Government Executive - Authors - Conor Friedersdorf

The Regulatory State Is Failing Us

Conor Friedersdorf, The Atlantic — Fri, 29 May 2020 16:01:28 -0400

When assessing the United States government’s response to the coronavirus pandemic, most observers focus on the performances of President Donald Trump, his most prominent advisers, and the governors of large states.

The George Mason economist Tyler Cowen, who has helped raise more than $1 million in prizes for promising efforts to combat the coronavirus, has an additional concern. “Our regulatory state is failing us,” he has repeatedly warned on his blog, Marginal Revolution. In fact, Cowen sees those failures as among the most significant obstacles to successfully combatting the virus. He fleshed out his concerns and desired reforms in an interview conducted over email. This is a lightly edited version of our exchange.

Conor Friedersdorf: What is the “regulatory state”? And what does it have to do with America’s pandemic response?

Tyler Cowen: I define “the regulatory state,” in this context, as the set of laws, rules, and institutions set up to govern, oversee, and indeed define our response to the pandemic. Of course, the regulatory state reports to both the executive and the legislatures, so this is all of a piece, but in the short run, agencies and bureaucracies typically have a great deal of independent influence.

Friedersdorf: What are the most significant failures of America’s regulatory state as it relates to the pandemic?

Cowen: Let me give you a few examples:

New York state regulations, until very recently, forced nursing homes to accept COVID-19-positive patients being discharged from hospitals. Nursing homes, especially in the northeast, have been an epicenter for COVID-19 casualties. By law, they were forced to accept more than 4,500 COVID-19-positive patients, often without proper PPE for their staff.
The Centers for Disease Control and Prevention developed its own test procedures early on, but those proved to be faulty and based on contaminated materials. At the same time, the CDC legally prevented Americans from pursuing other testing options. That is a major reason America fell behind in the testing race, and with its late start, America was not able to buy up enough testing materials before those items became very scarce.
One particular method of COVID-19 testing has been up and running in Washington State, supported by the governor, local officials, and the Gates Foundation. This testing has been saving lives, and it does not endanger anyone. The FDA recently shut down such testing on the basis of a sheer technicality, and scientists find this decision baffling.
The World Health Organization, our own CDC, and Dr. [Anthony] Fauci all told Americans that masks were ineffective and not important. It turns out masks can help a great deal in limiting virus transmission, and later the WHO reversed its stance. The American government is still sending mixed signals.
One Texas entrepreneur offered to gear up his factory, early on, to make masks in great quantities. The Department of Health and Human Services let his offer lie fallow, as the agency was too slow, uncertain, and tied up in bureaucracy.

Those are just a few examples of many. And they are not small matters; they are major reasons America has confronted this crisis so poorly. Former President Barack Obama recently stated: “More than anything, this pandemic has fully, finally torn back the curtain on the idea that so many of the folks in charge know what they’re doing.”

Friedersdorf: Some observers see public and private hospitals with insufficient stockpiles of personal protective equipment, or workers in crowded meatpacking plants falling ill, and conclude that America’s pandemic response is characterized by insufficient regulation. What do you say to them?

Cowen: They are partly, but by no means fully, right. I would favor better regulations for meatpacking plants, at least once we can figure out how to do them properly (temporary paid sick leave could serve as an interim measure). But as for PPE, regulations have done more to discourage supply than to boost it, and here I would cite required permits for mask factories, procurement failures, trade restrictions, and anti-price-gouging laws, which limit supply. Give hospitals more money and let them bid for masks.

Friedersdorf: Almost every prosperous country has a permanent bureaucracy characterized by lots of rules and regulations. Is there some reason that America’s regulatory state is impeding pandemic response more than the regulatory states of, say, Germany or South Korea?

Cowen: First, it is not yet clear whether America or Germany will, in the final analysis, have done the better job. Germany has been much better on testing and having a disciplined lockdown and risk communication, but when it comes to having a free, competitive biomedical establishment to search for cures, I would put my money on the United States.

As for the South Korean government, once the coronavirus arrived in their country, the government sat down with the private sector, figured out what needed to be done, and started doing it right away, including very aggressive procurement of PPE and testing. I think there are at least three differences that partly account for this difference in response. First, the South Korean state has very recent experience building lots of quality infrastructure. Second, SARS was a very real risk in South Korea, which boosted their readiness and also response capabilities. Third, South Koreans are used to the idea of existential risk, given their history and neighbors, and they do not regard themselves as invulnerable.

Friedersdorf: Which country’s regulatory state comes closest to ideal? Based on which characteristics?

Cowen: Taiwan and South Korea have done excellent work in this area, based on speed of response and taking the problem seriously. Taiwan, like South Korea, is also used to the idea of existential risk and risk coming from China. Singapore mostly did a very good job, but with one big lapse, namely failing to secure the dormitories of migrant workers. New Zealand did a very good job too. Three of those four cases are from non-complacent countries that take existential risk seriously. New Zealand has had ongoing regulatory reform, and mechanisms to improve governance, since its broader reforms of the 1980s and 1990s. They all had a strong civil service and leaders who took the problem seriously. They are also smaller nations, islands, or territories having strong island-like properties (South Korea).

Friedersdorf: Until we improve the U.S. regulatory state, should its shortcomings inform the pandemic strategies we pursue?

Cowen: We should invest as much as possible in biomedical research to try to beat this thing back. That applies to corporate R&D, nonprofits and universities, and also our government. By the way, that is yet another instance of regulatory failure—ever try to repurpose National Institutes of Health funding on the fly? Even during a pandemic, that is very hard to do. Our various apparatuses for funding research have responded far too slowly to this crisis, and I would include the private sector and the foundation sector in that criticism as well.

Friedersdorf: What’s more important in a political leader: someone who’ll push to formally get rid of flawed rules and regulations, or someone who is adept at navigating the regulatory state as it exists when they are elected?

Cowen: I don’t see a general rule; this one is going to depend on context. I certainly would not assume that the former is more effective. For a pandemic, it can be hard to know in advance exactly which rules and regulations to repeal; rather, a speedy and flexible response is at a premium. You do want a leader who understands the detailed workings of government, and the countries with better response performance usually have had that.

Friedersdorf: On the right, at institutions such as the Claremont Institute, there’s a critique of the administrative state that says it is extra-constitutional, unaccountable to the people, and ought to be reined in by elected leaders asserting legitimate authority over unelected bureaucrats who have grown too powerful. On the left, there is widespread concern that Trump is capriciously firing public-health experts and inspectors general, and that allowing him to do so is making the federal bureaucracy more dysfunctional, not less so. Where are your allegiances in that conflict, given your view that the U.S. bears significant downside costs when its regulatory state is not functioning well?

Cowen: It is important not to make this a partisan conflict. I do not view the administrative state as extra-constitutional. That said, it has become far too inflexible, and not sufficiently focused on outcomes. It is time we woke up and realized that we have a system that simply is not working. As for the views you cite on the left, I largely agree with their critique of Trump’s performance in this crisis, though I prefer the less partisan versions of that critique. The performance of the New York state governor and mayor—both Democrats—has been dismal as well … New York State arguably has been the worst performer by far, and Hawaii arguably the best or among the best. Both are strongly Democratic. Some red states, such as Georgia, Florida, and Texas, are proceeding with relatively speedy and liberal reopenings. As I am writing this, it remains to be seen how well that will work out, but I would say a high risk is being run.

Friedersdorf: If you could change one thing about the culture of America’s bureaucracy, what would it be?

Cowen: Regulation should be more goal-oriented, and less prescriptive in terms of the details. It should be easier to exercise judgment to meet particular worthy ends, rather than being hamstrung by restrictions and details. Regulation should recognize that emergency situations will come along when very fast action will be needed. Our current regulatory state is not built around those ideas, and its culture is accordingly complacent, and compliance- and process-oriented rather than success-oriented. These days, the American public sector just isn’t very good at getting things done.

Friedersdorf: To reform the regulatory state, should we be thinking in terms of big versus small? Powerful versus weak? Smart versus dumb? Competent versus incompetent? Flexible versus inflexible? Some other paradigm? What particular steps should be taken to improve the performance of the regulatory state?

Cowen: So much needs to be done. First, we need far more data on the scope of regulation, what it does and doesn’t do, and its costs. Second, the possibility of excess regulation needs to become a political issue once again, as it was right before the time of airline deregulation. Third, America needs to be far more open to learning lessons from other countries. “Smart versus dumb” is the best framing of the ones you list. And we should not be reluctant to admit and indeed emphasize that some areas, such as carbon emissions, require much more regulation. That said, when it comes to green energy, some doses of deregulation could help as well—right now it is very difficult in many communities to build a wind farm, even though that is a very green form of energy.

Friedersdorf: Are you aware of any particular government agency that outperforms most others? If so, what lessons can we take from it?

Cowen: The response of our Federal Reserve System has been excellent. They prevented a global financial crisis by prompt action in mid-March, and in general, Fed monetary policy has helped stabilize the economy. The Fed has an excellent staff, reasonable governance, and first-rate leadership at the top. You will note that the Fed is largely autonomous; outside of normal civil-service regulations, they pay staff more than does the federal government. Perhaps our public-health bureaucracy should move in a similar direction, as my colleague Garett Jones [a GMU economics professor] has been suggesting.

Friedersdorf: If political leaders and bureaucrats took your critique to heart and started making changes, what would we look for as markers of success, and what would signal that they were going too far and overcorrecting?

Cowen: An obsession with data and with learning from other countries do not themselves constitute success. Still, they are very good starting points to look for. Another simple sign is when American institutions dealing with COVID-19 testing and PPE supply report that the government is a greater aid than hindrance. We are not there yet. As for a sign that we have gone too far, one would be if we distribute a doubtful vaccine for reasons of political expediency without sufficient testing and study.

Friedersdorf: As you look ahead to pandemic challenges we’re likely to face in the future, what prospective regulatory-state failures worry you most? What preemptive correctives can be taken to avoid them?

Cowen: Eventually, we will indeed get PPE and COVID-19 testing problems worked out, even though many lives will have been lost in the meantime, and many jobs destroyed. Over the medium term, looking forward, I am more worried that biomedical research doesn’t get funded quickly enough, risk communication from our executive branch is abysmal, and our plans for reopening are not very coherent or well understood, by either citizens or even policy makers themselves. As for recommendations, I would repeat the various points suggested above.

Friedersdorf: How could the press improve its coverage of the regulatory state?

Cowen: Statnews.com is a very good source for covering the regulatory state during COVID-19. They are an offshoot of The Boston Globe, and my belief in what they are doing does not stem from any particular ideological affinity. They simply have very well-informed expert journalists, and they focus on reaching a sophisticated audience (disclaimer: My nonprofit program, Emergent Ventures, has made a grant to them).

The New York Times and The Washington Post and, yes, also The Atlantic have published some excellent articles outlining failures of the regulatory state during COVID-19. I do not see, however, that the opinion pages of the first two institutions have done a sufficient job in putting the pieces together and helping their readers see the bigger picture. The media have already done some great work to date, and I am not in general a media-basher. But can you imagine the major, mostly left-leaning NYT columnists and op-ed writers making regulatory reform a major crusade? I can’t quite see it, but let’s hope.

Friedersdorf: Libertarians and small-government conservatives are highly skeptical of the regulatory state. What do they get wrong?

Cowen: Very often, the alternative to regulation is ex post facto reliance on the courts and juries to redress wrongs. Of course, the judiciary and its components are further instruments of governments, and they have their own flaws. There is no particular reason, from, say, a libertarian point of view, to expect such miracles from the courts. Very often, I would rather take my chances with the regulators.

Also, let’s not forget the cases where the regulators are flat-out right. Take herbal medicines, penis enlargers, or vaccines. In those cases, the regulators are essentially correct, and there is a substantial segment of the population that is flat-out wrong on those issues, and sometimes they are wrong in dangerous ways.

Friedersdorf: Are there critiques of the FDA in particular or the pandemic-era regulatory state more generally that deserve wider attention?

Cowen: There are legitimate questions as to whether the FDA is too risk-averse in normal times, raising the costs of drug approval and pursuing safety at the expense of innovation. I don’t think we should be trying to settle those debates right now. Conditions have changed, and we do in fact need faster responses during COVID-19 times. That means greater attention to clearing and approving testing procedures, securing and enabling the supply of masks (by no means the province of the FDA only, to be clear), and yes, accelerated scrutiny for candidate treatments and vaccines. The FDA has been failing on testing and masks; we don’t yet know how they are doing in terms of accelerated treatment, but their overall record in very recent times has not been positive.

Friedersdorf: Is there any figure in the regulatory state to whom you’d like to pose a question here?

Cowen: To the heads and senior staff of the FDA, CDC, OIRA (Office of Information and Regulatory Affairs), and other agencies: What changes do you need from Congress, the president, and the courts to treat matters such as pandemics more urgently? To heads of the NSF (National Science Foundation) and NIH: Why can’t you spend more money more quickly on COVID-19-relevant research? What changes do you need made? And in which ways are you yourselves obstacles to a speedy reallocation of funds and priorities?

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Analysis: How to Protect Civil Liberties in a Pandemic

Conor Friedersdorf, The Atlantic — Fri, 24 Apr 2020 13:00:00 -0400

Last month, tens of millions of Americans suddenly accepted previously unthinkable restrictions on freedoms as basic as leaving home, gathering for worship, assembling in public, running businesses, and having elective surgery.

They did so understanding the sacrifice to be urgent and temporary. The coronavirus was spreading. Dramatic action was required to avert countless deaths. Then life would return to normal. But as the weeks pass, the comforting conceit that this emergency is time-limited begins to muddy as much as it clarifies. What if there is no effective treatment until 2021? Or 2023? What if more and more members of the public dissent from social distancing with each passing week, until compliance is no longer mostly voluntary?

The prospect of civil disobedience seemed to grow last week, when President Donald Trump instructed his Twitter followers to “liberate” several states with Democratic governors and small populist protests began to make headlines in communities across the country. In one scene, protesting motorists in Denver were met by health-care workers silently blocking traffic. On Monday, a couple thousand people gathered for an anti-quarantine protest in Harrisburg, Pennsylvania. Similar gatherings are scheduled in other cities.

The cries to “open up the country” don’t reflect the feelings of most Americans. A poll released Monday found that 60 percent of Americans oppose the protests, while 22 percent support them. Nor are the protesters of a like mind with some of the country’s most prominent libertarians and civil-liberties organizations.

The UCLA professor Eugene Volokh, a First Amendment expert with a reputation for valuing civil liberties, argued recently that while liberty of movement and association are hugely important, “the premise behind the liberty is that people assembling together can choose to be ‘peaceable,’ and thus physically safe for each other and for bystanders.” Conversely, COVID-19 “has the property that I can sicken or even kill you with it entirely inadvertently.” Those infected can then harm others who were not even present at the initial gathering.

“Normal conditions that justify liberty of movement”—conditions that make it consistent with the premise that we have the right to do what doesn't physically harm others—“are regrettably not present when each of us (with no conscious choice on our parts) is potentially highly lethal to people around us,” he concluded. “However peaceable we might be in our intentions, our assembling is a physical threat. Our judgments about liberty, I think, need to reflect that.”

I wondered how the coronavirus is affecting the thinking of other prominent civil libertarians, specifically the heads of organizations that would typically abhor business closures and strict limits on free assembly, including the American Civil Liberties Union, the Electronic Frontier Foundation, and Reason magazine. I found that their “judgments about liberty” also contrast with those of the protesters—which isn’t to say they’re not deeply concerned about present and future infringements.

The aclu has never confronted a crisis quite like this one. When the Spanish flu ravaged the country in 1918, the 100-year-old organization didn’t yet exist. After the 9/11 terrorist attacks, federal officials changed national-security laws and created a whole new regime of secretive courts that rendered surveillance broader and less accountable. Many of the most onerous civil-liberties infringements were focused on immigrants, foreigners, and young Arab men. Measures taken in response to COVID-19 are “potentially a crisis for the civil liberties of all Americans,” Anthony Romero, the ACLU’s executive director, told me. “We have to be careful. We’re in a whole new world.”

Romero began his tenure days before 9/11. Almost 20 years later, he is still dealing with its aftermath. In emergencies, he reflected in an interview earlier this month, government officials justify new powers by pointing to the extraordinary challenges of the moment. Yet long after the emergency passes, they tend to assert those very same powers as if they are the new normal.

For now, the ACLU is willing to accept some incursions on the fundamental rights that it zealously defends “if they are time-limited and have a rational basis in science,” because of the implications for the spread of COVID-19, he told me. “But there is always the PATRIOT Act factor. We are still litigating powers in 2020 that were adopted in 2001. So we have a skeptical view of mere assurances that anything is time-limited. You have to build in a self-destruct button.”

In the past, the ACLU decried what it saw as needlessly onerous quarantines. During the 2014 Ebola epidemic, a man who traveled from West Africa to the U.S. tested positive for the disease, wound up in a Dallas hospital, and infected two health-care workers who were given insufficient training and equipment. Various U.S. states reacted by imposing controversial 21-day quarantines on asymptomatic American doctors and nurses as they returned home from missions abroad to keep the epidemic contained.

“Nearly 40 years of encounters with Ebola—and an overwhelming consensus in the medical and public-health communities—have shown that infected patients do not transmit the disease before symptoms appear,” the ACLU argued in a 46-page report, “and therefore quarantine was not and is not needed to prevent the spread of Ebola in the United States for anyone who is willing and able to self-monitor for symptoms.” The report noted that “no one quarantined in the United States developed Ebola, and no one transmitted Ebola outside of a hospital setting. Because the Ebola quarantines of 2014–2015 were not medically necessary, they violated the U.S. Constitution.”

COVID-19 does spread through asymptomatic individuals, however––and solid evidence suggests that shelter-in-place orders may be the least-intrusive method yet known to arrest exponential growth in cases and deaths. That’s why ACLU litigators have so far challenged just one local shutdown policy, a curfew in Puerto Rico that struck them as anomalously excessive.

Quarantines and stay-at-home orders may be “an area where the incentives of government officials and the values of civil libertarians align, in that these have to be time-limited because we have to get people back to work; we have to get the economy running,” Romero said. “Civil-liberties interests coincide with government and economic interests to resume as much of normal life as possible.”

Future clashes with public-health officials are possible, though. “Some medical professionals talk about rationing—for example, the rationing of ventilators, in cases where there’s scarcity, to allocate them to COVID patients that have the highest chances of survival,” Romero said. “That would mean the elderly and some individuals who are disabled get deprioritized in state institutions, contrary to a number of federal laws that prohibit discrimination based on disability or age. We are clear that neither disability status nor age can be the basis to deny care or assign a lower priority to medical equipment.”

Certain approaches to reopening society may provoke conflict, too. “Some regimes being discussed involve testing for antibodies,” Romero observed. “We agree that the only way you’re going to be able to open up the economy and get people back to work is to test broadly, but there are efforts to say, for those that don’t have the antibodies, they have to stay at home. That raises civil-liberties questions about the quarantining of people who are COVID-negative, yet present potential vectors for the spread of the virus.”

The ACLU’s position on antibody testing will depend on how these regimes are rolled out. Meanwhile, it continues to prioritize what it sees as more urgent matters, such as thinning out jail populations––it estimates that its advocacy has resulted in the discretionary release of more than 10,000 prisoners since this crisis began––challenging pandemic restrictions on access to abortion, and urging easy access to mail-in ballots in case the coronavirus is still spreading this November.

The electronic frontier Foundation is composed of technologists, lawyers, and activists committed to defending civil liberties in the digital world. COVID-19 presents many straightforward challenges. EFF opposes the federal government’s suspension of responding to Freedom of Information Act requests during the pandemic, wants to protect and encourage any whistleblowers who see abuses during the emergency, and believes that unduly onerous intellectual-property laws are impeding the public-health response.

Contact-tracing apps present trickier questions for the organization.

Imagine that Aaron and Zelda stand next to each other in line at a supermarket, pharmacy, or bodega. A day later, Aaron develops a cough and high fever and tests positive for COVID-19. Old-fashioned contract tracing might prove unable to locate Zelda so that she could get tested or self-quarantine. But what if we all had a coronavirus smartphone app that tracked our locations? Then Aaron could mark himself as “positive” in the app, triggering an alert on Zelda’s phone. Lots of software developers, including Apple and Google, are developing variations on that idea.

EFF has long sought Fourth Amendment protection for location data. To help develop a position on contract-tracing apps during a time-limited emergency, an internal task force developed a three-part test.

Cindy Cohn, the organization’s executive director, told me about it. “The first question is whether it is likely to be effective,” she said. “I was around at EFF after September 11. What was implemented often had no connection to efficacy. Later we could see that collecting everyone’s telephone records and doing one-hop and two-hop tracing didn’t help prevent any terrorist attacks. So making sure efficacy is the first thing we think about is tremendously important.”

The third question is: What guardrails will be in place? Specifics that concern EFF include, would a contract-tracing app be voluntary or compulsory? Would it offer users anonymity? Would the app collect only data necessary to the task at hand? Where would the data live? How long would they be retained? Who would have access to the data? And have efforts been made to prevent misuses by app users?

Reason is america’s premier libertarian magazine. In moments of optimism, its staffers hope that regulations that have been suspended during the pandemic, such as impediments to telemedicine, practicing medicine across state lines, and selling to-go cocktails, will be exposed as needless and abolished for good. More often, they worry that through abuse or incompetence, the state will do more harm than good in the present emergency.

The magazine’s editor, Katherine Mangu-Ward, worries that the Department of Justice will abuse the crisis to undermine the rights of criminal defendants, that local authorities will be discriminatory when enforcing lockdown measures, and that attempts at central economic planning, like invoking the Defense Production Act, will eliminate vital price signals that help markets meet human needs.

“At Reason, a core part of our mission is talking about ways that progress and innovation come from places outside of and separate from the state, and staying attentive to the sometimes-hidden costs that different government actions and regulations can impose,” she told me. “Already in this pandemic, we’ve seen individuals turning their lives or their businesses on a dime to promote crucial social goods. We’re worried about anything that would get in the way of that.”

Her list of worries is accordingly long and varied.

In the near term, she worries about possible limits on interstate travel. “We all know that it’s wrong to restrict people from traveling within the United States––that’s part of our deal here as a country,” she elaborated. “But where exactly is that in the Constitution? That’s a tricky question. What will the outcomes and precedents be if that question is tested in the courts because governors weren’t able to reach harmonious decisions about when to restart normal economic life?”

She also worries about centralized health-care rationing. “It is genuinely horrific that we as a nation are potentially facing thousands of t rolley problems. But this isn’t the first time that nations or hospitals have had to make decisions about how to use scarce, lifesaving resources,” she said. “I consider myself a utilitarian libertarian, and it is important to me to try to maximize good outcomes. But I recognize other people disagree. So to me, the question should be answered as locally as possible...The people making the decisions should ideally be as close as possible to those who will suffer harm when they don’t get the resources. It makes me nervous thinking of Donald Trump making these decisions for the entire nation, and more comfortable letting individual physicians or hospitals make them.”

One of her greater long-term fears is that the pandemic will cause the United States to restrict trade long after the emergency passes. She understands why some see interruptions in global supply chains as a reason to create protections for certain domestic industries. “We’re seeing a lot of claims that 80 percent or 90 percent of U.S. drugs originate in China,” she said. “But that’s an example of bad information influencing people’s beliefs.” She believes tariffs make us poorer and less safe, and that we don’t know what we will need in future emergencies. “We have at times had strategic helium reserves,” she pointed out. “There are always conversations about steel. We talk a lot about staple crops. Yet none of those reserves or trade barriers have been relevant so far in this crisis. So I am very concerned about the costs in terms of human suffering if we harden borders and try to bring home industries that we are not well suited to execute here, when other countries can do it better and cheaper and improve their own lives at the same time.”

Given the state’s poor performance to date, Mangu-Ward would like to see it step back from curtailing voluntary behavior of all sorts and instead focus on quickly identifying policies that are preventing private actors from stepping up. And when helping private actors includes stimulus spending, she generally prefers approaches that don’t put the state in the position of picking winners and losers.

“There is a long libertarian tradition of favoring direct payments to individuals,” she observed. “But one thing I’ve struggled with––if businesses struggle through no fault of their own, if they fail because they are legally not allowed to function, the fact that the force of the state is behind the closure of those businesses makes me want to look more closely at the question of what, if anything, is owed them, and who owes it. Because at this point, it’s our children and grandchildren on the hook as we borrow huge, unthinkable sums from the future to keep us afloat now.”

The coronavirus crisis will last longer than intense lockdowns are sustainable. It is not unreasonable for citizens to demand answers more solid than any they’ve received about how long officials believe they can impose emergency restrictions and how hard they are working to eliminate any that are needless. But many conscientious civil libertarians simply don’t see temporary shutdowns during a pandemic as inherently tyrannical or even unreasonable.

One needn’t understate how much a few weeks can matter to a laborer or struggling small business owner to appreciate that, even setting mortality risks aside, shelter-in-place orders are the least of our worries. Six months from now, access to the ballot will matter more for democracy than the precise length of today’s shutdowns. A year from now, different statuses for people with different antibodies in their blood may pose thornier questions than any we’ve yet confronted. Two years from now, the endurance of liberty will hinge more on, say, how much we allow COVID-19 to permanently increase the degree of surveillance in society than whether one’s local beach or hiking trail stays closed––even needlessly and frustratingly––for a month or two too long.

During the flu pandemic of 1918, a league of populists and civil libertarians formed to protest a San Francisco ordinance that required the wearing of masks, believing they were doing their part to conserve freedom in America. They succeeded in getting the ordinance annulled. Then flu cases spiked. The law was restored. Eventually, as the pandemic subsided, the law was repealed. In hindsight, it is clear both that civil libertarians circa 1918 had a lot of present and future abominations to fret about––the Sedition Act, the Espionage Act, Prohibition, Jim Crow––and that a regime of forced mask-wearing wasn’t among them, regardless of the merits of the issue at the time.

It is hard to see clearly in the fog of a crisis. But for now, I suspect that civil-liberties organizations are more focused than populists protesters on the questions that will determine the degree to which we are free after this crisis ends.

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Trump Defended Cuts to Public-Health Agencies, on Video

Conor Friedersdorf, The Atlantic — Wed, 18 Mar 2020 16:00:00 -0400

Beth Cameron, a former senior director for global health security and biodefense on the White House National Security Council, complained in The Washington Post on Friday that the Trump administration dissolved her office in 2018, “leaving the country less prepared for pandemics like COVID-19.”

The same day, a PBS reporter asked President Trump about the change he presided over.

“You did disband the White House pandemic office, and the officials that were working in that office left this administration abruptly,” Yamiche Alcindor said. “So what responsibility do you take?”

Trump called it a nasty question. He denied the facts. And he said, “I don’t know anything about it.” He went on to say, “It’s the—it’s the administration. Perhaps they do that. You know, people let people go. You used to be with a different newspaper than you are now. You know, things like that happen.”

But 2018 video footage resurfaced Tuesday by the British newspaper The Independent contradicts him. “You have consistently called for enormous cuts to the CDC, the NIH, and the WHO,” a White House reporter tells Trump. “You’ve talked a lot today about how these professionals are excellent, are critical, are necessary. Does this experience give you pause about those cuts?”

“No,” Trump responded. “We can get money, we can increase staff—we know all the people. This is a question I asked the doctors before. Some of the people we cut, they haven’t used for many, many years, and if we have ever need them we can get them very, very quickly. And rather than spending the money—I’m a business person. I don’t like having thousands of people around when you don’t need them. When we need them, we can get them back very quickly.”

Some have expressed more defensible rationales for the Trump administration’s actions, but they don’t seem to be what motivated the president himself.

In a political context, it is hard to imagine a more damaging video. It catches Trump in a lie about what he knew, and shows him openly defending his proposals for significant cuts to agencies that battle infectious diseases, explicitly based on the dubious premise that employing experts in that field is a waste of money in the years between epidemics or pandemics. This is the rare clip that could conceivably make the difference in a national election.

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The Costs of Spying

Conor Friedersdorf, The Atlantic — Sat, 29 Feb 2020 13:00:00 -0500

Privacy advocates were right all along: The costs of one of the most controversial spy programs revealed by Edward Snowden far outweighed its benefits. That’s obvious from a 103-page study of recent efforts to log, store, and search phone metadata––e.g., the time a call was made, its duration, and the phone numbers involved––about most calls that Americans made or received.

Researchers at the congressionally created Privacy and Civil Liberties Oversight Board found that from 2015 to 2019, the NSA’s call-metadata program cost taxpayers $100 million. “Only twice during that four-year period did the program generate unique information that the F.B.I. did not already possess,” reported Charlie Savage of The New York Times, who read a copy of the findings and went on to quote a passage characterizing those two pieces of unique information: “Based on one report, F.B.I. vetted an individual, but, after vetting, determined that no further action was warranted. The second report provided unique information about a telephone number, previously known to U.S. authorities, which led to the opening of a foreign intelligence investigation.”

The NSA shuttered the program in 2019, due in part to the fact that it repeatedly collected more data than was legally permissible. The law that allows the NSA to search the data trove, moreover, expires next month, on March 15. But the Trump administration wants Congress to reauthorize the metadata program permanently, giving the NSA the discretion to restart it at any time and run it indefinitely.

That’s a bad idea for reasons beyond its dismal return on investment. Fundamentally, the program is impossible to responsibly oversee—even after a 2015 reform that required judges to sign off on spy-agency queries.

Savage explained that in 2018, “the N.S.A. obtained 14 court orders, but gathered 434 million call detail records involving 19 million phone numbers.” At that scale, the need to get a judge’s okay doesn’t offer much protection to citizens.

Had Donald Trump supporters understood this program in 2016, many would not have trusted the Obama administration to refrain from abusing it. Same goes for Bernie Sanders supporters and the Trump administration today.

And one needn’t even mistrust American politicians to object.

A centralized, searchable database of this sort is in itself a security risk. A foreign state that gains access to that data could map the social networks of high-ranking administration officials and their families, members of Congress, nuclear scientists, business leaders in industries with foreign competition, and more. National security would arguably be better protected if the U.S. government was forcing telecom companies to destroy its troves of data.

If ever there were a case for letting authorization of a national-security program expire, this is it: The expense to taxpayers is great, the benefits meager, and the potential for abuses tremendous. But once an authority is given to the executive branch, presidents are loathe to let it lapse.

Congress should ignore the Trump administration’s preference and return the country to a place where the private communications of Americans are not stored for the federal government and its spies.

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Analysis: A Real Solution for Airport Security

Conor Friedersdorf, The Atlantic — Fri, 14 Feb 2020 12:00:00 -0500

In Lexington, Kentucky, this week, two public-health experts took to the pages of the local newspaper to address readers who have been worrying about the spread of the coronavirus, which has infected patients in China and beyond, killing roughly 1,300 people. “While coronavirus is serious and its headlines are scary, the current threat level for this illness in Kentucky is low,” wrote R. Brent Wright, president of the Kentucky Medical Association, and Ben Chandler, CEO of the Foundation for a Healthy Kentucky. “Influenza is a much greater, deadlier virus that is already widespread.”

Their advice, boiled down: Get a flu shot and wash your hands a lot. But human psychology is working against their efforts to persuade. Were humans more rational, the Discovery Channel would dedicate weeks of programming to heart disease and road safety. Instead, there’s Shark Week. More unlikely killers often loom largest in our fears.

Occasionally, however, despite our imperfect brains, opportunities arise to prevent many deaths by taking what we know logically and building it into the design of modern life.That brings me to my proposal: a change to airport security that could easily save hundreds of thousands of lives while proving no more onerous to passengers than the status quo.

A study in the journal Risk Analysis inspired the idea. As David L. Chandler of MIT News puts it, its authors estimate “that improving the rates of handwashing by travelers passing through just 10 of the world’s leading airports could significantly reduce the spread of many infectious diseases. And the greater the improvement in people’s handwashing habits at airports, the more dramatic the effect on slowing the disease.”

They estimate that roughly 20 percent of travelers have clean hands. And if that rate could be tripled, they found, the spread of disease could be slowed by nearly 70 percent.

“Deploying such measures at so many airports and reaching such a high level of compliance may be impractical,” Chandler writes, “but the new study suggests that a significant reduction in disease spread could still be achieved by just picking the 10 most significant airports based on the initial location of a viral outbreak. Focusing handwashing messaging in those 10 airports could potentially slow the disease spread by as much as 37 percent.” What’s more, “even small improvements in hygiene could make a noticeable dent. Increasing the prevalence of clean hands in all airports worldwide by just 10 percent, which the researchers think could potentially be accomplished through education, posters, public announcements, and perhaps improved access to handwashing facilities, could slow the global rate of the spread of a disease by about 24 percent.”

Normally, I’m averse to central planning and coercive nudges. But assuming that washing hands would be even half as effective as the authors estimate, this is an exception. Airports already put travelers through all manner of intrusive and cumbersome security theater in the name of guarding against vanishingly rare terrorist attacks. I’ve waited in line for hundreds of hours, forgone the ability to carry liquids, and subjected myself to uniformed government employees prodding my genitals in search of weapons.

Meanwhile, pandemics are orders of magnitude more dangerous than terrorists on planes. And commercial air travel is obviously one of the ways that they spread around the world.

So here’s the pitch: For a long while, I removed my shoes every time I went through security, an inconvenience I am spared now that I’m enrolled in TSA PreCheck, as if a terrorist with enough resources to build a shoe bomb couldn’t infiltrate that massive program.

In U.S. airports, let’s put hand-washing stations at security and let anyone leave their shoes on if they wash their hands for the 15 to 20 seconds that doctors recommend. In bathrooms, make people pay a dollar to use the facilities if they don’t wash their hands. Put sinks at the gate, too, where people who won’t wash their hands must board last. We go to far more trouble at airports for measures that are more intrusive and burdensome and that save far fewer lives. As for the infrastructure costs, communicable diseases aren’t going away, and this one-time expense would pay dividends indefinitely.

Airports with abundant hand-washing stations—and sticks and carrots to encourage their use—would make far more sense as a focus of secure air travel than the system we have today.

So let’s trade some security theater for actual clean hands.

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The Torturers Wanted to Stop, but the CIA Kept Going

Conor Friedersdorf, The Atlantic — Thu, 23 Jan 2020 16:25:12 -0500

A psychologist who helped the CIA torture people told a chilling story this week at the Guantánamo Bay Naval Base in Cuba, where legal cases are proceeding against five defendants accused of murdering almost 3,000 people on September 11, 2001. James Mitchell, one of the architects and practitioners of waterboarding, still defends the interrogation method, which involves strapping human beings to a gurney, covering their nose and mouth with a rag, and forcing water into their nasal cavity and lungs as they squirm. The technique is intended to break people by subjecting them to the primal terror of drowning.

Prisoner Abu Zubaydah was terrorized that way 83 times at a black site in Thailand. According to the Senate torture report, he was “completely unresponsive, with bubbles rising through his open, full mouth.” That report also noted that “non-stop use of the CIA’s enhanced interrogation techniques was disturbing to CIA personnel at Detention Site Green,” and that they objected, but were “instructed by CIA headquarters to continue using the techniques.” It added that the techniques continued for “more than two weeks” after CIA personnel on-site questioned the legality of what they were doing.

How does Mitchell remember those events? In testimony at Guantánamo yesterday, he said the CIA demanded that he and Bruce Jessen, another psychologist, keep using the torture techniques that they had helped to develop. The Los Angeles Times recounted:

After Abu Zubaydah started cooperating with interrogators at a secret prison in Thailand in 2002, Mitchell and Jessen sought to stop using the waterboard. Officers at CIA headquarters in Virginia accused the two of having lost their nerve. “They said that we were pussies, that we had lost our spine,” Mitchell testified. The CIA officers said that if another attack by Al Qaeda occurred, Mitchell and Jessen “would have the blood of dead Americans on their hands.” Mitchell told the officers he would continue only if they came and witnessed application of the waterboard, to “bring their rubber boots and come on down.”

Which they did. They assembled in Abu Zubaydah’s cell, which Mitchell described as small with an unpleasant, musky odor. The psychologists performed what Mitchell said was a dialed-back version of the technique. “I don’t want to use the word ‘perfunctory’ for something that horrible, but, yeah,” he said. It didn’t seem perfunctory to the visitors, many of whom began to cry. “Their decision after witnessing this is that we don’t need to do this,” he said.

In this account, a prisoner was cooperating with interrogators, yet CIA officers at headquarters still ordered the psychologists who designed America’s torture program to keep terrorizing him by filling his lungs with water. The psychologists refused to needlessly terrorize another human being—unless the people at CIA headquarters who called them spineless pussies came to watch.

Then the CIA folks came, and the psychologists terrorized the prisoner as a demonstration, knowing it was wrong. And it was so brutal that multiple CIA observers cried. That’s according to Mitchell, one of the torture program’s staunchest defenders!

Because the CIA is cloaked in so much secrecy, Americans don’t even know if the people at headquarters who demanded that the torture continue still work for the spy agency. Their actions are a moral stain on the nation, as is the failure to hold them accountable.

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Viewpoint: Look Who’s Trying to Seize Private Property

Conor Friedersdorf, The Atlantic — Tue, 19 Nov 2019 11:00:00 -0500

A candidate in the 2020 presidential race wants the federal government to seize the private property of dozens of Texans under the dubious pretext of a national emergency. I refer not to Bernie Sanders or Elizabeth Warren, but to President Donald Trump, whose lack of respect for private-property rights goes back decades.

In the early 1990s, while running casinos, Trump tried to get an elderly widow’s house seized so that he could tear it down and use her land to park limousines. In 1994, he urged a Connecticut municipality to take land owned by five small businesses. In 2005, Trump agreed “100 percent” with the Supreme Court’s decision in Kelo vs. New London, in which the majority ruled that governments can seize a person’s land and give it to a private corporation if they believe doing so will increase tax revenue. And in 2015, while running for president, Trump called eminent domain “a wonderful thing.”

Now NBC News reports:

The Trump administration is preparing court filings to begin taking over private land to build its long-promised border wall without confirming how much it will pay landowners. In a typical eminent domain case, the government agrees on an amount of money before it seizes the land … According to two officials familiar with the process, however, government attorneys may file under the Declaration of Taking Act in federal court … If the government files under that law and its action survives expected legal challenges the title would automatically transfer to the government. The government has to name the price it expects to pay, but actual negotiations with the landowners about the price don’t begin until after the land is taken.

The approach “is meant to be reserved for emergencies,” the article notes, adding, “Earlier this year the Trump administration declared the situation at the border a national emergency.” Trump’s failure to build a border wall during his first term may be a political emergency for him as he prepares to seek reelection, but no national emergency requires the federal government to quickly seize property from Texas landholders who have gotten along fine for decades without any physical barrier.

If there were a true emergency, those Texans would be clamoring for a wall. In fact, they believe they’re better off with no barrier on their land, having never had one. Still, a Manhattan billionaire and the Washington bureaucrats he appointed insist that they know better.

Their motives are suspect: The Trump administration began claiming an “emergency” only as an end run. “In December of 2018, Democrats refused to allocate funding for the wall in the 2019 budget, and the ensuing standoff with President Trump led to the longest government shutdown in U.S. history,” National Review explains. “Trump eventually relented, deciding instead to declare a state of emergency in order to allocate funds from the Pentagon’s budget, in a move a federal judge deemed ‘unlawful’ last month.”

Why won’t Congress fund a border wall? Probably because a majority of Americans oppose new construction. Look for that opposition to grow, winning converts in red Texas, if the government prevails in its effort to forcibly seize private property on the border. Those are real people whose land is being taken, and their stories should be told.

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A Once Unthinkable Proposal for Refugee Camps

Conor Friedersdorf, The Atlantic — Wed, 12 Jun 2019 09:55:52 -0400

Tens of millions of people have been forced to flee their home countries in recent years to escape war, famine, deadly persecution, or natural disaster. These refugees spark political controversy wherever they arrive in large numbers. For that reason, governments in Europe, North America, and Oceania have differed in how many refugees they are willing to resettle. Even Angela Merkel, who helped make Germany the Western country with the biggest population of recent refugees, found that the public’s openness was quickly exhausted.

Countless thousands suffer. They drown while trying to cross the Mediterranean Sea. They die in the Sahara Desert. They die trying to cross into Mexico. They are kidnapped and sold into slavery. They die at home because they are too poor to attempt escape. With no foreseeable end to the flow of refugees determined to reach wealthy countries, where voters are growing less rather than more willing to welcome them, more tragedy is assured. And liberal humanitarians concede that their reform efforts are not working.

Amnesty International lamented last year:

The UN Global Compact on Refugees … failed to deliver meaningful change,” Amnesty International lamented last year. The final text of the Compact, which aimed to improve the international community’s response to mass forcible displacement, was notably unambitious: a shameful blueprint for responsibility shirking. The Compact will not change the situation for Rohingya refugees newly arrived in Bangladesh, or a generation of Somali youth born in refugee camps in Kenya, or refugees stuck in illegal and devastating limbo on the island of Nauru for the past five years. For Sub-Saharan Africa, now hosting 31% of the global refugee population, it will provide no relief.

What is to be done?

The political scientist Erik Kauffman argues for a controversial alternative in his recently published book Whiteshift, a researched inquiry into how migration and demographic change are affecting politics and culture in Western societies.

Rather than settling refugees in Western countries to live alongside their citizens, which will tolerate a population far smaller than the total number of people in danger, he favors building permanent, closed refugee camps on Western soil that accommodate anyone who wants to come. Refugees would have the right to move to another refugee camp or return to their home country, but would not have the right to enter the host country. Governments would draw a bright line distinguishing refugees from migrants.

Some critics liken permanent camps to putting refugees in prison and find the notion of segregating refugees in such places to be morally noxious. Others point to the dismal conditions in many camps past and present, and doubt that future camps would be any better. Even Ireland’s comparatively generous Direct Provision program, in which refugees are semi-segregated in relatively high-quality housing, may immiserate residents by trapping them in limbo rather than letting them begin a new life in a new community, as Masha Gessen illustrates in a perhaps overcritical dispatch in The New Yorker.

Still, the status quo is so horrific that Kaufmann’s alternative merits a hearing.

The core of the problem as Kaufmann sees it:

Paradoxically, pressure to widen the rights of asylum seekers inside Europe makes it harder to fulfill the mission of getting people to safety. Why? Because if countries believe admitting refugees is the first step to granting permanent settlement, they will be more reluctant to allow them in. Claimants in the West have their cases judged increasingly harshly due to domestic political pressure to limit the number accepted for settlement. Those whose cases fail and cannot escape lack the option to remain safely in a high-quality facility. It’s estimated that thousands of genuine refugees are returned to countries where they risk being persecuted or killed.

Kaufmann proposes to eliminate that disincentive to provide refuge.

“Western publics are more likely to accept the financial burden of housing refugees on a long-term basis than accepting them as permanent settlers because they care more about the cultural impact of refugee settlement than the economic costs,” he argues. Absent cultural fears, burden-sharing among rich nations will be easier, he writes, as “countries will not be asked to alter their ethnic composition against their inhabitants’ wishes—only to contribute funds and build facilities.”

In fact, he claims, his approach would allow the world “to absorb any number of refugees without discriminating on the basis of wealth, fitness to travel and risk appetite,” as effectively happens now. “Nobody dies in transit or gets attacked or enslaved en route.” And Western governments would have less need for gatekeeping bureaucrats. “This will offer refuge, but not settlement,” he notes, “so only those genuinely fearing for their lives will remain. There would be no need to engage in the impossible task of sorting genuine refugees from economic migrants.”

Why should long-term refugee camps be unthinkable in the West, he asks, when they are already a reality in many countries that border on conflict zones? “Why is a secure camp in the West an affront to human rights while one in Turkey or Libya is not?” (I’d add: If both are an affront to human rights, isn’t it still possible that refugees currently consigned to the camps in unstable countries would be better off if the West offered a more humane version of those camps?)

In his telling, “liberal activists and judges have strained to interpret international human rights law as generously as possible to the point where someone who arrives in Europe has a path to citizenship,” but doing so only guarantees that severe limits will be imposed on the number permitted to arrive. A lucky few will be treated better at the cost of mortal danger for many more.

Kaufmann concludes that hosting refugees in the West is a good litmus test of whether liberals are more interested in helping those in need or “making the symbolic gesture of calling for more settlement—which is guaranteed to result in doors being closed.” If the latter, they will label closed facilities prisons, he writes, “agitate to have camp residents resettled and call for facilities to be closed … we’ll revert to the status quo, in which many who flee war are sent back to die, unlucky migrants drown at sea or are preyed upon by criminals, the majority languish in underfunded camps and a small group of better-off risk-takers get lucky.”

He goes on to describe what he sees as the best version of the approach he favors: “spacious permanent migrant centers across the full range of EU countries, alongside free transportation from conflict areas,” cutting deaths at sea, expanding refuge, and improve overall conditions among migrant facilities.

“The optimal scenario is one in which every refugee can flee a conflict zone and be protected, housed, clothed, educated, and fed, receiving proper medical care,” he writes. “There should be recreational facilities and, ideally, an opportunity to work … This should be paid for by the international community, through either charities or contributions from wealthier countries.”

This is, he concludes, where the attention of Western social justice campaigners should be focused. “The current approach is dangerous. Erasing the line between refuge and settlement makes it more likely countries will bar the door the way they did in 1939.” Would the alternative he proposes end better or worse?

For a critique of Kauffman’s proposal, I contacted The Danish Refugee Council, an international humanitarian organization with 7,000 staffers and 8,000 volunteers who work in conflict areas, along transit routes, and in countries where refugees settle. Its stated aim: “a dignified life for all displaced.” Its stated methods: “In cooperation with local communities, we strive for responsible and sustainable solutions. We work toward successful integration and—whenever possible—for the fulfillment of the wish to return home.”

In response to a summary of Kaufmann’s proposal almost identical to the one that began this article, the organization forwarded the following comments, attributing them to Solveig Als, policy advisor under the external relations secretariat.

She began by noting that “unfortunately, Kaufmann is not alone in his belief that––as opposed to safeguarding safety, dignity and well-being of people affected by conflict––reducing rights and containing refugees either in Europe or outside Europe is the only way forward to avoid further fueling right-wing populism,” adding that “this is also true for current policy developments at the EU level, where containment policies and deterrence measures are reflected across asylum and migration policy proposals under the Common European Asylum Reform.”

Still, she argued, Kaufmann’s policy proposal is at odds with international norms that nearly 200 countries have embraced in refugee policy negotiations:

First and foremost, an encampment policy—which appears as the cornerstone and key premise of Kaufmann’s proposal—is in direct contradiction to the new international consensus on the need to move away from containment, care and maintenance towards self-reliance and dignified lives for refugee families.

This shift towards self-reliance and out-of-camp policy is core to the recently adopted Global Compact for Refugees, which was developed over 18 months through intensive consultations and discussions among UN Member States, experts, civil society and refugees, and approved by overwhelming majority (181 UN Member States) in December last year. This remarkable political consensus that refugees and host communities are better off when refugees become included and productive members of society stands in stark contrast to the author’s hypothesis that segregation is a political necessity.

She went on to offer three additional critiques. First, right now, “long-term closed refugee camps is not the general trend in countries bordering conflicts.”

Second, countries have shifted toward housing refugees outside of camps because evidence suggests that this helps them succeed if and when they return home.

Skilled, knowledgeable, empowered individuals and families stand a much better chance to successfully reintegrate. Returnees, especially after years and sometimes decades in displacement, do not merely have the task of resuming their lives prior to displacement; they must reinvent their lives … Old skills and livelihood strategies may no longer apply. Trauma and loss may well be associated with the return. Hence, it is important to promote a high quality of asylum where displaced persons are not merely offered ‘care & maintenance,’ but are offered opportunities to build capacities and develop skills.

Third, she offered, The Danish Refugee Council is concerned about the detention and force that the proposed “closed-camp” approach is likely to entail.

While Kauffmann describes the camps as ideally spacious spaces with recreational activities and potentially opportunities to work, all evidence and experience with closed facilities for asylum seekers and refugees demonstrate that such an out-of-sight policy contributes to creating zones of exception in which violations of fundamental rights are more likely to occur. No real-life evidence suggests that pro-longed encampment is sustainable. Neither for refugees who will be forced to live in uncertainty and limbo, nor for hosting countries which will experience the effects of frustrated refugee communities.

These are formidable objections, and I sent them to Kauffman hoping for a rebuttal. On the matter of EU policy, he noted that while it is moving in the direction he proposes in his book, “it is important to note that containment is currently being offshored to Turkey and Libya, which do not maintain western standards of care, and in Libya’s case even endanger the safety of the refugees. So this is sub-optimal from a human security standpoint.” He believes that EU countries ought to be administering those camps within their borders.

As for the rest, he stated that the position of the international human rights community would benefit a minority of people needing refuge at the expense of the most needy:

I accept that containment is not ideal in terms of the lives of refugees. But many people in the world are also living lives that aren’t what I would wish for. Malnutrition, corruption, gang violence and other scourges blight their lives.

We have an obligation to keep people safe, healthy and educated, but, cruel as this sounds, not to provide them with a western-standard life. I still believe in holding out hope, which is why I recommend that countries select, by lottery, a fixed number of refugees for settlement each year. This should not be treated as a legal obligation, however.

Indeed, containment is the only way we can win acceptance among a wider range of countries for a refugee programme that pays to move people to safety in a secure way (not on flimsy rafts) in unlimited numbers. If another wave of refugees tries to reach Europe next time, it is guaranteed they will be turned away. What then? I would rather all people be safe than for a lucky few to settle while the least mobile suffer or die. The perfect is the enemy of the good.

It may be, if Steven Pinker is right, that the number of civil wars continues to decline. If numbers are moderate, I’d support the idea of allowing refugees to live and work in a society, so long as there is public support for the programme. The issue, however, is that if this comes to mimic a western life, large numbers of others will arrive, overwhelming the system. Perhaps a numerical cap could allow it to operate. For me, the key principle is to save an unlimited number of lives. Blurring the line between refuge and settlement poses a great danger to that principle, much as it did in World War II.

After pondering this exchange, I felt more informed about the risks and tradeoffs of a Western push for a greatly expanded system of closed camps, versus efforts to resettle more refugees in host nations. But I reached no definitive judgment on which approach would turn out better.

Adherents of the Kaufmann approach can’t be sure that deteriorating conditions in closed camps would be met with embarrassment and reform rather than the vilification of the people who are trapped inside. And those who believe the Danish Refugee Council model is best suited to today’s circumstances would do well to imagine a possible future in which exponentially more people seek refuge, whether due to rising sea levels or crop failures or a global pandemic disease or a regional or even world war. What system would best serve the world in those circumstances, and how, if at all, should the answer to that question inform the system we operate today?

What Kaufmann and Danish Refugee Council have in common is a determination to draw attention to an ongoing crisis, largely out of sight, that is costing the lives of innocents right now, even in a world with plenty of space and resources to protect them all.

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Why Did the Border Patrol Union Switch Its Position on the Wall?

Conor Friedersdorf, The Atlantic — Tue, 15 Jan 2019 12:09:49 -0500

In advocating for border security, President Donald Trump has repeatedly sought to enlist Border Patrol agents and their union, the Washington Post reports, even bringing union leaders for Border Patrol and Immigration and Customs Enforcement to the White House “to tout the wall.”

That isn’t surprising in one sense: Lots of politicians use uniformed law-enforcement officers as political props. But in another sense, it is rather strange. Typically, unions zealously oppose anything that makes the labor of their members less necessary. The Luddites smashed automated looms. The grocery-store checkers are against self-checkout kiosks. The fast-food workers don’t want touch-screen ordering.

Why would union officials representing men and women who patrol the border be in favor of a barrier intended to stop migration better than humans?

The most charitable explanation is that members of the union earnestly believe that Trump’s desired wall is in the best interest of the United States, regardless of its effect on their personal interests as laborers. That’s the impression Trump wants to create by touting their endorsement: that the men and women actually patrolling the border, with all the attendant expertise their daily work confers, believe that the sort of barrier he’s advocating for will help them achieve their mission.

Border Patrol agents are not a monolith, of course, and there are individual union members on both sides of the policy debate. In the mid-aughts, when I blogged about immigration for the Los Angeles Newspaper Group, I interviewed Border Patrol agents who literally rolled their eyes at the mention of a border wall and others who favored one.

Still, that most charitable explanation is more difficult to accept in light of something that Nick van der Kolk of the Love + Radio podcast noticed in the course of researching a story—that as recently as January 4, the website for the Border Patrol union stated, “The NBPC disagrees with wasting taxpayer money on building fences and walls along the border as a means of curtailing illegal entries into the United States.”

Below is the whole section on “border fences and walls,” as preserved on the Internet Archive before it was scrubbed sometime after the union president, Brandon Judd, visited the White House. The union is known as the NBPC, or the National Border Patrol Council. NBPS stands for National Border Patrol Strategy; the union argues that the overarching strategy needs to change. The archived website says:

The NBPC disagrees with wasting taxpayer money on building fences and walls along the border as a means of curtailing illegal entries into the United States. However, as long as we continue to operate under the current NBPS and ignore the problem that is causing illegal immigration, we realize fences and walls are essential.

Walls and fences are temporary solutions that focus on the symptom (illegal immigration) rather than the problem (employers who knowingly hire illegal aliens).

Walls and fences are only a speed bump. People who want to come to the United States to obtain employment will continue to go over, under, and around the walls and fences that are constructed.

Walls and fences will undoubtedly result in an increase in fraudulent documents and smuggling through the Ports of Entry.

Walls and fences do not solve the issue of people entering the country legally and staying beyond the date they are required to leave the country, a problem which will undoubtedly increase as more walls and fences are constructed.

The NBPC position regarding walls and fences is not due to a concern of losing our jobs if fences and walls are built. On the contrary, the NBPC realizes that walls and fences require just as much manpower to protect them. Border Patrol Agents witness what happens to walls and fences when there are not enough Border Patrol agents to protect them.

Asked about the seeming contradiction by Politico, the union leader explainedthat the old language reflected the position of bygone leadership, adding that the page was kept up for years because the union didn’t want to hide from its earlier stance. “But because it continually gets brought up,” he said, “we made the decision to take it down.”

Judd’s statement is reasonable on its face. Over time, unions change their leadership and their stances on discrete issues. Still, it is a bit harder to treat Judd’s explanation as the whole truth in light of the Associated Press’s reporting that “Judd’s support for the wall coincided with Trump’s candidacy for president. There’s no indication Judd publicly urged Congress to allot the money for a border wall between the time he was elected Border Patrol Council president in 2013 and the union’s endorsement of Trump. He did on several occasions warn lawmakers during testimony of the challenges that border patrol agents face.” When the AP asked Judd himself if he had ever recommended a border wall prior to Trump’s candidacy, he said, “I do not know. I believe I have testified 21 times, and I don’t have time to go through each hearing.”

Today Judd talks as though his membership is unified behind a border wall, touting a union survey. As The Washington Times reported:

The NBPC’s survey, of more than 600 agents in two of the Border Patrol’s busiest sectors, found … 89 percent of line agents say a “wall system in strategic locations is necessary to securing the border.” Just 7 percent disagreed.

But that language doesn’t distinguish between existing sections of wall and the wisdom of what Trump wants to build going forward. Most members of the Democratic caucus in Congress believe that a “wall system in strategic locations” is necessary—try to find a congressional Democrat to go on record calling for all walls and fencing to be torn down. The wording seems designed to get the highest possible rate of agreement, not to discern the actual position of union members on Trump’s wall.

The takeaway from all of this isn’t pro-wall or anti-wall. Neither the old language on the web site nor the new language from the dubious survey should shape one’s judgment of whether the wall is a good or bad idea.

Rather, it is a case study in the folly of treating the words of public-employee union officials as if they should carry weight in policy debates. Public-sector unions are biased by the labor interests of members and their political interests in forging strategic relationships with whoever is in power. Union officials do not tell the whole truth and nothing but the truth. Disinterested policy insight isn’t something they offer. And politicians who pretend otherwise are trying to mislead you.

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Analysis: Oversight Is the Biggest Winner of the Midterm Elections

Conor Friedersdorf, The Atlantic — Wed, 07 Nov 2018 09:59:22 -0500

Oversight is the winner of the 2018 midterms.

For two years, as the press documented suspicious activity in all realms of President Donald Trump’s life, many Americans wondered, “How corrupt is the president? How about his political allies, his business associates, his appointees, and the people who run his nonprofit foundation? Are they profiting off taxpayers or selling out the public interest?”

Special Counsel Robert Mueller afforded some hope of a partial answer. His investigation has so far ensnared Michael Cohen, George Papadopoulos, Paul Manafort, Rick Gates, and Michael Flynn, with still more indictments or guilty pleas possible before it’s concluded. But Mueller has always been focused on probing foreign interference in the 2016 election, and elected Democrats could not fully probe Trump’s other activities so long as the GOP held all of Congress and offered cover to their leader.

“For the last two years, I have implored House Republicans to help us gather the facts about the crisis of corruption in the Trump administration,” a Democratic member of the Oversight Committee recently complained, citing 64 occasions when the GOP blocked subpoenas he sought to issue.

Voters changed all that Tuesday, giving Democrats a House majority and all the committee chairmanships and oversight tools that come with it. Now what?

Oversight Committee Democrats want private emails written by Ivanka Trump, Trump Organization documents pertaining to foreign payments, documents pertaining to sexual-assault allegations against Customs and Border Patrol employees, documents pertaining to putting a citizenship question on the 2020 census, a hearing to secure testimony from Steve Bannon, documents pertaining to allegations of political retaliation against the State Department, and much, much, much more.

Democrats on the House Ways and Means Committee intend to ask the IRS to turn over Trump’s tax returns, Ari Melber reported on MSNBC Tuesday night, raising the prospect that the public will finally find out what exactly the president has been so determined to hide from us.

Other questions abound. What is the full financial relationship between Trump, his family business, and the autocrats who run the country of Saudi Arabia? What is the nature of the Trump Organization’s ties to Iran’s Revolutionary Guard? How credible are the sexual-misconduct allegations that more than 20 women made against Trump, and to how many women has he paid hush money?

At The New York Times, David Leonhardt and Ian Prasad Philbrick compiled their own list of credible corruption allegations against Trump.

Among them:

“Officials from foreign governments have realized they can curry favor with Trump by spending money at his properties. The list of governments includes Saudi Arabia, Malaysia, Bahrain, Azerbaijan, Turkey, China, India, Afghanistan and Qatar.”
“In May, an Indonesian real-estate project that involves the Trump Organization reportedly received a $500 million loan from a company owned by the Chinese government. Two days later, Trump tweeted that he was working to lift sanctions on a Chinese telecommunications firm with close ties to the government—over the objections of both Republicans and Democrats in Congress. He ultimately did lift the sanctions.”
“Trump suggested to Prime Minister Shinzo Abe of Japan during a meeting at Mar-a-Lago in February 2017 that Abe grant a coveted operating license to a casino company owned by Sheldon Adelson, who donated at least $20 million to Trump’s presidential campaign.”

There is much, much more on their list, too.

And don’t forget the list that Republicans made of the matters that they expected their Democratic rivals to probe if they retook the House.

Axios published a partial version last summer:

Trump’s tax returns

Trump-family businesses—and whether they comply with the Constitution’s emoluments clause, including the Chinese trademark grant to the Trump Organization

Trump’s dealings with Russia, including the president’s preparation for his meeting with Vladimir Putin

The payment to Stephanie Clifford, aka Stormy Daniels

James Comey’s firing

Trump’s firing of U.S. attorneys

Trump’s proposed transgender ban for the military

Treasury Secretary Steven Mnuchin’s business dealings

White House staff’s personal email use

Cabinet-secretary travel, office expenses, and other misused perks

Discussion of classified information at Mar-a-Lago

Jared Kushner’s ethics-law compliance

Dismissal of members of the EPA board of scientific counselors

The travel ban

Family-separation policy

Hurricane response in Puerto Rico

Election security and hacking attempts

White House security clearances

A serial liar heads the executive branch. The appearance of impropriety that surrounds him is unsurpassed in the post-Watergate era. And the Constitution charges Congress with checking his abuses. Republicans have disgraced themselves over the past two years by failing to probe matters as basic as what business relationships and other conflicts divide Trump’s loyalties between the country’s interests and his family’s interests as he presides over U.S. foreign policy.

Now there is an opportunity to uncover the truth. If Democrats waste it—if they fail to push hard enough or widely enough for answers, or if they overreach, indulging in rhetoric that doesn’t hold up under scrutiny to win a news cycle at the cost of their longer-term credibility—they will not deserve the show of trust that America’s voters just bestowed.

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The American Who Says He’s Been the Target of Five Air Strikes

Conor Friedersdorf, The Atlantic — Mon, 18 Jun 2018 16:19:13 -0400

He was born Darrell Lamont Phelps. He grew up in Mount Vernon, New York, moved down to the city, tried his hand at comedy, and later converted to Islam, adopting the name of Bilal Abdul Kareem. Now 46 years old, he lives in the Middle East, where he has a wife, five children, and a controversial freelance-journalism career focused on Islamist fighters in the Syrian civil war.

In his estimation, the United States government has tried to kill him five times. Last week, he won the ability to proceed with a lawsuit that could save his life. It may also constrain the president’s ability to order other Americans killed.

Nowhere have the claims of post-9/11 presidents been more radical than in the realm of extrajudicial killing. In the telling of their lawyers, the president, in his capacity as commander in chief during war, can keep a classified kill list, add names as he sees fit, then secretly kill those individuals far from any battlefield. Meanwhile, the U.S. is fighting a war bound by neither time nor geography. The most basic human right—the right to life—is weakened accordingly.

Of course, the premeditated, extrajudicial killing of U.S. citizens is contrary to the text of the Constitution, which declares in its Fifth Amendment, “No person shall be … deprived of life, liberty, or property, without due process of law.”

Yet the Obama administration killed several United States citizens in overseas drone strikes, including Anwar al-Awlaki, who was designated a lawful target by executive-branch lawyers. They declared him to be impossible to capture and engaged “in continual planning and direction of attacks” against Americans. And courts stymied efforts to challenge his death warrant and his death.

U.S. District Court Judge John Bates ruled in 2010 that the target’s father lacked legal standing to bring a suit, adding that “there are no judicially manageable standards by which courts can endeavor to assess the President’s interpretation of military intelligence and his resulting decision—based on that intelligence—whether to use military force against a terrorist target overseas … Nor are there judicially manageable standards by which courts may determine the nature and magnitude of the national security threat posed by a particular individual.”

As Jameel Jaffer of the ACLU warned at the time, “It’s worth remembering that the power that the court invests in the president today will be available not just in this case but in future cases, and not just to the current president but to every future president.”

The U.S. government succeeded in killing al-Awlaki the following year as he ate breakfast in Yemen. Another lawsuit was then filed to challenge the killing’s legality.

In a 41-page opinion, federal Judge Rosemary M. Collyer “ruled that courts should hesitate before deciding to hold a government official personally responsible for violating a citizen’s constitutional rights in the context of a wartime action,” Charlie Savage reported in The New York Times, adding that the ruling suggested U.S. federal courts have “no role to play, before or after, in reviewing the legality of government decisions to kill citizens whom officials deem to be terrorists in overseas wartime operations, even away from ‘hot’ battlefields.”

Civil libertarians kept objecting.

The Constitution affords extraordinary protection to citizens accused of treason, requiring two witnesses to the same overt act to secure a conviction. Yet courts were allowing presidents of the United States to kill citizens in secret without due process far from any battlefield merely by dubbing them terrorists?

Kareem’s case is a bit different. The U.S. government has neither publicly asserted that he is a terrorist nor acknowledged if he is, in fact, on a kill list. Rather, Kareem assumes that the government is trying to kill him because he was nearly killed on five different occasions. Collyer, once again presiding over a high-profile targeted killing case, summarized the facts as he presented them:

In June 2016, Mr. Kareem was at the location of four different aerial attacks. The first and fourth incidents involved strikes to the OGN office in Idlib City when Mr. Kareem was inside the office. The second attack occurred in the town of Hariyataan while Mr. Kareem was there conducting an interview. The strike hit the exact location where Mr. Kareem was setting up for the interview, but at the time of the strike he had climbed a nearby hill to “view destroyed homes a street away.”

The third attack occurred when the vehicle in which Mr. Kareem and his staff were traveling was “struck and destroyed by a drone-launched Hellfire missile.” At the time of the strike, Mr. Kareem was sitting in a different, nearby vehicle which was “hurled into the air by the force of the blast” and “flipped upside down.” In August 2016, Mr. Kareem was again the victim of an attack when he was at the Kulliyatul Midfa‘iyyah (Artillery College) to film. He and his coworkers were in his car “when there was a huge blast only yards away from the car.” The occupants survived, but all were hit by shrapnel from the blast.

As a result of these five near-miss experiences in a three-month period, Mr. Kareem alleges upon information and belief that he was the target and that his name is included on the United States Kill List.

Kareem believes that because of the people with whom he was in contact while reporting on the Syrian civil war, the United States erroneously concluded that he is a terrorist. In essence, he sued in hopes of going to court, clearing his name, and getting an injunction to stop his own extrajudicial killing.

The U.S. government countered that he should not get his day in court—that a U.S. citizen who narrowly escapes repeated attempts on his life, who reasonably concludes his government was behind those attempts, and who asserts he is being hunted based on a terrible mistake has no recourse in the judicial system.

While moving to dismiss, the Trump administration argued that the plaintiff lacks standing, that the case raises nonjusticiable “political questions,” and that he has not “pled sufficient facts to establish that the alleged unlawful actions have even occurred.” They pointed out that he was reporting in a very dangerous place. Maybe he just happened to have a lot of brushes with death. Maybe a party to the conflict other than the U.S. was trying to kill him. Who could say for sure?

Of course, they could say.

If the U.S. government were less secretive, or believed it had an affirmative duty to inform an American while putting him on a list of people to be executed rather than keeping such a matter secret, there would be no need for speculation.

Ultimately, the judge ruled that Kareem met the standard required to bring his case and adjudicate it on the merits rather than having it dismissed like prior cases. “Mr. Kareem does not seek a ruling that a strike by the U.S. military was mistaken or improper,” the ruling states. “He seeks his birthright instead: a timely assertion of his due process rights under the Constitution to be heard before he might be included on the Kill List and his First Amendment rights to free speech before he might be targeted for lethal action due to his profession.”

Noting that “two of the attacks involved his place of work, one involved his own vehicle, one involved a work vehicle in which he had been traveling immediately before, and one hit a location from which he had just walked away,” the judge ruled, “while it is plausible that Mr. Kareem is not being targeted by the U.S., it is also plausible that Mr. Kareem’s multiple near-miss incidents were caused by Defendants’ decision to include him on the Kill List and were, therefore, caused by Defendants’ actions. Probability is not the standard on a motion to dismiss.”

She reasoned that Kareem “is not in U.S. custody and, if targeted because he is on the Kill List, may well have been identified by means other than his name, profession, place of birth, and the like. Now that he has made it to a U.S. court, however, his constitutional rights as a citizen must be recognized.” And she concluded, “this case is brought by a U.S. citizen who seeks to interpose accurate personal information concerning his profession and activities into specific targeting decisions. These are weighty matters of law and fact but constitutional questions are the bread and butter of the federal judiciary.”

Kareem hasn’t yet argued his case on the merits. He is represented by, among others, the Lewis Baach Kaufmann Middlemiss attorney Tara J. Plochocki, with whom I went to high school. As his lawyers put it in response to the latest ruling, “We are gratified that the Court recognized that, as a U.S. citizen, Mr. Kareem, has the right to be heard in Court before his government can decide to kill him … allowing Mr. Kareem’s claims to proceed is a significant victory for constitutional protections and due process in the face of government claims of national security.”

I haven’t yet mentioned another plaintiff in the case. Ahmad Muaffaq Zaidan has worked for Al Jazeera for more than two decades. “In 2015, Mr. Zaidan traveled in Syria reporting on battles of the Free Syrian Army; as a result, he says that he was listed on Syrian State Television as a member of Al-Qaeda,” Collyer wrote. “Mr. Zaidan alleges on information and belief that his actions as a journalist caused him to be listed in a U.S. intelligence document called SKYNET, which identified potential terrorists based on their metadata (electronic patterns of communications, writings, social media postings, and travel). He believes that because he was identified by SKYNET as a potential terrorist, he has also been included on the Kill List, allowing him to be targeted and killed.” The Intercept first reported his story.

In court, he sought to challenge what he believes to be a secret death warrant. But Collyer ruled that the Syrian and Pakistani citizen lacks standing. “The Court assumes the accuracy of Mr. Zaidan’s allegations that he is a journalist who regularly meets with individuals tied to terrorists, that he has interviewed terrorist leaders, and that he found his name on a SKYNET list of potential terrorists,” she writes. “These facts, however, are not sufficient to allege plausibly that his name is on a U.S. Kill List; that conclusion is mere speculation … While he would not need to plead with certainty or have actual proof that his name is on a Kill List, his current allegations would require the Court to find that it is plausible that every individual whose name is on the SKYNET list of potential terrorists is also on a Kill List, for which there is no evidence.”

He’ll just have to remain in terror of being killed by the United States.

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What the New JFK Papers Will Reveal About Excessive Secrecy

Conor Friedersdorf, The Atlantic — Thu, 26 Oct 2017 09:42:55 -0400

On Thursday, the United States government is scheduled to release as many as 100,000 pages of heretofore secret documents pertaining to the 1963 assassination of President John F. Kennedy.

“The documents have either never been disclosed or been made public only in redacted form, and are due to be released by the National Archives and Records Administration under a law passed in 1992 after the Oliver Stone movie JFKstoked interest,” The New York Times reports. “The last of the documents were required to be released 25 years after the law was signed, but the incumbent president, in this case Mr. Trump, can order some withheld in response to concerns by the intelligence agencies. White House officials said he had not made up his mind whether to do so.”

The impending release has historians of JFK, the Cold War, and other contemporaneous events pondering what new insights, if any, they’ll gain from the contents of the documents.

Many members of the public are similarly focused on learning new facts.

But the release should also serve as an occasion for reflection about why U.S. government officials keep so much of the information they possess from the public for so long.

Ask yourself that question as the contents of the impending release are pored over and reported. Ask, “Did I learn anything of interest that could’ve been declassified back in 1992, or 1989, or 1975, without any likelihood of doing harm to the public?”

If so, that will be an indictment of the American approach to state secrets.

That approach should already be anathema. It has recently enabled horrors including the torture of prisoners and mass warrantless surveillance of Americans. Excessive secrecy always enables abuses, prevents accountability, and subverts representative democracy as both legislators and voters are denied relevant information.

Farther out, excessive secrecy robs us of the ability to study history and learn from its truths. Think how inferior our understanding of reality would be without the Pentagon Papers, the Church Committee report, or even Edward Snowden’s revelations.

Now consider that if the model applied to the John F. Kennedy assassination papers persists, Americans won’t find out the whole known truth about matters like the September 11 terrorist attacks, the Iraq War, torture, and drone strikes until the 2050s.

That is too long.

Perhaps Americans would demand to see more, sooner, if every release of classified documents, authorized or not, included an analysis not only of what was just made public, but also how much sooner it could have been made public without harming the public.

I’ll be perusing whatever JFK papers are released with that in mind.

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Analysis: Giving the Deep State More Leeway to Kill With Drones

Conor Friedersdorf, The Atlantic — Fri, 22 Sep 2017 15:43:05 -0400

The Trump administration believes that the targeted-killing policy of its predecessor is too restrictive, and officials intend to give what some call “the administrative state” and others call “the deep state” the ability to use lethal force with less oversight.

Expect more secretive killings by the CIA.

Former President Barack Obama presided over roughly 10 times as many lethal air strikes as George W. Bush in covert war-on-terror operations outside the war zones of Iraq and Afghanistan. The killings targeted terrorists belonging to groups like al-Qaeda and ISIS, as well as other militants that posed threats to allied regimes but not the United States.

American officials described those operations as “exceptionally surgical and precise,” as if innocent men, women, and children had nothing to fear from the strikes. But U.S. strikes in just three countries—Pakistan, Somalia, and Yemen—killed at least 384 innocent civilians and as many as 807, in addition to terrorists, according to a credible tally kept by the Bureau of Investigative Journalism. Put another way, attempts to preempt terrorism from those countries killed at least 128 times more innocents than the Boston Marathon bombing.

A surgeon as sloppy as that would be indicted.

The U.S. government has never explained how it calculates whether the cost of a given targeted killing outweighs the benefits. One wonders how many terrorists, or sworn enemies of America, are created on average when our drones kill an innocent. If the Pentagon or CIA has a working theory, official secrecy makes it impossible to vet.

On the other side of the ledger, al-Qaeda and ISIS kill far more civilians outside the United States than inside it. Some drone strikes surely spare more foreign innocents than they kill.

The trend of more secretive killings in successive presidencies will now continue. The Trump administration “is preparing to dismantle key Obama-era limits on drone strikes and commando raids outside conventional battlefields,” according to a New York Times article by Charlie Savage and Eric Schmitt, trusted bylines on this subject.

Two rule changes loom largest:

First, the targets of kill missions by the military and the C.I.A., now generally limited to high-level militants deemed to pose a “continuing and imminent threat” to Americans, would be expanded to include foot-soldier jihadists with no special skills or leadership roles. And second, proposed drone attacks and raids would no longer undergo high-level vetting.

The article adds that officials agree “they should keep in place one important constraint for such attacks: a requirement of ‘near certainty’ that no civilian bystanders will be killed.” What that constraint means in practice has long been unclear since civilian bystanders have, in fact, been killed every year it has been in place.

Given the horrific possibility of killing innocents and the risk of subsequent blowback, why would U.S. officials want to expand permissible targets from those who pose a “continuing or imminent threat” to Americans to “foot-soldier jihadists”?

Luke Hartig articulates the logic at Just Security:

Over 16 years of operations, our counterterrorism professionals have become adept at analyzing the structure of terrorist networks and targeting them based on the understanding that there are particular nodes that, if removed, could have a devastating impact on the entire network.

In many cases, those nodes may be couriers, bodyguards, or propagandists who, while lawful military targets under the laws of war, may not pose a continuing, imminent threat to U.S. persons. The new policy appears to give operators greater leeway to target according to what will be considerably more effective in disrupting and defeating terrorist networks. The challenge … will be establishing governing principles that limit the pace of strikes (as the continuing, imminent-threat standard did), since there are few countries outside of hot war zones that will give the U.S. blanket approvals for unfettered drone campaigns.

That logic is seductive but incomplete.

It may sound like common sense to target “couriers, bodyguards, or propagandists” that are assisting al-Qaeda or ISIS. But consider how many innocents U.S. drone strikes killed when ostensibly targeting only “imminent” threats. As the number of targets increase, danger to innocents will, too.
A thought experiment can make these trade-offs less abstract. Forget about Yemen, a country most Americans cannot begin to picture, and consider this truth: A propagandist for ISIS or al-Qaeda could conceivably live in the apartment or house next to yours. Or he could work next door to your child’s school. If that were the case, would you want the CIA to fire a Hellfire missile at him, knowing that neighboring buildings are sometimes struck and that innocents are sometimes killed? Americans accept “collateral damage,” including dead children, in Pakistan, Somalia, and Yemen that they would never tolerate in their own communities.
Homegrown terrorism poses a much bigger risk to Americans than terrorists in Pakistan, Somalia, or Yemen. And an ongoing drone policy that kills lots of innocents abroad increases the likelihood that people here will become radicalized against the United States, as bygone terrorists who’ve cited such grievances illustrate.
Drone strikes, especially those conducted in secret by the CIA, make it easier for elected and appointed elites to wage endless war all over the globe without securing the explicit permission of the people or even their representatives in Congress.
The institutional player that would normally push back against the Pentagon and the CIA, the State Department, is presently less able to clarify the costs of excessively blowing people up for the president, because the president has failed to properly staff Foggy Bottom and seemingly doesn’t understand its purpose.

Al-Qaeda and ISIS are dangerous abominations. Fighting them is just, even if the fight involves the inadvertent killing of innocents, but only if due care is taken to avoid those deaths whenever possible. The entire history of the CIA suggests that it is not an organization one can trust to use lethal force with sufficient prudential and moral restraint, particularly when it needn’t risk its personnel or even public scrutiny to kill.

Obama’s inadequate safeguards guaranteed that U.S. policy on targeted killing would result in more dead innocents than was necessary to achieve like results. The Trump administration is poised to make changes that are even more hubristic and that guarantee even worse outcomes. What’s needed are more checks on killing, not fewer.

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Trump Shows the Flaws of NSA Surveillance

Conor Friedersdorf, The Atlantic — Thu, 28 Jul 2016 10:52:45 -0400

PHILADELPHIA––On Wednesday, Leon Panetta, the former director of the CIA, declared on stage at the DNC that the Republican Party’s nominee is unfit for office. He was responding in part to news that Donald Trump “hoped Russian intelligence services had successfully hacked Hillary Clinton’s email, and encouraged them to publish whatever they may have stolen, essentially urging a foreign adversary to conduct cyber-espionage against a former secretary of state.”

For Panetta, that was unforgivable.

“Donald Trump today once again took Russia’s side,” he said. “He asked the Russians to interfere in American politics … It is inconceivable to me that any presidential candidate would be that irresponsible. I say this out of a firm concern for the future of my children and my grandchildren: Donald Trump cannot become our commander in chief. In an unstable world we cannot afford unstable leadership.”

His outrage is understandable––once again, Donald Trump showed that he lacks the judgement and self-discipline necessary to be a good president of the United States.

But Panetta is rather late in foreseeing the possibility of such a leader.

A few short years ago, when Edward Snowden revealed the extent of NSA surveillance on American citizens, corporations, and other institutions, NSA defenders insisted that the national security establishment can be trusted, and that civil libertarians were overly paranoid to worry that unprincipled elites would, sooner or later, exploit the era of mass surveillance to manipulate the political process.

With the Republican nominee for the presidency openly yearning for a foreign intelligence agency to hack a political rival, Trevor Timm, one of those civil libertarians, took the opportunity to issue a reminder: If elected to the presidency, “Trump would head a vast NSA apparatus he could turn on his political enemies.” This was, Timm wrote, “always the overarching concern about NSA: Even IF it’s not being abused now, the system would allow future leaders to wreak havoc.”

And the safeguards that NSA defenders always invoke?

“Hopefully if President Trump ever ordered the NSA to hack into the computer systems of domestic opponents or critics, NSA leaders would refuse,” Tim Leenoted at Vox. “But the president has the power not only to choose the NSA director but also to prosecute whistleblowers for leaking classified information. So we shouldn’t be too confident that internal resistance at the NSA would stop him.”

Jennifer Granick set forth a specific accounting of weaknesses in NSA oversight.

“The president isn’t required to inform Congress or the PCLOB if she changes Executive Order 12333,” she explained. “She is not required by law to give Congress notice of or the opportunity to review new Presidential Policy Directives affecting surveillance. The FISA Court still has no role in supervising overseas spying, nor must the president inform Congress when she initiates new overseas spying programs. When Office of Legal Counsel opinions justifying surveillance proposals are written, Congress need not be told nor given a copy. If the DOJ changes minimization procedures or FBI guidelines, it is not required to inform Congress. Classification continues to get in the way of oversight. There is no punishment for people who violate the law at a president’s behest. And whistleblowers have less, not more, reason to believe they will be protected and not prosecuted.”

I warned, long before the rise of Donald Trump, that Presidents Bush and Obama were providing all the infrastructure that a tyrant would need to perpetrate grave abuses of power. With his rise, I urged elected officials to tyrant-proof the White House before it’s too late. If the prudence of doing so wasn’t evident before, is it now, with knowledge that Trump soon won’t need the Russians to secure information about the private communications of every legislator and judge in America, but will presumably still want to hack into the communications of his rivals?

This danger would be lessened with reforms to the NSA, including a mandate to purge old data from its vast stores. At the same time, Trump’s outreach to the Russians underscores the fact that we’re now in a reality where any candidate for president, or the president herself, can seek data from foreign-intelligence agencies, data that can almost certainly give them power relative to political adversaries.

One wonders what the British Government Communication Headquarters knows about Donald Trump. Might Hillary Clinton ask one day?

So reforming the NSA isn’t enough. The prudent course, for the U.S. government, is reorienting the agency so that it spends fewer resources spying on Americans and more on helping to protect the private details of our lives from actors foreign and domestic.

And there is more to protect beyond our privacy. Says Jack Goldsmith of Harvard Law School, “Does the United States government have a well-worked out plan to ensure that our highly computerized and highly decentralized system for electing the president is protected from foreign disruption via cyber-exploitation or cyber-attack? I have no idea—but I seriously doubt it.”

Better to address these vulnerabilities before they are exploited than to invite a crisis of democracy even more alarming than a reality-TV star seeking the presidency.

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John Kerry: "We Are Not Frozen in a Nightmare"

Conor Friedersdorf, The Atlantic — Wed, 29 Jun 2016 09:48:19 -0400

Amid tumult in world affairs, with a deadly attack on an airport in Istanbul, Turkey, EU countries grappling with Britain’s impending exit, and an ongoing war against ISIS, Secretary of State John Kerry sought to reassure an Aspen audience Tuesday that “the world is not witnessing global gridlock. We are not frozen in a nightmare. Where we are engaged with a clear strategy, using our power thoughtfully, we are making progress, most places.” There are “a lot of Cassandras around,” he said, but “I don't believe the world ahead is only defined by turmoil and strife.”

Kerry was speaking at the Aspen Ideas Festival, co-hosted by the Aspen Institute and The Atlantic. In recent days, he has shuttled between European capitals, touching down in Rome, London, and Brussels, hoping to ensure that “nobody loses their head, nobody goes off half-cocked, people don’t start ginning up scattered-brained or revengeful premises” while negotiating Britain’s secession from the continent.

He declared Tuesday that the first challenge that the United States needs to confront is “countering non-state violent actors." The second most important challenge, in his view, is “imminent climate change,” and the third is a “global crisis of governance” that requires leaders to fight corruption and make hard decisions.

In short order, Kerry alluded to geopolitical challenges in Iraq, Syria, Libya, Afghanistan, and Nigeria, among other places. "The United States of America is more engaged in more places with greater impact today than at any time in American history,” he declared. “And that is simply documentable and undeniable."

In Aspen, that was an applause line. And it is in harmony with the foreign policy vision articulated by Hillary Clinton, the Democratic nominee, across many years. But it is hard to imagine a Bernie Sanders or Donald Trump crowd applauding a proponent of waging wars and other aggressive geopolitical interventions across Europe, the Middle East, North Africa, and beyond.

Later in Kerry’s remarks, he harkened back to American resolve and triumph during the Berlin airlift, and suggested that the United States ought to be similarly resolved to intervene on behalf of whatever state is targeted next by terrorists or extremists. If there is anything left in Kerry's worldview of the young man who came home from Vietnam disgusted with U.S. interventionism, it wasn’t evident Tuesday.

For Kerry, the Obama administration’s geopolitical engagement and even its interventions have been characterized more by success than by failure. Last year, he said, the Obama administration helped to contain ISIS; next it assembled a coalition of 66 countries to fight the terrorist group; and now, “we are moving methodically and authoritatively to destroy them." Meanwhile, the secretary of state added, “We are also diligently working to destroy the narrative that they are successful."

On Syria, he declared, “You can never have peace when Assad is still there."

And with regard to Iran, he defended the nuclear deal negotiated by the Obama Administration as a victory that will prevent the country from building a nuclear weapon.

After the speeches, while being interviewed on stage by Walter Isaacson, president of the Aspen Institute, he took a question from my colleague Jeffrey Goldberg, who pressed the secretary of state on why the Obama administration is allowing Boeing to sell airplanes to Iran even as it continues to designate the country as a sponsor of terrorism, particularly given its history of passing weapons on to Hezbollah.

Kerry responded that the Obama administration is trying to “thread a needle” that is “a very difficult needle to thread.” On one hand, he said, it wants to hold Iran accountable. At the same time, he said, “60 percent of people in Iran are under the age of 30,” and the Obama administration considers Iran their country and wants to lay groundwork for good relations in the future. “Now, it's complex, folks,” he said. “Issues in foreign policy ... if they lend themselves to black and white, simple lines, you draw it, you're often wrong." He added that since Airbus is allowed to sell airplanes to Iran, prohibiting Boeing from competing on those deals would hurt American workers without making any effective difference in what Iran buys.

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The Senate's Anti-Encryption Bill Could Become a Problem

Conor Friedersdorf, The Atlantic — Thu, 14 Apr 2016 15:54:46 -0400

A generation ago—after America’s spy agencies were exposed as perpetrators of massive civil-rights violations, abuses of power, and misdeeds abroad—oversight committees were created to protect liberal democracy from the national security state. Senators Dianne Feinstein and Richard Burr now sit on one of those committees. And they are not just shirking their core duty, they are aggressively undermining it.

Rather than working to protect Americans from the prying eyes of government in this golden age for surveillance, when their every movement is tracked by the smart phones in their pockets, license plate readers on their roads, and supercomputers at NSA headquarters, they are pushing a new bill that would do more than any law in the country’s history to undermine privacy for virtually every American.

In effect, it would outlaw end-to-end cryptography. “The bill would make illegal the sort of user-controlled encryption that’s in every modern iPhone, in all billion devices that run Whatsapp’s messaging service, and dozens of other products,”Wired explains. There would be no easy way to email or text securely with your boyfriend or girlfriend, your best friend, your spouse, your boss, your doctor, or your psychiatrist.

And you’d never quite know who was spying on you, because the backdoor that the legislation effectively mandates could be exploited by any hacker savvy enough to open it.

The legislation is so poorly written that it would render many common products used without any ill-effect illegal, Isaac Potoczny-Jones explains. “It’s likely that these Senate members simply don’t realize that the technologies to make data unintelligible to anyone, including the government, are 1) The cornerstone of cybersecurity as we know it, and 2) already widely available, and have been for many years,” he writes.

A technology expert at The New America Foundation, the centrist Washington, D.C., policy think-tank, told Wired, “In my nearly 20 years of work in tech policy, this is easily the most ludicrous, dangerous, technically illiterate proposal I’ve ever seen.”

Senator Ron Wyden, another member of the Senate intelligence committee, promised that if the legislation reaches the Senate floor he will filibuster it. “This would effectively outlaw Americans from protecting themselves,” he said in a statement. “It would ban the strongest types of encryption and undermine the foundation of cybersecurity for millions of Americans. This flawed bill would leave Americans more vulnerable to stalkers, identity thieves, foreign hackers, and criminals.” Meanwhile, he added, “it will not make us safer from terrorists or other threats.”

That’s because a terrorist intent on using, say, a messaging app with end-to-end encryption need not rely on what’s built in the United States by above-board tech-firms. If end-to-end encryption is outlawed, the law-abiding will lose access. Outlaws won’t.

Sometimes, I give thanks for the limits on how longstanding technology can be limited. Consider the humble piece of paper. Terrorists can map out an entire operation on the stuff, then burn up all the evidence, leaving no more than a smoldering ash heap for the FBI, even if they have a warrant! Imagine if it was technologically viable to produce paper than could neither be burned nor shredded, and the federal government imposed that mandate on the nation’s paper-makers. Suddenly, it would be marginally harder for terrorists to plan operations and harder for various other criminals to destroy evidence of their misdeeds, too.

The literal paper-trail would be preserved!

Meanwhile, every American with a diary or a stack of old bills they’d once have taken to the shredder to thwart identity thieves would be unable to protect themselves. And determined terrorists could still get burnable paper made abroad.

The analogy is imperfect in part because it radically understates the privacy threat posed by the Burr-Feinstein bill. In this hyper-connected era, your unencrypted data can be sucked up in mass quantities and stored permanently by any criminal syndicate or foreign government with a sufficiently sophisticated spy arm.

Consider how these bad actors might see high-profile targets who aren’t themselves protected government officials, like Chelsea Clinton and Donald Trump Jr.

Would you prefer they carry smart phones with end-to-end encryption that protects their every text message and geolocation-enabled photo from the hands of Russia’s intelligence agency and black-hat hackers? Or would you prefer a world where all technology has a backdoor, where the vulnerability created for law enforcement is exploited by bad actors, and where the next president of the United States receives a blackmail message urging him or her to take a given action or else see some aspect of his or her child’s private life splashed on the Internet?

There are hundreds of members of Congress. Most have spouses and children. How much power awaits hackers who can read their private communications?

America has lots of tech-clueless CEOs, too.

Are we better off as a nation if the consumer smart phones they use are maximally secure or sufficiently weakened that Chinese government hackers can pilfer their secrets?

And that’s without even considering the potential abuse by the U.S. government that this legislation would enable. Apparently Donald Trump’s rise hasn’t spooked the senators.

What’s especially odd about this Orwellian proposal by Feinstein and Burr is its arrival at a moment when even many fervent supporters of expanding government powers to protect national security are beginning the wisdom of that approach. “There is no consensus in the intelligence community that a requirement to force manufacturers to open encryption is the correct policy,” Gary Shapiro, president of the Consumer Technology Association, points out. “Intelligence community leaders such as former NSA and CIA director Michael Hayden, former Homeland Security director Michael Chertoff and former NSA director Mike McConnell have spoken out against similar proposals.”

Meanwhile, as the Electronic Frontier Foundation notes, “Millions of Americans suffer the loss, theft, or compromise of intimate communications, trade secrets, and identities each year. We desperately need more security, not less.” Unfortunately, the intelligence committees are largely composed of legislators who don’t understand cybersecurity, have little regard for the privacy of Americans, and are more interested in empowering the deep state than protecting citizens. They are a disgrace to the founding spirit of the oversight committees they’ve coopted.

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Explosions Hit Brussels Airport and Metro Station, Killing at Least 26

Conor Friedersdorf, Krishnadev Calamur, and J. Weston Phippen, The Atlantic — Tue, 22 Mar 2016 10:21:48 -0400

Explosions have hit Brussels airport and a main metro station, Belgian officials say, and, according to news reports and the transit agency, at least 26 people have been killed.

“What we feared has happened,” Belgian Prime Minister Charles Michel said during a televised news conference. “We were hit by blind attacks.”

There were two explosions at Zaventem airport at about 8 a.m. local time (3 a.m. ET) near the check-in desks at the departure terminal. VTM, a Belgian broadcaster, reported at least 11 people were killed at the airport. VRT, another broadcaster, put the toll at the airport at 14 people killed. STIB-MIVB, the Brussels Metro operator, said 15 people were killed at Maelbeek and 55 wounded. But Yvan Mayeur, the Brussels mayor, told a news conference that at least 20 people had been killed at the station, but it is “too early to say exactly what the number of victims will be.” More than 100 people were injured there, he said. The numbers are provisional and are likely to change.

Michel said the airport explosion was caused by a suicide bomber. At the news conference, Fredere Van Leeuw, the Belgian federal prosecutor, said the explosions were terrorist attacks. No one has claimed responsibility for the attacks, but as my colleague David Graham has previously noted, Belgium has become Europe’s hub for Islamist radicals.

In response, Zaventem airport was closed, as was all of the city’s public transportation, and main train stations. Belgium raised its terror-threat level from three to four, the maximum level, and Van Leeuw’s office said federal prosecutor’s anti-terrorism unit has opened a criminal investigation into the explosions. Additionally, the prime minister asked residents of Brussels were asked to stay in place.

Pour le moment, nous demandons à la population d'éviter tout déplacement. Call centre de centre de crise : 1771.
— Charles Michel (@CharlesMichel) March 22, 2016

Steve Clemons, the editor of Atlantic Live, was in Brussels at the time of the attacks, and has been tweeting his observations—and interviewing witnesses—as he leaves the city for Amsterdam.

Witness at #Brussels airport bombing. Part 3 pic.twitter.com/0VyFYJArbI
— Steve Clemons (@SCClemons) March 22, 2016

Cities across Europe tightened security in the wake of the attacks.

In Britain and in France, officials deployed thousands more police across cities.

“As a precaution forces across the UK have increased policing presence at key locations, including transports hubs, to protect the public, and provide reassurance,” said Mark Rowley, the top British metropolitan police officer in charge of special operations.

Britain was on alert for a follow-up attack, and left its terrorism warning level at severe, deeming London one of the most likely areas for potential attack. Rowley said the additional officers will “carry out highly visible patrols” around the city and its transport system to deter a follow up.

France deployed an additional 1,600 officers to reinforce security at its borders. Interior Minister Bernard Cazeneuve said another 400 officers will patrol Paris, and military will guard public transport areas.

Condemnation of the attacks was swift. Statements were issued by Donald Tusk, the president of the European council, who said the attacks “mark another low by the terrorists.” Margaritis Schinas, a spokesman for the European Commission, said: “We stand together, united against terror and in full solidarity with the people of Brussels.”

In Britain and in France, officials deployed thousands more police across cities.

I am shocked and concerned by the events in Brussels. We will do everything we can to help.
— David Cameron (@David_Cameron) March 22, 2016

French President Francois Hollande, who just days ago had reveled in the capture in Belgium of the man who planned the Paris attacks last November, said Tuesday that though the attack was on Brussels, all of Europe had been hit.

J’exprime mon entière solidarité avec le peuple belge. À travers les attentats de Bruxelles, c’est toute l’Europe qui est frappée.
— François Hollande (@fhollande) March 22, 2016

Anne Hidalgo, the Paris mayor, said the Eiffel Tower would be illuminated Tuesday night with the Belgian flag.

NATO called the attack “cowardly,” Russian President Vladimir Putin called the attacks “barbaric,” and German Chancellor Angela Merkel’s spokesman called it “vile.” President Obama, who is visiting Cuba, was apprised of the attacks, a White House official said. The official said: “U.S. officials have been and will continue to be in close contact with their Belgian counterparts, and we will provide additional information and updates as we are able to do so.”

The U.S. Embassy in Brussels asked American citizens to shelter in place and avoid public transportation.

Donald Trump, the Republican presidential front-runner, told Fox News:

"We can't have these attacks anymore...It's time to be smart." – @realDonaldTrump reacts to #Brussels terror attackshttps://t.co/WKDL7FmTkd
— Fox News (@FoxNews) March 22, 2016

He also tweeted:

Do you all remember how beautiful and safe a place Brussels was. Not anymore, it is from a different world! U.S. must be vigilant and smart!
— Donald J. Trump (@realDonaldTrump) March 22, 2016

Senator Ted Cruz, Trump’s main rival on the Republican side, reacted in a similar fashion.

Our hearts break for the men and women of Brussels this morning: https://t.co/Z3zl8ArMCG
— Ted Cruz (@tedcruz) March 22, 2016

John Kasich, the Ohio governor and Republican presidential candidate, said hewas “sickened” by the news.

Tuesday’s attacks come four days after the capture of Salah Abdeslam, the accused logistical planner of the Paris attacks, in Brussels. Belgium’s capital has been on edge since the November 15, 2015, attack that killed 130 people in Paris, an operation organized by the Islamic State on Belgian soil. Belgian officials warned their country’s citizens of a serious, imminent threat of terrorism, and later cancelled the New Year’s Eve fireworks in the capital. Those fears now appear realized.

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The Obama Administration's Drone-Strike Dissembling

Conor Friedersdorf, The Atlantic — Mon, 14 Mar 2016 15:51:05 -0400

As a frequent critic of the Obama administration’s foreign policy, I found Jeffrey Goldberg’s excellent interview a useful reminder that, for all my misgivings aboutthe Iraq War hawks that Barack Obama elevated, his persecution of whistleblowers, his decision to assassinate an American without due process, and his flagrantly illegal warmaking in Libya, there’s a strong case that he was a better choice than any of his rivals. Many Republicans were pushing him to be more hawkish, including John McCain and Mitt Romney, either of whom might well have started a war against Iran by now and wouldn’t have been better on the other issues I’ve listed.

At least Obama resisted one of the two conflicts that his hawkish advisers, Hillary Clinton and John Kerry, urged him to enter. “There’s a playbook in Washington that presidents are supposed to follow that comes out of the foreign-policy establishment,” Obama said. “The playbook prescribes responses to different events, and these responses tend to be militarized. Where America is directly threatened, the playbook works. But the playbook can also be a trap that can lead to bad decisions.”

I’ll be sad to see that attitude gone from the White House.

But even as I credit Obama for resisting the impulse to embroil the U.S. more fully in Syria, the Ukraine, and other hot spots where interventionists urged him to intervene, one of the claims put forth by a high-ranking source in the article needs rebutting.

Here’s the relevant passage:

Some critics argue he should have had a few second thoughts about what they see as the overuse of drones. But John Brennan, Obama’s CIA director, told me recently that he and the president “have similar views. One of them is that sometimes you have to take a life to save even more lives. We have a similar view of just-war theory. The president requires near-certainty of no collateral damage. But if he believes it is necessary to act, he doesn’t hesitate.”

The notion that the Obama Administration has carried out drone strikes only when there is “near-certainty of no collateral damage” is easily disproved propaganda. America hasn’t killed a handful of innocents or a few dozen in the last 8 years. Credible, independent attempts to determine how many civilians the Obama administration has killed arrived at numbers in the hundreds or low thousands. And there is good reason to believe that they undercount the civilians killed.

Why the disparity between what American officials claim and what others report?The New York Times provided a first clue back in 2012, when it reported that the U.S. “in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent." The same sort of dishonest standard was described last last year when a whistleblower provided The Intercept with a cache of documents detailing the U.S. military’s drone killings in Afghanistan, Yemen, and Somalia. One campaign, Operation Haymaker, took place in northeastern Afghanistan.

“Between January 2012 and February 2013,” The Intercept reported, “U.S. special operations airstrikes killed more than 200 people. Of those, only 35 were the intended targets. During one five-month period of the operation, according to the documents, nearly 90 percent of the people killed in airstrikes were not the intended targets.” That’s one campaign of many in just one country where drone killings happen.

Said the source of the documents:“Anyone caught in the vicinity is guilty by association. When a drone strike kills more than one person, there is no guarantee that those persons deserved their fate … So it’s a phenomenal gamble.”

The Intercept continued:

The documents show that the military designated people it killed in targeted strikes as EKIA—“enemy killed in action”—even if they were not the intended targets of the strike. Unless evidence posthumously emerged to prove the males killed were not terrorists or “unlawful enemy combatants,” EKIA remained their designation, according to the source. That process, he said, “is insane. But we’ve made ourselves comfortable with that. The intelligence community, JSOC, the CIA, and everybody that helps support and prop up these programs, they’re comfortable with that idea.”

The source described official U.S. government statements minimizing the number of civilian casualties inflicted by drone strikes as “exaggerating at best, if not outright lies.”

Numerous reports during the Obama Administration––including at least one by a former drone pilot––describe a pattern in which a missile fired from a U.S. drone hits an area, bystanders rush to the scene to help the wounded, and the drone, still overhead, kills the rescuers. On other occasions, drones have struck at funerals of drone-strike victims. It is hard to believe the threshold of “near certainty” is crossed in either kind of strike. Credible reports of civilian casualtiesare common.

In 2014, The Guardian provided even more reason to doubt Brennan:

A new analysis of the data available to the public about drone strikes, conducted by the human-rights group Reprieve, indicates that even when operators target specific individuals – the most focused effort of what Barack Obama calls “targeted killing” – they kill vastly more people than their targets, often needing to strike multiple times. Attempts to kill 41 men resulted in the deaths of an estimated 1,147 people, as of 24 November.

Reprieve, sifting through reports compiled by the Bureau of Investigative Journalism, examined cases in which specific people were targeted by drones multiple times. Their data, shared with the Guardian, raises questions about the accuracy of US intelligence guiding strikes that US officials describe using words like “clinical” and “precise.”

And last year, Scott Shane of the New York Times provided a more accurate assessment of U.S. drone strikes than any Obama has offered. “Every independent investigation of the strikes has found far more civilian casualties than administration officials admit,” he wrote. “Gradually, it has become clear that when operators in Nevada fire missiles into remote tribal territories on the other side of the world, they often do not know who they are killing, but are making an imperfect best guess.”

The article continued:

The president’s announcement on Thursday that a January strike on Al Qaeda in Pakistan had killed two Western hostages, and that it took many weeks to confirm their deaths, bolstered the assessments of the program’s harshest outside critics. The dark picture was compounded by the additional disclosure that two American members of Al Qaeda were killed in strikes that same month, but neither had been identified in advance and deliberately targeted. In all, it was a devastating acknowledgment for Mr. Obama, who had hoped to pioneer a new, more discriminating kind of warfare.

Whether the episode might bring a long-delayed public reckoning about targeted killings, long hidden by classification rules, remained uncertain.

It is now clear that those strikes spurred no reckoning, and that Brennan continues to claim adherence to a lofty, admirable standard that U.S. drone strikes don’t, in fact, meet, unless one defines “no collateral damage” so narrowly that is has no meaning. It’s worth recalling that this isn’t the first time that Brennan has made fantastical, widely debunked claims about the number of innocents that U.S. drones kill. If I presided over the killing of dozens if not scores or hundreds of innocents, many outside war zones, in circumstances that some independent observers characterize as war crimes, I might be less than forthright, too.

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The Rise of Federal Surveillance Drones in the U.S.

Conor Friedersdorf, The Atlantic — Thu, 10 Mar 2016 16:15:17 -0500

A little more than a decade ago the border patrol started using surveillance drones. The technology and the mission were a perfect match, and few did any worrying—almost no one objects to closely monitoring America’s southern border.

The belief that the federal government was using drones to conduct domestic surveillance inside the United States, though, could get a person labeled a paranoid lunatic as recently as 2012. Yet by then, the border patrol had lent its drones to other agencies 700 times. And the Department of Homeland Security was actively developing a domestic drone fleet, egged on by at least 60 members of Congress. “This bipartisan caucus, together with its allies in the drone industry, has been promoting UAV use at home and abroad through drone fairs on Capitol Hill, new legislation and drone-favored budgets,” the Center for International Policy reported.

In 2013, Senator Dianne Feinstein, a staunch defender of NSA surveillance, declared that drones are “the biggest threat to privacy in society today.” Under her questioning, the FBI admitted to using surveillance drones in “a very minimal way.”

What did Feinstein know that the FBI wasn’t telling us? Perhaps that the federal government gave local police departments $1.2 million to spend on drones that year.

In 2015, NBC News reported that the Bureau of Alcohol, Tobacco, and Firearms spent $600,000 on six drones, “then never flew them because of technical problems with flight time, maneuverability and more.” Has ATF figured them out yet?

AP reported that the DEA was using drones domestically, too.

That brings us to 2016.

On Wednesday, USA Today reported that the Pentagon “has deployed drones to spy over U.S. territory for non-military missions over the past decade,” citing a report by a Pentagon inspector general who declared that the flights are “rare and lawful.”

That’s the narrative that officials speaking on behalf of the federal government keep conveying––that the instances of aerial surveillance over U.S. soil are safe, legal, and rare.

But it isn’t so.

There are too many federal, state, and local agencies with too many surveillance aircraft to pretend any longer that aerial spying is rare. There is too little oversight to presume all these government entities are acting legally. As for safety, Americans know neither what sort of aerial-surveillance data has been archived nor how secure it is. And security researcher Nils Rodday learned that he could successfully hack into professional drones and take over their operations on a $40 budget.

The ACLU and Electronic Frontier Foundation are trying to draw attention to these issues; the Department of Justice has issued its own guidelines on domestic drone use. But there’s still not much public discussion, debate, or oversight of domestic drone surveillance.

My sense of public opinion is that Americans don’t particularly want to be spied on from above. By keeping various aerial-surveillance programs hidden or very quiet, the government will continue to achieve a rapid fait accompli unless it is stopped.

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Will Conservatives Mount a Third-Party Challenge If Trump Is the Nominee?

Conor Friedersdorf, The Atlantic — Thu, 25 Feb 2016 11:03:21 -0500

Last summer, Donald Trump scared movement conservatives and establishment Republicans—not because they thought that he would actually win the Republican nomination, but because they feared that, in defeat, he would refuse to support the Republican nominee. Back then, it was easy to imagine a general election pitting a Bush against a Clinton—and a third-party bid by an eccentric billionaire throwing the election to Hillary, just as Ross Perot’s bid arguably tipped the 1992 election to Bill.

Trump ultimately assuaged those fears, pledging last September to support the winner of the Republican primary process whether it turned out to be him or one of his rivals. Today, that bet seems smart. Trump appears most likely to be thevictor, having won three primaries while maintaining leads in nearly all of the rest. Still, I wonder if it occurred to Trump at the time that the movement conservatives and Republicans who pressed him to forswear a third-party bid made no commitment of their own to support him if he won the nomination.Would conservatives dare to greet a Trump victory with their own third-party challenge?

That once-unthinkable scenario would have to begin with high-profile movement conservatives pledging to break with the Republican Party if it nominates Donald Trump.

Influential pundit Erick Erickson is the latest to do so.

Back in September, he wrote, “I would vote for Donald Trump over John Kasich. But as Kasich will not be the Republican nominee for President, I think it is also worth reiterating that I will vote third party before I’d vote for a ticket that has Kasich as Vice President. A Republican who believes Jesus told him to expand Obamacare is not fit for either the Presidency or to be one heart beat away from the Presidency.”

How times have changed!

Here’s an excerpt from his Monday column, “I Will Not Vote For Trump Ever.”

A lot of Republicans are going to start claiming that we must rally to the nominee, no matter who he is. I know for certain a large number of Trump supporters will not rally to a Cuban. I will not rally to Trump. If Trump is able to get the nomination, the Republican Party will cease to be the party in which I served as an elected official. It will not deserve my support and will not get it if it chooses to nominate a pro-abortion liberal masquerading as a conservative, who preys on nationalistic, tribal tendencies and has an army of white supremacists online as his loudest cheerleaders.

Erickson is hardly alone. Bill Kristol has mused about starting a new political party if Donald Trump wins the Republican nomination. It’s almost impossible to imagine George Will or Kevin Williamson supporting Trump. Glenn Beck declared, “I know that I won't go to the polls. I won't vote for Hillary Clinton and I won't vote for Donald Trump. I just won't. And I know a lot of people that feel that way.”

Here’s Peter Wehner back in January:

Beginning with Ronald Reagan, I have voted Republican in every presidential election since I first became eligible to vote in 1980. I worked in the Reagan and George H. W. Bush administrations and in the White House for George W. Bush as a speechwriter and adviser. I have also worked for Republican presidential campaigns, although not this time around. Despite this history, and in important ways because of it, I will not vote for Donald Trump if he wins the Republican nomination.

Wehner added:

I should add that neither could I vote in good conscience for Hillary Clinton or any of the other Democrats running for president, since they oppose many of the things I have stood for in my career as a conservative — and, in the case of Mrs. Clinton, because I consider her an ethical wreck. If Mr. Trump and Mrs. Clinton were the Republican and Democratic nominees, I would prefer to vote for a responsible third-party alternative; absent that option, I would simply not cast a ballot for president.

Joe Scarborough declared on Morning Joe, “I think Haley Barbour and a lot of the Republican leaders would much rather Hillary Clinton be President of the United States than have Donald Trump represent them as a Republican.” And it is hard to imagine any die-hard Bush loyalists supporting Trump after his attacks on Jeb and George. Indeed, it is easy to imagine them delighting in denying Trump the White House.

Putting them altogether, that’s quite a diverse anti-Trump coalition.

There are, of course, significant obstacles to an anti-Trump insurgency, like the difficulty of getting on the ballots of many states as an independent. Here’s the blogger Allahpundit injecting additional skeptical analysis:

If conservatives stay home and Trump wins, it’s proof positive that Trumpism is a winner for the new Republican Party — at least until Trump passes from the political scene and a less charismatic character who can’t get on television anytime he or she wants inherits the leadership. Conservatives would be left in the wilderness, roughly where Trump’s white working-class base has been for the past few decades.

If conservatives stay home and Trump loses, what then? They’ll be blamed by Trumpists for his defeat, not unfairly. That rift will run very deep. And even if the rift heals, all sorts of Republican pols and aspiring pols are studying Trump’s playbook right now to see how his coalition might be reassembled in the next few elections. People like to joke that Trump’s success means we’re destined to see many more celebrities run for office, which is probably true but does a disservice to Trump in suggesting that his victories are purely a function of his fame. (They aren’t.)

What we’re certainly going to see more of, though, is Trump-style populist center-right candidacies — protectionist, nationalistic, Jacksonian on foreign policy. Maybe what we’ll find is that the Reagan revolution and the last few years of tea-party orthodoxy were just a phase in which the GOP was transitioning back to an ideologically broader party, a la the days when Nelson Rockefeller and Barry Goldwater were both contenders to land at the top of the ticket, except this new party may be even ideologically messier than the old one. Whatever happens, it’s hard to imagine Trumpists returning to their not-even-a-partner role in the GOP coalition. Why should they, after this year’s success?

Many Republicans may see things that way. But a third-party run does not require unanimity among Trump skeptics. It only requires enough conservatives to launch a campaign. And it seems to me that there are a lot of conservatives who earnestly believe that they have no reason to support a Republican Party headed by Trump. In fact, they’ve spent the last eight years convincing themselves that rebelling against non-conservative Republican candidates is among the noblest of fights.

If a candidate who was clearly more conservative than Trump ran, he or she might attract support even from folks who now feel that a third-party bid is foolish strategy. Other factors that could help bring about such a challenge include the following:

In some states, a right-of-center electorate divided between Trump and a conservative challenger could turn out more total voters who’d support down-ballot Republicans than a Trump vs. Clinton race where conservatives stayed home.
If Trump wins, there will be a lot of establishment campaign professionals who’d benefit financially from a third-party challenge by a movement conservative (and who wouldn’t fear being branded disloyal for staffing one).
Many neoconservatives would prefer an Israel-loving, interventionist hawk like Hillary Clinton to Donald Trump, but also value their place in the conservative movement. Supporting a third-party challenge by a hawkish conservative would be much less disruptive to their network of alliances than openly supporting a hawkish Democrat, even if the likely outcome is the same. A third-party challenger could conceivably draw support both from coy Hillary Clinton Republicans and earnest haters of Clinton and Trump.
Right now, we’re seeing Trump in a Republican primary. He is more deferential to the conservative movement now than he would be in a general election—and he’s already breaking with party orthodoxy on health care, entitlements, Planned Parenthood, and foreign policy. I don’t know exactly what he’d say in a general election, but at some point, the faction of the GOP that’s spent 8 years obsessed with ideological purity will rebel. Like Erickson, they'll argue that it’s better to go down fighting as conservatives than to compromise their values. Intransigence is consistent enough with their preexisting beliefs and past behavior to make me believe they’d abandon the GOP for the right candidate.
There would appear to be ample money for an anti-Trump third-party challenge. Earlier this month, The Hill reported that the Koch brothers want to stop the billionaire. Last November, it published an article about other GOP donors:

In conversations over the past month, GOP establishment donors have confided to The Hill that for the first time in recent memory, they find themselves contemplating not supporting a Republican nominee for president. Most, however, still believe that Trump will flame out before they have to face that decision. The subject of Trump came up at a recent Beverly Hills lunch hosted by former U.S. Ambassador to the European Union Rockwell Schnabel. Seated around the table in the private dining room of the Hotel Bel-Air were several of the West Coast's most powerful Republican donors, including Ronald Spogli, the venture capitalist and former ambassador to Italy under President George W. Bush; his business partner Bradford Freeman; and Richard Riordan.

* * *

In December, GOP campaign veteran Dan Schnur told Politico, “It's impossible to conceive that Republican leaders would simply forfeit their party. Even without the formal party apparatus, they'd need to fly their flag behind an alternative, if only to keep the GOP brand somewhat viable for the future. Otherwise, it would be toxic for a long, long time.” It doesn’t really matter if that assessment is correct or incorrect, so long as enough powerful Republicans feel that it is correct.

I’ll stop short of predicting that a third-party insurgency will ultimately happen.

But it seems obvious that it could deny Trump the White House. And for that reason, the threat of a third-party challenge may be the conservative movement’s strongest piece of leverage over a man who seems to be thwarting them at every turn. As long as Marco Rubio or Ted Cruz could still win the nomination, a third-party plot might cause Trump to reverse his own loyalty pledge in the event he loses. But if and when Trump has the nomination clinched, I expect, at the very least, that movement conservatives will make a lot of noise about a third-party challenge. It may be their last best chance to wrest concessions from the billionaire.

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Reciprocal Drug Approval Between the FDA and Europe Surfaces in the Presidential Race

Conor Friedersdorf, The Atlantic — Fri, 18 Dec 2015 16:06:47 -0500

A couple years ago, James Joyner, a professor at the Marine Corps Command and Staff College, shared a story about how his doctor advised him to treat a cataract. “My surgeon suggested that, if I were willing to wait a couple of months and were willing to pay a couple thousand dollars out of pocket, a revolutionary new lens that had been in use in Europe for years would be approved by the FDA,” hewrote. “The expected approval didn’t come but we agreed to wait another six months. Still, no approval. Meanwhile, the cataract has gotten considerably more advanced and we’re in agreement that waiting around for the FDA no longer makes sense.”

He got the inferior lens, but he wasn’t happy about it. “The absurdity of a lens that’s in widespread use in Sweden and Germany not being available because the FDA hasn’t gotten around to it is mind boggling,” he complained. “We’re not talking about a back alley in Tijuana or Marrakesh; these are at least comparably advanced countries.” Musing that it could have as easily been a better heart valve or cancer drug, he reasoned, “Surely, pooling our combined knowledge is mutually beneficial.”

That is a major premise behind a bill to overhaul the FDA approval process that Senators Ted Cruz and Mike Lee have just introduced. Approval in a “trusted country” would give doctors and patients here the ability to use a drug or medical device.

(The bill has other provisions that are beyond the scope of this article.)

Libertarians have long theorized that pernicious incentives would cause bureaucrats to be too cautious in approving new drugs and treatments––approving a dangerous drug would cost them their career, whereas withholding a good or even lifesaving drug from the public would have no cost at all. The lost lives would be invisible.

Here’s Milton Friedman articulating the argument:

More recently, economists Daniel Klein and Alex Tabarrok studied actual FDA drug approvals.

“We believe FDA regulation of the medical industry has suppressed and delayed new drugs and devices, and has increased costs, with a net result of more morbidity and mortality,” they wrote. “A large body of academic research has investigated the FDA and with unusual consensus has reached the same conclusion.”

They advocated for reciprocity among developed countries, and cited cases like this one:

Bacterial meningitis causes swelling of the membranes covering the brain and spinal cord. In the United States the disease kills approximately 500 people a year, often within days of infection. Survivors can have permanent disabilities including paralysis and mental disabilities.

Since March seven cases of the type B strain have been diagnosed at Princeton University, with one case just last week. A vaccine exists and is available in Europe and Australia but the FDA has not permitted the type B vaccine for use in the United States. The Centers for Disease Control and Prevention, however, has lobbied the FDA and they have now received special and unusual permission to import the type B vaccine. Following the CDCs recommendation, Princeton University has agreed to administer and pay for the vaccine for any student that wants it.

It’s good that the FDA has lifted the ban on the type B vaccine but why should Americans have to wait for the FDA? Americans living in Europe or Australia can be prescribed the vaccine so why not here? I believe that Americans should have the right to be prescribed any drug that has been approved in Europe, Australia, Canada, Japan or other developed nations.

Critics of the idea cite the experience of Thalidomide, the anti-nausea medication that produced thousands of horrifying birth defects in Europe, where it was approved, but was largely held off the American market by tighter FDA regulation. And they worry that reciprocal recognition of drugs could lead to a “race to the bottom,” with drug and device makers going through the approval process in whatever country makes it easiest.

Could a desire for business tempt a foreign regulatory agency into being too lax? Risk and reward both depend in part on how many countries are deemed reciprocal. Here’s what the bill treats as “trusted” countries:

Australia, Canada, Israel, Japan, New Zealand, Switzerland, South Africa, Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the United Kingdom, Iceland, Liechtenstein, and Norway. (This list makes reciprocity seem significantly riskier than it is since for EU countries, drug and device approvals are handled by the European Medicines Agency.)

Derek Lowe worries most about Japan, but not about the safety of its approved drugs, just their usefulness:

There are a number of drugs that are available in Japan that are not available here, and that, to a very good approximation, is because they don’t really do much of anything. The Japanese authorities are strict on safety, but not so much on efficacy, so there are putative Alzheimer’s drugs on the market there that don’t actually do anything for Alzheimer’s, but primum non nocere, they at least don’t make things any worse... (I should note that it’s not like the Alzheimer’s drugs approved here, all of which are also available in Japan, do all that much good, either).

On the whole, reciprocity seems like exactly the sort of reform that a libertarian-leaning Republican ought to be sponsoring in Congress: drawing on research by respected academics to flag a problem with potentially huge costs; tweaking the system so that perverse bureaucratic incentives don’t retard medical progress; expanding the freedom of American patients and doctors; speeding the approval of drugs, which would seem to at least potentially allow for inventing more of them; and all without putting us at any more risk of dangerous drugs than people in Europe, Canada, or Japan, where most of us would fill a prescription without worry.

It’s nice to see constructive policy of this sort come from two Tea Party senators––and a bit depressing that Cruz doesn’t seem to see it as worth touting while trying to win the votes of an electorate that doesn’t value policymaking unless liberals hate it.

(Image via jordache/Shutterstock.com)

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Ben Carson Wants to Intensify the War on Drugs

Conor Friedersdorf, The Atlantic — Fri, 23 Oct 2015 16:03:42 -0400

If elected president, Ben Carson won’t just continue to wage the perennially failing War on Drugs, like all of his predecessors in both parties since Richard Nixon—he would intensify the failed policy, because ... well, better to quote him directly.

Here is the hard-to-follow reasoning he offered in an interview with Glenn Beck:

Glenn Beck: Do you continue the War on Drugs?

Ben Carson: Absolutely.

Beck: You do?

Carson: I intensify it.

Beck: Let me ask you a question. I mean, it doesn’t seem to be working now.

Carson: Yeah, well, go down to the border in Arizona like I was a few weeks ago. I mean, it’s an open highway. And the federal government isn’t doing anything to stop it.

Beck: Okay. Legalize marijuana?

Carson: I disagree with it.

The implication seems to be that the federal government isn’t trying very hard to interdict drugs coming across the Mexican border, or that the double border-fence that Carson advocates would somehow make the War on Drugs a winning proposition.

In fact, multiple federal agencies spend billions trying to interdict drugs flowing in from Mexico, and even if the Great Wall of China stretched across the whole southern border the black market in illegal drugs would continue to thrive. The federal government is not even able to keep illegal drugs out of maximum-security prisons.

Carson said this about marijuana in 2014:

I think medical use of marijuana in compassionate cases certainly has been proven to be useful. But recognize that marijuana is what’s known as a gateway drug. It tends to be a starter drug for people who move onto heavier duty drugs—sometimes legal, sometimes illegal—and I don’t think this is something that we really want for our society. You know, we’re gradually just removing all the barriers to hedonistic activity and you know, it’s just, we’re changing so rapidly to a different type of society and nobody is getting a chance to discuss it because, you know, it’s taboo. It’s politically incorrect. You’re not supposed to talk about these things.

There is, in fact, no taboo against wanting to keep drugs illegal, a position held by the majority of Americans and elected officials. There is, however, eroding support for marijuana prohibition and the drug war. The most recently availableGallup data suggests that a small majority of Americans favors legalizing marijuana and that more now believe that America is losing ground in the War on Drugs than gaining it.

Many critics of the drug war aggressively press their position, but the notion that “nobody is getting to discuss the issue” is absurd. It is commonly discussed on television and radio, in print media, and in formal and informal debates all around the country. Carson’s attempt to cast the status quo position as one that no one can even talk about is a good example of “victimhood culture” in its movement-conservative manifestation. Carson sensed gain in using an exaggerated grievance to rally third parties around himself and those who share his position on drug policy, casting them as unfairly marginalized victims—even as most drug laws still reflect their beliefs and armed agents of the state daily enforce those laws in all 50 states.

It’s an off-brand tactic for Carson, and makes no more substantive sense than intensifying the War on Drugs even as multiple states move toward marijuana legalization. A Republican can claim to favor small government and the Bill of Rights or the federal prohibition of marijuana, but he cannot stand for all of those things.

Carson has made his choice.

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Is There Enough Evidence For a Criminal Investigation Into Hillary Clinton's Email?

Conor Friedersdorf, The Atlantic — Fri, 24 Jul 2015 09:25:04 -0400

Federal overseers are urging an inquiry into whether Hillary Clinton illegally mishandled classified documents during her four-year tenure as secretary of state, according to an article published late Thursday in The New York Times. At issue is her decision to conduct official business via private email. “Two inspectors general have asked the Justice Department to open a criminal investigation into whether sensitive government information was mishandled,” the story reports. “The Justice Department has not decided if it will open an investigation.”

The Wall Street Journal adds that it has seen a memorandum from both inspectors general declaring that an investigation of emails stored on a server at Clinton’s home discovered “hundreds of potentially classified emails within the collection.” Clinton had previously destroyed thousands more emails, but has denied mishandling any classified material in the course of using that private account.

Attorney General Loretta E. Lynch, who was recently appointed by President Obama, must now decide whether to launch a criminal investigation against the most powerful politician in the Democratic Party, potentially changing the course of an election; or to reject the advice of two ostensibly independent overseers and appear to give special treatment to a powerful Obama administration veteran, protecting her from scrutiny as she stands accused of compromising national security.

Observers are left pondering these possibilities:

Hillary Clinton never knowingly stored any classified documents on her home server, and is the victim of circumstantial evidence that looks worse than it is.
Clinton technically did have some classified documents on her server, but nothing that actually ever posed any real threat to American national security, because the federal bureaucracy needlessly classifies all sorts of stuff.
Clinton irresponsibly kept documents on her server that did pose a risk to national security.

There’s a strong possibility that we’ll never know which scenario comes closest to the truth. But whatever happens in coming days and months, this incident will highlight the way in which America’s classification system undermines the rule of law.

The “state secrets” laws in question are applied with extreme unevenness and unpredictability.

Mishandling or leaking classified information can carry heavy criminal sanctions, regardless of whether the material was properly classified, serves any public interest, or poses any real threat to national security. Yet despite the potential for serious criminal liability, powerful officials mishandle or leak classified information with impunity, because their leaks serve the interests of others in power.

Every so often, circumstances align so that a powerful member of the establishment like David Petraeus is subject to punishment––elites can’t be so flagrant as to get caught leaking to a mistress!––but critics of the establishment are more likely to be punished (and punished harshly) for crimes related to state secrets.

For leaking classified information about serious government misdeeds that Americans absolutely ought to know about, Chelsea Manning is caged and Edward Snowden is living in exile under constant threat of spending the rest of his life in jail. The Obama Administration has also waged a war on whistleblowers like Thomas Drake, raiding his home, carrying off boxes of documents from his basement, finding a few allegedly classified documents (that were more secure than they likely would’ve been on an email server), and threatening to destroy his life over them.

He wasn’t alone.

“After I blew the whistle on the CIA's waterboarding torture program in 2007,” former CIA agent John Kiriakou wrote, “I was the subject of a years-long FBI investigation. The Justice Department charged me with ‘disclosing classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities.’ I had revealed no more than others who were never charged, about activities—that the CIA had a program to kill or capture Al Qaeda members—that were hardly secret. Eventually the espionage charges were dropped and I pleaded guilty to a lesser charge: confirming the name of a former CIA colleague, a name that was never made public.”

He got two and half years in prison.

Meanwhile, “Former CIA Director Leon Panetta revealed the name of the Navy SEAL unit that carried out the Osama bin Laden raid and named the unit’s ground commander at a 2011 ceremony attended by ‘Zero Dark Thirty’ filmmaker Mark Boal. Panetta also discussed classified information designated as ‘top secret’ and ‘secret’ during his presentation at the awards ceremony, according to a draft Pentagon inspector general’s report published Wednesday by the Project on Government Oversight.” He said he didn’t realize the filmmaker was present and was not punished.

Then there’s John Brennan.

“In 2012,” Jack Shafer wrote, “then-national security adviser John Brennan went a tad too far counter-leaking in his attempt to nullify an Associated Press report about the foiled underwear bomber plot. In a conference call with TV news pundits, Brennan offered that the plot could never succeed because the United States had ‘inside control’ of it, which helped expose a double-agent working for Western intelligence. Instead of being prosecuted for leaking sensitive, classified intelligence, Brennan was promoted to director of the CIA; that’s the privilege of the policy leak.”

If Hillary Clinton did knowingly keep classified documents on her home server, or stored them there unwittingly but negligently, it was presumably with confidence that her fate would be more like Brennan or Panetta than Drake or Kiriakou. After all, she was well aware of what happened to Sandy Berger when he mishandled classified documents. One of Bill Clinton’s most influential foreign policy advisors, he walked into the National Archives and willfully absconded with sensitive documents so that he could destroy them for unknown reasons.

Even caught red-handed, he only got a slap on the wrist.

If Clinton is innocent, laws surrounding classified documents are once again victimizing an undeserving target; if she is guilty, then either she will be spared the fate of the less powerful by virtue of her connections, or she will be tried and jailed on the cusp of a presidential campaign, a punishment so out of proportion to anything others like her usually face as to make one wonder about a vast right-wing conspiracy.

Whatever the endgame of this legal matter, changing the underlying laws is long overdue. Outcomes would be less uneven and capricious if being charged criminally for mishandling state secrets required a review of whether the secrets were properly classified, evidence of willful misbehavior, and plausible harm to national security. Without such reforms, these laws will continue to be abused with impunity.

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When Security Screening Crosses the Line

Conor Friedersdorf, The Atlantic — Wed, 15 Apr 2015 16:09:19 -0400

How intrusive is airport security these days? For ten or eleven male passengers, normal TSA screening protocol was so indistinguishable from a predatory stranger arbitrarily groping their genitals that none of them even complained when that happened.

An anonymous airport worker exposed the story on November 18, 2014, telling TSA that a named male security screener at Denver International Airport was groping the genitals of multiple male passengers. Police later described the alleged scheme: "When a male he finds attractive comes to be screened by the scanning machine he will alert another TSA screener to indicate to the scanning computer that the party being screened is a female. When the screener does this, the scanning machine will indicate an anomaly in the genital area and this allows him to conduct a pat-down search of that area.” After the tip more than two months passed.

The screener said to be groping passengers was still employed by TSA. Finally, on February 9, 2015, a TSA official sent to investigate says that he caught the screener in the act and questioned his accomplice, who admitted to helping him on ten prior occasions. Both of the TSA employees were fired. Denver police were informed about a possible sex crime, but a prosecutor declined to file charges in part because TSA declared that it was unable to identify the victim of the groping. They knew only that he was a Southwest Airlines passenger. TSA says that no other passengers filed a complaint about being groped by this screener. Though they were innocent men passing through airport security with nothing in their pants save their genitals, they apparently couldn't tell anything was amiss.

Three other aspects of this story strike me as noteworthy:

1) Kudos to the whistleblower who exposed this misbehavior. But it's shameful that our bureaucracy is one where such tips are made anonymously to avoid punishment or shunning by colleagues rather than openly with the expectation of praise and a reward.

2) Taking more than two months to catch this person seems like an awfully long time. How many shifts did he work after TSA was alerted to his sexual misbehavior?

3) Securing a prosecutable case–that is to say, one with an identifiable victim–would seem to be easy enough, given that everyone going through security is literally required to have identification on their person and is captive in an airport. But the TSA investigator didn't ascertain the identity of the person he witnessed being wrongfully groped. Is this because TSA didn't want their own to be prosecuted? Is it because they didn't want to get sued by the victim? Is it that they weren't willing to tell someone that they could've stopped a needless groping before it happened but let it play out to catch the relevant employee in the act?

TSA officials released a statement about the case.

"These alleged acts are egregious and intolerable," it says. "TSA has removed the two officers from the agency. All allegations of misconduct are thoroughly investigated by the agency. And when substantiated, employees are held accountable."

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The CIA's Most Important Overseer Is Abetting Its Torture Coverup

Conor Friedersdorf, The Atlantic — Thu, 22 Jan 2015 10:22:52 -0500

Senator Richard Burr is acting like a man who doesn't understand the role or duties that he now has. With the Republican Party assuming control of Congress, the North Carolinian is chairman of the Senate intelligence committee, the body charged with overseeing the CIA. His responsibilities are momentous.

All senators are called to act as power-jealous checks on the executive branch. And the particular mission of the Senate intelligence committee, created in the wake of horrific CIA abuses, obligates Burr to “provide vigilant legislative oversight over the intelligence activities of the United States" and "to assure that such activities are in conformity with the Constitution and laws.”

But as Senator Burr begins this job, he is behaving less like an overseer than a CIA asset. Rather than probe problems at the spy agency, of which there have been many, his first priority has been aiding CIA efforts to cover up past misdeeds. It is hard to imagine a more flagrantly inappropriate act by a head overseer.

Specifically, Burr is trying to help the CIA to suppress two reports on its torture of prisoners. Like the spy agency, he never wants the full reports to reach the public, and he is misusing his position on the oversight committee to advance that agenda. One report was commissioned by Leon Panetta, a former CIA director. Though it is classified, people who've seen it assert that it paints a scathing portrait of a spy agency that misled its overseers about the efficacy of tactics like waterboarding. No wonder current and former overseers on the intelligence committee, like Senators Ron Wyden and Mark Udall, found great value in reading it.

But despite the significant value that some of Burr's fellow overseers insist that they gleaned from The Panetta Review, Burr wants to return the Senate committee's copy of the document back to the CIA. "The Panetta Review was never intended for the committee to have,” Burr told the Huffington Post. “At some point, we will probably send it back to where it came from.” On its face, the explanation makes no sense. Why would Burr speak as if the intentions of the CIA are dispositive? His job is to oversee the spy agency, not to respect its desire for privacy. What could be more antithetical to the proper posture of an overseer? (As if a bureaucracy would intentionally turn over evidence of its own abuses.)

The Senate intelligence committee ought to thirst for every drop of information it can get as it polices a secretive spy agency with a long history of hiding illegal acts. No overseer can credibly deny the value of a report showing how overseers were misled.

So what is Burr up to? The apparent explanation is that he's selling out his colleagues to protect the CIA from having to release The Panetta Review to the public. In Freedom of Information Act litigation initiated by investigative journalist Jason Leopold, it would be useful to the CIA to persuade a judge that The Panetta Review constitutes an internal CIA deliberation rather than an agency record. Burr's comments on The Panetta Review seem calculated to bolster that case.

What's more, Senator Burr is taking a similar stance consistent with that motivation: He is also intent on keeping the full Senate report on torture from the public.

In bygone years, Burr sided with the CIA and against a majority of his Senate colleagues in their effort to create a definitive report on torture during the Bush years. Now, again an effective lackey for the bureaucracy he's ostensibly overseeing, "Burr sent a letter... to the White House saying that his Democratic predecessor, Senator Dianne Feinstein, should never have transmitted the entire 6,700-page report to numerous departments and agencies within the executive branch—and requested that all copies of the report be 'returned immediately,'" the New York Times reports. The newspaper makes an informed guess about his motives:

Mr. Burr’s unusual letter to Mr. Obama might have been written with an eye toward future Freedom of Information Act lawsuits. Congress is not subject to such requests, and any success he has in getting the Obama administration to return all copies of the Senate report to the Intelligence Committee could hinder attempts to someday have the report declassified and released publicly.

Leopold, a FOIA expert, concurs. "By advising the White House to cease entering the full torture report into an executive branch system of records," he explains, "Burr is saying that the document is a 'congressional record,' which is exempt from FOIA, as opposed to an 'agency record,' which is subject to the provisions of the law."

Dianne Feinstein, who preceded Burr as head of the Senate intelligence committee, argues that his stance is wrongheaded. "I strongly disagree that the administration should relinquish copies of the full committee study, which contains far more detailed records than the public executive summary," she stated. "Doing so would limit the ability to learn lessons from this sad chapter in America’s history and omit from the record two years of work, including changes made to the committee’s 2012 report following extensive discussion with the CIA.”

Efforts by any U.S. Senator to spare the CIA accountability for its illegal torture are affronts to the rule of law, given that a treaty signed by a former president and duly ratified by the U.S. Senate compels America to fully investigate such crimes. But Burr's actions with respect to the CIA are particularly inappropriate and alarming given that they're being undertaken by the man most responsible for uncovering and stopping its abuses. His actions are close to the antithesis of his responsibilities.

As ACLU senior legislative counsel Chris Anders put it to Vice News, "Burr's attempt to recall the report seems like a bid to thwart Congress's own Freedom of Information Act, which protects the rights of the American people to learn about their own government. Americans should ask, if Senator Burr isn't going to serve his role in the Constitution's system of checks and balances, then why did he want to be chairman of the intelligence committee? This is a poor start to a chairmanship."

Indeed, this start strongly suggests that Burr is unfit for that chairmanship, which is no surprise. This is the same man who told interviewers in March, "I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly." If there is a politician less suited to fill a role created thanks to the Church Committee's work I can scarcely imagine whatthey'd say.

If the Republican Party has any desire for rigorous oversight of the intelligence community, they ought to strip Burr of his chairmanship. Since only a small faction of Senate Republicans concern themselves with CIA abuses, a more likely remedy is a strong Democratic challenger successfully claiming Burr's seat when he defends it in 2016–for unrelated reasons, he is already a target—or a Tea Party challenger from the Rand Paul/Mike Lee wing of the GOP mounting a primary challenge.

Presently, Burr shows greater concern for protecting CIA secrets from FOIA and leaks than conducting rigorous oversight, despite his unique responsibility for the latter. Past and present CIA lawbreakers can rest easier thanks to his dereliction of duty.

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