Dave Drier, in an interview with Dennis Miller on his radio show last week, emphasized the importance of granting legal immunity to the Telecomms when they pass to our intelligence agencies communication intelligence. As you remember, several years ago the patriotic-impared New York Times published classified information on the warrantless wiretap program (even though communications which include at least one party not on domestic soil were never considered warrant-required). Democrats then made an election issue of it, claiming that it would ruin our democracy -- even though the British and French have been doing so for decades and their Republics are just fine, thank you very much.

Drier quoted Mike McConnell -- our current Director of National Intelligence who was also served on Bill Clinton's National Security Council -- as saying that ever since the Telecomms stopped monitoring communications without assurances of immunity from legal threats, "We are missing about 60 percent of the communications taking place among the bad guys, the people who want to kill us."

Nice, huh.

So when Barack Obama, among others, say we are less safe now than before 9-11, they're partly right. But not for the reasons they think.

Now, here's the down side of the new FISA deal.

The steep price of this authority is that from now on all of these overseas eavesdropping orders will require advance approval by a special FISA court of rotating judges. This will apply even to emails or calls that emanate in, say, Peshawar and never leave Pakistan – except that by the accident of our Internet age they may happen to move through American switching networks.

The deal does carve out an exception to this judicial preapproval for "exigent circumstances" involving urgent threats, but the FISA judges would still have to approve after the fact. No other nation in the world, to our knowledge, requires such deference to judges when tracking foreign enemies abroad.

This judicial review is supposedly to check abuses by the executive. But it also imposes a judge in the middle of the wartime chain of command. A judge, moreover, who may have no special intelligence expertise and no understanding of the enemy threat. For this reason, these judges will in practice tend to rubber stamp executive requests.

But the precedent of judicial intrusion is still dismaying because it will be used as a baseline to limit future Presidential discretion. As for potential abuses, at least an Attorney General and President are accountable to voters if they use this authority to spy on their political opponents. On the other hand, if a willful judge denies a surveillance request and Americans are killed as a result, he is accountable to no one. Recall the "wall" of separation between intelligence and law enforcement that developed in the 1990s under domestic FISA and which the 9/11 Commission so criticized. No one paid any political price for that.
That wall, by the way, was mostly due to the insistance of former Attorney General Janet Reno's deputy, Jamie Gorelick.

By the way, should he defeat McCain in November, do you know who Barack Obama is considering for his Attorney General post? Yep, Jamie Gorelick.

Welcome to September 10, 2001.

Labels: CIA, civil liberties, intelligence, interrogation, surveillance, war on terror, wiretap

"A guy that's got a flat tire outside a nuclear facility in one location means nothing," said Thomas E. Bush III, the FBI's assistant director of the criminal justice information services division. "Run the guy and he's had a flat tire outside of five nuclear facilities and you have a clue."

In a paper called "Intelligence-Led Policing: The New Intelligence Architecture," law enforcement authorities working with the Justice Department said officers " 'on the beat' are an excellent resource for gathering information on all kinds of potential threats and vulnerabilities."

"Despite the many definitions of 'intelligence' that have been promulgated over the years, the simplest and clearest of these is 'information plus analysis equals intelligence,' " the paper said.
That's from an article in the Washington Post highlighting a computer networked intelligence sharing system for domestic law enforcement called "National Data Exchange, or N-DEx." Privacy advocates will no doubt issue their reactionary warnings of big brother, but data mining it itself is something every computer website, credit card and marketing companies do already.

"Law enforcement and federal security authorities said these developments, along with a new willingness by police to share information, hold out the promise of fulfilling post-Sept. 11, 2001, mandates to connect the dots and root out signs of threats before attacks can occur."

Oh, yeah. Remember that whole 9-11 thing? Remember so many outraged citizens wondering how this wasn't stopped. Connect the dots? Either we're serious about it or the next time we lose 3,000 people in a terror attack we'll have deserved to become such easy targets.

Labels: CIA, civil liberties, FBI, intelligence, surveillance, war on terror

There are some worrying trends I see among Americans and especially conservatives. On many key issues having to do with free market, trade, and economics people seem to be mimicking old liberal arguments (many debunked long ago) and (often inadvertently) end up calling for more government intrusion into their daily life and livelihood.

Much of this, of course, is due to noneducation of the subjects at hand. While I don't profess to be an expert on these matters I am well-read enough to understand that government intervention has both seen and unseen, often unintended, consequences on my family's bottom line. But because the "reforms" are packaged as populism -- things that create a division or dichotomy between "the people" and "the elite" -- in this case "the elite" usually being auto-makers, oil companies, drug companies or politicians and lobbyists.

After all...

Who would be against strengthening campaign finance laws?
Who would be against forcing auto-makers to make more fuel efficient vehicles?
Who would be against protecting the environment?
Who would be against cheaper pharmaceuticals or Canadian drug imports?

But each of these things has often unintended but very bad consequences for the individual consumers and citizens whom have been fooled into believing they need government protection. Each of the "reforms" often more harm individual liberty than they do "reform" anything.

Each new set of campaign finance reform laws, for example, attempt to correct the overreach and consequences of past campaign finance reform laws. The McCain-Feingold campaign finance reform bill was created to correct problems created by the Watergate-era campaign finance reform bills. In it's wake, McCain-Feingold ended up curbing free speech guaranteed to us by the First Amendment (in the form of prohibiting broadcast advertisements that name a federal candidate within 30 days of a primary or caucus or 60 days of a general election). This created a vacuum, explained by Reason's Jonathan Rauch, "filled by private groups that are unaccountable to the voters," also known as "527s." To date, there is more money in politics than before, but like damming water running downhill, the law simply shifted the path to groups with anonymous and often very powerful backers whom do not have to answer to voters.

Next, forcing auto-makers to make more fuel efficient vehicles by raising CAFE (Corporate Average Fuel Economy) standards really only does two things: increased the number of highway deaths due to auto-makers making lighter, smaller cars, and increase the price of cars whose engines really do become more fuel efficient. You'll save at the pump but never enough to make up for the extra money you paid to purchase the more expensive fuel-efficient car.

Protecting the environment? On an almost daily basis I cite article after article showing that the cause of global warming and defining of carbon dioxide as a pollutant has little to do with the environment and much to do with continuing grant funding, justifying new taxation schemes, and empowering those few corporate-NGO blocks who have devised way to make money off the red-herring issue (and faulty science at that).

Finally, I'm going to post Megan McArdle's recent commentary as someone who understands the consequences of the continued demonization of pharmaceutical companies and "progressive" populist demand for cheaper drugs. Socialist medicine, single-buyer healthcare, national healthcare, etc., are really just repacked descriptors by our politicians for a monopsony -- the opposite of a monopoly, a monopsony is one buyer to many sellers.

[McCardle:] Yesterday I wrote:

So the most probable outcome of introducing monopsony power here [in the U.S.] is that the market for drugs shrinks to the point where it will support few-to-no new drugs.
Not to put too fine a point on it, Tom responded:

This seems crazy.
He is not the only one for whom this seems a little nuts. But it is not. Let me explain.

People who think that there will be continuing R&D in the pharmaceutical industry are basically thinking of it as a budgeting problem. They think of the pharmaceutical industry's gross income as a budget to be allocated between various functions, such as marketing and R&D. They may concede that by changing the size of the budget, you may shrink the amount of money to fund R&D, because there will be less money in the kitty. (Though many or most hope that shrinking the size of the pie will force pharmaceutical companies to transfer money from the advertising budget to R&D1). But, their reasoning goes, there will still be money in the kitty; if you allow pharmaceutical companies 1/3 as much gross income, you will get 1/3 as much R&D. Or perhaps they will cut their advertising budgets to zero, and then you will get 2/3 as much R&D. But still, you will get something.

I don't think of R&D as a budgeting problem; I think of it as an investment problem. After all, even if the pharmaceutical industry has no profits right now, they can borrow the money in the financial markets at fairly attractive rates.

The main obstacle to R&D, then, is not the current state of pharmaceutical industry profits; it is the potential return on the investment in R&D. After all, Merck doesn't have to make drugs; it could generate a nice, safe return of 5% a year in government bonds. Or it could get into some other business, such as making soap. If you drive down the profits on new drugs too far, it stops making sense to invest in new drugs, even if there is a small profit to be made on current production.

Developing new drugs is very, very risky. Depending on what you think constitutes a drug candidate, somewhere between one in one thousand, and one in ten thousand drug candidates makes it from a lab bench to clinical trials. Each of the failed drugs was very expensive, particularly if it got partway through clinicals, which run about $500 million per course.

The problem is, once you've developed a drug, it's easy to copy. It's also usually trivially cheap to produce. And your patent is rapidly running out. This gives a monopsony buyer a lot of leverage to force down your price--you're almost always better off taking something. This is particularly true if the monopsony buyer has the power to break your patent and license its generic manufacturers to turn out cheap but near-perfect imitations of your product2. This is, in fact, what Europe has done; they make pharmaceutical firms sell to them at cost plus. The lion's share of the profits on any drug come from the United States; what they get in Europe and Canada and the rest of the world is (thin) gravy, a price that is just a little bit better than not selling any drugs there.

Now imagine that America drives drug prices down to that sort of "cost+10" or "cost+20" level. The pharmaceutical firms will keep making the drugs they already have, because there will still be a little profit there. But they would have to be psychotic to invest billions of dollars over a 20 year time horizon in exchange for a one in a thousand chance of making that small a profit. Would you put 20% of your income now into an investment that might yield a profit of 10% of your income--in thirty years?

But they have to invest in R&D, say my interlocutors; otherwise they won't have any drugs to sell! This makes the odd assumption that they can't do anything else. But history is full of companies that used to do something else entirely--and also, of companies that went out of business when their market collapsed.

1 This belief is wrong, for reasons I will explain in another post.

2 The patent threat seems to be the most plausible reason that pharmaceutical firms do not raise Canadian prices to US levels.

Labels: CAFE, campaign finance, civil liberties, Economics, free markets, healthcare, mccain, Oil, pharmacy, supply-side, taxes, the moderate trap

A former member of Bill Clinton's National Security Council, Daniel Benjamin, debunks several myths promoted in large part by Hollywood's latest movie titled "Rendition."

With hearings in Congress, legal cases bouncing up to the Supreme Court and complaints from Canada and our European allies, the issue of rendition is everywhere. There's even a new, eponymously titled movie in a theater near you, starring Reese Witherspoon as a bereft wife whose innocent husband gets kidnapped and Meryl Streep as the frosty CIA chief who ordered the snatch. Like most covert actions and much of the war on al-Qaeda, the practice is shrouded in mystery -- and, increasingly, the suspicion that it's synonymous with torture and lawlessness.
In fact, the term "rendition" in the counterterrorism context means nothing more than moving someone from one country to another, outside the formal process of extradition. For the CIA, rendition has become a key tool for getting terrorists from places where they're causing trouble to places where they can't. The problem is where these people are taken and what happens to them when they get there. As a former director for counterterrorism policy on the National Security Council staff, I've been involved with the issue of rendition for nearly a decade -- and some of the myths surrounding it need to be cleared up.

1. Rendition is something the Bush administration cooked up.

Nope. George W. Bush was still struggling to coax oil out of the ground when the United States "rendered to justice" its first suspect from abroad. In 1987, President Ronald Reagan authorized an operation that lured Lebanese hijacker Fawaz Younis to a boat off the coast of Cyprus, where FBI agents arrested him. (Younis had participated in the 1985 hijacking of a Jordanian plane and was implicated in the hijacking of TWA Flight 847, which left a U.S. Navy diver dead.) President George H.W. Bush approved the kidnapping in 1990 of Mexican physician Humberto Alvarez Machain, who was believed to be involved in the torture and killing of a Drug Enforcement Administration official. Nothing says that renditions can involve only suspected terrorists; Israel's abduction of Nazi war criminal Adolf Eichmann in Argentina in 1960 could be called a rendition, though the term was not yet in use.

Beginning in 1995, the Clinton administration turned up the speed with a full-fledged program to use rendition to disrupt terrorist plotting abroad. According to former director of central intelligence George J. Tenet, about 70 renditions were carried out before Sept. 11, 2001, most of them during the Clinton years.

2. People who are "rendered" inevitably end up in a foreign slammer -- or worse.

Actually, that's not a foregone conclusion. Alvarez was brought to the United States. So was Mir Aimal Kansi, who killed two CIA employees in their cars outside the agency's Langley headquarters in 1993, and Ramzi Yousef, the architect of the 1993 bombing of the World Trade Center. Both were apprehended in Pakistan, whose leaders decided that the nation would rather not have those two -- folk heroes to some -- sitting in jail, awaiting extradition. Pakistan's leaders feared that cooperating with the United States would be dangerously unpopular, so they wanted the suspects out of the country quickly. For many pro-U.S. Muslim leaders, that concern has only deepened as anti-Americanism has soared.

By my count, most renditions since 1995 have involved moving individuals from one foreign country to another -- not grabbing someone in Washington and carting them off to North Africa, as happens to Witherspoon's onscreen husband. Such operations typically occur in secret because, again, Muslim leaders (especially in the Arab world) want to shield their cooperation with Washington from their anti-American publics. The CIA has acted as a go-between, arranging the transfers and providing transportation. Usually those being rendered are not brought to the United States because, while the U.S. government may have an abundance of intelligence showing their malfeasance, it doesn't have enough courtroom evidence. There's a big difference between the two.

One other safeguard: During the Clinton years, the United States required the country that received a rendered person to have some kind of legal process against the suspect -- an arrest warrant or indictment, for example. It's not clear whether that is still the case. Perhaps Michael Mukasey, President Bush's attorney general nominee, can check.

3. Step one of a rendition involves kidnapping the suspect.

The individual may feel as though he's being kidnapped, but that's not usually what's going on. Most of the time, the person is detained by the authorities of the country he is in. They will then hand him off to the CIA, which will fly him to his destination.

In rare cases when the country of residence is a hostile one, an "extraordinary rendition" can be carried out: a covert effort to abduct the suspect and spirit him out of the country. The CIA put considerable time into efforts to capture Osama bin Laden this way from Taliban-ruled Afghanistan in the late 1990s. Had it worked, it would have been an extraordinary rendition -- and Americans would have cheered.

4. Rendition is just a euphemism for outsourcing torture.

Well, not historically. The guidelines for Clinton-era renditions required that subjects could be sent only to countries where they were not likely to be tortured -- countries that gave assurances to that effect and whose compliance was monitored by the State Department and the intelligence community. It's impossible to be certain that those standards were upheld every time, but serious efforts were made to see that they were. At a minimum, countries with indisputably lousy human rights records (say, Syria) were off-limits. Another key difference: Renditions before Bush were carried out to disrupt terrorist activity, not to gather intelligence or to interrogate individuals.

Now, though, the Bush team seems to have dramatically eroded such safeguards. The administration has apparently sent someone to Syria, and Khaled el-Masri, a German citizen, was evidently grabbed in Macedonia and interrogated in Afghanistan in a manner that sure sounds like torture. In light of this and other revelations, the criticism that the administration has "defined down" torture looks pretty persuasive. It's probably a good bet that Congress or the next administration will reform the program, or abolish it outright.

5. Pretty much anyone -- including U.S. citizens and green card holders -- can be rendered these days.

Not so, although the movie "Rendition" -- in which Witherspoon's Egyptian-born husband gets the black-hood treatment and is yanked from a U.S. airport and taken to a North African chamber of horrors -- is bound to spread this myth. A " U.S. person" (citizen or legal resident) has constitutional protections against being removed from the country through rendition, and there have been no incidents to suggest the contrary. In fairness, though, the ghastly case of Maher Arar -- a Syrian-born Canadian citizen who convincingly says he was detained at New York's JFK Airport, handed off to Syria and tortured -- is way too close for comfort.

Labels: CIA, civil liberties, Hollywood bias, intelligence, interrogation, media bias, Smearing the Troops, surveillance, tribunals, TSP, war on terror, wiretap

This article should make you sick to your stomach. For all their talk about "spying on Americans" and other such nonsense, at the end of the day, when Democrats are challenging so-called "warrantless wiretaps" or the Patriot Act, all they're really doing is ensuring that another horrible episode, whether 9-11 or the one below, occurs.

[NY Post] U.S. intelligence officials got mired for nearly 10 hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping Queens soldier Alex Jimenez in Iraq earlier this year, The Post has learned.

This week, Congress plans to vote on a bill that leaves in place the legal hurdles in the Foreign Intelligence Surveillance Act - problems that were highlighted during the May search for a group of kidnapped U.S. soldiers.

...A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers - obeying strict U.S. laws about surveillance - cobbled together the legal grounds for wiretapping the suspected kidnappers.

Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.

For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the "probable cause" necessary for the attorney general to grant such "emergency" permission.

Finally, approval was granted and, at 7:38 that night, surveillance began.

"The intelligence community was forced to abandon our soldiers because of the law," a senior congressional staffer with access to the classified case told The Post.

"How many lawyers does it take to rescue our soldiers?" he asked. "It should be zero." [emphasis mine]

The FISA law applies even to a cellphone conversation between two people in Iraq, because those communications zip along wires through U.S. hubs, which is where the taps are typically applied.

Labels: antiwar loonies, civil liberties, Congress, Delusional Democrats, rules of engagement, surveillance, TSP, war on terror, wiretap

What's going to truly kill more people, the strawman of supposed civil liberties infringements, or the small cells of terrorists who actually do infringe upon our civil liberties (that is, murder us)?

Bradford Berenson, former associate White House council, details the dangers of allowing theoretical dangers to trump real danger, in this case commenting upon the Fourth Circuit Court's decision to nullify the term "enemy combatant" in the Ali Saleh Kahlah Al-Marri case.

The Fourth Circuit panel held that, despite President Bush's formal, written determination that Mr. Marri is an enemy combatant waging war against the U.S., he is instead a "civilian" who can only be treated as an ordinary criminal. It did not question any of the facts put forward by the government about Mr. Marri. Instead, the court held that foreign terrorists on our soil are categorically beyond the reach of American military power.

What about the Supreme Court's decision in Hamdi v. Rumsfeld just three years ago, which accepted that we are at war and held that even U.S. citizens may be detained as enemy combatants? According to the Fourth Circuit decision, that case was different because Yaser Esam Hamdi was fighting for the Taliban, carrying a gun on a traditional battlefield. What about the World War II precedent in Ex Parte Quirin, where the Supreme Court unanimously upheld the power of the military to try U.S. citizen Nazi saboteurs who came onto our shores disguised as civilians to commit acts of terrorism? That, too, was different according to the court, because those terrorists were working for "the military arm of an enemy government."

According to the Fourth Circuit decision, unless you participate in actual combat against the U.S. on something that looks like a traditional battlefield, or are allied with the armed forces of a foreign government, you can't be an enemy combatant, and the U.S. military is powerless to act against you, at least on U.S. soil. A mere al Qaeda terrorist who is a member of a sleeper cell is like Timothy McVeigh or the Unabomber -- a civilian, rather than a soldier, and can only be treated as such by our government. Only the tools of criminal law enforcement are available.

... The implications of this ruling are dramatic. Under it, if Mohammed Atta had been apprehended on Sept. 10, 2001, the military could not have taken custody of him and interrogated him. And absent the ability to charge him with an ordinary crime under the U.S. Code, even the civilian authorities could not have held him for long. The only option would have been for the police to arrest him and give him a Miranda warning and a lawyer. No pressure could have been exerted to extract intelligence that might have prevented the next day's attacks, and he would have been free to alert his confederates who were still at large planning those attacks. And if the evidence against him had been obtained without a warrant, come from a confession not preceded by Miranda warnings, or come in the form of a hearsay intelligence file from a cooperating foreign intelligence service whose assistance had to be kept secret, there would have been no choice but to release him. Under the al-Marri decision, the U.S. homeland becomes a relative safe haven for foreign terrorists on the global battlefield -- an out-of-bounds where the military cannot incapacitate them.

The court's ukase that people like Atta are -- as a matter of law -- just a law-enforcement problem takes us a long way back toward pre-9/11 thinking. It ludicrously misconstrues the Authorization for the Use of Military Force (AUMF) passed by Congress just days after the towers collapsed, which plainly regarded the kinds of individuals who mounted the 9/11 attacks as presenting a military threat and committing acts of war against us.

The idea that the AUMF authorized the use of military force against the Taliban, who harbored al-Qaeda's leadership, but not the actual al-Qaeda terrorists who perpetrated the attacks, simply makes no sense. And the court's ruling ignores that al Qaeda clearly regards itself as making war on us, sending its holy warriors here not merely to transgress our laws but to attempt to destroy our nation and its global power. The 9/11 attacks were directed at the centers of American financial, military, and political might.

Labels: 9-11, al qaeda, civil liberties, guantanamo, intelligence, interrogation, straw man