Topic: Law and Civil Liberties

Seth Stodder’s Weak Defense of ATS-P

Seth M.M. Stodder with the Center for Strategic and International Studies, a former director of policy and planning for U.S. Customs and Border Protection, has a piece in the Federalist Society’s Engage magazine defending the Automated Targeting System — specifically ATS-P, which is a system for screening border crossers.

The piece starts with the gripping example of a man named Ra’ed Mansour al-Banna who was turned away from the U.S. border and later blew himself up in Iraq. DHS Assistant Secretary for Policy Stewart Baker (who undoubtedly now lives in fear of my relentless blogging!) told the story at a CSIS event in December 2006:

[In 2003,] he showed up at O’Hare International Airport in Chicago with a valid passport from Jordan, a valid visa to come to the United States to conduct business and he asked to be admitted. There’s no bar to his being admitted other than the fact that he had been selected for a second look by our Automated Targeting System. He was flagged as somebody who just ought to be looked at more closely.

And so one of the CBP officers did exactly that: interviewed him, asked him a bunch of questions about what he intended to do in the United States, and concluded, at the end of the day, he just didn’t like the answers. He wasn’t confident that this guy was going to live up to the obligations that we imposed under the visa and he said, I’m sorry, you’ve got a valid visa, you’ve got a valid passport, you’re not going to come into the United States, and he sent him back to Jordan. Eighteen months later, of course, he was in Hillah, Iraq driving the vehicle-borne IED.

Baker is a smart man and he chooses his words carefully. If al-Banna had been identified by ATS-P as a likely terrorist, Baker would have said so. But he didn’t. He talked about visa obligations.

Maybe the system identified him as a potential visa over-stayer — he had lived in California for two years — and when al-Banna couldn’t convince his interviewer otherwise, CBP excluded him. Maybe, as some news reports have it, CBP sent al-Banna back to Jordan because he falsified details on his visa application (after which he “became withdrawn, holing up in a makeshift studio apartment, sleeping late, and displaying a new interest in religion”). Others say that “Homeland Security officials had no reason to suspect that Albanna had become a terrorist.” Until the full story has been examined, this is anecdotal luck at best, not proof of a successful system.

In his paper, Stoddard claims to take on criticisms I have leveled at the program — and some I haven’t. Here’s the relevant part of Stoddard’s article:

Some have disagreed with the 9/11 Commission’s assessment of ATS-P’s effectiveness in assisting CBP, and have asserted that ATS-P is simply ineffective. Jeff Jonas and Jim Harper of the Cato Institute have asserted that, in general, “[t]hough data mining has many valuable uses, it is not well suited to the terrorist discovery problem,” because of the purported absence of “terrorism patterns” which [sic] to draw strategic intelligence. During a panel at the Center for Strategic and International Studies (CSIS), Jim Harper applied this analysis to ATS-P as well. But Jonas and Harper do not appear to understand all of ATS-P’s functions—including its link analysis function, operationalizing specific tactical intelligence by drawing linkages between known facts (e.g., a credit card number used by a known terrorist) and travelers seeking admission to the United States (e.g., if the PNR on a traveler indicates that traveler used that same credit card number to purchase his ticket). To the extent this conclusion also is pointed at ATS-P, Jonas and Harper may be uninformed. Indeed, the ultimate testimony to ATS-P’s effectiveness is not al-Banna, but its continued use by CBP and CBP’s ongoing efforts to improve it.

(link added)

Now let’s review what I said at the CSIS event:

The story of the suicide bomber in Iraq was gripping and thrilling, frankly, but I think it was an invitation to us to indulge in what’s known as the post hoc ergo propter hoc fallacy. That’s Latin for “because it followed in time, there must be correlation.” Because ATS existed, he was stopped at the border. It may be true, but [it’s] not necessarily true. Had he gotten into the country, he would have done in this country what he was able to do in Iraq. Maybe true, but probably not true. The infrastructure isn’t here and the support isn’t here to be able to pull off that kind of thing. So it’s, again, a gripping story, but not necessarily a good basis for policymaking.

In addressing what ATS is, it’s a check against the no-fly list. I think most people are aware of that. Link analysis, it makes pretty good sense in many cases. [Baker d]idn’t address the question of the risk score, which is the most concerning, I think, to most people, for a variety of reasons. And exactly how that risk score is created isn’t known, and I imagine that Secretary Baker and others would refuse to tell us how that risk score is created because that would create a security breach in the system. But it’s precisely there that the capacity for rank unfairness in the system is created. And it’s a system that doesn’t just apply, as I understand it, to foreigners coming to the country, but to everyone traversing the border, and that’s – I’m sorry to be so parochial, but I’m most interested in the rights of American citizens who are traveling internationally and returning to the country.

(emphases added)

Now, it’s true that I am less informed about ATS-P than Stodder and Baker. Homeland Security folks hold inside information and they try to use secrecy as a trump card. My oral recitation of ATS-P’s details lacks polish, but I know enough to have specifically approved of link analysis while disapproving predictive data mining. In our paper, Jeff Jonas and I excluded link analysis (referred to as “subject-based analysis”) from our criticisms. Stodder refutes an objection I did not make, suggesting that I’m uninformed.

And he does not address the objection I did make, based on the paper Jeff Jonas and I published: predictive data mining won’t catch terrorists.

His evidence that ATS-P works?: “[I]ts continued use by CBP and CBP’s ongoing efforts to improve it.” It takes several logical leaps and generous inferences to make that good evidence.

The only other successes with finding immigrating terrorists he cites beyond al-Banna (if indeed he was a terrorist at the time) are “Millennium Bomber” Ahmed Ressam and Mohammed al-Qahtani. Those two, though, were picked up by alert CBP officers unaided by ATS-P (so far as we know — and one expects we would know).

Two terrorists that perhaps should have been picked up by ATS-P but weren’t are Nawaf al-Hazmi and Khalid al-Midhar, 9-11 attackers who entered the country and lived openly in the United States even though they were known to be linked to the bombing of the U.S.S. Cole. Before U.S. authorities failed to look for them, ATS-P failed to pick them out for additional questioning at the border. That’s typical of data mining for terrorism: high false positives and high false negatives.

NYT Gets It Wrong, Story at 11

The New York Times Magazine’s most recent issue (March 16, 2008) simultaneously features a shariah apologetic and an accusation that the Supreme Court is in the pocket of big business

In the former, Harvard law professor Noah Feldman prescribes the election of Islamist parties and entrenchment of Allah’s law (as interpreted by a council of scholars) as the cure to the Muslim world’s ailments. In the latter, GW law professor Jeffrey Rosen contends that liberal and conservative elites — like NYT readers? — have colluded to do in the common man. There is so much wrong with these analyses, one hardly knows where to begin.  (For a point-by-point takedown of the Rosen piece, see Eric Posner’s post on Slate’s new legal blog.)

Feldman, who “had a small role advising the Iraqi [constitutional] drafters,” sees shariah as both a proto-aspirational document somewhat akin to our Declaration of Independence and a source of law more legitimate than duly constituted (secular) legal codes. But both of these things cannot be: Either shariah is the law of God as strictly interpreted (on what authority?) by man or it is a non-binding sentiment, much like American politicians’ references to America’s Judeo-Christian values. Advocates of shariah would be the first to admit that if you’re going in for God’s law, you can’t summarily ignore its anachronisms.  Let people live under shariah if they so desire, but be wary of its negative externalities.

Rosen, meanwhile, sees a conspiracy involving anyone who has ever studied the “economic analysis of law” (and uses phrases like “negative externalities”) while holding up as a paragon of judicial virtue a jurist who said he was “ready to bend the law … against the corporations.” At the same time, Rosen posits that the Chamber of Commerce destroyed Ralph Nader’s noble crusade to help the consumer and hoodwinked the Court — even, at times, that model of “liberal judicial restraint,” Justice Ruth Bader Ginsburg — by hiring a bunch of rich lawyers (presumably not the same rich lawyers who reap all the punitive damages from the state tort claims that Rosen lauds). These sentiments distort legal history and misunderstand the proper role of the judiciary; to paraphrase a salient point then-nominee John Roberts made at his confirmation hearings, the little guy should win when the law is on his side, and the big corporation should win when the law is on its side.

In short, those of us who believe in the rule of law rather than men and in a Constitution that circumscribes the powers of government are heartened by both the outcry against Rowan Williams and the Supreme Court’s near-unanimous view that corporations are people too (indeed, they are, but legal persons composed of human directors, officers, employees, and investors). But then perhaps we are all in on the conspiracy.

Let’s Talk Passport Privacy!

With the revelation that the passport files of all three major presidential candidates were wrongly accessed, Sen. John McCain’s office issued the following statement:

The U.S. government has a responsibility to respect the privacy of all Americans. It appears that privacy was breached and I expect a thorough review and a change in procedures as necessary to ensure the privacy of all passport files.

Yes, the government does have a responsibility to respect our privacy, retaining as confidential the data it collects as a condition of our exercising the right to travel.

And all the presidential candidates might want to take a look at a recent State Department notice in the Federal Register. It would open passport files to:

  • the Department of Homeland Security,
  • the Department of Justice, including the FBI, the BATFE, the U.S. Marshals Service, and other components,
  • the Internal Revenue Service,
  • INTERPOL and other international organizations,
  • the National Counterterrorism Center,
  • the Social Security Administration,
  • public and private employers,
  • Members of Congress,
  • contractors, and
  • foreign governments.

So, yes, let’s talk about passport privacy!

NFIB Individual Mandate Debate

Earlier this week, I participated in a lively debate on individual mandates — i.e., a legal requirement that every American purchase health insurance.  Also on the panel were Prof. Sherry Glied of Columbia University, Bob Moffit of the Heritage Foundation, and Peter Harbage of the New America Foundation. 

The debate can be viewed online at KaiserNetwork.org.

As the debate was sponsored by the National Federation of Independent Business, which has yet to take a position on an individual mandate, it should be of particular interest to small business owners and employees. 

Congressional Quarterly quoted me as saying, “Universal coverage is a bomb that will blow up for small businesses.”  (I meant to say that a policy of universal coverage, and thus an individual mandate, would blow up in their faces.  We’ll have to see what the tape says.)  Also: “Tax reform and deregulation are how to relieve the burden of health benefits for small business, and they have the added benefit of being the right thing to do.”

Stewart Baker: Light on Security and History

One would be right to worry about Stewart Baker, Department of Homeland Security assistant secretary for policy. He’s as smart and cagey as they come, but for all his years at DHS, his security thinking seems not yet to have matured. At the same time, his recollection of the REAL ID Act is showing signs of somewhat advanced age. Let’s walk through some things with our friend Stewart:

Writing on the DHS blog in support of our national ID law, the REAL ID Act, he intones about the importance of driver’s licenses to national security. “Unfortunately,” he says, “we learned this the hard way. Twice.”:

First, in 1995, when Timothy McVeigh was able to create a fake South Dakota license with ease; all it took was a manual typewriter and a kitchen iron. He used the license to rent a Ryder truck in Oklahoma and destroy the Murrah Federal Building. Then, on September 11, 2001, eighteen of the nineteen hijackers carried government-issued IDs – mostly state driver’s licenses, many obtained fraudulently.

What, actually, did we learn from these stories?

I researched McVeigh’s attack on the Murrah building for my book Identity Crisis, concluding that he and Terry Nichols used false names inconsistently and with little purpose or effect. McVeigh used his true name to register at a motel for the nights directly preceding the bombing. This certainly clouds the theory that insufficient identification security had a relationship to the success of the bombing.

No, McVeigh and Nichols used surprise, not anonymity, to carry out their attack. They were playing cat and mouse with a cat that wasn’t looking for them. Once they struck, they were easily found.

The 9/11 story similarly fails to create a foundation for REAL ID or more secure identification. The 9/11 Commission noted that the 9/11 terrorists acquired U.S. identity documents — “some by fraud” — but it made no effort to establish how possession of identity documents, whether fraudulently or lawfully gotten, was proximate to the success of the 9/11 attacks.

A monograph on terrorist travel issued by 9/11 Commission staff without the endorsement of the Commission documented many issues related to travel documents and identity cards, but it too failed to establish how weakness in our identity systems were proximate to the 9/11 attacks, or — more importantly — how more secure identification systems would foreclose future acts of terrorism. Stewart Baker hasn’t establish this either. Nobody ever has. Identity security was a minor recommendation of the 9/11 Commission, and not a well-supported one.

But Baker characterizes it thusly:

The 9/11 Commission recognized that it’s too easy to get false identification in the U.S. That’s why the Commission determined that “(s)ecure identification should begin in the United States. The federal government should set standards for the issuance of birth certificates and sources of identification, such as driver’s licenses.” Congress responded with the REAL ID Act of 2005, which requires the federal government to set standards for the identifications it accepts.

Now poor Stewart has fallen down a different way. Actually, Congress responded to the 9/11 Commission report with Section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458). It created a committee of interested parties to assess how to strengthen the security of state ID cards and licenses. The REAL ID Act repealed section 7212 and disbanded that committee. Legislation to restore it is pending in both the Senate and the House.

Baker plans to write more on the REAL ID Act in the coming days. His purpose, of course, is to menace the states whose leaders may refuse to accept an extension of the compliance deadline under the Act. These states may force a showdown with DHS and Congress over this sprawling albatross of an unfunded surveillance mandate.

Not a single state in the entire country will comply with REAL ID by the statutory deadline of May 11, but DHS hopes that getting all states to agree to take deadline extensions can be counted as a REAL ID win. I suppose logic like that makes Stu Baker’s security chops and memory look pretty good! It’s a close call, but at this point I think it’s premature to take his driver’s license away.

Victim Shot While Calling 911

A California woman was shot to death as she pleaded with emergency dispatchers to come and help her. Her death will not make the network news programs this evening, but this is the latest reminder that we must take responsibility for our own safety and not rely on the police. 

Bill Masters, a libertarian and sheriff of a Colorado county tells the residents of his county, “It is your responsibility to protect yourself and your family from criminals. If you rely on the government for protection, you are going to be at least disappointed and at worst injured or killed.” 

Gun control puts honest citizens in the position of having to choose between protecting their lives or respecting the law. What kind of government would do such a thing

More on gun control here and here.

California Attempts to Silence State Contractors

Imagine that you do business in California.  Maybe you’re in construction, or health care, or auto repair.  Now imagine some or all of your income comes from state contracts; using the above examples, perhaps you build schools, or take care of patients on Medi-Cal, or fix broken-down LAPD squad cars.  Now imagine that the state comes in and says, aha, because we pay your bills – again, on contracts relating to construction, health care, auto repair, etc. – and we love unions, you can’t talk to your employees about any negative aspects of unionization.  Ridiculous, right?  Who is a customer to tell you what to do with money that’s already in your pocket?

Well, that’s precisely what the great state of California is trying to do with a new statute that small businesses are challenging in the case of Chamber of Commerce v. Brown.  It’s a little bit more complicated than I outline above because the case implicates highly technical provisions of the National Labor Relations Act (and previous Supreme Court interpretations thereof), but the gist is that California is attempting to silence employers by tying speech restrictions to unrelated state spending.  For reasons that the petitioners ably present in their briefs and that I summarize in a podcast and in Cato’s own amicus brief, the Supreme Court should strike down this statute.

In any event, that’s the background to my trip to the Court to hear argument in Chamber v. Brown today.  (The plaza in front of the courthouse steps was remarkably free of demonstrators after yesterday’s hoopla surrounding the DC Gun Ban case.)  I’ll save you the detailed summary of the argument, but suffice it to say that the outcome will almost certainly go against California.  It’s always dicey predicting the scorecard, but based on oral argument it will probably be 7-2, 6-3, or maybe 6-1-2.  On one side, Justices Scalia and Alito and Chief Justice Roberts were safely on the side of free speech; Justices Justice Souter surprisingly led the charge against California’s interpretation of labor law; Justice Breyer, though skeptical, will likely write his own opinion agreeing in the Court’s opinion for separate reasons or possibly calling for remand rather than strict reversal; and Justice Thomas was silent but is expected to join the majority.  On the other side, Justices Stevens and Ginsberg seem to have no problem with California’s regulation.  On his own side as usual, Justice Kennedy’s vote seems to be up for grabs, but – based on his decisions in previous labor and regulatory preemption cases – I would bet on him siding with the majority.

In short, California employers will live to speak another day.