Topic: Law and Civil Liberties

Secretary Chertoff Brings Security Revelation to Capitol Hill … After Four Years

But will it change policy?

To the amusement of those of us who have focused on the security value of watch-listing for some time now, Department of Homeland Security Secretary Michael Chertoff said some interesting things on Capitol Hill last week. Reports CBS News:

“The terrorists are deliberately focusing on people who have legitimate Western European passports, who don’t appear to have records as terrorists,” Chertoff told lawmakers. “I have a good degree of confidence we can catch people coming in. But I have to tell you … there’s no guarantee. And they are working very hard to slip by us.”

Perhaps this is new information to Secretary Chertoff. Perhaps this is revelation to lawmakers. But some of us have had in inkling about this problem for a little while now. In August 2004, the 9/11 Commission reported that two out of three terrorist planners prefer clean-skin terrorists. (Sound like a toothpaste commercial?) From page 234:

Khallad claims it did not matter whether the hijackers had fought in jihad previously, since he believes that U.S. authorities were not looking for such operatives before 9/11. But KSM asserts that yound mujahideen with clean records were chosen to avoid raising alerts during travel. The al Qaeda training camp head mentioned above [not identified by name in the report] adds that operatives with no prior involvement in activities likely to be known to international security agencies were purposefully selected for the 9/11 attacks.

Given the availability of this tactic, I wrote in my book Identity Crisis: How Identification is Overused and Misunderstood (available to anyone in Congress free for the asking going on two years now) that watch-listing is essentially impotent against terrorism.

So maybe Congress will now get it. But will it change policy?

Bob Blakely of the Burton Group has used the occassion of the millionth entry on the terrorist watch list to write on his personal blog about the chance of catching terrorists with watch-listing. He does an elaborate examination of the process given various reasonable assumptions about the number of border crossers and the number of terrorists, known and unknown. Read through it to take the nature of the problem and Bob’s thinking to heart, but here’s his conclusion:

[T]his system is trivially easy for even the dumbest terrorist to circumvent. It doesn’t take a genius to figure out that the thing to do to defeat this system is stop sending known terrorists through it. Catching a new recruit without a terrorist history happens only by accident, and it happens with very low probability. We’re spending God knows how many millions of dollars on this list, and it cannot possibly do the job for which it’s intended.

Bob has some understanding of bureaucratic behavior, and he has a clever answer to the question whether all this knowledge will change policy.

I realize that it’s bureaucratically impossible to dismantle a large government system which has been publicly criticized, so in a helpful and public-spirited gesture I’ll offer the following alternative suggestion:

Put everybody on the list.

It’s cheap, it’s fast, it’s inevitable eventually anyway as long as the list continues to grow at its current rate, and it makes checking people against the list really easy (you can do it even without a computer!).

Hilarious! That will satisfy the political impulse to double-down on bad policies, and once everyone is on it, the list can be ignored by our security bureaucracy, freeing it to focus on security measures that work.

Supreme Court Rules, But Behold the Rigmarole

Dick Heller won in the Supreme Court, but the D.C. government is creating a rigmarole of a process for residents to exercise their constitutional right.  Looks like everyone one is going to need a lawyer to guide them through the morassat least in the near term.

Washington Post columnist Marc Fisher says that DC officials held a press conference where they seemed to be amused by the cumbersome registration process they have created: “There are circumstances where it could take months,” Police Chief Cathy Lanier conceded, and you could almost hear the elected officials around her emitting “heh-hehs” of mischievous delight.   Read the whole thing

Louisiana Rejects REAL ID

Melissa Ngo reports and comments on her “Privacy Lives” blog about the passage of a particularly strong anti-REAL ID law in Louisiana.

There’s a gem in the comments from a military veteran on the notion that the Veterans Admininstration might withhold benefits to those not having a national ID as required under the REAL ID Act:

I would suggest those who are in office stop thinking you are in control of the American people. I for one went to war once, I am not afraid to do so again. The government serves the people, not the other way around.

Now We’re Getting Somewhere!

Just yesterday, I was bewailing politicians’ (and others’) unwillingness to take on fundamental questions about what kind of education system has been—and is now—most compatible with American goals and values. It’s much easier to wax poetic about American public schooling as some time-immemorial backbone of the nation than face the educational truth.

Well, though he didn’t debunk all the mythology propping up public schooling, yesterday John McCain offered one of the boldest challenges to the bunk-based status quo I’ve heard from a politician in a while. In a speech to the NAACP, McCain declared that if elected president he would fight for “school choice for all who want it.”

Unfortunately, one of the implications of McCain’s promise is that the federal government would secure choice under his presidency. But outside of Washington D.C., providing anything in education—choice or otherwise—is beyond the feds’ constitutional purview, as Andrew Coulson explains here. This must be made abundantly clear to McCain and Senator Obama, who promises to throw everything into education including the science-lab sink. It’s also disturbing that in the question and answer period following his speech, McCain promised to “fully fund” the No Child Left Behind Act, a change from previous McCain-camp statements.

Despite these major federalism problems, McCain’s speech is a welcome step forward, at least in spirit. At last, though he might not know who should provide it, a major candidate for national office is declaring that school choice for all is the key to success.

McCain to NAACP: It’s Time for School Choice

John McCain told the NAACP this morning that after decades of broken promises by the nation’s public school systems it is time to give all parents an easy choice of public and private schools. He is right, so long as he doesn’t propose a private school choice program at the national level.

The merits of wide-open parental choice — and the basic justice of it —are compelling, but the Constitution mentions neither the word “education” nor the word “school.” Congress and the president simply do not have a mandate to create such a program. More than that, a national private school choice program risks extending pervasive government regulation over private schools from the Potomac to the Pacific, homogenizing the options available to families and thus defeating the entire point of school choice. It is far better and safer for presidential candidates to tout the merits of school choice and encourage their state-level counterparts to put these programs into place. In that way, the varying experiences of the states – the so-called “laboratory of federalism” – can help to identify and eliminate problems in their implementation.

Reaping the Fruits of Judicial Obstruction

Yesterday the U.S. Court of Appeals for the Fourth Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) issued a complicated (216-page) and fractured (5-4, with a plethora of concurrences and dissents) decision that turned on one judge joining four colleagues on one issue and four other colleagues on another. Essentially, the Al-Marri case says that the president has the power to order the indefinite military detentions of civilians captured in the U.S., but that these “enemy combatants” must be given more of an opportunity to challenge their detention in federal court than has been given.

This is a big mess of a decision – right or wrong, no clear guidelines emerge – the substance of which I won’t get into and, in any event, it’s on the fast track to the Supreme Court. What I do want to comment on, however, is the larger significance of the 5-4 splits in this en banc (meaning all the court’s judges review the earlier decision of a three-judge panel) case.

Regardless of the merits of this case – with dueling 5-4 votes on the two main issues it’s obviously a close (and unprecedented) call – this case highlights yet again the disastrous consequences of our broken judicial confirmation process. The court that decided this important case has 15 authorized judgeships, yet only nine judges participated. One judge recused himself for an unspecified reason, one was confirmed too recently, and four crucial slots are vacant. While both parties have done their fair share to poison the confirmation well, Democrats are clearly the ones to blame for the current impasse over judges. President Bush – who in one of his first acts appointed a previously lapsed Clinton nominee, Roger Gregory, to this same court – has named nominees for all four vacancies, but the Senate has refused to act on them. The longest-suffering, District Judge Robert Conrad of North Carolina, will tomorrow have been awaiting an entire year and has not even gotten a Judiciary Committee hearing.

The Court of Appeals for the District of Columbia Circuit has been similarly hamstrung, its ten judges increasingly splitting 5-5 on the important issues of the day while Peter Keisler, the person nominated to the seat John Roberts vacated when he became Chief Justice has been awaiting an up-or-down vote for over two years. (Keisler is the most qualified lower-court nominee since Miguel Estrada, who withdrew his name from consideration after being filibustered ostensibly because Democrats were wary of confirming a conservative Hispanic who would have instantly become a contender for the next Supreme Court vacancy. Keisler is also on record as having opposed the controversial ideological vetting of new Justice Department hires.)

By their (in)action, first as minority filibusterers and now as majority obstructers, Senate Democrats hamper the judicial process and invite messy and inconclusive decisions like Al-Marri.

Larry Lessig’s Crusade against “Money in Politics”

A few months ago, during a visit to DC, I had the pleasure of meeting Chris Hayes, a sharp writer for the Nation. At the time, he was working on this profile of Larry Lessig, which I missed when it first ran back in May. Lessig made a name for himself with his writings on copyright policy, which have greatly influenced my own work on the subject. He made headlines last year when he announced that he would be leaving copyright policy behind to focus instead on a new project that became the Change Congress movement. The goal is to use cutting-edge tools to pressure members of Congress to take four pledges: to stop taking money from lobbyists and PACs, to support earmark reform, to support increased government transparency, and to support public financing in campaigns. As Hayes describes it, Lessig’s fundamental goal is to, in the oft-repeated phrase, “get money out of politics”:

In today’s terms, you might call it the Medicare Part D problem: even when Congress starts out with a laudable policy goal, like providing prescription drugs for seniors, by the time the legislation gets through both houses it amounts to little more than a grab bag of giveaways to politically connected business interests. Case in point: the recent Senate-passed Foreclosure Prevention Act, which contains $25 billion in tax breaks for home-builders and other businesses while doing very little to justify its name. The reason for this is straightforward: the amount of money spent on lobbying in the last Congressional session was $2.8 billion, nearly two times more than was spent in 2000. Overall, industry has contributed $14 million to Congressional candidates in this session.

This money, Lessig says, insidiously distorts Congressional outcomes and priorities because Congress members don’t experience it as corruption. “Let’s say you go to Congress,” says Lessig, “and you believe there are two problems to deal with: piracy of copyrighted materials and welfare mothers who are really getting screwed by the system. You open up shop, and a million [lobbyists] come in and say we’ve got a thousand things to tell you about piracy, and nobody comes into your office and says we’re going to help you with the welfare moms. So you shift your focus, but you never feel it. You think: maybe I could’ve spent more time on welfare moms, but I’m having a real effect on stopping piracy! That’s the dynamic that is so critical here.”

What’s striking about this example is that it actually has very little to do with campaign contributions. The hypothetical here isn’t that the member of Congress starts out with a “good” position on copyright issues and then is persuaded to change his mind when the lobbyist hands him a sackful of campaign cash. Rather, the hypothetical is that the member of Congress already has a variety of legislative goals, and he’s swayed by lobbyist pressure to focus on the ones that serve well-connected interests and ignore the ones that serve the broader public.

Now, I assume Lessig’s point would be that the campaign contributions are what give the lobbyist his persuasive power, but I think this misses the point of his own example. Campaign contributions certainly give lobbyists increased leverage at the margin, but I think they’re clearly a relatively modest source of influence, all things considered. First and foremost, the lobbyist’s leverage likely comes from the sheer force of persistence. As Lessig himself describes it, the lobbyist has “thousand things to tell” the member about the copyright issue, and with hardly anyone willing to make the trip to Washington to give the other side of the story, the member gets a distorted picture of the debate. Moreover, lobbying firms tend to hire people who already have personal connections to members of Congress and their staffs. The lobbyist might be a a former Hill staffer, a Congressman’s cousin, the college roommate of a Senator’s legislative assistant, or whatever. Moreover, lobbying firms and corporations are able to promise key staffers lucrative jobs in the private sector on their next trip through the revolving door.

But the fundamental problem is simply that there’s nobody coming in to advocate for the welfare mother (or, it should be noted, the taxpayer who’s footing the bill for the whole enterprise). Even if tightening campaign finance rules were to diminish the influence of the “bad” lobbyists, that’s not going to help very much if there’s no one on the Hill advocating for the “good” side of any given debate.

This is, in other words, not a problem with “money in politics”; it’s a problem with politics. Wealthier, more sophisticated, and better organized interest groups always find ways to turn the political process to their advantage. Those with the ability to influence the process will sell their services to the highest bidder. One advantage of campaign contributions is that they’re at least relatively transparent, something that can’t be said for lobbying contracts.

I think Lessig is actually right about the potential of the ‘net to change politics. It’s easier than ever before for activists of all kinds to find one another, form ad hoc groups, and exert grassroots pressure on key decision-makers. And for a variety of reasons, that will make special interests with their lobbyists and $2300 campaign contributions less influential on the Hill. But Lessig’s focus on money strikes me as confusing the symptom for the disease. Politics just is a process whereby the politically well-connected steal from the rest of us. Lessig seems to think there once was, or someday can be, a pristine political process untainted by “money in politics.” But that represents a fundamental misunderstanding of what the political process is and how it works.

It’s simply never going to be possible to pass enough regulations to eliminate the influence of “bad” lobbyists on the political process. Certainly, “getting money out of politics” won’t do it. It’s far more effective to build institutions to ensure that the “good” side of any given issue gets a real hearing. The Internet is making that easier than ever before, by lowering the barriers to entry for political participation. It is therefore unfortunate that Lessig is, in a sense, recruiting cutting-edge digital activists to help him fight the last war. The goal should not be to smash the old system, but to build new institutions that give more influence to ordinary voters and taxpayers. The Change Congress movement doesn’t seem likely to do that.