Archives: 09/2011

Dangerous Lessons in Islamophobia at the FBI

In a disturbing piece for Wired, my friend Spencer Ackerman reports on the appalling contents of training sessions on Islam delivered to FBI agents, which suggest that all devout Muslims ought to be considered as prone to violence and terrorism.

One comically amateurish chart even purports to graph the historical propensity for violence of the three main Abrahamic faiths. As you can see, Islam seems to rapidly plateau at a very high level of relative violence on some kind of made-up scale—though hard as I squinted, I couldn’t detect a blip in any of the lines around the 12th century that might correspond to the Crusades.

One presentation makes it quite explicit that, in the analyst’s view, the problem is not Islamic “extremism,” but the inherent propensity for violence of Muslims as such:

  • There may not be a “radical” threat as much as it is simply a normal assertion of the orthodox ideology.
  • The strategic themes animating these Islamic values are not fringe; they are mainstream.
  • The individual applying these values and practices may likely be simply a pious and devout adherent: i.e., a true believer as opposed to a “radical.”

In other words, FBI agents are effectively told that Osama bin Laden was correct, and that a sincere Muslim who understands and practices his faith correctly will naturally be a terrorist. It would be offensive in any context for the government to sponsor this kind of smear session against the enormous peaceful majority of its Muslim citizens, but it’s downright dangerous in light of the vast expansion of FBI surveillance authorities over the past decade.

An agent in any of the FBI’s 56 field offices can issue National Security Letters demanding potentially sensitive financial, phone, and Internet records with only the approval of the office’s Special Agent in Charge. The agent need only assert that the records are “relevant” to an investigation to protect national security; there’s no need for any evidence that the persons under scrutiny are involved in wrongdoing, and normally no judicial involvement at all. Unsurprisingly, these requests are issued in massive numbers, with a record 14,212 Americans targeted by NSLs last year alone. Though the overwhelming majority will be cleared of suspicion, those records will remain in government databases for decades. FBI investigative guidelines, meanwhile, continue to be revised so as to give agents ever more latitude to “check out” people who might be worth investigating, expanding the scope of what agents may do without opening a formal investigation or even explaining or making a record of their actions.

These authorities are dangerous enough to civil liberties by themselves. But combined with the kind of “training” uncovered by Wired, they are a recipe for abuse. Imagine a fresh-faced Quantico grad charged with “connecting the dots” to preemptively ferret out terrorists before they strike. After having been told by the Bureau’s own appointed experts that devout Muslim faith—even of the “mainstream” variety—is inherently a strong predictor of jihadist violence, should we be surprised if some agents conclude it’s their duty to “check out” the conspicuously devout, just in case? The rule book may contain the requisite injunction about not targeting people solely on the basis of faith, but the clear message of these presentations is that piety is, in itself, grounds for suspicion. And the post-9/11 emphasis on “flexibility” over old-fashioned checks and balances makes it less likely that judges or supervisors will take note and intervene when misguided agents attempt to go too far.

In just four months during late 2008 and 2009, the FBI opened 11,667 “assessments” of people and groups, and went on to open 427 “preliminary” or “full” investigations on the basis of the information gleaned from those assessments. That’s an astonishing number of people put under FBI scrutiny, especially given how few of those inquiries appear to have borne any fruit. But if the Bureau is training agents to regard 2.5 million American Muslims as jihadis-in-waiting, maybe we should be relieved the number isn’t higher still.

How to Spot Failure

Ezra Klein writes that “libertarianism fails in health care,” by which he means he has identified something he does not like: in a free society, no one would force you to purchase health insurance, whether for yourself or for others, from the government or from private insurers.  Klein doesn’t like that, because of something neither of us likes: it means some irresponsible and/or unfortunate people would end up with expensive medical bills or worse—dead.

But that is like saying, “The Yankees fail because they have a lousy third baseman.”  (Do they? I have no idea.)  It tells us nothing about how well the Yankees perform (how many lives Libertopia would save) on the mound (preventive care), at first base (primary care), in the outfield (acute care and new medical technologies), on double plays (care coordination), or by avoiding unforced errors (same).  It tells us nothing about whether the Yankees’s left fielder plays shallow or the team otherwise adjusts to minimize the lousy-third-baseman problem (whether people would take better care of their health and more people would purchase health insurance), how well the Yankees perform at the plate (generating wealth, improving living standards, and reducing the cost of care to bring it within reach of the poor), or lots of other things that a free economy would do that I could graft onto this lousy simile.

Klein doesn’t even begin to examine how other ways of organizing health care, including our very own health sector, perform on any of these dimensions.  And he certainly doesn’t tell us the score.  All he tells us is what we already knew: that a free market isn’t perfect. Which is to say, he tells us nothing.

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Solyndra: Another Energy Boondoggle

The details surrounding the $535 million government loan to Solyndra – the now-bankrupt solar energy company that had been the green apple of the president’s eye – are still emerging. It remains to be seen whether or not the Obama administration broke any laws when it pushed the loan out the door despite obvious problems with the company’s finances.

At the very least, the administration is guilty of wasting taxpayer money. In that regard, it’s no different than all the other administrations that have tried to tinker with energy markets. When the dust settles, Solyndra will take its place alongside other infamous federal energy boondoggles, including the Synthetic Fuels Corporation, the Clinch River Breeder Reactor, and the Superconducting Super Collider. (All of these and more are discussed in a Cato essay on federal energy subsidies.)

Congressional Republicans are salivating over the prospects of a scandal involving a key initiative of the administration. But Republicans should be careful when casting stones given their past and present support for energy subsidies. (Note to investigative reporters: Republican [and Democratic] governors like to hand out subsidies to businesses, which often backfire on taxpayers. I’d know.)

As the political circus over the Solyndra loan unfolds, let’s not lose sight of the fact that the more important question is whether taxpayers should be forced to subsidize energy companies to begin with. The Cato essay argues that they shouldn’t:

The private sector is entirely capable of performing research into coal, nuclear, solar, and alternative energy sources for itself. Businesses will fund new technologies when there is a reasonable chance of commercial success, as they do in every other private industry. Federal subsidies may even be actively damaging to our energy future by steering markets in the wrong direction, away from the best long-term energy solutions…

Policymakers often make grandiose promises, such as proposing to make America ‘energy independent’ or to convert the nation to a ‘green economy.’ Those visions don’t make any sense, but even if they did history shows that the Department of Energy would be incapable of putting them into place with any degree of competence. Federal energy schemes are often poorly managed and generate huge cost overruns, or they aim at objectives that make little economic sense[.]

Rights and Powers: A Poll for Constitution Day

Lots of media are reporting that a new poll from the Associated Press and the National Constitution Center shows that 53 percent of Americans believe that “the government [should] give legal recognition to marriages between couples of the same sex.” Google “gay marriage poll,” and you get 284 news items. Good. It’s news. Even though it’s just about what other recent polls have found. And even though 48 percent also said they supported a federal constitutional amendment to ban gay marriage, suggesting that at least 1 percent of respondents are as confused about their position as Rick Perry and Michelle Bachmann.

But the survey had much else in it, as well. In fact, here’s an interesting data point from the survey, released a day earlier than the gay-marriage results:

82 percent of respondents say “The Federal Government should not have the power to require all Americans to buy health insurance.”

That is, 82 percent of Americans oppose the central plank of President Obama’s health care policy, the one that’s roiling the courts right now and headed for the Supreme Court.

But Google “poll health care mandate,” and you get no national media results. It’s sorta like it didn’t happen. But it did, and Democratic campaign consultants have no doubt noticed it.

As usual, not everything in the poll was encouraging. 61 percent say they oppose “giving the President more power at the expense of the power of Congress and the courts,” but that’s down from 73 and 75 percent the past two years.

Should the Federal Reserve Supervise Banks?

For about all of 5 minutes during the deliberations of the Dodd-Frank Act (to the extent there were deliberations) proposals were offered to separate the conduct of monetary policy from the regulation of banks.  That is, remove the Federal Reserve’s supervision of banks and transfer such authority to another agency.  Given the close relationship between Treasury, who was negotiating the bill for the White House, and the Fed, this was never a real possibility.

But would we have been better off removing the Fed’s supervision authorities?  A recent NBER working paper by Barry Eichengreen and Nergiz Dincer suggest we would be. The authors examine 140 countries and analyze whether the combination or separation of monetary policy and bank regulation had any influence on the banking sector.

Their results:  1) Relative to countries that combine monetary policy and banking regulation, those countries that separate the two have fewer nonperforming loans as a percent of GDP; 2) They also have lower bank capital requirements, presumably because they have less need to protect against bad loans; 3) savers enjoy higher deposit rates; and 4) there is some weak evidence that separated systems have fewer systemic banking crises.  These all seem like worthwhile goals to me.

Given the renewed, and much deserved, attention the Fed is now getting in political circles, we might actually have the opportunity, under a new President, for reform of our banking and monetary systems that would reduce bailouts and financial crises, rather than increase them.

Property Rights Are Not Second-Class Rights

When state and local governments violate federal constitutional rights (e.g., First Amendment free speech), they can be sued in federal court — except when that government action violates the Fifth Amendment’s protections for property rights.  Under the Supreme Court’s decision in Williamson County v. Hamilton Bank, individuals and businesses alleging unconstitutional takings by state or local governments are required to exhaust state review procedures — seeking redress from the very officials who harmed them — before turning to federal courts.

This constitutional anomaly is evident in Colony Cove v. City of Carson, where the operators of a rental property in California alleged an unconstitutional taking when the local rent control board refused to approve an increase in rent to allow their business to operate profitably. California law forecloses judicial review of the findings of rent control boards, so municipal governments have an unchecked license to determine whether such businesses may operate: A property owner’s sole recourse is to appeal to the very rent control board who forbade her from charging a profitable rent in the first place.

These “review” procedures, like some others across the nation, are wildly insufficient. Even more significantly, once a takings claim has been fully heard in state proceedings per Williamson County’s command, it is usually barred from federal review based on various prudential doctrines. The result is the indiscriminate exclusion of takings claims from federal courts, a situation that invites opportunist states to usurp private property rights.

Seeking to afford citizens across the nation the opportunity to assert Takings Clause claims in parity with other constitutional rights, Cato joined the New England Legal Foundation, National Federation of Independent Business, Institute for Justice, Goldwater Institute, and Professors James Ely and Richard Epstein in filing an amicus brief supporting the California property owners’ petition for Supreme Court review of the Ninth Circuit’s ruling against them.

We argue that Williamson County should be overruled because it relegates takings claims to second-class status despite the constitutional first principle that uniform protection of individual rights is vital to our system of government. At the very least, the Court should require federal reprieve when state procedures for rectifying a taking are futile — as they were here. Finally, we argue that the Court should correct lower courts’ misinterpretation of Williamson County, which puts property rights jurisprudence at odds with Section 1983 of the Civil Rights Act of 1871 (a statute that gives people access to federal courts when a state denies them their constitutional rights).

The Court will decide whether to review Colony Cove v. City of Carson later this year.  Thanks to legal associate Anna Mackin for her help with the brief, whose counsel of record is Cato adjunct scholar Ilya Somin.

Is It Too Late for Another Candidate?

Two months ago I suggested that it might not be too late for another presidential candidate to enter the race. And I cited some ancient history:

Barry Goldwater announced his candidacy for president on January 3, 1964, about nine weeks before the New Hampshire primary. A decade later, Ronald Reagan announced his challenge to President Gerald Ford on November 20, 1975. After that unsuccessful race, he announced another, this time successful candidacy, on November 13, 1979.

Now the William J. Clinton Presidential Center (whatever happened to good ol’ Bill? I guess “William J. Clinton” sounds more presidential) reminds us of a more recent president who started his campaign later than any of today’s contenders. From September 30 to October 3, the center will celebrate the 20th anniversary of Bill Clinton’s announcement of his candidacy, which happened on October 2, 1991.

Is time running out? Or could a candidate with something attractive to offer still get into the race? It’s still earlier in the season than when Ronald Reagan and Bill Clinton announced their candidacies.