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Playing Pick Up Sticks With National Security

By on September 10, 2013 6:26 am

Back from a fine hiking vacation, I have a short op-ed in USA Today:

Many of us played Pick Up Sticks in our youth, slowly pulling first one then another stick from the jumble. You lost the game by pulling out the stick that collapsed the pile. It’s a great way to pass a rainy afternoon, but a bad way to set national security policy….
Pickupstick

[W]e’ve seen aggressive civil liberties campaigns in the second term of every president since at least Bill Clinton. In the 1990s, these campaigns made it politically impossible to object when the Foreign Intelligence Surveillance Act court imposed a “wall” between intelligence and law enforcement. Then, in George W. Bush’s second term, Congress put new limits on intelligence wiretaps. And now, right on schedule, another round of civil liberties attacks is being launched, this time at President Obama.

We seem unable to separate our feelings about the occupant of the Oval Office from the agencies that protect all Americans. Every few years, in a fever of opposition to whoever has been re-elected to the White House, we look over the country’s security measures and pull another one out of the pile.

[...]

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Congress’ Options on the Syria AUMF in Light of the Russian Offer to Transfer Assad’s Chemical Weapons to International Control

By on September 10, 2013 1:02 am in Congress, War and Armed Conflict

The Russian government and the Assad regime recently offered to transfer Syria’s chemical weapons to “international” control, in exchange for the US and its allies foregoing a military strike on Assad’s forces. Obviously, the offer raises many issues, including whether Russia’s and Assad’s assurances can be trusted and effectively verified. In this post, I only want to consider the implications for the authorization for the use of military force currently under consideration by Congress.

As I see it, Congress now has four options. First, it can simply pass something like the AUMF that was recently adopted by the Senate Foreign Relations Committee, regardless of the Russian offer. If President Obama decides to accept the offer, he doesn’t have to actually use the authority that Congress grants him. This would essentially leave the final decision up to the president.

The second option is to definitively vote down the present AUMF draft, and refuse to pass any other one. For those, like myself, who were skeptical of the desirability of launching an intervention even before the Russian offer, this might be an attractive choice. If an intervention was undesirable even before the Russian offer, it is even less desirable now. If the Russian proposal turns out to be a fraud, we would be no worse off than if we chose not to intervene in the absence of that proposal. If it really does lead Assad to give up some or all of his chemical weapons, that’s icing on the cake.

Third, Congress could issue a conditional AUMF, which would allow the president to use force only if the Russian offer turns out to be inadequate in some way. Obviously, the devil here would be in the details. Congress would have to decide what qualifies as an adequate offer in terms [...]

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The Net Neutrality Oral Argument

By on September 9, 2013 11:06 pm

This morning the DC Circuit heard oral argument in the facial challenge to the FCC’s net neutrality rulemaking (which, full disclosure, I worked on when I was at the FCC). The most extensive writeup I have seen about the oral argument is here (note that the author, Harold Feld, is a strong supporter of the regulations). Everyone went long, and the argument took two hours. As to the outcome, Judge Tatel is likely the key vote (Judge Silberman seems inclined to invalidate the entirety of the rulemaking, and the quieter Judge Rogers seems much more sympathetic to the FCC’s arguments than Tatel was). Tatel telegraphed his inclinations reasonably clearly — that the FCC’s prohibition on unreasonable discrimination is invalid because it treats broadband Internet access providers as common carriers, but the prohibition on blocking is permissible. What this would mean, as Judge Tatel summarized on a few occasions in the argument, is that Internet access providers (e.g., Verizon) could not charge edge providers (Google was often used as an example) for their use of Verizon’s regular broadband Internet service, but could demand payment for faster service. That is what the “no blocking” rule provides: an Internet access provider cannot charge websites for access to the provider’s customers as part of the provider’s standard service, but it can charge websites for access to its premium service. The prohibition on unreasonable discrimination would cast doubt on charging for premium service (the fear being that this will lead to a two-tier Web, with mediocre speeds for companies that don’t pay, or aren’t affiliated with, Internet access providers, and fast speeds for the favored edge companies). So, if the position Judge Tatel favored were to prevail, neither Verizon nor the FCC would be happy, but edge providers would know that they couldn’t be charged [...]

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How Does He Know When You’ve Been Bad or Good?

By on September 9, 2013 4:09 pm

I’ve posted this before, but in light of recent developments I thought it was worth reposting. This was supposedly written for and sung at a U.S. Department of Justice, Office of Legal Counsel Christmas party during the Carter administration; please let me know if you have a more precise attribution:

You’d better watch out,
You’d better not cry,
You’d better not pout;
I’m telling you why.
Santa Claus is tapping
Your phone.

He’s bugging your room,
He’s reading your mail,
He’s keeping a file
And running a tail.
Santa Claus is tapping
Your phone.

He hears you in the bedroom,
Surveills you out of doors,
And if that doesn’t get the goods,
Then he’ll use provocateurs.

So — you mustn’t assume
That you are secure.
On Christmas Eve
He’ll kick in your door.
Santa Claus is tapping
Your phone.

[...]

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Crime to “Disparag[e]” an Under-18-Year-Old “With Intent to Harass”?

By on September 9, 2013 3:27 pm in "Bullying" Bans

That’s what Pennsylvania HB1163, which passed the Judiciary Committee by a 25-0 vote in May, would provide:

(1) A person commits the crime of cyber harassment of a child if, by means of an electronic communication and with intent to harass a child, he repeatedly communicates or, on at least one occasion, makes available to a user of an electronic social media network or service, information about a child under 18 years of age which, whether true or not, includes any of the following:

(i) A statement or opinion about the child’s sexuality or sexual activity.

(ii) A disparaging statement or opinion about the child’s physical characteristics, mental or physical health or condition.

(iii) A threat of unlawful harm.

(2) Nothing under this subsection shall prohibit a communication made for medical, educational or other legitimate purposes, if the actor is an adult….

(f) Definitions. —

“Disparaging statements or opinions.” A statement or opinion which significantly ridicules, demeans or in the context or circumstances, would cause serious embarrassment to the victim….

“Electronic social media network or service.” A form of electronic communication such as Internet websites for social networking through which a user creates an online community to share information, an idea, a personal message and other content through print, photograph and video….

“Repeatedly communicates.” To convey more than one message over a period of time.

So the following would be crimes under this law, if a jury found that the posting was done “with intent to harass”:

  1. A 17-year-old girl posting on Facebook that she broke up with her boyfriend because he cheated on her.
  2. A 13-year-old posting on Facebook that the person bullying him is sociopathic (an opinion about the child’s mental condition), if that can be said to “significantly … demean[]” the bully.
  3. Someone posting the same

    4. [...]

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Even Mathematically Literate People Become Innumerate when they Focus on Political Issues

By on September 9, 2013 11:45 am in Political Ignorance, Psychology, Public Opinion

At Mother Jones, Kevin Drum and Chris Mooney have interesting posts discussing a new paper by Yale law professor Dan Kahan and his coauthors, which finds that even people who are generally good at interpreting statistics act as if they are innumerate when faced with data that goes against their political views.

Mooney summarizes the results as follows:

The study…. has an ingenious design. At the outset, 1,111 study participants were asked about their political views and also asked a series of questions designed to gauge their “numeracy,” that is, their mathematical reasoning ability. Participants were then asked to solve a fairly difficult problem that involved interpreting the results of a (fake) scientific study. But here was the trick: While the fake study data that they were supposed to assess remained the same, sometimes the study was described as measuring the effectiveness of a “new cream for treating skin rashes.” But in other cases, the study was described as involving the effectiveness of “a law banning private citizens from carrying concealed handguns in public.”

The result? Survey respondents performed wildly differently on what was in essence the same basic problem, simply depending upon whether they had been told that it involved guns or whether they had been told that it involved a new skin cream….

[H]ow did people fare on the handgun version of the problem? They performed quite differently than on the skin cream version, and strong political patterns emerged in the results—especially among people who are good at mathematical reasoning. Most strikingly, highly numerate liberal Democrats did almost perfectly when the right answer was that the concealed weapons ban does indeed work to decrease crime (version C of the experiment)—an outcome that favors their pro-gun-control predilections. But they did much worse when the correct answer was that crime

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The Nature of the Syrian Rebels and the Case for Intervention in Syria

By on September 9, 2013 10:35 am in War and Armed Conflict, War on Terror

I have previously suggested that the case for military intervention in Syria depends in large part on the nature of the rebels fighting to overthrow the regime of Bashar Assad. If the rebels are primarily radical Islamists who would establish a government as oppressive and anti-American as Assad’s, it would be both foolish and immoral to launch an intervention that ends up strengthening their position. Assad’s use of chemical weapons is a great evil. But it makes no sense to combat it by indirectly supporting an equal or greater evil.

The nature of the rebels should concern even those Americans who may be indifferent to the effect of intervention on Syria and care only about US strategic interests, narrowly defined. To put it mildly, radical Islamists tend to be strongly anti-American, and helping them seize power is unlikely to benefit the United States. If, as a result, al Qaeda-aligned elements among the rebels capture some of Assad’s chemical weapons, the consequences for the US might be dire indeed. And a “shot across the bow” attack that avoids helping the rebels because it doesn’t have much effect on Assad’s forces would be simply useless.

Last week, Secretary of State John Kerry told Congress that most of the Syrian rebels are moderates, and only 15-25% are radical Islamist extremists. Unfortunately, Kerry’s optimistic view is contradicted by independent experts (see here and here), and by US and allied intelligence assessments. No one doubts that there are Syrians opposed to Assad who want to replace his regime with a liberal democracy, or at least a less oppressive government than the status quo. The key question is whether such people will come to power if the rebels prevail, or whether the radical Islamists would dominate instead.

I am far from an expert on [...]

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The Question No One Asked at Justice Kagan’s Confirmation Hearing: Why did she wall herself off from the Obamacare Litigation

By on September 8, 2013 9:01 pm in Unprecedented

Nearly everything written about calls for Justice Kagan to recuse in NFIB v. Sebelius focused on whether she had anything to do with the Obamacare litigation while she was serving as Solicitor General. The answer to this question was straightforward. As I discussed in Unprecedented–and based on stuff I couldn’t write–she had absolutely nothing to do with the case. And this was no accident! At every juncture, she walled herself off as SG, so she would have no involvement with the Affordable Care Act.

But the most important question that no one asked her, is why did she have nothing to do with the most significant case of the Obama presidency.

You can go through the FOIA’d emails yourself for clues. Here are a few highlights.

As early as January 8, 2010, two months before the ACA cleared the House, and three months before Justice Stevens announced his retirement, Kagan, a front-runner for the next vacancy on the Supreme Court, was already sectioning herself off from what would become the most important case of the Roberts Court.

Brian Hauck, a senior counsel at the Justice Department, emailed Deputy Solicitor General Neal Katyal about putting together a team to defend the inevitable suits against Obamacare. Katyal replied, “Absolutely right on. Let’s crush them. I’ll speak with Elena [Kagan] and designate someone.”

Katyal forwarded that message to his boss, Solicitor General Elena Kagan, and wrote, “I am happy to do this if you are ok with it . . . or both of us.” Three minutes later, Kagan replied with four words that would characterize her approach to ACA: “You should do it.” The future justice was already sectioning herself off from what would become the most important case of the Roberts Court. Neal Katyal wrote back to Hauck,  “Elena would definitely like OSG [Office of

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Rep. Charles Rangel Cites Possible Intervention in Syria as a Justification for his Call for Reinstating the Draft

By on September 8, 2013 8:53 pm in Conscription, War and Armed Conflict

Democratic Representative Charles Rangel cites the possibility of intervention in Syria as a justification for reinstating the draft, a cause he has long advocated:

America seems increasingly inclined to engage in a new military conflict every few years, faced with a new populace to defend, a new democracy to design, and a new dictator to dethrone. We intend to wage a so-called “limited war,” when there is, in fact, no such thing. It is unfortunate that we don’t give enough thought on why and how we decide to get involved, and who we send into harm’s way when we do….

What enables this war-friendly philosophy is the fact that there is no military draft to dodge. Our soldiers are signed up and ready to go, so there’s no American public to convince because so few have any skin in the game.

I discussed some of the flaws in Rangel’s argument here. Public opinion data undercuts the notion that people who can’t be drafted are more likely to support war. In addition, the lack of a draft has not prevented majority public opinion from consistently opposing military intervention in Syria.

It’s also worth noting that Rangel is simply wrong in his assertion that there is “no such thing” as limited war. The US has in fact conducted numerous tightly limited wars over the years, including military interventions in Grenada, Panama, Libya, and Kosovo, among others. It’s certainly true that not all wars can be kept limited in this way, and that some military interventions are unwise or unjust even if they are limited. But Rangel’s rejection of the very possibility of limited war is incorrect.

I largely agree with Rangel’s bottom line position on Syria. Like him, I think the US should probably stay out. But not all arguments [...]

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2008 Restrictions on NSA Lifted in 2011

By on September 8, 2013 8:33 pm in War on Terror

The Washington Post has a story that begins:

The Obama administration secretly won permission from a surveillance court in 2011 to reverse restrictions on the National Security Agency’s use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans’ communications in its massive databases, according to interviews with government officials and recently declassified material.

In addition, the court extended the length of time that the NSA is allowed to retain intercepted U.S. communications from five years to six years — and more under special circumstances, according to the documents, which include a recently released 2011 opinionby U.S. District Judge John D. Bates, then chief judge of the Foreign Intelligence Surveillance Court.

What had not been previously acknowledged is that the court in 2008 imposed an explicit ban — at the government’s request — on those kinds of searches, that officials in 2011 got the court to lift the bar and that the search authority has been used.

[...]

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Does it Matter if US Intervention in Syria Violates the UN Charter?

By on September 8, 2013 6:38 pm in International Law, War and Armed Conflict

Most international law experts agree that a US military intervention in Syria would violate the United Nations charter, which forbids the use of force against another state except in self-defense or when authorized by a UN Security Council Resolution. In this case, the Assad regime has not attacked the United States, and there is no chance of a Security Council resolution authorizing intervention, because Russia and China would veto it.

Thus, US military intervention would indeed probably violate the Charter. I am skeptical of the case for intervention on other grounds. But if intervention were otherwise justified, US and its allies should not abandon it out of respect for the UN Charter. The Charter’s requirements are procedurally unjust, and there is no reason to believe that adhering to them has beneficial consequences.

I. Procedural Justice.

Sometimes, we have a moral obligation to follow just procedures even if they produce bad results in particular cases. But the Charter’s procedures for authorizing military intervention are deeply unjust. No matter how egregious a regime’s atrocities against its own citizens, it forbids outside intervention unless the intervention has the consent of two brutal authoritarian states: Russia and China. These governments have an obvious interest in curbing intervention against their client states, and also in shielding their own oppression from outside pressure. It is as if domestic law enforcement operations against organized crime required the prior approval of the two most powerful Mafia families. This is not to say that any intervention opposed by the Chinese or Russian governments is necessarily justified. Sometimes, as in the case of Syria, it may not be. But there is no good procedural reason to give these regimes an automatic veto over interventions being considered by liberal democracies.

If the process by which the Security Council makes [...]

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Domestic Drone Regulation for Safety and Privacy

By on September 8, 2013 1:48 pm in Drones (UAVs), Privacy, Robotics, Uncategorized, Video

Today’s (Sunday, Sep 8, 2013) New York Times has a story by Anne Eisenberg, “Preflight Turbulence for Commercial Drones.”  The article combines two crucial topics in connection with drones (remotely piloted aerial vehicles, or unmanned aerial vehicles, UAVs, but my advice to the industry and USAF is that the People Have Spoken, and it’s “drones”): safety and privacy.  The article is interesting chiefly because it focuses on commercial drones (rather than either military drones, law enforcement drones, or hobbyist drones, as so many articles do).  It talks about the likely path of commercial uses of drones:

Companies in the United States are preparing for drones, too. Customers can buy an entire system, consisting of the aerial vehicle, software and a control station, for less than $100,000, with smaller systems going for $15,000 to $50,000, said Jeff Lovin, a senior vice president at Woolpert, a mapping and design firm in Dayton, Ohio. Woolpert owns six traditional, piloted twin-engine aircraft to collect data for aerial mapping; these typically cost $2 million to $3 million to buy, and several thousand dollars an hour to operate, he said.

Gavin Schrock, a professional surveyor and associate editor of Professional Surveyor magazine, says he thinks that surveyors will be among the first to add drones to their tool kits. Aerial systems are perfect for surveying locations like open-pit mines, he said. A small drone can fly over a pit, shuttling back and forth in overlapping rows, taking pictures that can be stitched together and converted into a three-dimensional model that is accurate to within a few inches. Such a system is safer than having a surveyor walk around the pit with traditional tools. “I hate doing that,” Mr. Schrock said. “It’s dangerous.”

For many commercial applications, in other words, the choice will become [...]

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Corsi’s Life of Political Crime

By on September 8, 2013 11:30 am in Election Law, First Amendment, Restrictions on Campaign Contrbs. and Expenses

If you want to get together with friends to talk about politics, hear speakers on policy issues, and perhaps create a website promoting policy ideas, do you need to register as a political actin committee even if you don’t endorse candidates or get involved in elections?  In Ohio the answer can be “yes,” as Ed Corsi discovered after he set up the “Geauga Constitutional Council.”  Although Corsi only spent several hundred per year on the Council, the Ohio Elections Commission concluded it was required to register and report on its activities, and this conclusion was upheld in Ohio courts.  Now Corsi is seeking Supreme Court review, aided by the Center for Competitive Politics.

In yesterday’s WSJ CCP Chairman and former Federal Election Commission Chair Bradley Smith wrote about the potential significance of the case:

It is inconceivable, however, that America’s founders thought the First Amendment would allow the government to routinely require citizens to report their political activity, and be subjected to  . . . complex regulations. They wanted to prevent government from doing precisely this sort of thing. Yet Mr. Corsi lost in state court. Now he waits to see if the Supreme Court will agree to hear his case.

The “big money” in politics can afford the accountants, consultants and lawyers needed to cope with campaign- finance law. The burdens frequently fall more heavily on grass-roots politics—the very thing we ought to be encouraging. There also is abundant anecdotal evidence that the main result, if not the purpose, of campaign-finance laws is to allow political insiders and government officials to harass grass-roots activists. . . .

In Buckley v. Valeo (1976), and again in Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court held that the regulatory requirements of operating a political action committee

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A Hands-Tied Presidency?

By on September 8, 2013 9:26 am in Executive Branch, Separation of Powers, War and Armed Conflict

In an essay for the NYT Sam Tanenhaus argues that President Obama “holds office at a time when the presidency itself has ceded much of its power and authority to Congress.”  No, really.  This is what he says.  It is, frankly, a rather bizarre claim.  As a great deal of academic work has documented (including an important piece by one Elena Kagan) there has been a distinct trend toward greater executive authority and control over domestic policy.

Tanenhaus notes that Obama, like George W. Bush, has had a difficult time getting major legislation through Congress, particularly in his second term.  Yet it is not as if Congress is pursuing some separate agenda, against the will of the President. Rather, it’s not pursuing any agenda at all.  And congressional abdication — combined with extensive delegation of quasi-legislative authority to the executive branch — has abetted the accumulation of executive power.  Throughout the 1980s and 1990s, Congress regularly adopted all sorts of measures, including appropriations riders, to constrain executive action.  This has been particularly common when Congress was held by the opposition party.  Yet with today’s divided and dysfunctional Congress, relatively little is done to hold the executive in check.  Even arguably illegal executive actions prompt little more than the occasional oversight hearing.

Tanenhaus’ essay is prompted by Obama’s decision to seek congressional approval for intervention in Syria which, he believes “shows a greater deference on war and peace than any president since Franklin D. Roosevelt.”  Really?  The Bush Administration sought Congressional approval for the wars in both Afghanistan and Iraq, did it not?  Admittedly these authorizations were fairly open-ended, but the authorizations were obtained nonetheless.  And lets not forget about Libya.  Not only did the Administration not seek Congressional approval, it also rejected the opinion of this Administration’s own OLC [...]

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