Published: Sat, 10 Dec 2016 00:00:00 -0500
Last Build Date: Sat, 10 Dec 2016 21:23:55 -0500
Sat, 10 Dec 2016 10:00:00 -0500On Monday, an Ohio State University student named Abdul Razak Ali Artan wrote an angry note on Facebook, rammed his car into a group of pedestrians on campus, and then was fatally shot by a police officer as he began charging his victims with a knife. Mercifully, Artan did not manage to kill anyone before his attack was halted, but this fresh case of what appears to be lone-wolf terrorism offers yet another occasion for reexamining America's flailing approach to counter-terrorism. For the last 15 years, conventional political wisdom has dictated that an aggressive foreign policy marked by preemptive military interventions and lengthy nation-building commitments and paired with a Constitution-trampling surveillance state is the best way to contain and prevent terror. But with some $12 trillion already promised or spent on the wars in Iraq and Afghanistan and nothing to show for it—not to mention the debacle in Libya and the diverse other stagnating or even counterproductive interventions the U.S. presently maintains in Syria, Yemen, Pakistan, Somalia, and beyond—that argument becomes increasingly difficult to take seriously. Indeed, it is now impossible to avoid the conclusion that government invasions of our privacy amount to worthless security theater, while these overseas adventures do little or nothing to prevent lone-wolf attacks. Individuals like Artan, who seems to have had no real contact with the Islamic State (ISIS), are lost in the "haystack" of digital data the feds collect, and they are mostly unaffected by the fortunes of the Mideast militants they admire. Whether ISIS controls vast swathes of territory or is eradicated entirely makes no practical difference to this new sort of terrorist, who needs little to no resources or logistical assistance to carry out his dastardly plot. If anything, the evidence suggests U.S. intervention against ISIS may inspire more lone wolves like Artan to attack. "[ISIS] is clearly weakened on the ground, but the nature of the losses it is suffering has strengthened its legitimacy among certain segments of the Sunni world," wrote Foreign Policy's Hassan Hassan in the wake of the far deadlier lone-wolf attack in Florida this past summer. "This is a trend that should be of grave concern to U.S. officials," he added, "as the group's continuing support could lay the groundwork for its eventual resurgence—and more lone wolf attacks like the one in Orlando." In other words, tangling with America gives ISIS legitimacy even when it loses, and the fact of reckless, large-scale U.S. military intervention seems to concede that this is a fight ISIS (and the homegrown murderers it inspires) really could win. That such a victory is preposterous does not occur to deluded would-be terrorists—and so far, neither has the necessity to reevaluate America's ineffective and imprudent counter-terrorism policy occurred to the Washington establishment. "What the United States is trying to do by stubbornly sticking with such policies to force a failing square-peg solution into a nonbudging round-hole problem," argues Ret. Lt. Col. Daniel Davis at The National Interest. "Clearly," he continues, in "spending hundreds of billions of dollars and sacrificing the lives of thousands of U.S. service members in an effort to fight terror 'over there,' we are succeeding only in spreading the conflagration abroad and increasingly suffering terror attacks at home." Rather than maintaining this ineffective, feckless interventionism, we would do well to let attacks like Artan's occasion a serious reconsideration of the "war on terror" as we know it today, which amounts to throwing lives and dollars down the drain with no real impact on American security. Lone wolves aren't going away any time soon and they are no easy problem to address, but we can begin by refusing to waste precious resources on misguided interventions that do more harm than good.[...]
Wed, 07 Dec 2016 13:00:00 -0500It looks like President Barack Obama will be leaving office the same way he arrived: overestimating his actual commitment to rule of law and government transparency. That's one takeaway from the president's counterterrorism speech at MacDill Air Force Base in Tampa Florida, yesterday. As is typical of an Obama speech, particularly one coming as his administration winds down, it's heavy on summarizing his successes and calling on actions from Congress, yet flat out either refuses to acknowledge or is quick to justify his misuses of power. Obama raised the issue of America's rule of law, clearly an attempt to pre-critique the incoming Donald Trump administration, given its apparent lack of interest in civil liberties. On the same day Obama gave his speech, one of the CIA psychologists responsible for the use of waterboarding as an interrogation tool defended coercive techniques when speaking at the American Enterprise Institute and encouraged Trump to consider harsher methods. But getting back to Obama, here's what he said on upholding the rule of law: [W]e need the wisdom to see that upholding our values and adhering to the rule of law is not a weakness; in the long term, it is our greatest strength. The whole objective of these terrorists is to scare us into changing the nature of who we are and our democracy. And the fact is, people and nations do not make good decisions when they are driven by fear. These terrorists can never directly destroy our way of life, but we can do it for them if we lose track of who we are and the values that this nation was founded upon. And I always remind myself that as Commander-in-Chief, I must protect our people, but I also swore an oath to defend our Constitution. And over these last eight years, we have demonstrated that staying true to our traditions as a nation of laws advances our security as well as our values. Reminder: This is a president who has developed a complex system by which he executes suspected terrorists in countries where America is not legally involved in a war through the use of drone strikes in a system that is both deliberately secretive but also not subject to review by the judicial branch. The Department of Justice under Obama has, in fact, used claims of national security to try to keep judges from even being able to hear cases connected to the constitutionality of some of its practices. Furthermore, this is a president who oversaw military intervention in Libya without authorization by Congress. And in this very speech he calls on Congress to use its authority to determine whether to allow for military force, an absurd incongruity Tim Carney makes note of in the Washington Examiner. Obama calls for an updated Authorized Use of Force (the Congressional authorization for warmaking) but stubbornly clings to an insistence that everything he's been doing is already authorized. It's a muddled argument. Either the president's military actions have been legal and a new authorization isn't needed, or the president's military actions have not been legal (in which case he should stop). He even recently added, via executive declaration, a terrorist group in Somalia that didn't even exist at the time of the Sept. 11 attacks to the list of authorized targets. Here's what the president had to say about his administration's transparency: Transparency and accountability serve our national security not just in times of peace, but, more importantly, in times of conflict. And that's why we've made public information about which terrorist organizations we're fighting and why we're fighting them. We've released assessments of non-combatants killed in our operations, taken responsibility when mistakes are made. We've declassified information about interrogation methods that were wrong so we learn from past mistakes. And yesterday, I directed our government for the first time to release a full description of the legal and policy frameworks that guide our military operations around the world. This is a remarkable paragraph in that it completely and utter[...]
Tue, 06 Dec 2016 15:15:00 -0500Four major tech and social media companies—Twitter, YouTube, Google, and Facebook—are combining to censor the internet! But they're doing it for a good cause (and because of government pressure), they say. We're going to have to see what actually comes of it. The four companies announced that they're working together on a tool that will help them prevent imagery or content produced by terrorists from spreading online. Google in Europe explains: Starting today, we commit to the creation of a shared industry database of "hashes" — unique digital "fingerprints" — for violent terrorist imagery or terrorist recruitment videos or images that we have removed from our services. By sharing this information with each other, we may use the shared hashes to help identify potential terrorist content on our respective hosted consumer platforms. We hope this collaboration will lead to greater efficiency as we continue to enforce our policies to help curb the pressing global issue of terrorist content online. Our companies will begin sharing hashes of the most extreme and egregious terrorist images and videos we have removed from our services — content most likely to violate all of our respective companies' content policies. Participating companies can add hashes of terrorist images or videos that are identified on one of our platforms to the database. Other participating companies can then use those hashes to identify such content on their services, review against their respective policies and definitions, and remove matching content as appropriate. As we continue to collaborate and share best practices, each company will independently determine what image and video hashes to contribute to the shared database. No personally identifiable information will be shared, and matching content will not be automatically removed. Each company will continue to apply its own policies and definitions of terrorist content when deciding whether to remove content when a match to a shared hash is found. And each company will continue to apply its practice of transparency and review for any government requests, as well as retain its own appeal process for removal decisions and grievances. As part of this collaboration, we will all focus on how to involve additional companies in the future. To start with the obvious response: There's nothing inherently wrong or inappropriate about the companies working together and censoring violent content or declining to host it on their platforms. Ultimately, though, how this tool gets used is what matters. Once a tool can be used to censor, en masse, a violent photo from some terrorist of the Islamic State, that tool can be used to censor anything in similar broad strokes. Recall that Facebook recently had an odd little controversy when it temporarily censored a well-known, historically significant photo from the Vietnam War because it contained nudity. Leaders in European countries, where they don't have nearly the level of commitment to free speech when people say things that those in power deem to be bigotry or hate speech, are pushing social media platforms to engage in wider forms of censorship of content. As Andrea O'Sullivan noted earlier today, social media companies are beginning to embrace a "gatekeeper" mentality after previously marketing themselves as free-wheeling communication platforms. Will they resist the pressure to use this technology to censor other forms of content at the request of governments?[...]
Mon, 21 Nov 2016 17:05:00 -0500We have an incoming president who claims he will be less interventionist in foreign policy than President Barack Obama and Hillary Clinton, but also promises he will "bomb the shit out of" the Islamic State in order to fight terrorism. It would be logical to conclude that this would mean Donald Trump might be a supporter of the use of armed drones to take out suspected terrorists in foreign countries as a way of fighting ISIS without committing more troops. In other words: We would see Trump continue Obama's current drone strike policies. But, in perhaps an example of how little concern about executive authority played in this election, Trump is not on the record for saying a whole lot about drones. The ISideWith site has Trump saying he supports drone strikes because he believes in using any tool to fight terrorism, but the story and video clip the site links to as a source does not actually have Trump declaring support for drones. The Center of the Study for Drones at Bard College examined what Trump and Clinton have said about drone use on the campaign trail. Here's what they published on Trump in October: The Republican candidate and his advisers have made fewer direct references to military drone use than the Clinton team. Unlike Clinton, Trump has had no direct experience in coordinating drone strikes. Furthermore, and also unlike Clinton, Trump has only one known adviser—Gen. Michael Flynn—who has played a direct role in U.S. military drone operations in the past two decades. That being said, it is possible to extrapolate the rough contours of a Trump administration's policies governing drone use. Generally speaking, Trump has advocated a broad aerial campaign against ISIS that contrasts with the precision-centric targeted killing operations conducted by the current administration and advocated for by Hillary Clinton and many of her advisers. Trump's advisers hold mixed views on drones. Three Trump advisers—Rudy Giuliani, Michael Woolsey, and Gen. Flynn—have publicly criticized the use of drones for targeted killing. Trump supports the expanded use of military drones to patrol U.S land borders, and has called for an increase in military spending that would likely impact drone acquisition programs, though the plan largely focuses on the procurement of fighter jets and ships, and an increase in personnel. Trump did, in a foreign policy speech in August, say he wanted to keep drones as part of his military strategy, but also wanted to capture "high-value targets," something that drone strikes often preclude. Today CNN noted that Flynn, now Trump's pick for National Security Adviser, had previously criticized drone strikes because they "cause more damage than [they're] gonna cause good." But he's also criticized waterboarding as torture, a tool that Trump is openly embracing. Now that Trump has won, there's a cascade of "What will Trump do with these drones?" stories, and this is because Obama implemented his drone procedures completely through executive branch policies, unchallenged and unsupported by Congress. "Unsupported" is probably the wrong word because silence can be seen as support. We had Sen. Rand Paul engage in a filibuster in order to get assurances that the administration wouldn't use drone strikes against U.S. citizens on American soil, and that's about the extent of it. There has been very little interest otherwise in oversight of the administration's use of drones to kill suspected terrorists in foreign countries—particularly in countries like Yemen and Somalia where we aren't engaged in authorized military activity. The fact that drones have killed many civilians not involved in terrorism doesn't seem to have affected interest in using them. It's difficult to speculate what Trump might do here. He may be less involved in some countries like Syria, but his call for more strikes against terrorists does make it seem as though drones would have to be on the table. Drones poll well with Americans undoubtedly beca[...]
Fri, 18 Nov 2016 12:15:00 -0500Today's lesson in why you shouldn't build a pervasive and all-powerful surveillance state because it might one day end up in the tiny hands of a Donald Trump comes courtesy of the news that Trump could resurrect a Bush-era registration system for Muslims entering the United States. According to Reuters, which spoke with Kansas Secretary of State Kris Kobach, an immigration hardliner and key member of Trump's transition team, the new administration could reconstitute the National Security Entry-Exit Registration System. The NSEERS program was implemented after 9/11 and required people from so-called "higher risk" countries to undergo interrogations and fingerprinting when they entered the United States and were required to periodically "check in" at government offices while they were here. Trump's transition team is reportedly considering using the registration program as a way to meet The Donald's campaign promise to implement "extreme vetting" for Muslim immigrants. Kobach helped develop NSEERS as a member of Bush's Department of Justice. The only problem with The NSEERS program—which was shuttered in 2011—was that it was completely ineffective at its stated goal: catching potential terrorists. During the nine years that the program was in place, more than 93,000 immigrants were screened and none—not a single one—was ever convicted on terrorism-related charges. According to the ACLU, the program "singled out immigrant men and boys from designated countries for extraordinary registration requirements with DHS, ranging from an extra half-hour of screening on arrival, through tracking of whereabouts while in the United States, to limitations on points of departure." The scale of profiling was something not seen in the United States since the Japanese-American internment camps during World War II and "Operation Wetback" deportations to Mexico in the 1950s. Even within the federal government's immigration and anti-terrorism apparatuses, it was looked on as a mistake. James Ziegler, the former commissioner of the Immigration and Naturalization Commission, told the New York Times that the program disrupted the United States' relationship with immigrant communities after 9/11 and wasted resources that could have been better deployed elsewhere. It's not hard to figure out why the program failed to identify any potential terrorists. It was, by nature, targeting only law-abiding immigrants. As Reason's Shikha Dalmia wrote last year: "Expecting terrorists to voluntarily stroll to an immigration office to be fingerprinted and IDed is absurd, of course. So the entirely predictable upshot of the program was that although it managed to obtain not a single terrorism-related conviction, it did ruin plenty of lives of peaceful Muslims caught in its dragnet." People like Abdulameer Yousef Habeeb, a refugee from Iraq whose story demonstrates exactly how the NSEERS program was abused by law enforcement. As a refugee, Habeeb was not required to register with NSEERS, but he was stopped by border agents while traveling via train from Seattle to Washington, D.C., in April 2003. The agents wrongly accused Habeeb of violating NSEERS mandatory registration and detained him for more than a week, causing him to lose the job that he was traveling to Washington, D.C., to accept. After a lawsuit from the ACLU, the federal government eventually admitted they were wrong to have detained Habeeb. And people like Imad Daou, a Lebanese national and graduate student at Texas A&M who was engaged to be married when he was detained for two months and eventually deported for failing to register in the NSEERS program. Though the program was no good at catching terrorists, it did help authorities deport thousands of immigrants, like Daou, who had done nothing worse than overstay their visa. The program was suspended by the Obama administration in 2011, but Obama didn't fully dismantle it. Instead, Vox reports, Obama simply removed all 25 "high risk" [...]
Wed, 16 Nov 2016 08:00:00 -0500During the presidential campaign, Rudy Giuliani argued (correctly) that Hillary Clinton could be charged with a federal felony for mishandling classified information through her sloppy email practices as secretary of state even if she did not intend to break the law. But there is also a strong case to be made that the former New York City mayor, who reportedly is in the running for attorney general or secretary of state in the Trump administration, committed multiple federal felonies by assisting Mujahedeen-e-Khalq (MEK), an Iranian opposition group that the State Department listed as a terrorist organization until September 2012. "My ties to them are very open," Giuliani, a former U.S. attorney, recently told The New York Times. "We worked very hard to get them delisted." But under the broad understanding of the federal ban on "material assistance" to terrorist groups that the Supreme Court upheld in 2010, that work was pretty clearly a crime punishable by up to 15 years in prison. The "material support" statute, 18 USC 2339B, prohibits the provision of "training," defined as "instruction or teaching designed to impart a specific skill"; "expert advice or assistance," defined as "advice or assistance derived from scientific, technical or other specialized knowledge"; "personnel," which means any person, including oneself, who works under the organization's "direction or control"; or any other "service," which is not defined at all. In Holder v. Humanitarian Law Project, the Supreme Court said the law covers volunteer work aimed at helping listed organizations resolve their grievances through nonviolent means. While such advice and advocacy would ordinarily be protected by the First Amendment, the Court said, "the government's interest in combating terrorism" justifies the speech restrictions imposed by the ban on material support. Notably, the Supreme Court refused to read the law as requiring an intent to further a terrorist organization's illegal activities. As long as someone knows he is assisting a "foreign terrorist organization" (FTO), it is no defense to say he only meant to promote its lawful activities. Giuliani, who "worked very hard to get [the MEK] delisted," obviously knew the group was considered an FTO. Nor is it necessary that someone providing material support to an FTO receive compensation in return, although Giuliani apparently was paid handsomely for his speeches on behalf of the MEK. According to the Court, the difference between protected and prohibited advocacy is not whether money changes hands; it's whether the advocacy is "performed in coordination with, or at the direction of, a foreign terrorist organization." By announcing that "my ties to [the MEK] are very open," then, Giuliani is effectively confessing to a crime. I am not saying Giuliani should go to prison for his efforts to rehabilitate the MEK. The State Department's list is arbitrary and shaped by political considerations, the MEK had a strong argument that it should no longer be considered an FTO, and in any case peaceful advocacy of lawful activities should never be treated as a crime. Knowingly providing material assistance to an FTO (which Giuliani did) is not necessarily the same as knowingly providing material assistance to terrorism. For the sake of fairness and freedom of speech, the law's mens rea requirement should be stronger. The same goes for 18 USC 793, which Clinton arguably broke by allowing classified information to be removed "from its proper place of custody" through "gross negligence," a felony punishable by up to 10 years in prison. A conviction under that law should require more than negligence, because it should not be possible to accidentally commit a crime. That is the main reason Comey gave for declining to recommend charges against Clinton: Although the law does not require criminal intent, justice does. But Giuliani was not willing to cut Clinton any such slack. As far as[...]
Tue, 11 Oct 2016 16:55:00 -0400The terrible, authoritarian antiencryption legislation put together by Sens. Dianne Feinstein (D-Calif.) and Richard Burr (R-N.C.) died without getting anywhere at all, but they're apparently workshopping new versions of the legislation that are perhaps less awful and less about simply ordering tech companies to assist the feds in destroying their own data security. We'll have to see what comes out of this work, but everybody should be paying attention to a terrorism case coming out of England. Samata Ullah, 33, of Cardiff, has been charged with several terrorism-related offenses for supporting the Islamic State (ISIS). Ullah is not charged with actually carrying out violent acts. He is suspected of planning some. But the big deal here is that he being charged with using technology in a way to conceal what he was planning. That's where things get a little dicey. He is charged with using encryption and possessing information that could be used for creating weapons for terrorist attack, even though it's not inherently illegal in England to encrypt one's data or to possess information that can be used for weapons. Here's how the charges are described via Ars Technica: The charge sheet includes one count of preparation of terrorism "by researching an encryption programme, developing an encrypted version of his blog site, and publishing the instructions around the use of [the] programme on his blog site." Ullah is also accused of knowingly providing "instruction or training in the use of encryption programmes" in relation to "the commission or preparation of acts of terrorism or for assisting the commission or preparation by others of such acts." He has additionally been charged with being in possession of a "Universal Serial Bus (USB) cufflink that had an operating system loaded on to it for a purpose connected with the commission, preparation, or instigation of terrorism." In one way, it's easy to see a certain type of logic behind such a law. It should be very clear by now that a law attempting to block the use of encryption or to make possession of information itself criminal is not just a dangerous and abuse-promoting violation of the right to security and privacy; it is utterly untenable in the borderless world of the Internet. So instead they're attempting to criminalize when these tools are used to support terrorism. There's still the obvious problem, though, that the government is criminalizing the tools instead of what is actually done and the potential for abuse in the hands of prosecutors. Silicon Republic noted: This section of the terrorism law has been cited in a number of incidents over the past year, ranging from individuals being charged over suspected terror incidents in Syria, to teenagers being accused of trying to build a bomb based on plans from the internet. In 2014, London solicitor Tayab Ali spoke with Vice about how section five was very problematic, as it allows for prosecution of acts that would otherwise be deemed legal by the state. "Section 5 can criminalise acts that, on their own, would be completely legal – if prosecutors can show that the end purpose of those acts might be terrorism," Ali said at the time. The law referenced was passed in 2006. The law very literally criminalizes any action or conduct in preparation for a terror attack or assisting anybody else in preparing a terror attack. Blame it on a political "do something" mentality in fighting terrorism. There's no reason why people plotting terrorist attacks cannot be charged for what they're actually attempting to do. Criminalizing information or tools based on their context is just another way to add more charges. Giving the government the authority to decide when information itself or the use of particular tools are contributing to the commission of a crime is a recipe for prosecutorial abuse. We can pretty much guarantee that laws like this will ultimately, even[...]
Wed, 05 Oct 2016 10:30:00 -0400During a brief exchange about national security at last night's Vice Presidential debate, moderator Elaine Quijano asked the candidates, "Do you think the world today is a safer or more dangerous place than it was eight years ago? Has the terrorist threat increased or decreased?" Democratic VP nominee Tim Kaine immediately responded, "The terrorist threat has decreased in some ways, because bin Laden is dead." He soon segued into selling Hillary Clinton's plan to defeat ISIS: First, we've got to keep taking out their leaders on the battlefield. She was part of the team that got bin Laden, and she'll lead the team that will get Abu Bakr al-Baghdadi, the head of ISIS. Kaine repeatedly invoked the 2011 assassination of Osama bin Laden as evidence that Hillary Clinton's actions as Secretary of State helped make the world "safer," and also declared that al Qaeda was all but crippled by the death of bin Laden—despite the fact that he died while holed up in a house in Pakistan with his feuding wives, years after he ceased to be involved in any kind of operational leadership role with al Qaeda. While Kaine might have a point about the fact that Trump's pledges to "bomb the shit out of ISIS" and re-institute waterboarding of terror suspects are not much of a plan, the Democratic ticket's reliance on the go-to line of "We're going to go after Baghdadi" is a classic example of shallow election-year sloganeering. Clinton herself promised to go after ISIS' leader at the first presidential debate, as well as at the Iraq and Afghanistan Veterans of America (IAVA) forum, and many times on the campaign trail. If that's the number one priority, then it's worth asking: Is the Obama administration not going after Baghdadi now? Are they just letting ISIS' leader wander the self-declared Islamic State caliphate free from the threat of U.S. airstrikes? Of course not, but as noted in The Guardian last month, Clinton intends to put a "concerted focus" on "going after" Baghdadi. But why does anyone believe decapitating the leadership of ISIS would "defeat" them? Furthermore, reports of al Qaeda's death have been greatly exaggerated. Though it may not bear much resemblance to the top-down organization bin Laden lead over a decade ago, al Qaeda in the Arabia Peninsula (AQAP) controls a major port city in Yemen—in large part thanks to U.S. ally Saudi Arabia's war against Iranian-backed Houthi rebels. AQAP also claimed responsibility for the 2015 Charlie Hebdo massacre in Paris and has proven capable of launching terror attacks via smaller cells in Burkina Faso. Other al Qaeda "franchises" control significant amounts of territory in Syria, North Africa, and Somalia. Even ISIS itself is an offshoot of al Qaeda, and with their billions in oil revenue and U.S.-made weapons pilfered from the Iraqi army and Syrian rebel groups, they seem to be doing just fine without bin Laden around. In an essay published around the time of the five-year anniversary of bin Laden's killing last May, the RAND Corporation's Brian Michael Jenkins wrote that targeting a terrorist group's leadership can disrupt its operational abilities in the short term, but also noted that a number of studies show taking out terror leaders "affected neither the rate of terrorist attacks nor the likelihood of organizational collapse. And however careful the targeting, such strikes can produce civilian casualties, provoke anger, and incite further terrorist attacks in revenge." Jenkins concludes, "Was al Qaeda hurt by the demise of its charismatic leader? Certainly. Is the world a safer place because of it? Probably not." Ultimately, the more the U.S. engages in bombing foreign countries, the easier it is for any Islamist extremist groups to recruit. Young men born the same year as the 9/11 attacks are now old enough to be commissioned to engage in jihad and are much more likely to be motivated by a[...]
Thu, 22 Sep 2016 00:01:00 -0400"No person shall...be deprived of life, liberty, or property, without due process of law..." — Fifth Amendment to the U.S. Constitution The clash in American history between liberty and safety is as old as the republic itself. As far back as 1798, notwithstanding the lofty goals and individualistic values of the Declaration of Independence and the Constitution, the same generation — in some cases the same human beings — that wrote in the First Amendment that "Congress shall make no law...abridging the freedom of speech" enacted the Alien and Sedition Acts, which punished speech critical of the government. Similarly, the Fifth Amendment's guarantee of due process has been ignored by those in government charged with enforcing it when they deal with a criminal defendant whom they perceive the public hates or fears. So it should come as no surprise that no sooner had the suspect in the recent New Jersey and New York City bombings been arrested than public calls came to strip him of his rights, send him to Gitmo and extract information from him. This is more Vladimir Putin than James Madison. I have often argued that it is in times of fear — whether generated by outside forces or by the government itself — when we need to be most vigilant about protecting our liberties. I make this argument because when people are afraid, it is human nature for them to accept curtailment of their liberties — whether it be speech or travel or privacy or due process — if they become convinced that the curtailment will keep them safe. But these liberties are natural rights, integral to all rational people and not subject to the government's whim. I can sacrifice my liberties, and you can sacrifice yours, but I cannot sacrifice yours; neither can a majority in Congress sacrifice yours or mine. The idea that sacrificing liberty actually enhances safety enjoys widespread acceptance but is erroneous. The Fort Hood massacre, the Boston Marathon killings, the slaughters in San Bernardino and Orlando, and now the bombings in New Jersey and New York all demonstrate that the loss of liberty does not bring about more safety. The loss of liberty gives folks the false impression that the government is doing something — anything — to keep us safe. That impression is a false one because in fact it is making us less safe, since a government intent on monitoring our every move and communication loses sight of the moves and communications of the bad guys. As well, liberty lost is rarely returned. The Patriot Act, which permits federal agents to bypass the courts and issue their own search warrants, has had three sunsets since 2001, only to be re-enacted just prior to the onset of each — and re-enacted in a more oppressive version, giving the government more power to interfere with liberty, and for a longer period of time each time. We know from the Edward Snowden revelations and the National Security Agency's own admissions that the NSA has the digital versions — in real time — of all telephone calls, text messages and emails made, sent or received in the U.S. So if the right person is under arrest for the bombings last weekend, why didn't the feds catch this radicalized U.S. citizen and longtime New Jersey resident before he set off his homemade bombs? Because the government suffers from, among other ailments, information overload. It is spread too thin. It is more concerned with gathering everything it can about everyone — "collect it all," one NSA email instructed agents — than it is with focusing on potential evildoers as the Fourth Amendment requires. Why do we have constitutional guarantees of liberty? The Constitution both establishes the federal government and confines it. It presents intentional obstacles in the path of the government. Without those obstacles, we might be safe from domestic harm, but who would [...]
Wed, 21 Sep 2016 23:24:00 -0400
(image) What can we learn from the fact that a half-dozen Muslim terrorists on American soil had gotten onto the radar screen of U.S. law enforcement before committing their foul deeds? One lesson, as Scott Shackford has observed in these pages, is that the seeming detection failures of targeted investigations render absurd all the time wasted on dumb, constitutionally questionable mass surveillance. But that still leaves the Monday-morning quarterback questions of did the FBI blow it, and what could law enforcement do differently?
We chew on these subjects and more on tonight's Red Eye w/ Tom Shillue at 3 a.m. on Fox News, where I will be panelizing along with comedians Alli Breen and Sam Roberts, and Fox News contributor Pete Hegseth. Other topics include whether Jack Shafer is an American hero or anti-hysteria hysteric (or both), and whether this barftastic Joss Whedon celebrity vote-against-Trump ad will turn us all into alt-righties sooner rather than later.
To whet your late-night appetite, here's the last time I appeared on Red Eye:
src="https://www.youtube.com/embed/fU1gbura9oM" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0">
Wed, 21 Sep 2016 13:35:00 -0400
(image) Josh Zepps, host of the (Reason-friendly) podcast WTP_Live, and former (Reason-friendly) host over at HuffPost Live, joins The Fifth Column this week to chew over the smorgasbord of available news, including:
* Tulsa cops shooting and killing the unarmed Terence Crutcher.
* Authorities shooting and not killing Ahmad Rahami, the suspected pressure-cooker bomber of Jersey/Chelsea.
* The media hyperventilating over both of the above.
* Gary Johnson.
* An unsuspecting Kmele Foster being bum-rushed in a red-carpet situation by Denzel Washington. Wait, what?
The latter is actually true—I've seen video evidence—and it kicks off the podcast, which you can listen to in full:
src="https://www.podbean.com/media/player/qprpt-62d9eb" width="100%" height="100" frameborder="0">
Here are the places you can download, interact with, recommend to your friends about, write glowing reviews of, and submit your fan-art to The Fifth Column: iTunes, Stitcher, Google Play, wethefifth.com, @wethefifth, and Facebook.
Wed, 21 Sep 2016 00:01:00 -0400Donald Trump predictably blames "our extremely open immigration system" for Saturday's bomb attacks in New Jersey and New York City. His critique overlooks the details of this particular case as well as the general rarity of terrorism by immigrants. Ahmad Khan Rahami, the 28-year-old man police arrested on Monday in connection with the bombings, is a naturalized U.S. citizen who immigrated to the United States from Afghanistan at the age of 7. He seems to have been radicalized within the last few years, a period when he spent nearly a year in Pakistan and became noticeably more religious and taciturn. It is hard to imagine how the "extreme vetting" Trump advocates for immigrants from "any nation that has been compromised by terrorism" could have kept Rahami out of the country. What questions could have been posed to his parents that would have predicted his violent turn two decades later? Trump faults his Democratic opponent, Hillary Clinton, for supporting the admission of Syrian refugees, who he says pose an unacceptable risk of terrorism. But according to a recent study by Cato Institute immigration policy analyst Alex Nowrasteh, "the chance of an American being murdered in a terrorist attack caused by a refugee is 1 in 3.64 billion per year." Trump has recommended "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on"—a plan that his own running mate called "offensive and unconstitutional." More recently Trump has said the moratorium should apply to all visitors from countries "compromised by terrorism," a category that arguably includes most of the world. Some pundits favor a cleaner approach. "Confronted with the threat of Islamic terrorism," Nowrasteh notes, "well-known conservatives like Larry Kudlow, David Bossie, and Ann Coulter have called for a complete moratorium on immigration." A broad moratorium would have the advantage of preventing all terrorist attacks by newly admitted immigrants. But it would also exclude more than 1 million innocent people each year it was in effect, at a huge economic cost. Nowrasteh cites estimates ranging from $35 billion to $229 billion a year. Nowrasteh reports that tourists accounted for 94 percent of deaths caused by foreign-born terrorists in the United States from 1975 through 2015. Including tourists in the moratorium would raise the annual cost by another $194 billion or so. Given the rarity of deaths caused by terrorism, Nowrasteh shows, such costs cannot possibly be justified. Based on a value of $15 million per life, he puts "the combined human, property, business, and economic costs" of attacks by foreign-born terrorists during the 41-year period covered by his study at $5.3 billion annually, which is "far less than the minimum estimated yearly benefit of $229.1 billion from immigration and tourism." Even that calculation overestimates the potential security benefit of cutting off immigration, since it is dominated by the 2001 attacks on the World Trade Center and the Pentagon, an anomalous event that is unlikely to be replicated. The 9/11 attacks (which were perpetrated not by naturalized citizens or by refugees but by visitors with tourist or student visas) account for 99 percent of the 3,024 deaths caused by foreign-born terrorists from 1975 through 2015. Excluding 9/11, the overwhelming majority of terrorist murders in the United States—more than 90 percent—have been committed by native-born Americans. Except for 2001, the risk of being killed by a foreign-born terrorist has been minuscule and flat for more than four decades. That risk is extremely low even if you include 9/11: about 1 in 3.6 million per year. You are more than 200 times as likely to die in a traffic accident, 20 t[...]
Tue, 20 Sep 2016 15:30:00 -0400
(image) Today's reporting about Ahmad Khan Rahami, the man charged with setting up explosive devices in New York and New Jersey and injuring dozens, should reinforce a position against mass surveillance, not encourage it. Our "failure" to engage in mass surveillance against groups of people on the basis of their ethnicity or religion or immigration status isn't what's leaving us vulnerable to terrorist attacks.
Mohammad Rahami, Ahmad's father, told the press today that he contacted the FBI in 2014 to warn them that he was worried something was wrong with his son. Ahmad had been accused of stabbing his brother during a domestic dispute. According to The New York Times, the FBI took the complaint and interviewed the father. The father then, according to the FBI, recanted his allegations.
Mind you, violent family disputes shouldn't on their own be treated as indicators of radicalization. The Times is terribly short on details of what this fight was about. But just as the Orlando nightclub shooter Omar Mateen had a background that suggested some problems, so is the case with Rahami.
And that, then, raises the question of what exactly the FBI should have or could have done about these accusations. If an examination of the cases of Rahami and Mateen didn't give the FBI enough information to actually intervene and react to what was happening (and it's possible it didn't), what exactly is the benefit of mass surveillance?
The emphasis on mass surveillance from the likes of Donald Trump and Rudy Giuliani approach a very cinematic idea of backroom whispers and conspiracies. Perhaps that attitude is exactly why New York's secret mass surveillance program of Muslim communities failed to actually stop any terror plots. When you're given very specific, troubled young men to keep an eye on, and ultimately that leads nowhere, what is the evidence that some sort of mass surveillance would have helped here or anywhere else?
Let's also add that that the father himself taking the initiative to contact the FBI is significant, even if he backed down. There's no perfect solution to determining when somebody living in America becomes radicalized, but certainly the willingness of family members to step forward will play a major role. If all Muslims are treated with suspicion, they're going to be less likely to be willing to communicate with authorities.
Read more about the latest in the investigation here.
Tue, 20 Sep 2016 12:25:00 -0400Just hours after the suspected New York City dumpster bomber was caught by police in New Jersey, Donald Trump was already lamenting how slowly the wheels of justice were turning. At a rally in Florida, Trump bemoaned the fact that America's justice system would include such kid-gloves-treatment as providing Ahmed Khan Rahami with a doctor (to treat the gunshot wound sustained during a shoot-out before his capture), a lawyer and a fair trial to establish whether Rahami is guilty of setting off a bomb that injured 25 people in the Chelsea neighborhood of New York City on Saturday night. Here's what Trump said, courtesy of CBS News' Sopan Deb: This whole thing is worth your time to read from Trump in Florida today: pic.twitter.com/IdHgnYSsL8 — Sopan Deb (@SopanDeb) September 19, 2016 Trump makes it sound like the government is giving Rahami a free weekend trip to the Mar-A-Lago resort, instead of providing him with the basic rights and protections given to all Americans who are charged with a crime. "And on top of all that, he will be represented by an outstanding lawyer," says Trump, who apparently has inside information about the attorney who will defend Rahami in court (just like had information about Saturday night's explosion before anyone else did). The Sixth Amendment doesn't make any promises about the caliber of the barrister that one might have, but the right to counsel is not a "sad situation." Along with the rest of the Sixth Amendment—which also enshrines the right to a fair trial, a jury and the chance to face one's accusers—it's one the foundations of a civilized society and a protection against a whole host of governmental abuses. Trump lashes out like this, I suspect, because he lacks an actual understanding of national security issues (and his no interest in learning about them) and, like his Democratic opponent, doesn't have much regard for the constitutional limits of government in any setting. He also does it because it plays well with many of his supporters, who love strongman rhetoric and only support limits on government power when that power is aimed at them. That's why he says things like "knock the hell out of them," when asked about his plan to deal with terrorism. Knock the hell out of who, exactly? Islamists in the Middle East? Muslims living in Elizabeth, New Jersey, and St. Cloud, Minnesota? It doesn't matter, of course, because the important thing is that he wants to knock the hell out of someone, and damn the constitutional consequences. His direct assault on the Sixth Amendment right to a lawyer and a fair trial also contains a sideswipe at the Fifth Amendment's guarantee of a fair trial and due process (not to mention the Fourteenth Amendment's similar promise of equal treatment under law) when he calls for treating the alleged New York bomber as an enemy combatant. Rahami is not a foreign combatant (and he's not a refugee, either). He's a naturalized citizen of the United States, entitled to the same constitutional protections as you, me or Donald J. Trump. The content of what Trump said is disturbing enough—though not unexpected for anyone who has been following the trajectory of his campaign—but the implications are what really frighten. If he's willing to suspend constitutional protections for suspected terrorists after an attack, it's only a matter of time before those same rules are applied in pursuit of stopping an attack. It starts with surveillance of Muslim communities, but where does it end? Trump's already shown a willingness to run headlong down that slippery slope, telling 60 Minutes in July that he doesn't regard constitutional limits on government power as legitimate if the nation itself is at stake. Anyone who ac[...]
Mon, 19 Sep 2016 16:00:00 -0400It is fortunate that nobody was killed in the weekend terror attempts in New York, New Jersey, and Minnesota, other than the suspect in the mall stabbings. Since this is an election revolving around blaming and punishing people, of course that's where the political discussion went. Reminding us that they are both terrible on issues of free speech, Donald Trump and Hillary Clinton both had awful things to say about everybody's civil liberties in the fight against terrorism. Trump, this morning, on Fox & Friends, blamed the freedom of the press because of the publishing of magazines that instruct people on how to make bombs. He insisted that he believes in the freedom of the press (doubtful), but also called for anybody who provides instructions on how to build bombs to be arrested because they're "participating in crime." He also said some people who operate websites should also be arrested for "inciting violence. … They're making violence possible. They should be arrested immediately" for operating websites that give instructions on making bombs. (You can watch the segment cued up to the comments here) In typical Trump (and Fox & Friends) fashion, everything discussed is so vague as to be unclear what he means. Does he believe it's a prosecutable offense to simply publish information that can be used to make bombs? It's absolutely not, but it's often worth trying to tease out the bigger issue Trump is trying to get at. I want to maybe guess that what he really wants to do is go after sites that are actively attempting to stir up terrorism on behalf of the Islamic State, but maybe that's giving him too much credit. If he thinks that the providing of information is what makes the violence possible, then he's got a problem because—even if it were legal for the United States to prosecute people simply for providing information that could be used for violent means—the ability to access information on the Internet doesn't end at the U.S. borders. Who is he going to arrest? Trump's response is awful, but represents a commonly held attitude: Quite a few people want to censor information that can be used for violent means without actually thinking through the unintended consequences (maybe remind them of the court ruling that a school could ban patriotic apparel if it offended students and potentially stirred up violence). Trust Clinton to match Trump with her own broadside against free speech in response to the attacks and to make it all about Trump himself. Clinton said that the things Trump says is being used as a recruitment tool for ISIS and flat out essentially accused him of treason (without actually using the word). From New York Magazine: "We know that a lot of the rhetoric that we've heard from Donald Trump has been seized on by terrorists, in particular ISIS," Clinton said "They are looking to make this into a war against Islam, rather than a war against jihadists, violent terrorists — people who number in the, maybe, tens of thousands, not the tens of millions. They want to use that to recruit more fighters to their cause, by turning it into a religious conflict." Clinton went on to note that Trump's comments have been used for the recruitment of terrorists online, according to former CIA director Michael Hayden. "We also know from the former head of our counter-terrorism center Matt Olsen that the kinds of rhetoric and language Mr. Trump has used is giving aid and comfort to our adversaries," Clinton continued. [emphasis added] Not entirely sure how social signaling is going to help with the war on terror. Also not entirely sure it's going to help with the election. When you're accusing Trump of treasonous language, what are you sa[...]