Archives: 07/2012

Serial Innumeracy on Homeland Security

This post was co-authored with Mark G. Stewart, professor of civil engineering and director of the Centre for Infrastructure Performance and Reliability at The University of Newcastle in Australia.

At hearings of the Senate Homeland and Governmental Affairs Committee earlier this month, former congresswoman Jane Harman (D-CA), now head of the Wilson Center in Washington, made a gallant stab at coming up with, and hailing, some homeland security functions that “execute well.”

At the top of Harman’s list was the observation that Customs and Border Protection (CBP) last year stopped more than 3,100 individuals from boarding U.S.-bound aircraft at foreign airports for national security reasons. Since these were plucked out of more than 15 million travelers that went through 15 pre-clearance locations overseas, it was, she exclaimed enthusiastically, “like picking needles from a haystack!”

Committee chair Senator Joseph Lieberman (I-CT) waxed even more enthusiastic about the number, concluding grandly that it “took very sophisticated data systems and implementation of those systems to make that happen” and that “we’re all safer as a result of it.”

This was an exercise in serial innumeracy, of course, because the relevant statistic is not how many individuals were denied entry, but how many of those denied actually presented a security threat. Neither enthusiast presented relevant data, but, judging from the fact that no one apparently was arrested (we’d tend to know if they had been), the number was likely just about  zero. Nor was information presented about the problems or costly inconvenience inflicted upon the many who were likely waylaid in error.

Moreover, it is not clear where the Harman/Lieberman number even comes from. According to Homeland Security officials interviewed by Michael Schmidt for a recent article in the New York Times, only 250 people in each of the last two years were turned away or even pulled aside for questioning as potential national security risks by pre-clearance screeners. Maybe CBP is even more “sophisticated” at picking needles from haystacks than Harman and Lieberman give it credit for. Does that mean we’re even safer as a result? Or less so?

Schmidt also supplies information that calls into question the whole pre-clearance enterprise. Stimulated in considerable measure by the failed underwear bomber attempt to blow up an airliner flying from Europe to Detroit in 2009, the program is, as Department of Homeland Security chief Janet Napolitano stresses “an expensive proposition.” Although it has been instituted so far only in airports in Canada, the Caribbean, and Ireland, it already costs $115 million a year. Expansion to hundreds of other airports (including the one the underwear bomber actually took off from) is not only costly, but requires a major diplomatic effort because it involves cajoling foreign governments into granting the United States police-like powers on their own soil. The program has not foiled any major plots thus far, notes Schmidt, and he pointedly adds that it would scarcely be difficult for a would-be terrorist to avoid the few airports with pre-clearance screening to board at one of the many that do not enjoy that security frill.

But the main innumeracy issue in all this is that the key question, as usual when homeland security is up for consideration, is simply left out of the discussion. The place to begin is not “are we safer” with the security measure in place, but how safe are we without it.

We have calculated that, for the 12-year period from 1999 through 2010 (which includes 9/11, of course), there was one chance in 22 million that an airplane flight would be hijacked or otherwise attacked by terrorists.

The question that should be asked of the numerically-challenged, then, is the one posed a decade ago by risk analyst Howard Kunreuther: “How much should we be willing to pay for small reductions in probabilities that are already extremely low?”

Cross-posted from the Skeptics at the National Interest.

Citizens United Doesn’t Mean What Campaign Finance ‘Reformers’ Think It Does

Building on the excellent fisking of Newsroom by my colleague Caleb Brown and Reason’s Scott Shackford, let me  reiterate that Citizens United has nothing to do with any problems regarding how we regulate political campaigns, perceived or real.  

Perceived: Campaign finance “reformers” think we’d be a lot better off if corporations, particularly foreign corporations, weren’t able to fund candidates and parties.  Of course, Citizens United didn’t disturb the ban on that sort of thing, which has been in place since 1907. 

Real:  Independent political speech – be it individual, corporate, union, advocacy group, neighborhood association, or informal group of friends – is largely unregulated (though you do have to register SuperPACs and disclose donors, be they individuals or corporations) but candidates and campaigns bear onerous burdens regarding contribution limits, disclosure requirements (which scare off small donors rather than large bundlers), and arcane coordination rules.  A Supreme Court ruling is indeed at fault for the bizarre and largely unworkable way in which our laws have developed in this areas, but it’s not Citizens United.  Instead, it’s the 1976 baby-splitting opinion in Buckley v. Valeo, which saw the Court rewrite the Watergate-era Federal Election Campaign Act, creating a piece of legislation much different than the global reform Congress passed (sound familiar?).

I’ve written a law review article about all this called “Stephen Colbert Is Right to Lampoon Our Campaign Finance System (And So Can You!),” which will run in the University of St. Thomas (MN) Journal of Law & Public Policy this fall. 

And Tuesday afternoon I’ll be testifying to that effect to the Senate Judiciary Committee’s Subcommittee on the Constitution (here’s the link to the hearing site, where you’ll be able to watch).  Here’s an excerpt from my written statement (which isn’t online yet):

The underlying problem, however, is not the under-regulation of independent speech but the attempt to manage political speech in the first place.  Political money is a moving target that, like water, will flow somewhere.  If it’s not to candidates, it’s to parties, and if not there, then to independent groups or unincorporated individuals acting together.  Because what the government does matters and people want to speak about the issues that concern them.  To the extent that “money in politics” is a problem, the solution isn’t to try to reduce the money—that’s a utopian goal—but to reduce the scope of political activity the money tries to influence.  Shrink the size of government and its intrusions in people’s lives and you’ll shrink the amount people will spend trying to get their piece of the pie or, more likely, trying to avert ruinous public policies.

… .

The solution is rather obvious:  Liberalize rather than further restrict the campaign finance regime.  Get rid of limits on contributions to candidates—by individuals, not corporations—and then have disclosures for those who donate some amount big enough for the interest in preventing the appearance of quid pro quo corruption to outweigh the potential for harassment.  Then the big boys who want to be real players in the political market will have to put their reputations on the line, but not the average person donating a few hundred bucks—or even the lawyer donating $2,500—and being exposed to boycotts and vigilantes.  Let the voters weigh what a donation from this or that plutocrat means to them, rather than—and I say this with all due respect—allowing incumbent politicians to write the rules to benefit themselves.

Curiously, there will be six witnesses taking the “get corporate (and maybe even all private) money out of politics” view as against one, me, for deregulation and freedom of speech.  That seems a bit unfair; I’d think that the campaign-finance-reform zealots need at least a dozen people to stand up against my very simple “remove contribution caps but require disclosure for big players” argument.  Should be fun.

In short, while there are (at least) 99 problems with how we manage elections, Citizens United ain’t one.

‘Leavitt’ Is Republican for ‘Solyndra’

Mike Leavitt is a Republican, a former Utah governor, a former Secretary of Health and Human Services under President George W. Bush, and now owns a firm called Leavitt Partners, which makes money by helping states implement ObamaCare’s health insurance “exchanges” and take advantage of ObamaCare’s Medicaid expansion. Let’s stipulate from the outset that Leavitt and his staff are doing what they think is best for the nation. Still, as this article in yesterday’s New York Times explores, it’s odd that Mitt Romney chose as one of his top advisers a guy who’s profiting from ObamaCare:

If Republicans in Congress agree on anything, it is their desire to eradicate President Obama’s health care law. But one of the top advisers to Mitt Romney, the party’s likely presidential nominee, has spent the last two years advising states and private insurers on how to comply with the law…

Mr. Romney has named Mr. Leavitt — a longtime friend, former governor of Utah and former federal health secretary — to plan the transition for what both hope will be a Romney administration.

Mr. Leavitt’s full-time job is running his consulting company, Leavitt Partners, which is based in Salt Lake City and has advised officials in Mississippi, New Mexico and Pennsylvania, among other states…

Michael F. Cannon, director of health policy studies at the Cato Institute, said: “It is strange to see Mr. Leavitt, a former Republican governor and former secretary of health and human services, helping and encouraging states to carry out this law for which Republicans have so much antipathy. It deepens suspicion as to whether Romney is sufficiently committed to repealing the Obama health care law.”

Twila Brase, president of the Citizens’ Council for Health Freedom, a free market group that is mobilizing opposition to an exchange in Minnesota, said: “Mike Leavitt is an enabler of Obamacare. He has taken advantage of Obamacare to expand his own business, instead of helping governors resist a federal takeover of health care.”

Secretary of Health and Human Services Kathleen Sebelius has thrown nearly a billion dollars at states in a desperate attempt to bribe them into establishing Exchanges. We do not yet know how much of that cash has found its way to Leavitt Partners:

Natalie Gochnour, a spokeswoman for Leavitt Partners, said its work with states was only part of its business, but she refused to say how much the company had been paid for such work.

Perhaps some day we will, and “Leavitt” will become synonymous with “Solyndra.”

Also, by my count the Times article devoted eight column-inches to such pro-Exchange nonsense as the idea that an ObamaCare Exchange could “run on free market principles” or Leavitt’s claim that “continued inaction by states risks an Obama-style federal exchange being foisted upon a state.” Yet the Times cited no one who challenges those claims. I have no problem with the Times posing difficult questions to Romney. Why should ObamaCare get a pass?

Tax Credits and Campaign Spending

Law professor John McGinnis has written four posts on Citizens United for the new Federalist Society blog. All four are worth reading. I focus here on the final post and its diffident policy proposal.

McGinnis makes some good points about inequality in campaign spending.

We have a free speech guarantee in our constitution, not an equal speech guarantee. Wealth is in fact a source of more diverse influences than the other sources that would take its place. The wealthy are heterogeneous in their views. Last election more people earning over $250,000 a year voted for Obama than McCain despite the former’s promise to raise their taxes.  Because innovation is always churning markets, the wealthy have constantly shifting interests.

Those who benefit from restrictions on campaign spending are the media and the entertainment field. They have fewer interests and are ideologically similar.

McGinnis remarks that those who are concerned about unequal spending might support a tax credit of several hundred dollars for those making less than $100,000 annually. He believe this credit would increase the information available to voters.

I wonder whether this would lead to more contributions. The presidential system now permits people to direct part of tax revenue to the presidential public fund. This check off system has seen declining participation for more than a generation.

You might argue that tax credits allows people to contribute to candidates they support rather than a general public funding system. But these credits would have to be paid for by some future taxpayers who would be compelled to fund current candidates. (I say “future taxpayers” because the tax credits would be introduced now and thus paid for by debt). Such compulsion seems illiberal. Moreover, many of the future taxpayers who will be forced to pay for the credits will be either minors or unborn. The tax credits now will be taxation without representation later.

A Scam’s Telling Success

According to multiple news reports, tens of thousands of Americans have fallen for a scam that’s being dubbed the “Obama utility bill scam.” The victims are told that a new Obama stimulus program will pay their utility bills. Fraudsters use the hook to get people to divulge their Social Security number and other personal information.

The following anecdote from MSNBC shows why so many people are falling for it:

Caroline Morales of Bethlehem, Penn., told the Allentown Morning Call that she had been tempted by the scam. “My neighbor comes running with a paper that had a routing and account number,” she told the paper. “She said Obama was helping people pay their utility bills, mortgage and any bills you had.” While Morales had her doubts, she said her mom told her, “It’s probably true since he is looking for votes.”

A lot of Americans see the president as Santa Claus. Back in 2008, a woman who had just attended an Obama rally excitedly told a reporter that she wouldn’t have to worry about putting gas in her car and paying her mortgage. “If I help him, he’s going to help me,” she said. Then there’s the recent example of actress Amanda Bynes tweeting the president and asking him to “Please fire the cop who arrested me” for driving under the influence.

It’s easy to poke fun at these people, but the reality is that we live in a country where people expect the federal government (i.e., taxpayer) to pay for everything: housing, food, student loans, health care, and even their businesses. Therefore, it’s little wonder that a lot of people have trouble separating fact from fiction when it comes to federal handouts.

The Death of Cuban Dissidents

Prominent Cuban dissident Oswaldo Paya was killed in a car crash in Cuba yesterday.  Also killed was another critic of the regime, Harold Cepero, a friend of my current Cuban intern, Yuri Perez.  Many dissidents believe that the deaths came at the hands of the Castro regime.  If so, the incident may represent a chilling hardening of Raul Castro’s dictatorship at a time when the country’s social and economic problems are mounting and it is becoming increasingly obvious that the meager reforms announced so far will do little to solve them.

Below, Yuri describes the importance of Paya and the life of his friend Harold, who, like Yuri, was expelled from his university for criticizing the regime. There is in fact a whole generation of young Cuban activists and intellectuals who despite the repression are stimulating serious debate outside of officialdom about their country’s problems and how to solve them. (Two Cuban websites in English that I recommend are Translating Cuba and State of SATS).  All of us at Cato are inspired by the dedication of Yuri and his compatriots to a free Cuba.

The Loss of Two Brothers

On July 22, prominent Cuban prodemocracy leader Oswaldo Paya and activist Harold Cepero were killed in a car accident while on a trip to the east of Cuba. According to blogger Yoani Sanchez, they were accompanied by two foreigners, Angel Carromero of Spain and Aron Moding of Sweden, both of whom were injured.

Foul play is suspected. Rosa María, Paya’s daughter, declared in an audio clip that a second car provoked Paya’s car crash.

We have lost a great leader and a dear friend, brothers in the long fight for freedom. I had the privilege to meet Oswaldo Paya at his home years ago, where he and his family lived in exemplary fashion the Christian values that eventually led Paya to stand up and reclaim fundamental rights for our fellow Cubans. He worked tirelessly for a better homeland, as another great patriot, Jose Marti, said “With All, and for the Good of All.” Paya was a peaceful justice seeker who met a violent death from a vicious regime.

Harold Cepero was a young man full of good intentions and with strong commitment toward his fellow man. I met him because we share many things in common, but one marked our lives forever. As with many other idealistic young Cubans, we were expelled from the university due our passion for freedom. Although we just wanted to have fun, improve ourselves and our Cuba, we faced the intolerant rule of the Castro brothers, the Cuban Communist Party, and the covert action of their secret police. Several requests directed to Cuban authorities, UNESCO and the OAS Inter-American Commission of Human Rights did not succeed in our efforts to go back to university. In fact, Cuban authorities stood by their discriminatory policy against “non-revolutionaries.” UNESCO sided with the Cuban government, despite recognizing human rights violations, and we are still waiting for the Inter-American Commission. (See here and here.)

In a country where young people are forced to adore the Castros’ revolution, are forbidden to think, and if they think, they cannot speak and act accordingly, we made the right choice. Harold had a gracious girlfriend, played soccer, and strived for a better future. He collected signatures for the Varela Project, a citizen initiative led by Paya to promote a peaceful transition to democracy that gained the support of thousands of fellow citizens. After being expelled from university, he decided to give himself to the service of the others and became a Catholic seminarian. However that was not his vocation, and Harold paid the ultimate price for liberty: he ended sacrificing his life on a very different altar.

In this tragic moment I recall images of their beloved families. Oswaldo Paya’s wife, Ofelia and their children, and Harold Cepero’s parents and brother. The immense grieving for the loss of these great Cubans is not only theirs, but also belongs to every freedom lover. As Jesus Christ, Paya’s and Harold’s teacher said, “There is no greater love than this to lay one’s life down for a friend.”

Peace be upon them,
Yuri Perez-Vazquez
Washington, DC

NSA Surveillance Violated Constitution, Secret FISA Court Found

Americans are being told that there’s no need to worry about the broad surveillance programs authorized by the controversial FISA Amendments Act of 2008. Yet a report from Wired this weekend paints a more disturbing picture: National Security Agency surveillance enabled by the FAA was found “unreasonable under the Fourth Amendment” by the secretive Foreign Intelligence Surveillance Court “on at least one occasion.” The court also found that the government’s implementation of its authority under the statute had “circumvented the spirit of the law.” Despite these troubling rulings from a court notorious for its deference to intelligence agencies, Congress is so unconcerned that lawmakers don’t even want to know how many citizens have been caught up in the NSA’s vast and growing databases.

These revelations come by way of a letter to Sen. Ron Wyden—who will be speaking about this very government spying program at Cato this Wednesday—from the Office of the Director of National Intelligence, which approved Wyden’s request for declassification of a few morsels of information about secret FISA Court rulings. In the interest of permitting some minimal public debate about the FAA, which is currently before Congress for renewal, Wyden was told he would be allowed to say the following—and only the following publicly:

  • A recent unclassified report noted that the Foreign Intelligence Surveillance Court has repeatedly held that collection carried out pursuant to the FISA Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.
  • It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
  • I believe that the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

That first statement is almost certainly a direct reference to Sen. Dianne Feinstein’s assertions in a recent report from the Senate Intelligence Committee—which noted that the Court has blessed much of the surveillance under Section 702, the part of the FAA that permits warrantless acquisition of international communications. Given the massive volume of NSA surveillance, however, the fact that some NSA surveillance was held constitutional is much less significant, for purposes of public accountability, than the fact that some of it was unconstitutional. Feinstein’s summary of those positive classified opinions was made public weeks ago, apparently without much trouble. Yet only now that the FAA renewal has made it through multiple committees is the public permitted to know—after much tooth-pulling from a senator, via a letter released late on a Friday afternoon—how incomplete that summary really was.

It’s cause for concern any time government exceeds the bounds of the Fourth Amendment, but it should be truly worrying when it’s in the context of mass-scale spying by the NSA. Based on what little we know of the NSA’s programs from public reports, a single “authorization” will routinely cover hundreds or thousands of phone numbers and e-mail addresses. That means that even if there’s only “one occasion” on which the NSA “circumvented the spirit of the law” or flouted the Fourth Amendment, the rights of thousands of Americans could easily have been violated.

Moving from confirmed fact to mild—but I think reasonable—speculation, there is something about the peculiar phrasing of these statements worth noticing: “collection carried out pursuant to the Section 702 minimization procedures.” Minimization procedures are the rules designed to limit the retention and dissemination of irrelevant information about innocent Americans that might get picked up during authorized surveillance. In ordinary criminal wiretaps, it makes sense to talk about “collection carried out pursuant to… minimization procedures” because, under the stricter rules governing such spying, someone is supposed to be monitoring the wiretap in realtime, and ensuring that innocent conversations (like a mobster’s spouse or teenage kids chatting on the house line) are not recorded.

But that’s not how FISA surveillance normally works. As a rare public ruling by the FISA Court explains, the standard procedure for FISA surveillance is that “large amounts of information are collected by automatic recording to be minimized after the fact.” The court elaborated: “Virtually all information seized, whether by electronic surveillance or physical search, is minimized hours, days, or weeks after collection.” (Emphasis mine.) In other words, minimization is something that normally happens after collection: First you intercept, then you toss out the irrelevant stuff. Intelligence officials have suggested the same in recent testimony before Congress: Communications aren’t “minimized” until they’re reviewed by human analysts—and given the incredible volume of NSA collection, it’s unlikely that more than a small fraction of what’s intercepted ever is seen by human eyes. Yet in the statements above, we have two intriguing implications: First, that “collection” and “minimization” are in some sense happening contemporaneously (otherwise how could “collection” be “pursuant to” minimization rules?) and second, that these procedures are somehow fairly intimately connected to the question of “reasonableness” under the Fourth Amendment.

To make sense of this, we need to turn to the Defense Department’s somewhat counterintuitive definition of “collection” for intelligence purposes. As the Department’s procedures manual explains:

Information shall be considered as “collected” only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties…. Data acquired by electronic means is “collected” only when it has been processed into intelligible form.

This dovetails with a great deal of what we know about recent NSA surveillance, in which enormous quantities of communications are stored in a vast database codenamed Pinwale for later analysis. Under the FAA, the Court doesn’t review in advance whether there’s probable cause to justify surveillance of any particular individual, as is normally the case with search warrants. Rather, the Court simply verifies that the NSA is employing “targeting procedures” designed to pick up communications with at least one foreign participant. By that limited standard, an algorithm designed to record every call and e-mail between the United States and Pakistan (or England) would qualify, which hardly sounds stringent enough to pass Fourth Amendment muster even under the looser rules that apply to foreign intelligence.

The language of these statements, however, would be consistent with the clever “solution” former NSA employees and whistleblowers like Bill Binney have long been telling us the agency has adopted. Referring to a massive data storage facility being constructed by NSA in Utah, Binney writes:

The sheer size of that capacity indicates that the NSA is not filtering personal electronic communications such as email before storage but is, in fact, storing all that they are collecting. The capacity of NSA’s planned infrastructure far exceeds the capacity necessary for the storage of discreet, targeted communications or even for the storage of the routing information from all electronic communications. The capacity of NSA’s planned infrastructure is consistent, as a mathematical matter, with seizing both the routing information and the contents o all electronic communications.

Binney argues that when NSA officials have denied they are engaged in broad and indiscriminate “interception” of Americans’ communications, they are using that term “in a very narrow way,” analogous to the technical definition of “collection” above, not counting an e-mail or call as “intercepted” until it has been reviewed by human eyes. On this theory, the entire burden of satisfying the Fourth Amendment’s requirement of “reasonableness” is borne by the “minimization procedures” governing the use of the massive Pinwale database. On this theory, the constitutional “search” does not occur when all these billions of calls and emails are actually intercepted (in the ordinary sense) and recorded by the NSA, but only when the database is queried.

This is a huge departure from what has traditionally been understood to be constitutionally permitted. We do not normally allow the government to indiscriminately make copies of everyone’s private correspondence, so long as they promise not to read it without a warrant: The copying itself is supposed to require a warrant, except in extraordinary circumstances. It appears almost certain that a very different rule is in effect now, at least for the NSA.

It cannot be overemphasized how dangerous such a change would be. Traditionally, a citizen’s right to private communication was either respected or violated at the time it occurred: Your rights would be violated in realtime, or not at all, and even in the lawless era of J. Edgar Hoover, only so many citizens could be spied on at once. Under this new regime, the threat to our rights is perpetual. Even if this administration and the next are scrupulous about respecting civil liberties, even if every man and woman currently employed by the NSA is noble and pure of heart, the conversation you have today may well be there for the use or misuse of whoever holds power in ten years, or fifteen, or twenty. Will the incumbent president in 2032 resist the temptation to hunt for dirt in online chats from his opponent’s college years—showing greater restraint than so many past presidents? One must hope so—but better to design the rules of a free society so that such leaps of faith aren’t required.