Topic: Law and Civil Liberties

Stewart Baker Crosses a Line - What’s the Strategy?

I’ve been nothing if not dogged about responding to DHS’ advocacy for REAL ID and E-Verify. I’ve had fun responding to post after DHS post on the “Leadership Journal” blog promoting E-Verify. But I let one recent post from DHS Assistant Secretary for Policy Stewart Baker go by. Enough people have pointed me to it and asked me what I thought that I’m finally drawn to comment.

Baker’s post, “Exactly What Do They Want?,” addressed none of the substance of the E-Verify program, but simply attacked a group called the Society for Human Resource Management (SHRM).

 Here’s a taste:

SHRM lobbies for the HR execs who do corporate hiring. It also opposes E-Verify. I suppose corporate hiring is easier if you can hire illegal workers, so perhaps I shouldn’t be surprised that SHRM wants to kill a program that makes it harder to hire illegal workers.

But SHRM has taken Washington arts to a new level. SHRM says it doesn’t want to kill E-Verify. SHRM says it wants to replace E-Verify with a new, better program to prevent illegal hiring. A closer look shows that the SHRM alternative is doomed to fail – and will take years to do so. So for a decade, while the SHRM alternative is failing, no one will have a good tool to actually prevent illegal hires. Which may be precisely what SHRM wants.

Politics can be ugly. And attacking the motives of your opponents is ugly politics. But what matters in the first instance is that it’s politics at all. Stewart Baker is an executive branch official who was appointed to his office, not elected. His role is to administer the laws, not to participate in the political processes that decide what the laws are. He crossed a crucial line by becoming a critic - and a harsh critic at that - of a private association because of its public policy stance.

It’s interesting to speculate about what caused Baker’s fit of pique. A theme in his post is the potential transfer of responsibilities for verification of workers from the Department of Homeland Security to other agencies like SSA and HHS. Job #1 for government ministers is to build their fiefdoms, and the SHRM’s preferred employment verification vehicle, the New Employee Verification Act, would be a DHS bureaucrat’s biggest outrage.

But everyone who knows him knows that Stewart Baker is savvy and cool. It’s not like him to lose his temper - especially not in such a public way. So I expect that this is part of some clever strategy, but I just don’t know what it is. Baker’s vitriol has drawn justified indignation from the folks at SHRM. The comments on Baker’s post have lots of interesting tidbits, including allegations that Baker consistently declined to meet with SHRM. He got written up in Politico for starting this public imbroglio. And the human resources blogosphere is popping with discussion of Baker’s explosion.

So, does Stewart Baker surprise us all and pull a rabbit out of a hat? Or has he really lost his cool? It could be frustrating, as he winds down his stint at DHS, to look down the road behind him at his key issues: the E-Verify program limping along, and the REAL ID Act in full collapse.

Censorship vs. Editorial Discretion

Via Ezra Klein, Tim Fernholz seems to be confused about the nature of censorship:

Conservatives argue (often with comparisons to communist states) that the doctrine, which hasn’t been in effect since 1987, forced the state to mandate speech. It really just provides for reasonable discussion of views, but the Right demagogues the issue to raise money and keep Rush Limbaugh on the air unopposed.

But now that McCain can’t get his stuff in the Times, it’s a terrible moment for American media! The FCC’s regulation wouldn’t affect a print newspaper, obviously, but it’s rank hypocrisy for McCain to complain that he’s not getting a fair shot, especially when he is co-sponsoring legislation to permanently ban the Fairness Doctrine. Apparently, equal time is only a bad idea when liberal views are being silenced.

This really isn’t complicated: The difference between advocates for bringing back the fairness doctrine and conservative critics of the New York Times is that the conservatives are not (as far as I know) advocating that the government force the New York Times to carry John McCain’s op-ed, or even to carry a certain quota of conservative columnists in order to ensure a “reasonable discussion of views.”

Fernholz dances around this issue, asserting that it’s not really censorship because the goal is simply to promote a “reasonable discussion of views.” And it’s true, I guess, that the Fairness Doctrine doesn’t involve giving the White House veto power over which stories get aired on NPR. But imagine if every five years the New York Times had to get its printing license renewed, and the Federal Press Commission reviewed the previous five year’s op-ed pages to ensure that they had represented a “reasonable discussion of views.” Fernholz can’t seriously claim that this would have no effect on the Times’s coverage—that it might not decide to scratch a few op-eds critical of the current administration or maybe hire an extra conservative (or liberal, depending on who was in power) columnist to make sure there weren’t any “reasonableness” problems during the license renewal process.

No, conservatives and liberals agree that the publishers of newspapers have a right to print whoever they please on their op-ed pages, “reasonable” or otherwise. The same principle applies to broadcast media, and for the same reasons.

Terrorist Attacks on Aviation - 11 Per Day!

… or so you would infer from a statistic reported on the Threat Level blog.

Threat Level reports on a new policy that has the Transportation Security Administration doing deep dives into people’s public-record dossiers when they arrive at airports without government-issued ID: “The new rules went into effect June 21, and in the first five days, 1705 people out of 10 million attempted to fly without identification and 59 of those were denied access to the plane.”

Fifty-nine refuseniks in five days works out to more than 11 terrorist attacks thwarted per day.

Of course, these weren’t actually terrorists. These were people whose papers weren’t in order. When this happens, TSA employees at its operations center in Virginia dig into public records databases and relay questions to screeners at the airports. If a traveler passes the test, he or she can fly. If the database information is wrong, or if the traveler is forgetful, he or she is stranded.

We were already quite a long way from getting any actual security benefit out of these programs, but as Threat Level suggests, all one need do to impersonate another is memorize the information about them in public records. I think this will happen most often among siblings and family members, who already know such info. But we’re talking about public records. They are collected, packaged, and sold by services like Lexis-Nexis. Sophisticated criminals and terrorists could get them just like anyone else.

Or they could present government-issued ID, having adopted the “clean-skin terrorist” technique that was recently reported to Capitol Hill by DHS Secretary Michael Chertoff.

The Bloggingheads of the Conservative Legal Movement

On May 14 I ran a book forum for Steve Teles’s insightful and provocative new book, The Rise of the Conservative Legal Movement.  The book is groundbreaking, in part because Teles is neither a lawyer nor a conservative – yet remains completely objective and analytical toward his subject matter.  Well, it seems that the book tour/publicity train keeps going, and yesterday Steve appeared on that vaunted new media institution, bloggingheads, opposite Newsday columnist and Fox News commentator Jim Pinkerton.    I’ve only watched a brief bit so far, but it looks pretty good.

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