Thursday, December 31, 2009

In Retrospect, Were We Paranoid about Bush?

I planned this post even before the Underpants Bomber struck, but that attack makes the matter all the more timely.

In light of "death panels" talk and all the hysterical, frenzied paranoia about Obama, and in light of the recent spate of terrorist plots, one of which came uncomfortably close to fruition, and with the perspective of distance, were we paranoid about George Bush? Was our side just as guilty then as the Teabaggers are today? To what extend did we exaggerate the threat he posed to freedom? To what extent were his actions reasonable policy disputes, or necessary responses to terrorism? And to what extent is the Obama Administration the same as its predecessor?

I'll start with the obvious. There were, in fact, some paranoid Bush haters. The Truthers were the most extreme example, followed by people who thought he wanted to cancel the 2008 election and proclaim himself President for Life. Also on the list of obviously paranoid were people who were sure Diebold voting machines were rigged to make a Democratic victory impossible, people who thought he would start detaining political opponents, and people who thought opponents would be shipped off to GTMO.

But there were other, more reasonable fears that people had, some confirmed, some refuted, and some still uncertain. One fear I confess to having that was proven false was the fear that he would treat a Republican victory in the 2008 election as a matter of national security and resort to Nixonian dirty tricks. Didn't happen. Another was the fear that he would pardon everyone in his Administration before leaving office. That didn't happen either, probably because he had assurances from Obama that there would be no prosecutions. (Could such assurances have something to do with why he did not resort to dirty tricks in the election? Or am I just being paranoid again?)

I divide the concerns of Bush opponents into several categories, and analyze them, as opponents saw them at the time, in hindsight, and in comparison with the Obama Administration.

Fear mongering and warmongering. It's really hard to know to what extent the Bush Administration saw itself as doing what was necessary for the protection of the American people, and to what extent it merely exploited fears for partisan advantage. Certainly scheduling a vote on the invasion of Iraq for right before the 2002 Congressional election -- and demonizing Democrats for any hesitation sounds a lot like exploiting fears for partisan advantage. Tom Ridge has more or less admitted that the Administration manipulated alert levels for partisan advantage. And I see no reason to doubt either that the Administration manipulated intelligence to justify the Iraq War, or that it scheduled the vote before elections as a means of political pressure. And not only Bush, but Republicans in general have been using fear of terrorism (and fear in general) as their favorite technique to win elections and continue to do so to this day. Obama, by contrast, does not fear monger, but he does a lot manipulating behind the scenes to get his way. [Hope to find link later]. Pick your poison.

Treating the federal government as a patronage organization. This is one of those areas where we have a lot of suspicions, but no proof. There is some evidence when going into the 2006, running scared and facing major losses, the Bush Administration used, or attempted to use, a variety of federal agencies as patronage organizations to advance Republican prospects. There is also evidence that US Attorney David Iglesias was fired for declining to use his office to advance Republican electoral fortunes. However, the reasons for the other US Attorney firings remains unclear, as does the extent to which the federal government in general, and the Justice Department in particular, was corrupted to serve as a patronage organization. File this under undetermined. As for the Obama Administration, I do not know if they want to stoop to such measures. But given Republicans' intense opposition and eagerness to jump on them for any misstep, it seems safe to assume that it would not be able to get away with it. Partisan divisiveness has its advantages.

Indefinite detention, extraordinary rendition, and torture. Bush critics were absolutely right to condemn these. We may, however, have made a mistake in how we attacked them. Criticizing this as a civil rights or constitutional issue allowed the retort that civil rights and constitutional rights do not apply to non-citizens outside the United States. Legally, this is accurate. Treating this as a matter of civil rights and constitutional liberty also creates the impression that US citizens tremble in fear of GTMO and torture, which Bush supporters could indignantly (and correctly) deny. Quite correctly, they could point out that the right of ordinary Americans to due process of law was not in danger, that Bush never committed any civil liberties violations comparable to, say, Woodrow Wilson's Palmer Raids in WWI, the internment of Japanese Americans in WWII, or COINTELPRO during the Cold War. All of this was true, and to the extent Bush opponents claimed otherwise, they could fairly be accused of paranoia.*

But these policies, nonetheless, fully deserved our condemnation, even though they posed no domestic danger. The proper criticism was not that these violated civil or constitutional rights, but that they violated universal human rights. It was pure paranoia to suggest that US citizens were in danger of losing their freedom to such methods, or to fear monger about them. But it was entirely appropriate to point out that the Bush Administration's use of torture (and torture-lite), its lack of regard for innocence or guilt, and its absurdly rigged procedures for determining detention were, indeed, the stuff of dictators, and to be angry about it. There is an old jibe that a liberal is someone whose immediate interests are not at stake. Let's turn that insult into a boast that a liberal is someone whose immediate interests are not at stake who cares anyhow.

These are policies the Obama Administrations appears fully committed to ending. It also appears fully committed to covering up the crimes of its predecessor. This is certainly unfortunate, as learning more about the crimes of the Bush Administration, particularly against innocent people, might finally convince many people that they were actual crimes. But given the degree of Republican obstructionism, the hysteria they are whipping up, and the lack of political upside to protecting Scary Brown People, I thing he does deserve some credit here.

Executive powers. One of the most alarming things about the Bush Administration was its insistence, in effect, that the President was exempt from all laws, so long as he said "national security" first. Whenever Bush considered any law unduly restrictive of his power, he simply said, "national security" and broke it. Congress, confronted with his actions, invariably retrospectively legalized them. Once he got what he wanted, Bush backed off of his more extreme claims to be exempt from laws. Unsurprisingly, Obama, having been given so much power by Congress, shows no inclination to give it back.

Some people, like "Anonymous Liberal" argue that this is a significant improvement over Bush-era lawlessness. As s/he puts it, "What was once illegal is now legal. So what we're now debating are proposals to change or amend existing law to make it better. We're working within the democratic framework to try to effect policy change, which is how things are supposed to work. Three years ago we were debating whether the law even had to be followed." I find this argument unconvincing. What the Bush Administration has proven is that if the President breaks the law, Congress, instead of reigning him in, will change the law to validate his actions. A more dangerous or subversive position is hard to imagine.

Data mining. Although the Bush detention and torture policies are better described as human rights than civil rights issues, many of his policies raised legitimate civil rights concerns. These included his warrantless surveillance, national security letters, searches for patterns in phone calls and e-mails, tip hotlines, terrorism watch list, no-fly list, Total Information Awareness, and so forth. Though they diverge in detail, all of these policies fit under the broad rubric of data mining. It is these policies that the Obama Administration gives every sign of intending to keep in unmodified form.
Because these are the Bush era policies that pose the greatest civil liberties (as opposed to human rights) concern, because they are the ones that Obama appears to have adopted lock, stock and barrel, because so little is known about them so far, and because they are the policies most likely to be stepped up in the wake of the latest terrorist attack, these policies deserve a post of their own. Coming up.
*There do, however, appear to have been some CONINTEPRO-like activities on the state level, at least in Maryland.

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Wednesday, December 30, 2009

That Said, What Do We Do About It?

All right, granting that this and previous terrorist attacks (or attempts) are largely an expression of frustration that the Obama Administration hasn't changed much from Bush, this means that more will undoubtedly follow. What should we do about it?

Don't invade Yemen.

So far there haven't been any calls to invade outright, but how long can it be? It is always hard for a Democrat to overcome accusations of "softness," and the temptation will be there for Obama to invade just to show how tough he is. Hopefully, our recent experiences in Iraq and Afghanistan will make that temptation resistable, although some people have already forgotten that Iraq was a tough slog. In any event, if not invading will cause political damage now, running into another Afghanistan or Iraq will be a lot worse.

Not more, but better.

This is the most difficult part. Our current sledgehammer approach to airline security has got to be changed. A terrorist tried to blow up a plane just as it was landing. TSA responds by proposing to forbid all passengers from leaving their seats in the last hour of flight. Everyone recognizes how spectacularly dumb this is. But only slightly less dumb are proposals some people are making to extensively search all Muslims and complaints that Abdulmutallab should have set off alarm bells by his religion alone are only marginally less dumb. Abdulmutallab is a Nigerian. Nigeria is not a hotbed of jihadi activity. No Nigerian had ever taken part in a terrorist attack against the US before. Granted, unlike shoe bomber Richard Reid, Umar Farouk Abdulmutallab at least had a Muslim name. But how many people with Muslim names fly our planes all the time? I don't know either, but since 9-11, exactly one (Richard Reid did not have a name that would attract any attention) has attempted to blow up a US bound plane.

A more reasonable question is whether the Obama Administration should have "connected the dots," recognized Abdulmutallab as a danger, and denied him entry (or at least subjected him to closer examination). What they had was as follows:

(1) Intelligence from Yemen indicated that a Nigerian was being prepared for a terrorist attack.

(2) His own father reported his son's radical views and disappearance to the US embassy in Nigeria about a month before the attack. (It is not clear from newspapers whether his father reported that he had been to Yemen).

(3) At the time of the report, Abdulmutallab had a visa to enter the US.

(4) He had been denied a visa to study in Britain because he sought to register in a bogus course.
(5) Abdulmutallab was a man traveling alone, without baggage on a trans-Atlantic flight, who paid cash for a one-way ticket.

Of all these warning signs, the last is by far the most damning. The others have to be seen in the context of the "noise" that constantly pervades intelligence. Consider, for instance, that our terrorism database contains 550,000 individuals. Approximately 1600 new tips come in per day. By way of contrast, the Yemeni government believes there are "hundreds" of Al-Qaeda operatives in Yemen, perhaps as many as 300. The hunt for terrorists is a hunt for a needle in a haystack. The 550,000 member terrorism watchlist is a smallerhaystack than the entire world population, but it is still a haystack.

Currently, of all the people on the watch list, approximately 4,000 are on the no-fly list, and 14,000 receive additional scrutiny. The temptation will be to get out the sledgehammer and place all 550,000 on the no-fly list (with another 1,600 being added daily). This must be resisted. The current list of people forbidden from flying of subject to extra restrictions is 18,000, down from a peak of 30,000 in early 2007. Recall that problems associated with even a 30,000 list. Aside from countless instances of confusion from people who had the same name as someone else, many perfectly innocent and harmless people were on the list. Perhaps most notoriously, Catherine Stevens, wife the the Alaska Senator, was stopped and asked to prove that she was not the singer Cat Stevens. Cat Stevens, in turn, was on the list because of donations to suspect Palestinian charities. Investigating Catherine Stevens, or even Cat Stevens, does nothing whatever to make our flights safer. Even granting that of the names on the terrorism watch list, less than 5% are US citizens or legal residents, the list doubtless contains numerous foreigners as innocent as Catherine Stevens or Cat Stevens. So vast an expansion of the no-fly list (especially with all the problems associated with mistaken identity) would make air travel nearly as intolerable as keeping passengers in their seats for the last hour of a flight, with only slightly more improvement in security.

What is needed is a smarter approach to the list. Clearly 550,000 people and 1,600 tips a day are more than is humanly possible to investigate. What about a computer database? By this I don't mean foolish attempts to datamine every phone call and e-mail in the world, but simply a datamine of the much smaller haystack that is the tips we receive. Abdulmutallab's father tipped off the US embassy in Nigeria. It was one of approximately 1,600 tips received that day. Give it extra weight because it came from his father, and run for cross-matches. Intelligence in Yemen reported a Nigerian planning an attack. How many other tips were coming in specifically from Nigeria? How many other terrorist plots were being rumored from Yemen? Did the senior Abdulmutallab mention that his son's last known whereabouts were in Yemen? I have no idea, but the answers are critical to determine how many alarm bells this tip should have rung. And how alarming is it that he was denied a visa to Britain because he claimed to be signed up for a bogus course? No doubt many people try to sneak in to Britain on false pretenses for sinister reasons like terrorism or drug dealing, but others sign up for nothing more sinister than trying to make money. Should there have been extra alarm bells because he was rich already? And how many multiple cross-references are simply false alarms? And at what point does cross-referencing lead to utter paranoia? I have no idea of the answer to any of these questions. But they are critical in determining how to handle the watch list.

But sometimes the most useful danger signs are the ones closest to the ground. Our intelligence agencies found nothing useful toward thwarting the Millenium Bombing plot. Instead it was customs inspectors who sensed that something was just wrong that led to the bomber's capture. Similarly, even if all dangers signs about Abdulmutallab were legitimately lost in the "noise," the fact that he was traveling alone, with no luggage on a trans-Atlantic flight, on a one-way ticket purchased with cash should have set off alarm bells that he was, if not a terrorist, at least a drug smuggler (a much more common occurrence) and subjected him to closer scrutiny.

While I oppose any measure (such as full body scans) that would make air travel any more hellish for innocent passengers, I would favor thorough scrutiny (including full body scans and drug or explosive chemical detectors) applied to people who meet a profile that sets off alarm bells. That profile could include suspicious behavior such as one-way tickets purchased with cash, or getting enough hits on the terrorism watch list, so long as it is done rationally. And, just for the record, I don't see a problem with ethnicity or religion being a factor in determining the profile, so long as it is not the sole or dominant factor.

In short, not more, but better, means narrower but more thorough scrutiny. It means, specifically, narrowing scrutiny because the time and effort involved are limited resources and must be expended wisely. Alas, shrinking the no-fly list and making airports easier for the general public will probably look like inexcusable softness, so the pressure will for more security, more exclusion, more harassment, for the sole purpose of showing we are doing something.

Don't make enemies unnecessarily.

Although we get far more tips than it is possible to investigate, it is undoubtedly true that good tips are the very bulwork of successful intelligence. Consider:

Pakistani intelligence tipped us off to the Najibullah Zazi peroxide bombing plot.
CAIR tipped the FBI off to American Muslims going to Pakistan to join the terrorist movement there.
And, of course, Adbulmutallab's own father tipped off the US embassy to his son's radicalism.

It would seem to follow that what we need is not just a good screening procedure to determine which tips are worth following up on, but also good and constant supply of incoming tips. And the people who are best placed to know about Islamic extremist plots the soonest are fellow Muslims, whether intelligence services, local communities, or even family members. This, in turn, points up the importance of maintaining good relations with Muslim countries and communities.

War on Terror hawks will point out, quite correctly, that it is not reasonable for us to make policy based on how angry, alienated, and often mentally disturbed people will react. Quite true. But we can quite reasonably refrain from angering and alienating broad communities. We can use brute force to compel another country to do our will. Sometimes it may even be necessary. But how difficult would it be, really, for a coerced "ally" to find a hot tip about a terrorist plot and just not pass it on? Our great advantage over Europe in general and Britain in particular is that our Muslim community is not angry and alienated. That makes it all the more important not to alienate Muslims, foreign or domestic, with offensive measures like intrusive surveillance, religious and ethnic profiling, beligerent anti-Muslim rhetoric, and, of course, endless war. Granted, very few Muslims will respond to such measure by becoming actual terrorists. But how many will respond by becoming more sympathetic to terrorists, and by not tipping us off to the terrorists in their midst. It can't be easy for a father to inform against his own son. Let's not make it any harder.

A change in style.

Finally, Republicans do have a point when they complain about Obama's three-day silence following the attack. Yes, they are exploiting it for partisan ends, and no, this failed bombing is hardly a crisis on the scale of 9-11. But Obama is showing signs of a troubling crisis management style that he first displayed during the 2008 campaign.

His normal reaction to a crisis is to outwardly appear to shut down. In fact, he is not really shutting down. He is huddling with advisors, getting fully briefed, and planning a response. After a few days, he emerges, now properly prepared, and gives a public speech. This response is partially defensible. As John McCain learned to his cost in the campaign, there are few crises so urgent that reacting fast is more important than reacting wisely. It is better for the President to get fully briefed and consider his options before making a decision. The President can better respond to questions when he is fully prepared.

But the outward appearance of shutting down is not acceptable to the American public. We need to know in a crisis that the President has not fallen asleep at the switch. Perhaps Obama thinks it better to stay busy at the switch than to take time out to make a public speech that, before sufficient information is in and before he had made a decision, will be not much more than a few vapid platitudes. But the public needs its platitudes, along with the assurance that the President is at the switch and will give a more detailed speech when he and his advisors have pinned things down. In the next crisis, give a public speech, however insubstantial, just to reassure us.


I highly recommend the analysis in this post.


The Washington Independent has some excellent analyses here, and here.


Tuesday, December 29, 2009

The Obligatory Terrorism Post

It's time to face facts. There has been a spate of terrorism going on these last few months. Aside from the usual fluff of bumbling would-be jihadis looking for Al-Qaeda and finding FBI agents instead, we have had five Americans seeking to join an overseas group, an Afghan overseas plot to , Nidal Hassan shooting up Ft. Hood, and now Umar Farouk Abdulmatallab trying to blow up the TSA plane. This is getting to be more than a coincidence; we have a pattern here.

So it is fair to ask, does this have anything to do with Barrack Obama being President. My answer would have to be yes -- but not in the way some people think. I do not think this is fulfilling Joe Biden's prediction that Al-Qaeda would test a new president. Nor is it because he just hasn't been torturing enough people (there is no evidence that anyone we now have in custody would know anything about this recent spate of plots) or because we haven't been monitoring enough overseas phone calls (Hassan's e-mails with the radical Yemeni cleric were monitored, but didn't seem dangerous). It isn't because Obama hasn't started enough wars, or because Muslims saw his promise to close GTMO as a sign of weakness to be exploited. And it certainly isn't because he just hasn't been sounding off belligerently enough, as some Republicans seem to be implying. (Seriously, does anyone believe that if Obama would just use the word "war" more often, terrorist attacks would stop?)

So what is going on here? Quite simply, the actions we are seeing by terrorists are somewhat the counterpart of progressive rage at the absence of public option in the healthcare bill. People who once believed that their quarrel was with the Bush Administration rather than the United States pinned their hopes on Obama. Now that those hopes have been disappointed, they are responding with rage.


The Obligatory Healthcare Post

The school year is over, as is Christmas, so it is really time for me to start posting again before school resumes. So, healthcare has passed the Senate and awaits reconciliation. My comments on the subject:

No, this isn't perfect. You don't get everything you want. Deal with it. Instead of a single payer, we get something like the Swiss healthcare system, in which everyone is required to purchase health insurance, insurance companies are required to offer the same basic services to everyone regardless or age or condition, and the government offers subsidies for people who can't afford premiums. To throw the whole system out and stick with the status quo because it isn't everything you wanted is a classic exercise in cutting off your nose to spite your face. Senators Feingold and Sanders understand this; so should the left blogosphere.

Whatever emerges out of conference committee will not have a public option and will disallow federal funds for abortion. That's the price of getting it passed. Deal with it. As for other contentious issues, the houses will doubtless find some sort of compromise on expenditure formulas. I do not pretend to know enough to judge the relative merits of the different financing systems. I am mostly interested in two issues. The long-term survival of the system could depend on either.

The first is whether exchanges should organized by the federal government or the states. As a law student, I can confidently say by the federal government. Why? Certain conservative have long denounced the whole system as an unconstitutional extension of federal power. Mockers have answered, so what do you plan to do about it, nullification. The obvious answer is no, a Supreme Court challenge. If the federal goverment requires states to set up exchanges, the current Supreme Court might, indeed, find that provision unconstitutional. In the case of New York v. United States, the Supreme Court has held that the federal government may not "commandeer" states do administer programs it sets up, but must do so itself. Requiring states to set up interchanges sounds very much like unconstitutional "commandeering" and could very well be struck down. And without interchanges, the whole system will fail.

The other critically important issue is when the whole thing is implemented. The delay in implementation is basically an accounting gimmick to conceal the true costs of the bill because Blue Dogs are afraid to vote for anything too expensive, but accounting gimmicks are not a good method of fiscal responsibility. To delay relief to someone in need of health coverage now for the sake of an accounting gimmick is lousy policy. It is even worse politics. In the end, if there is one thing the public hates more than deficits, it is any serious attempt to get rid of them.

But above all else, the benefits under the system would do well to vest before the 2012 election if Democrats want the whole reform to survive. Republicans will pull out all the stops and unleash all hysteria in the 2010 elections. Undoubtedly they will pick up seats. They may very well repeat 1994 and win majorities in both houses. But barring truly extraordinary events, it is unlikely that they will win 2/3 majorities in both houses. That means Obama will be able to veto any attempt to repeal the health care bill.

Granted, passion on the subject will probably die down after a while when the bill passes and nothing catastrophic happens. But if the benefits do not vest by 2012, Republicans can always ramp up the hysteria in that year by warning that the bill is about to take effect and only we can stop it. Consider what the 2012 election could sound like. Republicans will warn that if the Democrats win, healthcare reforms will vest next year lead to the end of liberty as we know it, complete government takeover of healthcare, Communist tyranny, death panels, euthanasia of seniors, T-4, Soviet tanks in the streets, cats and dogs living together, etc. Democrats will warn that if Republican win they will block health care reform from vesting and you won't get all those benefits we promised you back in 2009. It isn't hard to see which is the stronger argument.

By contrast, if the exchanges are actually up and running in 2012, it will be extremely difficult for Republicans to convince anyone that liberty has ended, death panels are murdering seniors, Soviet tanks are occupying the country, cats and dogs are living together, etc. Instead, Democrats will tell people that Republicans want to take away their health insurance. It will be a tad bid awkward for Republicans to tell people who have purchased policies with government subsidies that their doing so has ended liberty as we know it, and that if we don't take away their insurance, the country will degenerate into a Communist tyranny. More likely, they will issue unconvincing and easily refuted denials that they ever saw the whole thing as a problem.

And if this doesn't convince Democrats, consider an alternative scenario. Republicans take power in 2012 and do nothing at all to stop the exchanges and subsidies from vesting. When people without insurance start buying coverage, Republicans will take credit for the program and say it proves they are so much better at delivering healthcare than Democrats. Don't put it past them.