201109

September 29, 2011 2:13PM

The Goofy Face of Terror

Meet Rezwan Ferdaus. The 26-year-old punk drummer and Northeastern University physics grad is also the latest in a string of "limousine jihadis" arrested as part of an

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FBI sting operation. No doubt his fiendish scheme to "decapitate" the American military will soon be added to the list of "thwarted terrorist attacks" that the Heritage Foundation maintains to discourage "complacency in the War on Terror." It's instructive to take a closer look at this plot, as spelled out in the affidavit laying out the charges against Ferdaus.

Seemingly inspired more by Lex Luthor than Sayid Qutb, our wannabe jihadi concocted a detailed plan to load a 6-foot fiberglass remote controlled plane with explosives, which he would then fly into the steel-reinforced concrete outer wall of the Pentagon using some form of GPS-guided autopilot. Then, in a scene cribbed from The Matrix, he would lead a ground assault to "take out" the people fleeing the building with automatic rifles. Apparently lacking much experience shooting, however, Ferdaus suggested that he'd have to take a few guns into the woods first in order to "learn how to do it." Since he was unemployed and living with his parents in the suburbs, there was also the little matter of financing. The FBI (through undercover agents posing as Al Qaeda recruiters) had to foot the bill for the plane, as well as a trip to Washington, DC, where Ferdaus scoped out his target. Oh, and the explosives? He had to ask his bogus comrades to acquire those for him as well.

Whatever its other defects, there's little indication that Ferdaus's conscience would have been much of a barrier to going ahead with his plan: His Faux-Qaeda contacts asked him to modify a cell phone as an IED detonator for Iraqi insurgents, and Ferdaus was reportedly gleeful when (falsely) informed that the device had been used to kill several American soldiers. Such callousness would be more frightening if it had been wedded to enough wit to question whether Iraqi insurgents would really be commissioning trivial soldering work from a U.S. citizen, then having phone detonators shipped across the Atlantic one at a time.

It's certainly conceivable that Ferdaus might have eventually tried to act out his terrorist fanfic even without the FBI's aid or encouragement, and even that he could have managed to harm or kill someone other than himself in the process. I don't intend to shed any tears on his behalf if he winds up going to prison for a long while. Still, it's worth asking whether this is the threat—and as a recent RAND report makes clear, Ferdaus is pretty representative of the current crop of domestic terror plotters—so dire that traditional law enforcement methods simply can't cope.

Scholars John Mueller and Mark Stewart estimate that the increase in direct federal spending on homeland security and intelligence since 9/11 totals some $470 billion, without even factoring in the cost of two foreign wars, with another $220 billion in "enhanced expenditures" from states and the private sector. We've granted  the government extraordinary new surveillance powers, even though judging from public reporting, it's old-fashioned human intelligence that's typically key to catching aspiring bombers. As Ferdaus and his ilk show, there is still a real terror threat. The question is whether, with the United States "within reach of strategically defeating" a scattered and battered Al Qaeda, it's a threat that requires this level of massive mobilization in response. It's as though we'd gathered an epic army on horseback to storm the gates of Mordor, only to find it populated by a smattering of pimply Dungeons and Dragons geeks in rubber orc masks.

There appears to be, as Spencer Ackerman notes in a recent Wired review, a certain percentage of the population that is determined to believe, against all evidence, that we continue to face an "existential threat" from an enemy that is "pernicious, deceptive and merciless and wants nothing less than total destruction.” Partly, I suspect, this is because the grave loss the nation experienced on 9/11, and the fear we felt afterwards, may seem to be ennobled in some sense by being tied to an epic conflict with a world-historical evil. To have simply been sucker-punched by a relatively weak foe, through some combination of their luck and our unforced errors, makes the tragedy seem still more senseless and harder to bear. And let's admit—as Christopher Hitchens had the candor to do—that there can be something "exhilarating" about having a credible enemy against whom to define ourselves, in a "war to the finish between everything [we] love and everything [we] hate." A Superman, in some sense, needs a Luthor—and so we're willing to humor the romantic self-conception betrayed by Ferdaus's ludicrous comic book plot as the price of occupying our own heroic role in the fantasy.

Ten years on, having paid an enormous cost in dollars, lives, and constitutional limits on government power, maybe it's time to grow up, to stop playing along with the kids in the orc masks. The question as we go forward is not whether a threat "exists"—whether there will continue to be sick thugs (and even a handful of competent ones) who dream of striking at America from within. Of course there will. The question is whether we need a half-trillion dollar surveillance state to deal with the likes of Rezwan Ferdaus. Let's not pay him that compliment.

September 29, 2011 2:09PM

Wanna‐​be Mass. Terrorist Incompetent, Lacked Resources

The media has again provided us with a breathless report of a terror plot. This time it’s a 26 year-old Massachusetts man, Rezwan Ferdaus, who planned to fill three remote controlled airplanes with explosives and then fly them into the Pentagon and the U.S. Capitol.

Ferdaus's accomplices were FBI agents. As with many past cases, the FBI agents were crucial to his plot. Without the FBI’s men, money, and “explosives,” there is very little chance that Ferdaus could have successfully committed an act of terrorism.

Ferdaus, broke and living with his parents, had a plan that should make us question his mental competence. He planned to fly two remote-controlled airplanes, each packed with five pounds of explosives, into the Pentagon using GPS-guidance, and another similarly loaded plane into the U.S. Capitol’s dome, which he apparently thought would cave in. Following that, he would somehow destroy the bridges at the Pentagon complex and a six-man team armed with AK-47s would attack the complex. Whom he would recruit with the ability to launch such an audacious assault is not clear. The affidavit never identifies a non-FBI accomplice. At one point, Ferdaus says that he told a friend about his idea, but that his friend declined to participate and suggested that it would be easier to shoot up a military recruitment center. So, absent FBI assistance, Ferdaus’s plan would have been impossible until he had found several more willing participants.

Another impediment was money. Ferdaus purchased only one of the remote control planes for a total of $7,500, which was provided by the FBI. He needed several thousand dollars more to buy the other two. Ferdaus even needed the FBI’s help to pay the $450 fee for a rental facility where he planned to store his material and construct his bombs.

Even if Ferdaus had succeeded in finding others and buying the planes and other necessary electronics, he would still have needed to create a proper explosive that could be detonated at precisely the right time. He initially planned to use several grenades that would have had their pins pulled exactly three seconds before impact using a “detonation servo” device. He later decided to use “plastic explosives,” or C-4, as long as it was “obtainable.” As directed, the FBI undercover agents provided him with 25 pounds of C-4, only 1.25 pounds of which was real. They also delivered six fully-automatic AK-47s.

Wanna-be terrorists face numerous obstacles to success, starting with their own incompetence. We should applaud the FBI's investigative zeal but keep in mind that without them, Ferdaus probably wouldn't have launched an attack, let alone succeeded in it. Here we have a "Darwin Award nominee," not the hypercompetent home-grown terrorist the authorities keep telling us to expect. Saying so is a way to avoid being terrorized.

 

September 29, 2011 12:27PM

Obamacare Legal News Gone Wild

Developments in the Obamacare lawsuits are coming at us so quickly that it's hard to keep up.  After a month and a half of speculation on what the administration would do after it lost in the 26-state/NFIB lawsuit (Florida v. U.S. Dept. of Health & Human Services), in the last week the D.C. Circuit heard argument in yet another case on appeal, the government decided not to seek en banc review in the Eleventh Circuit, yesterday we went from zero to three cert. petitions in that case, and the government filed a reply in the Thomas More (Sixth Circuit) case.  Here's a breakdown:

1. D.C. Circuit Argument

This past Friday, the D.C. Circuit heard the appeal of Seven-Sky v. Holder (in which Cato filed this brief).  There wasn't much media coverage, in part because the reporting came in on a Friday afternoon but more because the appellate developments after the Eleventh Circuit created a split from the earlier pro-government Sixth Circuit ruling are somewhat anticlimactic -- because the action has moved to the Supreme Court.  I attended the hearing and can report a few key points:

(a) The government still has not managed to come up with an example of something it cannot do under its reading of the Commerce Clause.  This is shocking.  Solicitor General Verrilli (who did not argue here), a word of unsolicited advice before Justice Scalia asks you the same question: come up with a couple of outlandish things and move on.  Unless, you know, you think the government really can do anything it wants if a congressional majority exists for it.

(b) Judge Bret Kavanaugh, Bush II appointee and rising star in the conservative judicial establishment, had some serious concerns regarding the Anti-Injunction Act (the jurisdictional issue on which the Fourth Circuit based its decision to dismiss the Liberty University case).  Beth Brinkmann, arguing for the government and after floundering on the Commerce Clause (see above), seemed to have done a great job in putting Kavanaugh's mind at ease -- or at least getting him over the jurisdictional hump.

(c) Judge Laurence Silberman, Reagan appointee and author of many significant opinions over the years, has a really wide interpretation of government power under Wickard v. Filburn, the 1942 wheat-farming case.  I'm not sure that puts his vote in danger -- he was also the one who most went after the government -- but it does raise an eyebrow.

(d) Overall, I cautiously predict a 2-1 ruling in favor of the plaintiffs, but we won't know till later this fall.  For a more detailed analysis of the hearing, see Randy Barnett's post at the Volokh Conspiracy.

2. No En Banc Review in the Eleventh Circuit

On Monday, the government allowed the deadline for seeking review of the Eleventh Circuit panel ruling by the full court to slip.  Commentators, including myself, had speculated that it might file for en banc review in an attempt to push the inevitable Supreme Court ruling past the 2012 election.  That didn't happen, and here was my press statement:

En banc rehearing would have been legally futile and politically damaging, so the government made the correct decision in not seeking it. We can now expect the solicitor general to ask the Supreme Court to review the Eleventh Circuit's decision to strike down the individual mandate while leaving the rest of Obamacare standing. The certainty that such review will provide to a nation battered by this among so many other pieces of economically harmful administration policies cannot come soon enough.

The government's inactivity here, as it were, provoked a flurry of coverage.  I agree with the analysis that Peter Suderman put up at Reason

3. NFIB Files Cert. Petition

Early yesterday (Wednesday) morning, the National Federation of Independent Business and two individuals asked the Supreme Court to review the one issue on which they lost before the Eleventh Circuit: severability.  That is, despite the government's concession that at least the community-rating and guaranteed-issue provisions are inextricably tied to the individual mandate, and the obvious practical observation that none of the legislation would've passed without the mandate, the Eeleventh Circuit reversed Judge Vinson's ruling on this point and only struck down the mandate.  The petition also makes the point that the Eleventh Circuit case presents the best Supreme Court "vehicle" among all the lawsuits because it most cleanly presents the relevant issues and doesn't face lingering concerns over standing.   It's a strong and aggressively worded brief which makes for a good read.  Here was my press statement:

The NFIB's cert petition forces the Supreme Court to grapple not simply with the individual mandate's constitutional defects but with the fatal flaws those defects expose in the overall legislation. The regulatory burden and economic uncertainty -- let alone direct financial cost -- that Obamacare imposes on individuals, businesses, states, and the nation as a whole are part and parcel of a noxious scheme centered on the individual mandate. The Court should grant this petition and thus begin putting an end to the government's doomed -- and unconstitutional -- attempt to control our lives.

Randy Barnett, who's now part of the NFIB legal team (which is led by veteran appellate litigator Mike Carvin), has this useful post about the petition's treatment of the Anti-Injunction Act.

4. 26 States File Cert. Petition

On the heels of the NFIB filing, the 26 states in the Florida-led lawsuit filed their own cert. petition yesterday.  "Time is of the essence," lead counsel (and former solicitor general) Paul Clement argues. "States need to know whether they must adapt their policies to deal with the brave new world ushered in by the ACA."  The petition asks the Court to review three questions:

(a) Does the threat to withhold all Medicaid funding if states don't agree to Obamacare's onerous new conditions on that program constitute impermissible coercion by the federal government? [The Eleventh Circuit said no.]

(b) May Congress treat states no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage?  [This is a new formulation of a claim that hasn't gotten much attention, and focuses on the somewhat idiosyncratic 1985 Supreme Court decision in Garcia v. San Antonio Metropolitan Transit Authority.]

(c) Does the individual mandate exceed federal power and, if so, can it be severed from the rest of the law?

I've only skimmed this petition, but it too is a hard-hitting and elegant presentation of serious issues.

5. Solicitor General Files Cert. Petition

Around lunchtime yesterday, the government filed its own cert. petition.  (The parties were all clearly playing a high-stakes game of legal chicken; once the govenment declined to pursue en banc review, the NFIB incorporated that fact into a petition that it had clearly been considering filing preemptively, its co-plaintiff states soon followed, and the government's hand was forced to throw its petition -- which had obviously also been in the final stages -- into the filing cascade. Note that yesterday was not any sort of deadline for seeking Supreme Court review!) 

The new solicitor general, Donald Verrilli, of course asks the Court to address whether the individual mandate is constitutional, but also, curiously, whether the challenges are barred by the Anti-Injunction Act.  On this second point, the government argues that the AIA does not apply but asks the Court to appoint an amicus to argue that it does, effectively to defend the Fourth Circuit's position.  This is unusual.  The SG is essentially saying that he would prefer to win on the merits but will accept a technical victory so long as he doesn't have to argue for it.  (This accords with my prediction that the Court will either rule for the plaintiffs or find a procedural way of avoiding the merits while allowing the individual mandate to stand.)

6. Government Responds to Thomas More's Cert. Petition

There was one actual deadline yesterday, and the government met it: It filed a response (not labeled "opposition" as is typically the case) to the cert petition in Thomas More Law Center v. Obama, the case coming out of the Sixth Circuit.  As expected given its earlier filing, the government asked the Court to hold this petition pending resolution of Florida v. HHS.  There's really nothing to this filing beyond expressing that position.

Conclusion

The day we've all been awaiting since President Obama signed his health care law in March 2010 -- the Supreme Court's ruling -- is nigh.  Normally the parties on the other side of cert. petitions have 30 days to respond, after which the Court considers the filings, issues a cert. grant or denial (here a grant of some kind), and sets the case for argument a few months in the future to allow time for briefing on the merits.  In Florida v. HHS, however, all the parties -- the government, the states, the NFIB/individual plaintiffs -- are requesting cert., so I'm not sure what value they or the Court would get from responsive filings (which would be due Oct.27).  Regardless of that wrinkle, the Court is likely to grant cert. sometime in November -- or in any case by the end of the year -- and set argument for March or April. 

So we're on track for a decision that glorious last week of June when the Court releases its most pressing opinions and gets the heck out of Dodge.

September 29, 2011 11:24AM

Obama and Civil Liberties

Jonathan Turley has a terrific column about President Obama and his deplorable record on civil liberties.  Here's an excerpt:

Obama failed to close Guantanamo Bay as promised. He continued warrantless surveillance and military tribunals that denied defendants basic rights. He asserted the right to kill U.S. citizens he views as terrorists. His administration has fought to block dozens of public-interest lawsuits challenging privacy violations and presidential abuses.

But perhaps the biggest blow to civil liberties is what he has done to the movement itself. It has quieted to a whisper, muted by the power of Obama's personality and his symbolic importance as the first black president as well as the liberal who replaced Bush. Indeed, only a few days after he took office, the Nobel committee awarded him the Nobel Peace Prize without his having a single accomplishment to his credit beyond being elected. Many Democrats were, and remain, enraptured.

This was not all that surprising to me.  As soon as Obama started making actual decisions (instead of just speeches), one could see he where he was going.  Joe Biden for Vice President?  Rahm Emanuel for chief of staff?  Civil liberties was never going to be a priority.  Jonathan Turley is right that beyond Obama's own misguided policies, the worst thing is that he has devastated not only the movement for civil liberties but also the anti-war movement.  Oh well, at least Obama has put our financial house in order!

September 29, 2011 10:05AM

Tim Geithner: The Forrest Gump of World Finance

One almost feels sorry for Treasury Secretary Tim Geithner.

He's a punchline in his own country because he oversees the IRS even though he conveniently forgot to declare $80,000 of income (and managed to get away with punishment that wouldn't even qualify as a slap on the wrist).

Now he's becoming a a bit of a joke in Europe. Earlier this month, a wide range of European policy makers basically told the Treasury Secretary to take a long walk off a short pier when he tried to offer advice on Europe's fiscal crisis.

And the latest development is that the German Finance Minister basically said Geithner was "stupid" for a new bailout scheme. Here's an excerpt from the UK-based Daily Telegraph.

Germany and America were on a collision course on Tuesday night over the handling of Europe's debt crisis after Berlin savaged plans to boost the EU rescue fund as a "stupid idea" and told the White House to sort out its own mess before giving gratuitous advice to others.German finance minister Wolfgang Schauble said it would be a folly to boost the EU's bail-out machinery (EFSF) beyond its €440bn lending limit by deploying leverage to up to €2 trillion, perhaps by raising funds from the European Central Bank."I don't understand how anyone in the European Commission can have such a stupid idea. The result would be to endanger the AAA sovereign debt ratings of other member states. It makes no sense," he said.

All that's missing in the story is Geithner channeling his inner Forrest Gump and responding that "Stupid is as stupid does."

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This little spat reminds me of the old saying that there is no honor among thieves. Geithner wants to do the wrong thing. The German government wants to do the wrong thing. And every other European government wants to do the wrong thing. They're merely squabbling over the best way of picking German pockets to subsidize the collapsing welfare states of Southern Europe.

But that's actually not accurate. German politicians don't really want to give money to the Greeks and Portuguese.

The real story of the bailouts is that politicians from rich nations are trying to indirectly protect their banks, which - as shown in this chart - are in financial trouble because they foolishly thought lending money to reckless welfare states was a risk-free exercise.

Europe's political class claims that bailouts are necessary to prevent a repeat of the 2008 financial crisis, but this is nonsense - much as American politicians were lying (or bamboozled) when they supported TARP.

It is a relatively simple matter for a government to put a bank in receivership, hold all depositors harmless, and then sell off the assets. Or to subsidize the takeover of an insolvent institution. This is what America did during the savings & loan bailouts 20 years ago. Heck, it's also what happened with IndyMac and WaMu during the recent financial crisis. And it's what the Swedish government basically did in the early 1990s when that nation had a financial crisis.

But politicians don't like this "FDIC-resolution" approach because it means wiping out shareholders, bondholders, and senior management of institutions that made bad economic choices. And that would mean reducing moral hazard rather than increasing it. And it would mean stiff-arming campaign contributors and protecting the interests of taxpayers.

Heaven forbid those things happen. After all, as Bastiat told us, "Government is the great fiction, through which everybody endeavors to live at the expense of everybody else.”

September 29, 2011 8:34AM

‘Loser‐​Pays’ in Texas: a ‘Triumph of Packaging’

The latest round of litigation reform in Texas drew big national attention because of its "loser pays" label. But in reality, as I told Reuters reporter Moira Herbst in her new story, by the time the bill reached enactment the label wasn't really deserved.

Texas courts will apply the loser-pays principle to only a small fraction of unsuccessful actions. The package also includes new rules shifting costs in some cases where litigants turn down a settlement offer and then do less well at trial; that's welcome, but doesn't venture much beyond what other states have tried with success in their legal systems. As before, Alaska (which has had its rule since territorial days) is the only state to enjoy the benefits of a comprehensive loser-pays principle.

For more background on loser-pays, see my Maryland Law Review article with co-author David Bernstein, or this more popular Reason piece. For more on the recent Texas enactment, see links at Overlawyered here, here, here, etc.

September 28, 2011 7:38PM

The Kindle Fire and the Triumph of Open Source

Today’s big tech news is the release of a new generation of Amazon Kindles. Of particular interest is the Kindle Fire, a $199, 7-inch color touchscreen tablet based on Android. It seems destined to become the most credible competitor to the iPad.

One point I haven’t seen anyone make about this is the importance of open source software to the evolution of the tablet computing market. Google decided to make Android an open-source operating system, which meant that third parties could take the code, tweak it for their own needs, and sell competing Android-based products. That’s what Barnes and Noble did last year with the Nook Color, and it’s what Amazon did to create the Kindle Fire.

Obviously, the fact that Android was available has made it much easier for Barnes and Noble and Amazon—as well as traditional consumer electronics firms like Samsung and Motorola—to enter the market. But it also has important implications for the long-term future of competition in the tablet market. Software platforms tend to be a winner-take-all affair thanks to network effects. In the PC operating system market, the 1980s were a period of intense competition and rapid innovation, followed by the 1990s when Windows became utterly dominant and the pace of innovation slowed. The same thing happened with browsers: intense competition in the late 1990s between Netscape and Microsoft, followed by a period in the early 2000s where Microsoft was utterly dominant and browser innovation slowed.

Things are different now because both the browser and OS markets are becoming dominated by open source software. In the browser market, the two fastest-growing browsers—Safari and Chrome—are both built on top of WebKit, an open source project started by Apple. And now Amazon’s new browser, called Silk, is also built on WebKit. It’s unlikely Amazon would have entered the browser market if they’d had to build a browser from scratch.

Meanwhile, Amazon’s announcement of the Kindle Fire adds to Android’s already-considerable momentum. The Kindle Fire and stock Android tablets will reportedly be able to run each others’ apps, which means that the success of one will expand the market for the other.

It’s hard to make predictions, especially about the future, but I suspect that tablets and browsers will be dominated by Android and WebKit, respectively. Yet because Android and WebKit are open source projects, there’s little danger that their growing popularity will lead to the dominance of one firm, with the resulting stagnation. Even if the market is dominated by a single platform, that market share will be shared among several companies that build products using that platform, who wil compete with each other to produce enhancements to the underlying, shared code. And because firms won’t have to build new OSes or browsers from scratch, barriers to entry will be low. The future of the open Internet is looking really bright.

Cross-posted from Forbes.com