Topic: Law and Civil Liberties

E-Verify: Slow and Unsteady in Arizona

I’ll soon have a paper out on “electronic employment eligibility verification.” This is the idea of requiring every employer in the country to check the immigration status of employees against Department of Homeland Security and Social Security Administration databases.

A nationwide EEV program, building on the current Basic Pilot/”E-Verify” program, was treated as a matter of near consensus at the beginning of this past summer’s immigration debate, and the Department of Homeland Security continues to promote it.

My paper goes into the practical and technical problems with a full-fledged EEV system, as well as the question whether such a thing is appropriate for a free country. But I’ve already become aware of problems I didn’t think of.

A law went in to effect in Arizona January 1st requiring all employers to use the E-Verify system. The Arizona Republic reports that just 17,000 of the state’s 150,000 businesses have signed up for E-Verify. (January is a slow month for hiring, but employers may be holding off on hiring too. And a lawsuit has been brought challenging the Arizona law.)

Among employers using E-Verify, the question has arisen what to do when an employee has worked for a few days, but then is deemed ineligible by the database. Should the employee who is either an illegal immigrant are a citizen with bad paperwork be paid? “[E]mployers could look for workers who are at risk of failing E-Verify, the online database that checks employment eligibility, and fire those workers without paying them for up to three days of labor,” says the report.

The simple idea of “internal enforcement” of immigration law using employers as Border Patrol agents turns out not to be so simple. E-Verify puts fair-minded employers between a rock and a hard place, while facilitating unscrupulous behavior by others.

National Review on the FISA Overhaul

Yesterday, National Review Online ran a misleading and misguided editorial on the FISA debate. The editorial states that “Last year, a FISA-court decision required judicial authorization even in those cases where the government sought to monitor terrorists communicating with each other outside the United States.” This is doubly misleading.

On the one hand, the FISA ruling only held that a warrant was needed to install wiretaps on US soil to intercept foreign-to-foreign communications as they pass through US infrastructure. No one has ever claimed that FISA has jurisdiction over communications that occur entirely outside of the United States. Second, both sides of the FISA debate in Congress agree that the law should be changed to explicitly exempt foreign-to-foreign communications from FISA oversight. Every serious legislative proposal in Congress, including the one the House passed last November, changes this aspect of the FISA rules. So it’s extremely misleading to present this as if it’s the heart of the dispute.

In reality, the president has threatened to veto the House’s legislation for two reasons that have nothing to do with foreign-to-foreign communications: judicial oversight of calls that originate on US soil and the lack of amnesty for telecom companies. National Review’s take on the latter issue is particularly wrongheaded:

Some Democrats oppose the legislation because they want the FISA court to have more authority. They laud it as a responsible manager of intelligence collection, even though tribunal is unaccountable and has a spotty record. (The most important part of the Patriot Act was its dismantling of the “wall” between agencies that obstructed intelligence gathering before 9/11. The FISA court tried to undo that part of the act, but was thankfully unsuccessful.) We have less confidence in the judiciary’s ability to manage wartime intelligence operations.

Other Democrats oppose the measure (Sen. Chris Dodd is threatening a filibuster) in no small part because of the telecom immunity provision. This objection is specious. The bill provides protection only for companies that acted on assurances from the administration that the program was lawful. If the companies cannot bank on such assurances, they have no incentive to cooperate in the intelligence collection that is a must if Americans are to be protected.

Rather than complaining about courts being “unaccountable,” most of us call this “judicial independence” and consider it a virtue of our system of government. And an important part of judicial independence is the principle that a warrant from an independent judge, not merely “assurances from the administration,” are required to permit searches of Americans on American soil. That’s the whole point of having a warrant process. AT&T and Verizon’s lawyers probably know this area of the law as well as anyone in the country. They can and should have done what Qwest did and told the NSA to come back when they had a warrant. Reports suggest that telecom companies that have chosen to cooperate with the government have made a healthy profit from doing so, while firms like Qwest have taken a financial hit for obeying the law.

If Congress lets the lawbreaking firms off the hook this time, they will have absolutely no incentive to obey the law (and protect their customers’ rights) in the future. National Review’s advocacy of amnesty for telecom companies is especially ironic because for the last year, they’ve been banging on about how amnesty for illegal immigrants “rewards lawbreaking” and breeds disrespect for the law. At least under the leading immigration reform proposals, immigrants would have been required to admit their lawbreaking and pay a fine. In contrast, NRO believes that lawbreaking telecom companies deserve immediate, blanket amnesty with no penalty or even admission of guilt. If we want to foster a culture of respect for the law, there’s no better place to start than with some of the largest, most powerful companies in America.

Common Sense, Free Enterprise Values in Virginia

The Richmond Times-Dispatch issues a stirring editorial call today for free-enterprise insurance reform. It’s worth quoting in full:

In a state that ostensibly is a bastion of capitalism, government intervention in the marketplace turns up surprisingly often. Two parties who are negotiating a contract for a good or service often find a third party – the commonwealth – sticking its nose in where it doesn’t belong.

For decades, Virginia law prevented insurance companies and policyholders from deciding who could receive health coverage. Not until three years ago did the General Assembly pass legislation allowing group accident and sickness policies to cover any class of persons mutually agreed upon by the insurance company and the policyholder.

Before then, health-insurance coverage was limited to spouses and dependent children. If a worker wanted to include someone else in his or her coverage, the law said he couldn’t – even if the worker’s employer and the insurance company both were happy to fulfill the request.

This year Del. Adam Ebbin is sponsoring legislation (HB 865) that would open up life-insurance coverage in much the same way: It would allow insurance companies to offer group coverage to anyone policyholders wished to cover – brother or sister, elderly parent, life partner, or third cousin twice removed – not just spouses and children.

Note well what this bill is not: a mandate. Insurance companies would not be required to cover anybody they did not wish to. They would remain free to reject coverage they did not care to offer. They simply would not be prohibited from covering persons they are willing to cover.

In a free market, that is precisely how insurance ought to work: The buyer and the seller of the policy work out the terms between themselves. The state’s job is merely to enforce the contract – not to write it. Ebbin’s bill deserves a resounding and unanimous aye.

The Times-Dispatch is well known as a conservative editorial page, so it’s gratifying to see them endorsing this pro-free enterprise, pro-business bill – even though some conservatives might object to it on the grounds that it will allow, though not compel, businesses to offer group life insurance to employees with same-sex partners. The Times-Dispatch commendably wants such issues worked out within companies, not by a state legislative ban.

Terrorism and Terrorism Counter-Strategy: Some Rudimentary, Necessary Thoughts

I share Tim Lee’s disagreements with our colleague Roger Pilon’s WSJ op-ed. Roger received far less gentle treatment elsewhere. I’m impressed, as usual, with Tim’s depth on the FISA law and the FISA debate.

This stir reminds me of a broader problem that pervades debates on anti-terror policies. Many perfectly intelligent public policy experts still lack a sound understanding of terrorism as a strategy. This degrades their ability to conceive of counter-strategic responses, causing them to promote ideas that would not help and that would even hurt our efforts to control terrorism.

In early January, I presented at a conference held by the International School on Disarmament and Research on Conflicts, the Italian branch of the 1995 Nobel-Prize-winning Pugwash Group. The topic of the conference was “Terrorism, Counterterrorism, and Human Rights.” I have done some work on the privacy implications of technical anti-terrorist efforts, of course, and am increasingly (and necessarily, it seems) focusing on terrorism strategy and counter-strategy. I presented on both and learned a great deal from the perspectives represented at the conference.

Though I don’t feel fully expert yet, I’d like to share some more detailed thinking about terrorism and counter-terrorism strategy. I hope more people will put their thinking into this kind of context.

To Define or Not to Define “Terrorism”

The terrorism definition I offered was: “a strategy used by the weak to goad the strong into self-injurious overreaction.” Rightly, my colleagues prompted me to refine this to “A strategy of violence used by the weak to goad the strong into self-injurious overreaction.” Civil disobedience is designed to elicit overreaction, of course, but it is as far from terrorism as one can get.

Some questions emerged during the conference that are relevant:

  • Can states use terrorism? Or is it only used by non-state actors? - These are important questions. My preference is to find that terrorism is only used by non-state actors. When a state tries to provoke another in some way (even using proxies who look like non-state terrorists), this can and should be treated as a tactic in war. The terrorism counter-strategy I’ll discuss below is inapposite for when a state does terrible things, and this should be treated as a separate problem.
  • Is terrorism only used by the weak? - Regrettably to me, I have heard the United States cited as a possible example of a “strong terrorist.” It is possible that the strong might use terror to provoke, but the strong are almost always states whose use of terror may be acts of war or crimes against humanity, but not acts of terrorism that can be addressed with terrorism counter-strategy.
  • Does terrorism require attacks on civilians? - I think not. Terrorism can be committed by attacks on civilian or military infrastructure, or even without attack - by making a credible threat. To the extent it can be defined at all, terrorism can not be defined with reference to specific targets or acts.
  • Is terrorism a crime or an act of war? - Placing terrorism in a conceptual box like this is a part of developing a counter-strategy, which I discuss below.

Intentional creation of fear would also seem to be an element of terrorism. Not all fear-creating is terrorism, of course. Legitimate war-making probably includes and requires instilling fear at key times in key populations.

Despite all this, I’m tentatively persuaded that it is not actually useful to spend a lot of time parsing it down to the “definitive definition” - not for these purposes, at least. Terrorism requires a definition if you’re going to extradite people for “terrorism,” but as I conclude below, terrorist acts are best treated as crimes and made extraditable as such. States, especially, will use the process of defining terrorism for self-preservation, treating all non-state violence as terrorism. They do this to have a rhetorical upper-hand when confronting any rebellion, even a legitimate one, fought fairly. George Washington’s army may have been considered “terrorist” by the British.

What matters is not the definition, but how terrorism works.

Terrorism at Work: Overreaction
I do believe that terrorism has a defining characteristic: it seeks to goad the strong into self-injurious overreaction, with results falling into the following categories:

  • Waste of Blood and Treasure - Terrorist attacks - or well-placed threats of attack - can prompt the victim to waste its own resources, both the blood of its soldiers and the wealth of its people. The U.S. response to the 9/11 attacks provides many examples of both. It terms of blood, there is the Iraq War. (n.b., I was sympathetic to the war at the beginning and quite capable of defending its rationale, but the result now is clear: that we have wasted many lives and much treasure.) The creation and operation of the Department of Homeland Security and the Transportation Security Administration are basically permanent multi-billion-dollar drains on the public fisc. The REAL ID Act and Western Hemisphere Travel Initiative are similarly wasteful, self-destructive programs. These are just a few examples and they all were prompted by a $500,000 al Qaeda investment. Ohio State professor John Mueller’s legendary Regulation article is required reading for anyone studying terrorism or thinking in terms of terrorism counter-strategy.
  • Recruitment and Sympathy Gains - A strong power victimized by terrorism is very likely to do violence or take other responses that are badly directed, or even entirely misdirected. This will tend to engender sympathy for the terrorists and aid in their recruiting and support. The Iraq War has drawn energy to al Qaeda, as the U.S. is widely perceived as a Middle East menace, its good intentions unknown. Not just the war-making matters, of course; its conduct does, as well. Think Abu Ghraib and Guantanamo - gigantic PR victories for terrorists, and many other opponents of U.S. power. Paddy Hillyard from Queen’s University Belfast has articulated well how British responses to IRA terror won sympathy and recruits for them. Lashing out against the communities in which terrorists live, or the places where they hide, forces local neutrals into the wrong camp. These are people who are uniquely positioned to undermine those terrorists should they so choose.
  • Weakened Political Order/Society - Finally, terrorism causes what I have tentatively called a “weakened political order/society.” Terror attacks on the Western democracies have caused them to come somewhat loose from their (classical) liberal moorings. In the U.S. since 9/11, we have seen proposals for massive domestic surveillance, we have seen Americans taken prisoner and held without charges, we have seen surveillance conducted in violation of the law. These are just a few of the more prominent examples. (A list Paddy Hillyard produced with reference to Northern Ireland looks remarkably familiar.) Now, naming all these “civil liberties violations” is not mere (neo) liberal carping. Mike German’s book Thinking Like a Terrorist shows that terrorists are battling for legitimacy. With little ability to build their own legitimacy, they can at least degrade their opponent’s. Overreaction by the victim state erodes its claim of moral authority to rule. This is more relevant when a terrorist group makes a credible claim on territory or when it represents a distinct population, of course, but look at how Osama bin Laden has occasionally offered to make “great power”-like deals with European states. This is a man seeking after legitimacy. Unfortunately, U.S. officials have given it to him in their rhetoric by allowing HIM to declare war! U.S. officials have likewise undermined U.S. legitimacy (and grown the terrorists’) by seeking excessive new powers, exaggerating threats, and undermining the rule of law. It is a successful execution of the terrorism strategy when an attack causes a state to deviate from its ordinary practices and founding ideals.

So now that we have the terrorism strategy in hand, and how it works, we can turn to counter-strategy. My potentially-clever line summarizing good terrorism counter-strategy is:

Do what you can – AND NOTHING MORE!

There are lots of things to do that can thwart terrorism and defend against terrorist attacks, such as infiltrating and disrupting terror groups. (They have to operate clandestinely so they are wonderfully paranoid. This can be exploited, and has been in the past.) Targeted, lawful surveillance of terrorists and terror suspects is good. Controlling access to weapons of mass destruction and WMD precursors - vital. Taking reasonable precautions to secure against likely vectors of attack on infrastructure. Preparing for attacks and their aftermaths. Communications that accurately convey risks and appropriate responses. These are all viable counter-terrorism activities - and it’s not nearly an exhaustive list.

The counter-strategy’s most interesting part, of course, is the “nothing more” part. This is the commonsensical but elusive idea that you should not take anti-terrorism measures that aren’t going to work. Believe it or not, this implies a slight preference for inaction (or perhaps under-action) in anti-terror efforts. If it isn’t provably a good idea, don’t do it!

This is not pacifist foolishness; this is hard-edged counter-strategy taking advantage of the fact that terrorism alone is inherently self-destructive. Only when joined with overreaction does terrorism become “productive.” Overreaction must be avoided.

So our counter-strategies, which map to the gains terrorists seek, are:

  • Hold on to Blood and Treasure - If at all possible, don’t go to war. As I said, I was sympathetic to the Iraq War at the outset. My intellectual superiors here at Cato did a better job of it at the time, and now continue to counsel less war over more. This is consistent with good terrorism counterstrategy.
  • Don’t Give the Gift of Overreaction - As I touched on above, terrorists want their opponents to strike at them and miss. They don’t even mind too much if they get hit - as long as there is some good collateral damage. Overreaction - in war, prisoner detention and mistreatment - even in the conduct of investigation - these things are all good for terrorists because it helps them get recruits and support.
  • Stand By the Values of Your Society - Similarly, deviating from the rule of law, seeking extraordinary powers, using mass surveillance - these things all give terrorists legitimacy by admitting their power. These things also undermine the legitimacy of an incumbent government by placing the state at odds with its people. (By the way, false security measures will do yet more to undermine a state’s legitimacy when they actually fail. Placing the government’s legitimacy on the table in a bet on “security theater” is anti-terrorism malpractice.) When the terror-victim-government simply behaves well, this can be a devastating blow to terrorism because it causes the bad behavior of terrorists to dominate public perceptions. It destroys terrorists’ legitimacy and it undercuts their support, sympathy, recruitment, and fundraising.

One thing about all this is important: “War” is the wrong reaction by any measure. Going to war literally saps a nation of blood and treasure. It also will result in damage that draws sympathy and support to the terrorists. The rhetoric of “war” also gives terrorist groups legitimacy in the eyes of their current and potential allies, supporters, or members. I get very frustrated when I hear U.S. public officials give Osama bin Laden this gift.

Rather than war, terrorism should be treated as a crime problem, for at least two reasons: First, that treatment is far less likely to lead to overreaction, and, second, treating terrorism as a crime is an energy-draining “dis” to terrorists themselves. My colleague Roger Pilon is mistaken to put our efforts against terrorism within the constitution’s “Commander in Chief” power, whatever its appropriate scope is. As far as extradition, terrorists should be extradited based on the criminal acts or criminal planning they have committed. (Perhaps certain conspiracies might be added to the substantive law in some countries.) Treating them fairly - as criminals - will quickly melt the “mystique” that terrorists try to mold around themselves.

There are many pieces missing from this discussion. There are certainly many details about which reasonable people can differ. One thing I think is certain: Failing to address terrorism counter-strategically has done our nation immense damage, and threatens still more. We need to change that.

Why Congress Shouldn’t Panic about Eavesdropping

Rep. Rush Holt (D-NJ) has been a real leader in the fight to restore meaningful judicial oversight of domestic intelligence gathering activities. When the Democratic leadership unveiled its initial FISA reform proposal last fall, Rep. Holt felt the legislation had inadequate judicial safeguards and introduced an alternative bill with stronger judicial oversight. Holt successfully persuaded the Democratic leadership to make key changes to the legislation which became the FISA reform bill that ultimately passed the House in November.

Yesterday, Rep. Holt gave a great speech on the House floor urging his colleagues not to succumb to the administration’s scare tactics:

The PAA allows the President to conduct surveillance for virtually any reason with absolutely no oversight by a court, which means the administration’s surveillance activities don’t have a meet an independent judicial standard for appropriateness. It has been demonstrated that when officials must establish before a court that they have reason to intercept communications, we get better intelligence than through indiscriminate collection and fishing expeditions.

Passing this extension, rather than letting the PAA expire, achieves nothing from an operational point of view. This is a political calculation intended to facilitate our negotiations with the Senate and the White House. I disagree—this would not improve our negotiating position. If the PAA expires, all current surveillance orders issued under its authority will continue in effect until they expire. It’s also important to note that any existing PAA orders that continue in effect after the act’s expiration date are general enough to allow any necessary surveillance activity that may be required…

The House passed a good FISA modernization bill late last year (the RESTORE Act), and any House-Senate conference discussion on how to modernize FISA should start with that bill. In the meantime, our intelligence services will continue have the tools they need to protect us.

Allow me to expand a bit on Holt’s argument. The Protect America Act states that “the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information.” And the authorization “is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.” This suggests that a single “authorization” is not limited to a particular investigation or target, but can be used to approve general, open-ended wiretapping programs such as the one uncovered by the New York Times in 2005.

Most likely, the administration has issued “authorizations” for its various warrantless surveillance programs. These authorizations will not expire when the Protect America Act sunsets; they will continue in force for a year, which means that the earliest any of them would expire is next August. And if, after the Protect America Act sunsets, a surveillance need comes up that’s not covered by an existing “authorization,” the government will still have the ability to obtain a warrant the old-fashioned way through the original FISA provisions. Indeed, FISA has always permitted the government to begin eavesdropping immediately and request an emergency warrant up to 72 hours after the fact.

In short, nothing catastrophic will happen if Congress doesn’t enact new legislation this week. The intelligence community will have all the authority it needs to continue its surveillance of suspected terrorists. Yet the president is doing his best to create an atmosphere of panic because he believes that will help him stampede Congress into approving an unnecessarily broad expansion of executive power. Congress should keep its wits about it and take the time it needs to craft balanced legislation that gives the intelligence community the flexibility it needs while preserving the principle of judicial oversight and rejecting demands for retroactive immunity for lawbreaking telecom companies.

The Need for Judicial Oversight of Domestic Intelligence Gathering

I’m always hesitant to disagree with a fellow Cato scholar, especially one with a resume as impressive as Roger Pilon’s. But I thought Roger’s op-ed in the Wall Street Journal yesterday on the FISA debate missed a couple of important points.

Let me start with a couple of points on which everyone in the FISA debate agrees. First, no one disputes that the president has the authority to conduct purely foreign intelligence-gathering without court oversight. And as Ryan Singel has ably documented purely foreign eavesdropping has always been unregulated by FISA. If the NSA wants to splice into a fiber optics cable off the coast Great Britain, bribe a Syrian telephone employee for access to the telephone network, or install eavesdropping equipment on every cell phone tower in Iraq, FISA has nothing to say on the subject.

Second, virtually everyone agrees that changes are needed to allow the interception of foreign-to-foreign communications as they pass through infrastructure in the United States without judicial interference. Indeed, the Democratic House passed legislation to that effect back in October. We would not be having this debate today if the president had not threatened to veto that legislation.

The dispute is over what safeguards are appropriate to ensure that the intelligence community’s surveillance activities here in the United States are limited to genuine foreign intelligence. Roger’s position appears to be that neither the courts nor Congress may place any restrictions on domestic surveillance activities that the president declares to be related to foreign intelligence gathering. But that’s not good enough. Without judicial oversight, there is no way to know if the executive branch is properly limiting its activities to spies and terrorists, or if they’ve begun to invade the privacy of petty criminals or even law-abiding individuals. This is no hypothetical scenario. The FBI conducted extensive surveillance of Martin Luther King Jr. and other civil rights and anti-war leaders in the 1960s and 1970s, which was one of the reasons Congress enacted new safeguards in the first place.

The White House complains that the process for obtaining permission from the Foreign Intelligence Surveillance Court is too burdensome. But as our own Mark Moller has explained, most of the paperwork burden that the White House now complains about so bitterly was created by the administration’s own procedures for approving FISA applications. The paperwork required by FISA itself was fairly light. And not only did the Foreign Intelligence Surveillance Court reportedly almost never turn down an eavesdropping application, but the law also included an emergency wiretapping provision that allowed intelligence officials to wiretap first and then get a warrant afterwards.

In short, FISA gave the intelligence community plenty of flexibility to perform the domestic wiretaps they needed to keep Americans safe. But crucially, the government had to tell the court who it was spying on, so that the court could verify that the law was being followed. That’s an important safeguard that ensures that the president doesn’t exceed his constitutional authority and encroach on the privacy of law-abiding citizens. The Protect America Act severely crippled that protection, and it would be a serious mistake for Congress to make the damage permanent.

Atilla Yayla Found Guilty

Atilla Yayla, the courageous leader of the Association for Liberal Thinking in Turkey, who has spoken at the Cato Institute and taken part in Cato conferences and programs, has been found guilty of allegedly insulting the founder of the modern Turkish state, Mustafa Kemal Ataturk. The 15 month prison sentence was suspended.

Background from my previous blog posts here and here.

The New York Times ran a piece on Friday on the likely direction for freedom of speech in Turkey, “Turkey to Alter Speech Law,” which focuses on Atilla’s case.

Atilla is a brave man and a friend of the liberty of everyone. Please write to the Turkish Ambassador in your country, respectfully (please) requesting that proceedings be undertaken to void the sentence. Here is the info for the Turkish Embassy in the USA.