial. The same could be said of this week’s ruling by Judge Pauley of the U.S. District Court in New York. When the first sentence intones: “The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is,” and when the first citation is a “See generally” to the 9/11 Commission report, these are not signs that you’re about to get dispassionate application of law to facts.

Judge Pauley’s use of the 9/11 Commission report to argue that NSA data collection could have foiled the 9/11 plot is belied by the report’s clear statement with respect to Khalid Al-Mihdhar: “No one was looking for him.” (page 269) In our paper, “Effective Counterterrorism and the Limited Role of Predictive Data Mining,” Jeff Jonas and I detailed ways many of the 9/11 terrorists could have been found had anyone been looking. The argument that NSA spying would have prevented 9/11 is not a strong one.

But passions pitted against one another is just one of the symmetries between the two rulings. Judge Leon distinguished Smith v. Maryland. He believes that the Supreme Court case allowing the use of phone call information to convict a suspected burglar and obscene phone caller does not ratify the collection of phone calling information about every innocent American. Judge Pauley treated Smith v. Maryland as controlling. If one burglar in Baltimore doesn’t have a Fourth Amendment interest in his phone calling data, 200 million Americans don’t either. We have appeals to sort these things out, and Judge Pauley’s ruling makes it more likely that such an appeal will reach the Supreme Court, which is good.

The interesting thing in Judge Pauley’s ruling is ammunition he offers to critics of the panels of judges created by the Foreign Intelligence Surveillance Act. People often refer to them as the “Foreign Intelligence Surveillance Court” or “FISC.”

While the FISC is composed of Article III judges, it operates unlike any other Article III court. Proceedings in Article III courts are public. And the public enjoys a “general right to inspect and copy public records and documents, including judicial records and documents.” (citation omitted) “The presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice.” (citation omitted)

Later, he writes:

The two declassified FISC decisions authorizing bulk metadata collection do not discuss several of the ACLU’s arugments. They were issued on the basis of ex parte applications by the government without the benefit of the excellent briefing submitted to this Court by the Governent, the ACLU, and amici curiae. There is no question that judges operate best in an adversarial system. “The value of a judicial proceeding … is substantially diluted where the process is ex parte, because the Court does not have available the fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate.” (citation omitted) … As FISA has evolved and Congress has loosened its individual suspicion requirements, the FISC has been tasked with delineating the limits of the Government’s surveillance power, issuing secret decision [sic] without the benefit of adversarial process. Its ex parte procedures are necessary to retain secrecy but are not ideal for interpreting statutes.

This echoes an argument Randy Barnett and I offered in our brief to the Supreme Court about NSA spying. These so-called ‘courts’ that administer NSA spy programs lack many of the hallmarks of a true court, and their use to dispose of rights that protect our privacy is a violation of due process.

There will be much more to come in the judicial path of the NSA spying debate. The legitimacy of FISA panels should be a part of that discussion.

Reviewing the Review Group: Practice What You Preach

The “President’s Review Group on Intelligence and Communications Technologies” has issued their report. Convened in late summer to advise the president on what to do in the wake of the Snowden revelations (without mentioning Snowden), the group was rightly criticized for its ‘insider’ composition. The report has beaten the privacy community’s low expectations, which is good news. It advances a discussion that began in June and that will continue for years.

Some observations:

- Contrary to expectations, the report is outside the White House’s “comfort zone.” That’s good, because, as noted, this group could easily have decided to ratify the status quo, handing the administration and the National Security Agency a minor victory. The report positioned Senate Judiciary Committee chairman Patrick Leahy (D-VT) to say: “The message to the NSA is now coming from every branch of government and from every corner of our nation: You have gone too far.”

- There is no reason to treat the report as a reform “bible.” This was a problem with the 9/11 Commission report, for example, which was held up as sacrosanct even when it was wrong. The Review Group report is right about some things, such as eliminating administratively issued National Security Letters, it is wrong about some things, and it omits some key issues, such as the government-wide penchant for secrecy that created the current problems.

- Weaknesses are more interesting than strengths, and a particular weakness of the report is its call for retaining the phone calling surveillance program. Recommendation Five calls for legislation that “terminates the storage of bulk telephony meta-data by the government under [USA-PATRIOT Act] section 215, and transitions as soon as reasonably possible to a system in which such meta-data is held instead either by private providers or by a private third party.” The debate over data retention mandates ended some years ago, and the government was denied this power. The NSA’s illegal excesses should not be rewarded by giving it authorities that public policy previously denied it. Outsourcing dragnet surveillance does not cure its constitutional and other ills.

- The data retention recommendation is in conflict with another part of the report, which calls for risk management and cost-benefit analysis. “The central task,” the report says, “is one of risk management.” So let’s discuss that: Gathering data about every phone call made in the United States and retaining it for years produces only tiny slivers of security benefit, the NSA’s unsupported claims to the contrary notwithstanding. Considering dollar costs alone, it almost certainly fails a cost-benefit test. If you include the privacy costs, the failure of this program to manage security risks effectively is more clear. The Review Group’s conclusion about communications surveillance is inconsistent with its welcome promotion of risk management.

Most legal scholars and most civil liberties and privacy advocates punt on security questions, conceding the existence of a significant threats, however undefined and amorphous. They disable themselves from arguing persuasively about what is “reasonable” for Fourth Amendment purposes. Concessions like these also prevent one from conducting valid risk management and cost-benefit analysis. Some of us here at Cato don’t shy from examining the security issues, and we do pretty darn good risk management. The Review Group should practice what it preaches if it’s going to preach what we practice!

Germany Lurches Left: Sacrificing German Liberty and Germany’s Future

BERLIN—Germany’s Christian Democrats and Social Democrats have formed another “Grand Coalition.”  The political center in Europe’s wealthiest and most populous state now swallows most of the ideological spectrum. However, the entire political spectrum has lurched to the left.

The Christian Democratic Union-Christian Social Union combination (sister parties which run as one) is a pale version of the Republican Party.  The CDU-CSU long ago made peace with Germany’s generous welfare state. 

Even less inclined to act is CDU Chancellor Angela Merkel. She pulled her party leftward in 2005 into a Grand Coalition with the Social Democratic Party, which went on to do essentially nothing. 

She won a second term in 2005 but did little more to liberate German life. Her latest reelection campaign was based on keeping everything the way it was.

The CDU-CSU fell only five votes short of a majority. However, the poll was a disaster for the CDU-CSU’s coalition partner, the Free Democratic Party. Created in 1948 out of the ruins of the Third Reich, the FDP emphasized civil liberties, economic freedom, and entrepreneurship. In 2009, the Free Democrats enjoyed their best showing ever, 14.6 percent, and their support made Merkel Chancellor.

However, they proved to be less adept in governing. As the September election approached, the Free Democrats lacked any noticeable achievements. 

A new political competitor, Alternative for Germany criticized the endless Euro bail-outs while backing the same market-oriented economic policies as the Free Democrats. Many FDP voters shifted allegiance.   

The FDP fell just short of the five percent threshold, receiving 4.76 percent of the vote. It went from 93 Bundstag seats to none. The Free Democrats still hold some seats in regional parliaments and the European Parliament, but have no obvious path back to national power. The AFD came in just behind the FDP, with 4.7 percent, and also won no seats. However, it is well-positioned to advance, putting the FDP’s survival at risk.

The Free Democrats’ collapse left the Bundestag with a narrow left-wing majority.  However, both the SPD and Greens pledged not to join forces with Die Linke, or Left party, since it was the successor to the Communists who once ruled East Germany. 

As I pointed out in my Forbes online column:

Although the CDU-CSU was much stronger in the Bundestag, the Social Democrats demanded specific concessions, such as a national minimum wage, which will reduce Germany’s employment advantage over its European neighbors, limitations on temporary employment, which will cut job opportunities, expanded pension benefits, which will add to the financial burden of an aging society, higher than necessary state pension contributions, which will be looted to fund political initiatives, and urban rent controls, which will discourage apartment construction and maintenance.

The Economist magazine warned of “Die Grosse Stagnation” likely to come. Europe’s largest economy faces slow labor productivity, falling investment, and minimal reforms since the start of the Euro crisis. 

It is not just the government which has moved left. During the last Grand Coalition the FDP was the largest opposition party, leaving its leader the unofficial opposition leader. In this Bundestag the largest opposition party will be Die Linke. Just behind will be the Greens, traditionally known for their environmental commitment but of late pushing leftist economic nostrums as well. 

Nor does the drift stop with the left-wing parties. The Free Democrats held a special party congress in Berlin and responded to the election debacle by making Christian Lindner of North Rhine-Westphalia the new party chairman. Lindner is seen as less committed to the party’s liberal principles.

Like Americans, the German people have worked hard to prosper despite an ever-expanding regulatory welfare state. But they will find it ever more difficult to succeed as their government moves further left.  Then they will come to miss having a voice for economic and social liberty in the Bundestag. 

North Korea’s Kim Dynasty Consumes Its Own: No Love in this Family

North Korea’s “Dear Leader” Kim Jong-il has been dead not quite two years, but his son, Kim Jong-un, appears to have taken control.  And in a much bloodier fashion than predicted, with the execution of his uncle and one-time mentor Jang Song-taek.  However, no one knows whether the regime is stabilizing or destabilizing.

The ascension of Kim fils never seemed certain.  Not yet 30 when his father passed, Kim had had little time to secure the levers of power.  Moreover, Pyongyang is a political snake-pit. 

Over the last two years hundreds of officials, many in the military, have been removed from office.  Until Jang the most dramatic defenestration was of army chief of staff Ri Yong-ho.  His departure in July 2012, alleged for reasons of health, was dramatic and sudden. 

Of greater concern to the West was North Korean policy.  The country had established a reputation for brinkmanship and confrontation.  The new government reinforced this approach. 

For instance, rhetorical attacks on and threats against South Korea and the U.S. rose to unprecedented heights.  The Democratic People’s Republic of Korea recently detained an 84-year-old American Korean War veteran and tourist for six weeks on bizarre charges.

Equally important, there is no evidence of reform, either economic or political.  Observed Bruce Klingner of the Heritage Foundation:  Kim Jong-un “has increased public executions, expanded the gulags for political prisoners, and increased government punishment for anyone caught with information from the outside world.” 

Now comes Jang’s ouster.  There is no reason for the West to mourn his passing.  But previously family members only disappeared. 

Jang’s execution could demonstrate that Kim Jong-un is solidifying his rule.  Removing another minder appointed by his father would seem to leave Kim more securely in charge.  Moreover, a willingness to execute likely deters anyone but the most determined or desperate from challenging the leadership. 

Nevertheless, the DPRK could be heading for further instability.  The episode is unprecedented, which suggests that something is amiss in paradise.  Jang could have been the casualty of a messy power struggle likely to grow worse.  If he can be taken down, no one is safe.  Fear may widen leadership divisions, spur internal resistance, and draw in the military. 

As I point out in my latest article in National Interest online:

Political uncertainty in Pyongyang almost certainly will reduce the already minimal likelihood of domestic reform and foreign engagement.  If Kim truly has consolidated power, he might feel freer to act.  However, even then orchestrating a wider purge would absorb time and effort.  And if he fears continuing opposition to his reign he probably will put off any potentially controversial policies, especially if they conflict with the interests of the military, which still potentially wields ultimate power.

Further, Jang was associated with economic reform and China relations.  After his death Jang was criticized for his economic activities.  It is hard to imagine economic reform speeding up in a government sundered by a power struggle in which a top economic official was just executed.

The greatest danger is that Kim Jong-un’s apparent ruthlessness may be less constrained internationally than that of his father and grandfather.  If the younger Kim is taking on full dictatorial power, he might misperceive domestic authority as translating into international strength.  Or if his authority is under challenge at home, he might be tempted to provoke a foreign crisis. 

The DPRK long has been the land of no good options, the geopolitical problem with no good answers.  Even if Jang’s execution changes nothing, it reminds us that North Korea remains a threatening yet mysterious presence in Northeast Asia.  And the ongoing leadership transition—whether solidified or unsettled—isn’t likely to bring peace or stability to the region.

Vigilantes in Mexico: Another Reason to Repudiate Drug Prohibition

A relatively new development in Mexico’s ongoing drug wars is the increasingly active role of vigilante groups.  That is especially true in Michoacán and other states in the western portion of the country.  I discuss that development in a new article over at the National Interest Online.

The initial temptation might be to cheer on the vigilantes.  After all, the rise of “self defense militias” indicates that a growing number of Mexicans are now willing to resist the power of the brutal cartels and fight back, if necessary.  But for two reasons one ought to resist the temptation to applaud.  First, the nature of many of the militias is exceedingly murky.  Some of them may even be front groups for rival trafficking organizations seeking to displace the dominant cartel in a particular region.

Second, even in cases where the vigilante groups are genuine anti-cartel forces, the growth of vigilantism is a worrisome sign.  It is an emphatic vote of “no confidence” in the government’s ability to maintain order and the rule of law.  That is similar to what occurred in Colombia from the late 1980s through the early years of the 21st century.  As the power of drug gangs and their radical leftist guerrilla allies surged, frightened and angry Colombians formed right-wing militias in many rural areas.  But some of those groups soon became little more than death squads, and for a time, Colombia seemed to be heading down the path toward becoming a failed state.  We certainly do not want to see a comparable trend in our next door neighbor.

The rise of vigilantism in Mexico is yet another reminder of the disastrous consequences of drug prohibition.  That strategy greatly raises the retail price of a product that a large number of consumers insist on using.  Creating such a lucrative black market premium fills the coffers of those willing to defy the law to traffic in that product.  And the vast majority of individuals and groups willing to take that path are ruthless criminal elements.  Prohibition, in short, empowers and enriches thugs.

Washington’s enthusiasm for and insistence upon preserving an international drug prohibition policy has caused enormous problems for Mexico and other drug-source countries. As the leading consumer of illegal drugs and the most powerful member of the international community, the United States largely determines the direction of policy on this issue.  Fortunately, there are signs of changing attitudes on both the domestic and international fronts.  Public opinion surveys show that a majority of Americans are now in favor of legalizing marijuana, the mildest of illegal drugs, and such states as Colorado and Washington have already adopted modest legalization measures.  Uruguay has gone even further, legalizing not only the possession and use of marijuana but also commerce in that drug.

Uruguay’s course is the correct one.  It’s not enough to legalize drug possession—the trade itself needs to be taken out of the hands of criminal syndicates.  And if we wish to defund the cartels, abolishing prohibition must apply to all currently illegal drugs, not just marijuana.  Our policy makers need to internalize the lesson that prohibition not only does not work, it causes horrific unintended consequences.  That was true of America’s foolish crusade against alcohol in the 1920s and early 1930s, and it is true in spades of the current crusade against illegal drugs.  The surge of vigilantism in Mexico and the threat of chaos it embodies should spur policy makers to finally recognize that reality.

Ohio Backs off of REAL ID

Sometimes there are setbacks to the efforts of the Department of Homeland Security, the American Association of Motor Vehicle Administrators, and state motor vehicle bureaucrats to quietly knit together a national ID. If this story is true, Ohio appears to be breaking with the national ID plan.

What’s remarkable about this case is Ohio’s recognition that the federal government will never act on the threat that TSA will refuse drivers’ licenses and IDs from states that decline to implement the REAL ID Act.

Ohio is among a growing number of states that are refusing to comply with federal standards intended to toughen access to driver’s licenses. … The states are betting that federal officials do not implement plans to accept only “Gold Star” licenses as proof of identity to fly on commercial flights or to enter federal buildings and courthouses. “We’re not so sure the federal government” will only honor IDs that meet its requirements, [Ohio Department of Public Safety spokesman Joe] Andrews said.

Time was when states fell in line at the suggestion of this federal government threat. Eight-and-a-half years after REAL ID became law, the states may be recognizing the inability of the feds to coerce them into implementing their national ID.

Beijing’s Diplomatic Hardball and Washington’s Clumsy Response

As China’s economic and military power continues to grow, the country’s political leaders are engaging in increasingly assertive, if not abrasive, behavior. Two recent examples confirm that Beijing is determined to play diplomatic hardball.

The first was a stunningly meager pledge of aid to the Philippines in response to Typhoon Haiyan. In an article over at China-U.S. Focus, I point out that while such countries as the United States, Australia, and Japan rushed to provide generous relief assistance, China’s response was miserly and grudging. Beijing initially offered a paltry $100,000 in aid funds, and then after some apparent reluctance upped that total to a still very modest $1.6 million.

That appeared to be a deliberate snub, and the Chinese leadership seemed willing to incur the negative international publicity. Beijing’s relations with Manila have been quite frosty in recent years, primarily because of competing territorial claims in the South China Sea. Tensions surged again earlier this year when the Philippines filed an unprecedented arbitration case—over Beijing’s strenuous objections—regarding those claims with the United Nations’ Convention on the Law of the Sea. Chinese officials have been doing a slow burn since that filing.

One should not underestimate the depth of China’s anger about such developments, or the willingness of Chinese officials to “send Manila a message”—including by withholding humanitarian aid during a time of great need. The message is that there will be a substantial price to pay for any nation that defies China’s policy preferences and seeks to undermine China’s interests.

The second episode that confirms Beijing’s willingness to play diplomatic hardball was the announcement on November 23rd of a new Air Defense Identification Zone over the East China Sea. Portions of that ADIZ overlapped similar zones that Japan and South Korea had long implemented. China’s ADIZ also included the airspace over the Senkaku/Diaoyu Islands, which are the subject of a bitter territorial dispute between China and Japan, and airspace near another island involving a bilateral dispute with South Korea. Beijing insisted that all foreign military and commercial aircraft flying through the new zone file approved flight plans with the Chinese government.

That action was not well received. Unless Chinese leaders were uncharacteristically obtuse, Beijing had to anticipate that the Japanese and South Korean governments would not tamely accept the new proclamation and the procedures it outlined. They also had to assume that Washington would back the position of its allies. The decision appeared to be a diplomatic ploy to strengthen China’s territorial claims in the East China Sea, and quite possibly to be a precedent for creating a similar ADIZ in the South China Sea, where Beijing has even more extensive claims that various neighboring countries challenge.

What Chinese leaders may not have fully calculated was the nature of the reaction from the United States and its allies. Tokyo, Seoul, and Washington did not confine their response to diplomatic protests. Instead, all three countries promptly sent military aircraft (in Washington’s case, B-52 bombers) through the zone without complying with any of Beijing’s requirements. That defiance has infuriated the Chinese government, and tensions have now reached worrisome levels.

The measures that the United States and its allies adopted were both premature and excessive. China’s proclamation may not have been the most skillful diplomatic initiative, but creating a new ADIZ was not outrageous—especially since Japan has insisted on similar requirements in the same area for years. Indeed, Tokyo warns violators that they risk interception by Japanese military aircraft, and apparently has occasionally even carried out such intercepts. In any case, engaging in a provocative display of military power to defy China’s ADIZ was a clumsy response that has made matters even worse. This is an issue that cries out for restraint and sober dialogue on the part of all parties.