Bruce Schneier <3's TSA

Yesterday, Bruce Schneier wrote a blog post about abolishing the Department of Homeland Security. It was based, in large part, on a CATO report calling for the same citing that

DHS has too many subdivisions in too many disparate fields to operate effectively. Agencies with responsibilities for counterfeiting investigations, border security, disaster preparedness, federal law enforcement training, biological warfare defense, and computer incident response find themselves under the same cabinet official. This arrangement has not enhanced the government's competence. Americans are not safer because the head of DHS is simultaneously responsible for airport security and governmental efforts to counter potential flu epidemics.

Schneier agrees, citing his own writing from 2003:

Our nation may actually be less secure if the Department of Homeland Security eventually takes over the responsibilities of existing agencies. [...] Security is the responsibility of everyone in government. We won't defeat terrorism by finding a single thing that works all the time. We'll defeat terrorism when every little thing works in its own way, and together provides an immune system for our society. Unless the DHS distributes security responsibility even as it centralizes coordination, it won't improve our nation's security.

But Schneier takes issue with CATO's suggestion, later in the above linked report, that the TSA should abolished. Instead, he believes

abolishing the TSA isn't a good idea. Airport security should be rolled back to pre-9/11 levels, but someone is going to have to be in charge of it. Putting the airlines in charge of it doesn't make sense; their incentives are going to be passenger service rather than security. Some government agency either has to hire the screeners and staff the checkpoints, or make and enforce rules for contractor-staffed checkpoints to follow.

It would be very easy, at this point, to attack Schneier on the basis that the TSA is a colossal failure. However, that TSA is not a failure of epic proportions is not what he is arguing. In fact, Schneier himself is the progenitor of the idea that exactly "two things have made flying safer: the reinforcement of cockpit doors, and the fact that passengers know now to resist hijackers". Furthermore, just this week, he penned an article calling the TSA irrelevant. So, let's look at exactly what he did say: that airline security should return to pre-9/11 levels with the government being in charge of it, either directly (government-hired goons staffing the checkpoints) or indirectly (private contractors acting under government regulation). If we hearken back to the pre-9/11 days, we find that his statement is redundant. Prior to 9/11, the government via the FAA was in charge of airline security, and what Schneier is suggesting is exactly how we arrived -- ignoring the reason(s) for the attacks themselves -- at 9/11 in the first place.

Before addressing Schneier's claim that putting the airlines in charge of airport security doesn't make sense, let's start with why his own solution doesn't make sense. First, there is the empirical evidence. As I just pointed out, 9/11 happened on the government's watch. While I agree that airline security should be rolled back to pre-9/11 levels, putting/leaving the government in charge of it is ludicrous, and the reason for that is that the government's interests do not align with that of the traveling public. Ostensibly, both care about flight safety. But in reality, as Schneier himself points out relentlessly, the TSA fails to provide this on any level. Just last month, a Vanity Fair writer explained how Schneier helped him circumvent TSA security to meet Schneier at the gate when his flight arrived. Then there's my own personal experience: after leaving the screening area (without being screened), the TSA demanded that I return because they feared that I may have an explosive device on my person. Why would they usher me back to the most crowed area of the airport if they feared that I had explosives? In reality, the government's interest(s) lie in an ever increasing role in security. This provides, not an actual increase in security, but an ever increasing ability to funnel money to favored contractors and further ratchet up the police state apparatus for the same reason.

The other reason that having the government in charge of airline security doesn't make sense is the same reason that letting the airlines manage their own security does: the profit and loss test. The basic idea is that when a business produces a product that consumers want at a cost that is less than what consumers are willing to pay, then the business profits. If any of these conditions are not met, the business suffers a loss. If the business does not change, then it goes out of business, government intervention notwithstanding.

Let's apply this test to the government's handling of airline security. It is producing a product that consumers want, namely, security. It is producing it at a cost of approximately $8.8 billion per year according to the federal government's 2011 budget. But this is where the profit and loss test ends for the TSA or any government entity. The profit and loss test requires that consumers of a product voluntarily pay or not pay for it. The government is funded via compulsory taxation. Therefore, the government need not concern itself with whether or not it is producing a product that people want or, more importantly, in a way that they want. That the government acts in exactly this way is borne out by reality. The TSA's budget during its first full year of funding in 2003 was $4.8 billion. It's current budget, only 8 years on, is a near 100% increase from that initial budget. This comes despite repeated TSA bungles including sleeping on the job, physically harassing passengers, allowing criminal activity to bypass security, stealing from passengers... the list goes on and on. If the TSA was a private corporation, consumers would have put it out of business almost 10 years ago. Instead, its costs are higher than ever and rising with no end in sight. In fact, the TSA's only measurable goal is total security, something that requires an absolute police state. Despite the desire on the part of the traveling public for total security, I'd wager that none would actually want to pay for it in terms of money or liberty required to implement said police state.

Now we can return to Schneier's claim that putting airline security in the hands of the airlines makes no sense. He believes this because he thinks that the airlines' focus will be on passenger service instead of security. Somebody didn't think through his rationale, completely. Tsk, tsk. Security is part and parcel of the service provided by the airlines. No passenger is going to be concerned about a glass of soda and a bag of peanuts or that he didn't get a blanket and a fluffy pillow if his plane is commandeered or blown up by a terrorist. Not only that, but the loss of a plane costs an airline hugely. There is of course the capital loss of the plane and the fuel, but more than that, if the airline wants to stay in business it's not only going to have to beef up its security, but it is going to have to figure out how to prove to passengers that it had changed its ways so that they'd be willing to fly again. We see then, that the airlines' interests, unlike the government's, align perfectly with the traveling public. In addition, airlines carry insurance for their operations. This means that airlines want their operations to be safe and secure because they don't want their premiums to rise in the event of an accident, and the airlines' insurance companies have every incentive to pressure the airlines to keep their operations safe and secure lest the insurance company have to pay out a multi-million, possibly billion, dollar claim.

"We can't trust the airlines", I hear you scream. "They're greedy capitalists!" Indeed they are, and that's exactly why the system would work. The airlines, unlike the government, cannot just take consumers' money to fund their operations. They must induce consumers to voluntarily give money to them. Thus, the airlines are subject to the profit and loss test described earlier. If the airlines provide too little security, passengers won't be willing to fly. The airlines will have saved some money by skimping on security, but the lack of income will ultimately result in losses. If they provide too much security, either the costs will drive ticket prices to a level that consumers are unwilling to pay, or consumers will find alternate means of travel because they find the security required by the airlines too onerous. In either event, the airlines will again find themselves losing money. In order to make money, the airlines will have to provide enough security to satisfy their passengers' desire for safety and their insurance companies' risk tolerance while not imposing so much security that passengers seek other airlines or other modes of travel entirely to avoid the costs and hassles.

Astonishingly, a self-correcting and self-policing system like this hasn't taken hold. Part of the reason for this is human nature. Humans have demonstrated a surprising inability to correlate events with the likelihood of their occurrence. For example, very few people are concerned about choking to death on their own vomit. However, it turns out that one is 9 times more likely to die by this method than via an act of terrorism. This is a topic that Bruce Schneier has also written about repeatedly. Because of this, people always demand ever more security in the event of some kind of accident or attack. Normally, the costs of these demands would temper them somewhat, but this doesn't happen because of government involvement. This is the other reason that a free market system has not taken hold: the government provides moral hazard. The airlines prefer that the government be involved because by using government provided security and/or standards, responsibility for security failures falls on the government, not the airlines. When something tragic occurs, the airlines can point to the government as the failure. Insurance companies are likewise not terribly worried about having to pay airline claims because the government has proven willing to bail them out. Even consumers are unwitting accomplices in this system because the costs of security have been separated from the cost of a ticket. Instead, these costs are (or would normally be) imposed as taxes, but even if one went looking for them, they would be difficult to find as the government has taken to inflating the currency in order to finance its operations. The increased costs of security are found in the rising prices of everyday items like milk, rent, electricity, and gasoline.

The government's involvement in airline security is not only an abject failure but an impediment to allowing a free(d) market to discover what the people really want when it comes to airline security. Bruce Schneier is a smart guy, and he's one of the TSA's harshest critics. He's written extensively about security and the trade-offs made in its name; he's no stranger to economics, especially when it comes to security. In light of this, I can only conclude from his desire to keep the government involved in airline security that he secretly loves the TSA.

When does it end

Right now, I've got 18 tabs open on my Internet browser (I use Firefox in case you're interested). This is a real rarity for me. I never have more than 3, possibly 4, open for any length of time. One is the window in which I'm typing this entry, one is iGoogle, one is Facebook, one is a news story about Timothy Geithner "extending" the deadline by which the U.S. Congress "must" raise the debt ceiling, and the other 13 are news stories devoted to Osama bin Laden. I first found out about bin Laden's death when my wife received a text message from her sister who had apparently been watching the news. I received the same text message a few minutes later. (Good work AT&T, delivering text messages to two phones 5 feet away from each other 5 minutes apart.) I have to admit that my first reaction was: so what?

It was immediately obvious to me that no troops would be coming home. No civil liberties would be restored. We would all continue to be forced to take our shoes off and be molested at the airport. I even commented sarcastically to a friend of mine: "Awesome, so the war on terror is over and we all get our liberties back?" In reality it would seem that just the opposite has turned out to be true. Secretary of State Clinton was quick to "reassure" the public that "battle to stop al-Qaeda and its syndicate of terror will not end with the death of Osama bin Laden." Moreover, major government officials and every major news source and pundit has told us that we are in even more danger now because of the possibility of retaliatory attacks. The NBA took the extra step of mandating metal detectors at playoff games. So, killing bin Laden made us less safe? If that's the case, then logic would dictate that he shouldn't have been killed.

After confirming my sister-in-law's text message, we changed the channel back to our "regularly scheduled programming". Before going to bed, we turned again to the news to see what, if any, additional information might be available. We were treated to clip after clip of video showing people dancing in the streets in places like Times Square and the White House. I was disgusted to see the very same people who denounced people who danced in the streets while burning American flags after the death of one of our soldiers acting in the exact same manner. The news feed on my Facebook account exploded that evening with people cheering on our government and our military for summarily executing another human being.

In dying, Osama bin Laden showed us that we're really not so different from the very people that we deride as war-mongers and who we believe are incapable of a peaceful existence.

He taught this country the consequences of operating an open, free society. Literally, he showed Americans the price of their liberty, how many of their principles they'd be willing to cast aside, and how quickly they would do it.

In other words, bin Laden showed American exceptionalists how unexceptionally they behave when faced with horrors most older nations have endured.

The writer is referring to our weak-kneed acquiescence to government intrusion on liberty here in the U.S., our paranoia at the thought that a terrorist is hiding around every corner, and our rampant xenophobia. His point is equally applicable to our reaction to the news of bin Laden's death, though. The overwhelming reaction, that of proclaiming America's strength and celebrating our actions in the streets, was no different than that of the people you see in other parts of the world dancing upon hearing the news of the killing of American soldiers.

I woke up the next morning to hear people on the radio explaining that it's different when American's celebrate. You see, Osama bin Laden killed innocent civilians on September 11th, 2001. Therefore he is evil, and not only was his killing justified but morally right. On the contrary, our soldiers are overseas doing good work, and when they are killed, that is wrong. Never mind that the "rebels" in Afghanistan see us as an invading and occupying force; never mind that America regularly kills civilians as part of its eternal war on terror; never mind that America locks up and tortures "militants", denying them any sort of access to a justice system to sort out their guilt or innocence; never mind that America has "peacefully" killed hundreds of thousands, if not millions, via sanctions of various kinds. Everyone wants to point to 9/11 as if bin Laden started this fight and America's hands are clean, but it's been going on for much, much longer. All of those American actions I just cited have been and continue to be used as justifications for Al Qaeda's actions. And regardless of how it started, it is only escalating.

But, there are likely those that remain unconvinced that America has any responsibility for the fight in which it now finds itself, but, nevertheless, it must see it through. That is, they believe that "we didn't start the fight, but we're going to finish it." So then, when does it end? If one truly believes that we are going to finish it, then the answer would be "when we've killed or captured all of the terrorists". As I pointed out, though, capturing terrorists and refusing to bring them to justice -- for those that have forgotten, justice means a trial in a court of law, not vigilante killings or indefinite detention -- or killing them, especially when unarmed, tends to drive more people into the fight. This so-called solution actually perpetuates the problem. Yet, it seems to be the solution America is intent on carrying out.

Attorney General Eric Holder sat in front of the U.S. Senate and had this to say about the whole affair:

The operation in which Osama bin Laden was killed was lawful. He was the head of al-Qaida, an organization that had conducted the attacks of September 11th. He admitted his involvement and he indicated that he would not be taken alive. The operation against bin Laden was justified as an act of national self defense.

Ah, national defense. Of course. I wish Mr. Holder would have gone on to explain exactly what our military was defending when it shot and killed an unarmed man. Apparently, bin Laden resisted, but I find it hard to believe that a team of highly trained and very well armed men were unable to subdue a frail, old man in regular need of dialysis, without killing him. Jeffrey Toobin explains that the U.S. had to kill bin Laden because messy details like whether bin Laden would be given a civilian or military trial, who would defend him, and where his trial would be held are just too difficult for us to sort out. That's right; when the government has a "difficult" problem on it's hands, killing people is the only way out. I'm not sure why that same principle didn't apply to Saddam Hussein or Khalid Sheik Mohammed.

But let me return to the idea of national defense brought up by Mr. Holder. Exactly what are we defending with our actions overseas? The knee-jerk answer is always "freedom". It's hard for me to believe that anyone can still respond this way with a straight face; I'm chuckling to myself a bit just writing this. Even if it were true, though, what will be left should we ever finish fighting this war on terror? We've abandoned the idea of innocent until proven guilty. We've abandoned the idea that people are entitled to a trial before being assessed any sort of punishment (including death). We've abandoned the idea that our government is subject to the same laws as the people. If the war on terror, by some miracle, ever does come to an end, we will find that we were busy throwing away our freedom, all the while claiming that our military was overseas fighting for it.

The truth is that we're not fighting for freedom. We're fighting for empire. We're fighting to bring the rest of the world under our control. Osama bin Laden understood this all too well. "We, alongside the mujaheddin, bled Russia for 10 years, until it went bankrupt," he explained.

The campaign taught bin Laden a lot. For one thing, superpowers fall because their economies crumble, not because they’re beaten on the battlefield. For another, superpowers are so allergic to losing that they’ll bankrupt themselves trying to conquer a mass of rocks and sand. This was bin Laden’s plan for the United States, too.

And that returns me to my original question: when does it end? I can't say for sure, but my money's on "soon". As for the "how" question, I'm not so sure that we're not about to follow in the Soviet Union's footsteps and those of every other major empire throughout history. Those who fail to learn from history are doomed to repeat it.

An ounce of prevention

I don't like the TSA. I think what it does is an affront to liberty, to moral sensibilities, and certainly to the Constitution that supposedly defines U.S. federal power. That is not to say that I oppose transportation security; I just happen believe that the damage done by the TSA to the aforementioned list of things far outweighs whatever benefit it might be providing. As such, I would characterize it as useless. That much is probably obvious to anyone reading this, either because you've read my other writings or because you're aware of my run-in with the TSA. What is probably unknown to most is that my encounter with the TSA has turned me off to reading about it and, even more so, to writing about it. Being a bit of a news junkie, I tend to remain "aware" of most major occurrences involving the TSA, but I don't, as I imagine most people believe, go out of my way to keep up on every little detail concerning it. In fact, I tend to ignore most of the stories I see about the TSA because I get a very "resistance is futile" feeling whenever I do.

Part of the this feeling comes simply from the fact that no matter what the TSA does, no matter how badly it screws up, the (government) solution has been and will always be to throw more money at the problem. Why people accept this situation is completely incomprehensible to me. Just from a purely economic perspective, it's preposterous. The TSA is a monopoly, and its parent, the federal government, openly and actively uses its monopoly position and power to not only prevent but prohibit competition. This is something that that same federal government makes illegal in the private sector. Moreover, the TSA continues to fail to carry out its own mission statement in which it claims that it "protects the Nation’s transportation systems ...". The TSA has racked up a number of high profile failures on this front including the shoe bomber, the underwear bomber, the loaded gun that cleared screening, and the failures of its own internal tests. The TSA can't even design tests for itself that it can pass (even after the 4th or 5th try depending on which story you read). If the TSA was a private company, it's stock would be worthless, and it would be out of business.

But the continued influx of money, increase even, allows the TSA to continue to fail to uphold the second half of its mission statement as well: "... to ensure freedom of movement for people and commerce". The TSA's website expands on this principle stating that it is composed of "people who conduct ourselves [sic] in an honest, trustworthy and ethical manner at all times". This stands in sharp contrast with reality.

Freedom? I certainly wasn't "free" to move about the country, no pun intended. My "freedom of movement" was conditioned on being groped by a thug in a government-issued costume (h/t William Grigg for that phrase; he likes to call them tax-feeders instead of thugs). It's very fitting that the very first definition of freedom is "the state of being free or at liberty rather than in confinement or under physical restraint" because that is exactly the opposite of what the TSA offers. And what happened to me is, by no means, an isolated incident. The TSA recently went so far as to screen passengers (read: violate their freedom) after they had disembarked from an Amtrak train in Savannah. TSA's "Blogger Bob" tried to explain this away as a Visible Intermodal Prevention and Response (VIPR) operation but then, at the end of the explanation, says that "this particular VIPR operation should have ended by the time these folks were coming through the station". Not only does the TSA's right hand not know what the left is doing, but its explanation that "disembarking passengers did not need to enter the station" and therefore willfully submitted themselves to the search is at odds with a first-hand account stating that "[T]here were about 14 agents pulling people inside the building and coralling [sic] everyone in a roped area".

Honest and trustworthy? Ethical? Finding stories about the TSA stealing from passengers is not a difficult task. A quick search turned up this blog post on the TSA's website in which the TSA talks about the theft for which it is responsible. That post is from early 2008. In late 2008, TSA screener Pythias Brown was arrested after "appropriating" over $200,000 from airline passengers. Long aware of its problems, the TSA has yet to do anything about them. Theft is still a problem for the TSA, but it's not just at the lowest levels as even managers have been found to be accepting "kickbacks" in return for "looking the other way". The TSA has also become very adept at lying to the traveling public as one commenter at the TSA's blog points out. In November of last year, the TSA said that those under 12 years of age would receive a modified pat-down when extra screening was required. Today, the TSA said that the pat down it gave to a 6 year old, in which the agent used the front of her hands for the majority of the pat down and even put her hands inside the child's waistband and shirt collar, is standard operating procedure just like for those over 12. And, of course, there's still the "debate" about exactly how much radiation you get from the TSA's AIT machines and whether or not they can store pictures.

Yet, the TSA remains in business, which brings me to the other reason that I don't typically follow stories about the TSA. Initially, the response to my encounter was very positive (for/to me and the cause of liberty). But as my story reached more and more people, I was subjected to very visceral reactions to what had happened. Many called me an attention-whore, claiming that the whole thing was set up. Some suggested that instead of blaming the government for trying to feel me up, I should blame the terrorists who made the whole thing necessary. But the majority, in various colorful ways, simply said that it was this way or the highway. That is, get felt up or get blown up, and this is the reason that I don't like hearing about the TSA. People are so afraid that they accept the TSA as a given. It makes me angry to read stories or responses along these lines knowing that no amount of rational discussion can be had about what the TSA does (or doesn't do) because the thinking behind those stories and responses is based on fear. No rational or logical discussion can be had with someone who is arguing from a place of fear.

It's a funny thing, emotion. In spite of seemingly infinite documentation of TSA abuses and screw-ups; in spite of the evidence that one is more likely to die in a car on the way to the airport than on the plane or that the odds of getting a fatal cancer from one of the TSA's AIT machines is roughly equivalent to a terrorist attack on a plane, we continue to allow the TSA to go on about its business in the name of "prevention". In fact, I would argue that more liberties are lost (or given up) in the name of prevention of some "terrible" event than any other cause. Guns are taken away and demonized to prevent crime. Gay marriage is outlawed lest it lead to the decay of society. Drugs are prohibited on the grounds that people might overdose and hurt themselves. Gambling is made illegal because people might overindulge and lose their money. Parents aren't allowed to pack their children's lunches because they may not be healthy "enough". Privacy and due process are lost in the name of preventing terrorism. The list goes on and on.

What happens when the prevention, the supposed "cure", becomes worse than the disease, though? Statistics show that guns save more lives than they take. Drug policy actually leads to poor quality drugs and criminal violence. Our government carries out due process free assassinations, and when we find out about it we only dare to question the secrecy of the operation not the legitimacy of the killing. Most damning of all, though, is the article that I found at the end of a link embedded in the story about the 6 year old girl that was patted down this week. TIME asked a child psychologist to explain how to make TSA pat-downs less traumatic for children. What is wrong with us when we're so afraid of our own shadows that we're willing to let government goons touch our children? Have we really come (read: regressed) so far? We're willing to accept the (false) choice: see our children naked or touch them all over. I really hate to play the "think of the children" card here as it is an appeal to emotion and not rationality, but I think it is in order. We've regressed so far that we're even once again willing to accept the "following orders" defense. Says a TSO:

I come to work to do my job. It is not up to me to decide policy, it is up to me to carry out my duties as dictated by the Transportation Security Administration. People fail to understand that neither of us are happy about the intrusive pat down I am carrying out. I am polite, I am professional [...]

And we eat it up. There was no end to the number of people who told me that I was a jerk during my encounter and that the TSO was very professional. I can only assume that the logic, if there is any, behind such an argument is that we should willingly give up our liberty if the government simply asks nicely enough.

And liberty is exactly what this should all be about. Our federal government was instituted to protect our liberty, to "prevent" infringements of it. But "infringe" is exactly what it does. Each of those preventions I mentioned is, in reality, an infringement of liberty. For example, gun ownership is not an aggressive act against another. Gay couples don't infringe anyone's liberty by loving each other, nor does a drug user in his use of drugs. Each of these acts does not, in and of itself, constitute an infringement of liberty, but our government restricts, if not outlaws, each of them which clearly is an infringement. And so 1984 is upon us as the government has taught us all to master the art of doublethink. We simultaneously believe that government protects our liberty while at the same time believing that "prevention" is a valid form of that protection, and if we allow it to continue then something is wrong with us, indeed.

When will we learn? Or, will we ever learn?

It should be abundantly clear to everyone now that the U.S. involvement in Libya is not limited to the creation and enforcement of a no-fly zone. "Adm. James Stavridis admitted that, while allied forces were not yet considering the deployment of troops on the ground in Libya, it was a possibility." Furthermore, the Washington Post reports that the U.S. is using planes to bomb Gaddafi's ground forces focusing their effort on "halting advances by government ground forces in and around key coastal cities". It would seem that the U.S., while not directly fighting Gaddafi, is in fact allied with his enemies, even going so far as to consider arming them despite reports that the rebels are comprised, at least in part, of members of Al Qaeda.

I'm reminded of this clip from The Daily Show a few years back:



As Glenn Greenwald points out this morning:

The real question is the wisdom of this escalated involvement. How many times do we have to arm one side of a civil war -- only for that side to then become our Enemy five or ten or fifteen years later -- before we learn not to do that any more? I wrote earlier on Twitter, ironically, that one good outcome from arming the Libyan rebels is that it will lay the foundation for our new war 10 years from now -- when Commander-in-Chief George Prescott Bush or Chelsea Clinton announce that we must wage war to stop the Libyan faction from threatening its neighbors and supporting Terrorism (with the weapons we provided them back in 2011). One of the most reliable ways that the posture of Endless War has been sustained is by our flooding the world with our weapons, only to then identify various recipients as our new (well-armed) enemy. Whether this is a feature or a bug, it is a very destructive outcome of our endless and always-escalating involvement in military conflicts around the world.

How will (tea party) patriots act?

Here's another story that isn't getting a lot of attention. Sections of the PATRIOT Act are up for renewal this month. A renewal was introduced in the senate at the end of January by Patrick Leahy (D-VT) to extend this unconstitutional legislation. Last week, James Sensenbrenner (R-WI) introduced a renewal to much the same effect, proving once again that statism is endemic to both parties.

A quick summary of the provisions at issue from the ACLU:

• Section 215: of the Patriot Act authorizes the government to obtain "any tangible thing" relevant to a terrorism investigation, even if there is no showing that the "thing" pertains to suspected terrorists or terrorist activities
• Section 206: of the Patriot Act, also known as "roving John Doe wiretap" provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped.
• Section 6001: of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called "Lone Wolf" provision, permits secret intelligence surveillance of non-US persons who are not affiliated with a foreign organization.

Where is the outrage at this sweeping government power? Where are the news stories warning us that the 4th amendment, among others, no longer has any teeth? Where are the Tea Party activists who screamed so loudly for a smaller federal government, the abolition of Big Brother, and the restoration of our rights, not to mention our dignities? There are some who are fighting the good fight, even if in words only:

[...] Laura Boatright, a tea-party organizer in Ontario, Calif., says the act is "unconstitutional," adding, "We can have national security in other ways, without making all the American people relinquish their liberty."

I'm suspicious of Ms. Boatright's "other ways", but acknowledgment of the PATRIOT Act as unconstitutional is a plus in my book. The Tea Party doesn't appear to be immune to statism and the lure of big government, though:

Ryan Hecker, a Houston lawyer and tea-party organizer, says he believes the act has helped curb terrorism and "the movement should remain agnostic."

Right. Agnostic. Nothing to see here; things are fine just the way they are. How did this guy get involved with a group of people that supposedly adores the constitution and limited government? Oh, that's right. They all simply want power and control, and trotting out the idea of the big, bad terrorists will keep the people in fear and, more importantly, maintain their acquiescence. The Republicans have certainly wasted no time in peddling that fear:

"The intelligence and law enforcement communities that are responsible for preventing terrorist attacks need to know that the tools they rely on to keep the American people safe will not be weakened or allowed to expire," said House Judiciary Committee Chairman Lamar Smith (R., Texas).

And with that, we should all be prepared for the Tea Party to betray its constituents and all citizens after going the way of every other politician: seduced by power, greed, and the desire for re-election to perpetuate those aims.

A House bill would extend the law without change through Dec. 8. Republican aides say such a move is the most likely outcome to give lawmakers more time to debate the issue.

No matter, though, the executive branch is prepared to carry on even without congressional approval:

Attorney General Eric Holder has said the Obama administration [...] plans to put many of the safeguards in place even without passage of the law.

How to boil (control) a frog (society)

This morning I got a call from a radio station in Phoenix, AZ asking about a ruling from the Ninth Circuit Court of Appeals in which the court held that a strip search and pat down of a male inmate by a female officer was unconstitutional under the 4th amendment. The interviewer was interested specifically in how I thought that this ruling relates to the TSA's warrant-less searches at the airports. I told him that in light of the Ninth Circuit's ruling in February of last year upholding strip searches of prisoners, generally, as constitutional, this case would probably not be very meaningful. The only similarity between this (current) case and the TSA procedures is the fact that the person sitting in the "other room" looking at body scans may not be of the same sex as the person being scanned. I have a feeling, though, that in its traditional deference to executive claims of national security, the court would not find the body scanners to be an unreasonable search because of the "anonymity" between the TSA agent and the person being searched.

A much better point, I thought, to come out of the interview was that people at the airport are treated virtually the same way as are inmates in the prison system. That is, people who have done nothing suspicious other than decide to travel by air are subjected to exactly the same search procedures as people who have broken the law, been arrested, been tried, been convicted, and been sent to prison. Here is a description of the search at issue in the case decided this week, and it sounds almost exactly, though this description is more explicit, like what was described to me when I tried to fly two months ago.

...the cadet touched the inmate’s "inner and outer thighs, buttocks, and genital area with her latex-gloved hand through very thin boxer shorts" and "moved his penis and scrotum in the process of conducting the search"

I can't resist pointing out, somewhat tongue in cheek, that inmates get this treatment for free. Airline passengers have to pay for it.

When asked if I thought that this comparison (airline travelers to prison inmates) would irk people enough to get them "fired up" about the searches they are forced to endure at the the airport, I answered that my experience has been that people are ruled more by their fears and desires to feel safe than by any desire to be "free" (as in freedom). And until people find the searches to be "unreasonable", it is unlikely that anything will change or that any relief will be found in the courts, given the test employed by the courts as created by Justice Harlan in Katz v. United States, 389 U.S. 347 (1967).

One of the things that the interview touched on but didn't delve deeply into is this "reasonable" test. (On a separate but related note, I think there is an argument to be made that the founders of this country considered all searches and arrests without warrants to be unreasonable and that "unreasonable" is not a term that was meant to be reinterpreted with the passage of time, but I digress. That's for another post.) The second prong of Justice Harlan's test is whether "society is prepared to recognize that this expectation [of privacy] is (objectively) reasonable", and it would seem that society is not prepared to recognize a person's privacy at the airport. Be that as it may, what "society" should consider in making that judgment is the ratchet effect. Governments rarely relinquish power that has been given them. Societies, in a similar manner, judge tomorrow's events by today's, not yesterday's. What I mean by this is that the standard by which tomorrow's searches are measured is today's searches. A little over 10 years ago, one could get on a plane with nothing more than a ticket. Then people were required to show identification. Then they had to take their shoes off and then heavy coats. Then people were subjected to "normal" pat downs. Now, they are subjected to a virtual strip search and/or an "enhanced" pat down. Imagine if people went one day from anonymously boarding a plane to the next day having to show identification, take off their shoes and heavy clothes and being subjected to a virtual strip search and/or an "enhanced" pat downs. People would never have gone for it. Instead, they are being slowly boiled like the proverbial frog and don't realize it. Even if the war on terror were to come to an end someday, which it most assuredly will not, these searches won't go away. They'll be cemented in society's collective mind as "reasonable".

***

Unrelated to the interview, I found it interesting that the court ruled cross-gender searches "unreasonable" under the 4th amendment. The 4th amendment only addresses the search, not who performs it, and the Ninth Circuit had already ruled searches of this type to be constitutional. It seems to me that the claim would have been better brought and adjudicated under the 8th amendment. Given that the inmate claimed that the search was humiliating and caused psychological trauma, the argument that he was subjected to cruel and unusual punishment would have been more appropriate. It seems to me that the court contradicted itself, if only slightly.

Nothing to fear (but fear and maybe the TSA)

TSA administrator John Pistole appeared in a senate oversight hearing this past week. It had already been planned, but he was questioned about my actions at the San Diego airport a few days before and about TSA procedures in general. Here is some of what he said:

As we've heard the various plots outlined here this afternoon, it is clear that we have to be one step ahead of the terrorists. And it's obvious that we are not always in that situation, as evidenced by the last three plots that would--could have been successful.

Mr. Pistole referred again and again to terrorist threats as driving the need for the procedures they use to "secure" airports and planes. And we're afraid of that perceived threat. Why is that though? In this article from Reason, back in 2006 (before the scanners and pat downs were in place), the author lays out the odds of dying by various everyday occurrences (on a yearly basis) and compares them to terrorism on a plane:

• Car crash: 1 in 6,500
• Murder: 1 in 16,500
• Crossing the street: 1 in 48,500
• Drowning: 1 in 88,000
• Airplane crash: 1 in 400,000

According to the article, if a plane was hijacked and crashed once per week, one's odds of dying would be 1 in 135,000. One would be almost three times as likely to be killed crossing the street, eight times as likely to be murdered, and over twenty times as likely to be killed in a car crash. Really think about that for a second. If a plane was hijacked and crashed once per week, you would still be more likely to be killed driving to the airport to get on that plane. The takeaway from this should be that terrorism (in the air) just isn't that common. However, it has certainly achieved its intended end, to terrorize.

One could certainly make the argument that it is the government's taking of over of airline security that has kept Americans safe. This doesn't really wash, either, though. There have been three major attempts to hijack and destroy airplanes since 2001: the shoe bomb attempt, the liquid bomb (out of the U.K.) attempt, and the underwear bombing attempt. The TSA didn't even have a chance to catch these plots because all of these flights originated outside of the U.S where the TSA doesn't control security. The TSA can't take any credit for stopping any of these plots. The passengers, themselves, stopped two of them, and good intelligence work stopped the other.

Our liberty continues to erode here at home, in the name of safety, though, while the threat of someone coming in from overseas continues. Well why not institute the same policies here as overseas? Here is another quote from Mr. Pistole during his hearing:

That being the case, I think everybody who gets on a flight wants to ensure and be assured that everybody else around them has been properly screened and, oh, by the way, everybody else on that flight wants to make sure that I have been properly screened or you have been properly screened.

What does "properly screened" really mean? For instance, while I was waiting to speak with a supervisor at the San Diego airport this last week, I observed approximately 80% of travelers being sped through the metal detectors without any kind of secondary screening (i.e. a pat down). I even observed a man set off the metal detector, be sent back, allowed to walk through again and then continue on his way after failing to alarm the metal detector a second time. People need to take a good hard look at airport security as managed by the TSA. It is a lot of show and not a lot of security. The fact that 80% of people are allowed to pass unmolested (pardon the use of the word) through the metal detector means that there is a 4 in 5 chance that someone like the shoe or underwear bombers would be able to get on a plane. What is the conclusion that should be drawn here? Again, terrorism isn't that common, just terrorizing.

Understand that I am not advocating removing all security from an airport. We need to realize that once a plot has advanced to getting whatever dangerous weapon is being used onto the plane, it's already too late, though. If would-be terrorists are able to evade the FBI, CIA, etc. why does anyone think that the TSA is going to catch them? And even if the TSA does catch them, why wouldn't they just set off their device in the airport, itself. Doing so would achieve the exact same effect. Our efforts need to be focused on good detective work before plots advance to this stage.

What will I say?

[In various places, I've heard responses like this to what I did, but very few people have taken the time to ask their questions respectfully and without name calling. I received this message early this morning and am going to take the author's measured tone as an indication that he really does want a response and does not simply want to excoriate me. I am publishing this response as a way to answer everyone who may have similar questions about what I did.]

May I ask: So if next time a terrorist successfully hides "devices" to kill Americans on a plane, because you seem to think TSA or airport security is over-excessive...What will you say?

First of all, I am not advocating that we drop all security at our airports. What I oppose are the intrusive (and arguably unconstitutional) use of body scanning (or AIT) machines that can literally take a picture of one's naked body and/or the use of the new pat down procedures in which TSA officers are not necessarily instructed to "touch your junk" but come so close that many have and/or do. I find this level of scrutiny to be invasive and offensive.

What do we do instead? As I said, I am not saying that we should simply allow anyone and everyone to get on a plane simply because they have a ticket. (I should add that I would not oppose an airline that wanted to board planes with zero security. I don't think they would get much business, but it is within their right to do so.) What I am saying is that there are alternative methods of screening passengers that are far less invasive than what we do now and could actually make us more secure. That is, we wouldn't have to rely on machines that would not detect a "device" hidden inside of a would-be attacker.

For example, I drove across the U.S./Canada border about 5 years back. When I reached the border, an agent stopped me and asked why I was entering Canada. I explained that my wife and I had been driving/sightseeing in the northeastern area and wanted to go to Niagara Falls. When he looked at my ID, he noticed that I had a California driver's license but was driving a car with Virginia plates. He asked about this. I told him that the car was rented. He then asked how I got to the East coast in the first place... There is a bit more to this story; he asked me a few more questions. My point is, though, that if someone is lying, their story usually begins to fall apart around the third question or so. We should be employing a screening more along these lines.

In addition, technology (both advanced and not-so-advanced) allows for the detection of very small amounts of explosive material. One of these is the swab that you've seen TSA take of your bags and then run through a machine. They also have employed full body sized machines that simply blow a puff of air over you and analyze the result. Finally, a lower-tech solution of using bomb sniffing dogs is a possibility. Any of these would be as equally effective in ferreting out would-be terrorists and do not require anyone to virtually take off their clothes or have their junk touched.

I'll tell you one thing that WILL happen. We service members will fight a war again, just for you, because you complained of security being unnecessary.... The terrorists are waiting for us to put our guard down again. Think about that for a bit.....

Thank you for your service. I have a tremendous amount of respect for the men and women in our military. I know that they all enter the service willing to die to protect the liberty and freedom upon which this country was founded, especially because I'm not sure that I would be able to make the same sacrifice. I would certainly like to think that I would, but I can't say for certain that that is true.

I agree with you that in the event of another terrorist attack, you will likely be called upon to go overseas and fight another war in the name of freedom. You should ask your commanding officers, and ultimately, the president, however, if your fighting in those wars makes us safer. Terrorist attacks do not take place in a vacuum. The Times Square bomber viewed himself as defending his "lands" against foreign occupation. The underwear bomber acted in retaliation for "American-backed airstrikes [...] in Yemen." Osama bin Laden's Al-Qaeda group attacked us on September 11th because of our interventionist foreign policies and our presence in Saudi Arabia. Don't forget that we actually backed Osama bin Laden in the 80's in his fight against the Soviet Union.

It goes on and on, and don't get me wrong. I fully support a strong national defense. What I oppose is a strong national offense that imposes U.S. will on other peoples. Despite the rhetoric, terrorists don't hate our freedoms. They just want us to leave them alone.

John Tyner, I UNDERSTAND what all is implied and I respect whatever you want to call this. Unfortunately you have forgotten why things are the way they are. How are you a "Hero". Tell ME that. Honestly brother, a person who self-consciously video records prior going through security had the attention to overembellish the true intent for TSA Security - FOR SAFETY and TO PREVENT PEOPLE FROM GETTING KILLED.

"Never Forget" (looks like you all forgot)
Here's a video to jock your memory.

I have not forgotten September 11th. I am reminded of September 11th every time I enter an airport, every time a "suspicious package" is found at a public building, every time a U.S. soldier like yourself is killed fighting in the name of that terrible event. It truly is tragic.

I am not a hero. I know that people have come to regard me as such, but I have explicitly disclaimed that title. I'm simply someone who stood up for what he believed to be right: that the government does not have the authority to view me naked or pat me down to the extent that they would have without some kind of reasonable suspicion or probable cause.

I have explained repeatedly the reason for my recording of my interaction with the TSA. I am not trying to over-embellish anything. In fact, the recording prevents me from doing exactly that. I don't doubt that TSA is trying to provide security for air travelers. So far though, they have done a poor job of it. Attacks on our airplanes since September 11th have been stopped by the passengers, not the TSA. It's time we started treating our passengers like the first (and arguably last) responders to a possible attack. We need to start treating them with dignity and respect and not like the very terrorists of whom we have now become so afraid.

Motivation of my filming of my TSA encounter

A lot of commenters are saying that they agree with my position on the whole issue of TSA overreach, but many of them (and also those who disagree) are asking why I filmed the entire incident. Many are suggesting that my starting the recorder is evidence of an intention to pick a fight with the TSA. As I've stated repeatedly, I checked to see if SAN had AIT machines before flying. I tried to avoid the machine once I arrived at the airport. I did everything I could to avoid a confrontation with the TSA. I'll admit that "if you touch my junk, I'll have you arrested" was not the most artful response, but I was trying to add some levity to a situation that I knew could escalate very quickly. The reason I started the recorder before placing it in the bin, though, is because of stories like this:

Detained by TSA
ACLU Sues TSA
In praise of Michael Roberts

After reading stories about what the TSA had been doing, I wanted to avoid them, but I also wanted to be prepared should I be unable avoid them. That recording was to protect my rights and theirs. At no point have I bashed the TSA agents or their handling of the situation. They were all professional, if a bit standoffish, but the standoffishness is not to be unexpected. I'm sure they deal with people far more unruly than me every day. The only time I lost my cool was at the very end when the TSA representative tried to force me back into the screening area instead of simply allowing me to be on my way. The entire incident should be judged on its merits (as demonstrated by the recording), not by whether I tried to bait them (which I did not).

So, the next question is obviously, "what do I expect to get out of this?" I don't want to be a hero; I simply want to draw attention to what is going on and give people a sense that they're not alone in the fight against the ever expanding erosion of liberty. I had this to say in response to another commenter about what had transpired:

Every attempt to blow up a plane since 9/11 has been stopped by passengers after the government failed to provide protection for them. Every incident, however, has been met by throwing more money and less sensibility at the problem. Aside from securing the cockpit doors and the realization by passengers that they must fend for themselves because they're more likely to be killed by a hijacker than flown safely to their destination where the hijacker's demands can be met, security is largely the same as it was before 9/11.

The only thing changing is the amount of money being spent on the problem and the constant erosion of liberty, and all I did was draw attention to this. If you want to argue that the airlines are private, you're preaching to the choir. I refused the x-ray machine, and then I refused a groping by a government official. I mildly protested, and when they told me that I could submit to the screening or leave the airport, I left peacefully. The only time I got angry during the entire encounter was when I was unlawfully detained and threatened with a lawsuit and a fine.

If you think the government is protecting you, ask yourself this: If the official at the end of the video thought I had an incendiary device, why would he want me to go *back* into a small area crowded with hundreds of people instead of leaving the airport as quickly as possible?

Obviously the issue of the private airline industry mingling with the government handling of security is more complex than that. For example, with private handling of security, the screener may choose to overlook victimless crimes like drug possession or possession of sexually explicit (but otherwise legal) materials or paraphernalia during a search for dangerous items (i.e. those that could be used to commit acts of terrorism). The government, on the other hand, has, does, and will use the search for dangerous items as a pretext to arrest you for anything else they may find.

TSA encounter at SAN

[These events took place roughly between 5:30 and 6:30 AM, November 13th in Terminal 2 of the San Diego International Airport. I'm writing this approximately 2 1/2 hours after the events transpired, and they are correct to the best of my recollection. I will admit to being particularly fuzzy on the exact order of events when dealing with the agents after getting my ticket refunded; however, all of the events described did occur.

I had my phone recording audio and video of much of these events. It can be viewed below.

Please spread this story as far and wide as possible. I will make no claims to copyright or otherwise.]

This morning, I tried to fly out of San Diego International Airport but was refused by the TSA. I had been somewhat prepared for this eventuality. I have been reading about the millimeter wave and backscatter x-ray machines and the possible harm to health as well as the vivid pictures they create of people's naked bodies. Not wanting to go through them, I had done my  research on the TSA's website prior to traveling to see if SAN had them. From all indications, they did not. When I arrived at the security line, I found that the TSA's website was out of date. SAN does in fact utilize backscatter x-ray machines.

I made my way through the line toward the first line of "defense": the TSA ID checker. This agent looked over my boarding pass, looked over my ID, looked at me and then back at my ID. After that, he waved me through. SAN is still operating metal detectors, so I walked over to one of the lines for them. After removing my shoes and making my way toward the metal detector, the person in front of me in line was pulled out to go through the backscatter machine. After asking what it was and being told, he opted out. This left the machine free, and before I could go through the metal detector, I was pulled out of line to go through the backscatter machine. When asked, I half-chuckled and said, "I don't think so." At this point, I was informed that I would be subject to a pat down, and I waited for another agent.

A male agent (it was a female who had directed me to the backscatter machine in the first place), came and waited for me to get my bags and then directed me over to the far corner of the area for screening. After setting my things on a table, he turned to me and began to explain that he was going to do a "standard" pat down. (I thought to myself, "great, not one of those gropings like I've been reading about".) After he described, the pat down, I realized that he intended to touch my groin. After he finished his description but before he started the pat down, I looked him straight in the eye and said, "if you touch my junk, I'll have you arrested." He, a bit taken aback, informed me that he would have to involve his supervisor because of my comment.

We both stood there for no more than probably two minutes before a female TSA agent (apparently, the supervisor) arrived. She described to me that because I had opted out of the backscatter screening, I would now be patted down, and that involved running hands up the inside of my legs until they felt my groin. I stated that I would not allow myself to be subject to a molestation as a condition of getting on my flight. The supervisor informed me that it was a standard administrative security check and that they were authorized to do it. I repeated that I felt what they were doing was a sexual assault, and that if they were anyone but the government, the act would be illegal. I believe that I was then informed that if I did not submit to the inspection, I would not be getting on my flight. I again stated that I thought the search was illegal. I told her that I would be willing to submit to a walk through the metal detector as over 80% of the rest of the people were doing, but I would not be groped. The supervisor, then offered to go get her supervisor.

I took a seat in a tiny metal chair next to the table with my belongings and waited. While waiting, I asked the original agent (who was supposed to do the pat down) if he had many people opt out to which he replied, none (or almost none, I don't remember exactly). He said that I gave up a lot of rights when I bought my ticket. I replied that the government took them away after September 11th. There was silence until the next supervisor arrived. A few minutes later, the female agent/supervisor arrived with a man in a suit (not a uniform). He gave me a business card identifying him as David Silva, Transportation Security Manager, San Diego International Airport. At this point, more TSA agents as well as what I assume was a local police officer arrived on the scene and surrounded the area where I was being detained. The female supervisor explained the situation to Mr. Silva. After some quick back and forth (that I didn't understand/hear), I could overhear Mr. Silva say something to the effect of, "then escort him from the airport." I again offered to submit to the metal detector, and my father-in-law, who was near by also tried to plead for some reasonableness on the TSA's part.

The female supervisor took my ID at this point and began taking some kind of report with which I cooperated. Once she had finished, I asked if I could put my shoes back on. I was allowed to put my shoes back on and gather my belongs. I asked, "are we done here" (it was clear at this point that I was going to be escorted out), and the local police officer said, "follow me". I followed him around the side of the screening area and back out to the ticketing area. I said apologized to him for the hassle, to which he replied that it was not a problem.

I made my way over to the American Airlines counter, explained the situation, and asked if my ticket could be refunded. The woman behind the counter furiously typed away for about 30 seconds before letting me know that she would need a supervisor. She went to the other end of the counter. When she returned, she informed me that the ticket was non-refundable, but that she was still trying to find a supervisor. After a few more minutes, she was able to refund my ticket. I told her that I had previously had a bad experience with American Airlines and had sworn never to fly with them again (I rationalized this trip since my father-in-law had paid for the ticket), but that after her helpfulness, I would once again be willing to use their carrier again.

At this point, I thought it was all over. I began to make my way to the stairs to exit the airport, when I was approached by another man in slacks and a sport coat. He was accompanied by the officer that had escorted me to the ticketing area and Mr. Silva. He informed me that I could not leave the airport. He said that once I start the screening in the secure area, I could not leave until it was completed. Having left the area, he stated, I would be subject to a civil suit and a $10,000 fine. I asked him if he was also going to fine the 6 TSA agents and the local police officer who escorted me from the secure area. After all, I did exactly what I was told. He said that they didn't know the rules, and that he would deal with them later. They would not be subject to civil penalties. I then pointed to Mr. Silva and asked if he would be subject to any penalties. He is the agents' supervisor, and he directed them to escort me out. The man informed me that Mr. Silva was new and he would not be subject to penalties, either. He again asserted the necessity that I return to the screening area. When I asked why, he explained that I may have an incendiary device and whether or not that was true needed to be determined. I told him that I would submit to a walk through the metal detector, but that was it; I would not be groped. He told me that their procedures are on their website, and therefore, I was fully informed before I entered the airport; I had implicitly agreed to whatever screening they deemed appropriate. I told him that San Diego was not listed on the TSA's website as an airport using Advanced Imaging Technology, and I believed that I would only be subject to the metal detector. He replied that he was not a webmaster, and I asked then why he was referring me to the TSA's website if he didn't know anything about it. I again refused to re-enter the screening area.

The man asked me to stay put while he walked off to confer with the officer and Mr. Silva. They went about 20 feet away and began talking amongst themselves while I waited. I couldn't over hear anything, but I got the impression that the police officer was recounting his version of the events that had transpired in the screening area (my initial refusal to be patted down). After a few minutes, I asked loudly across the distance if I was free to leave. The man dismissively held up a finger and said, "hold on". I waited. After another minute or so, he returned and asked for my name. I asked why he needed it, and reminded him that the female supervisor/agent had already taken a report. He said that he was trying to be friendly and help me out. I asked to what end. He reminded me that I could be sued civilly and face a $10,000 fine and that my cooperation could help mitigate the penalties I was facing. I replied that he already had my information in the report that was taken and I asked if I was free to leave. I reminded him that he was now illegally detaining me and that I would not be subject to screening as a condition of leaving the airport. He told me that he was only trying to help (I should note that his demeanor never suggested that he was trying to help. I was clearly being interrogated.), and that no one was forcing me to stay. I asked if tried to leave if he would have the officer arrest me. He again said that no one was forcing me to stay. I looked him in the eye, and said, "then I'm leaving". He replied, "then we'll bring a civil suit against you", to which I said, "you bring that suit" and walked out of the airport.

This video starts with my bag and belongings going through the x-ray machine.They're kind of long, and they don't show much, but the audio is really good.

I was in the middle of telling someone that if I was going to be felt up, I wanted it done in public so that everyone could see what it is that the TSA does. Here is the rest of that video.

After I was escorted out to the ticketing area, I went to have my ticket refunded. I didn't have the opportunity or the presence of mind to turn the camera back on until everyone walked away from me.

Related articles:

More about my TSA encounter at SAN
Motivation of my filming of my TSA encounter
What will I say?

It's legal because we say so

Former President Bush is making the rounds on television promoting his new book. In an interview, he defended his view that waterboarding is legal because his lawyers told him that it is. (The quote is at about 0:30.)

This argument is a form of legal positivism which basically says that something is legal or illegal because the law says (or doesn't say) that it is. It ignores any kind of moral connection with the law and whether or not the law is "just". It also implies that juries do not have the power to judge the law as well as the case being tried, something that the founding fathers explicitly envisioned that our system of justice would contain. This argument, in my opinion, is dangerous. It supposes that the government is right because it says that it is right. The idea is anathema to the very basis of the U.S. Constitution.

In spite of the legal "go-ahead" Bush received, though, torture is still a legally tenuous undertaking. The memo authorizing torture written by John Yoo and Jay Bybee was declared legally defective by Bybee's successor, Jack Goldsmith, in 2003. When Goldsmith was forced from office by the administration in late 2004, his successor re-declared torture to be legal. After Bush left office, the Department of Justice again declared 18 USC 2340-2340A to be in effect and torture to be illegal. Note that during the entire Bush administration, that portion of the code was in full force. Bush simply had legal opinions stating that what he was doing was not torture. I think any honest person has to admit that waterboarding plainly falls within the definition(s) of torture contained within 2340. It's telling that only the Bush administration has attempted to get around those sections in U.S. law and even then, it could not agree completely on the legality of doing so. It's also worth noting that the Supreme Court, in Hamdan v. Rumsfeld, ruled that enemy combatants were subject to the protections of the Geneva Conventions. It would appear that the legality of torture is not tenuous after all; it's plainly illegal.

Here are some things that I think should be considered by anyone defending the use of torture: Is torture effective? If it is, why isn't it used more often or domestically? Does torture put more people in danger (via the creation of new enemies) than it protects? If so, isn't torture bad economic policy as well since it further drains resources (via the military efforts in furthering the "war on terror") that could be used for more productive means?

Finally, I'm willing to accept the possibility that one can find the use of torture morally justified in the perceived protection of others. If torture is moral and right, however, why won't those engaging in its use stand up and declare that what they did was right and allow themselves to be judged by those in whose names they supposedly acted?

Free speech, alive and well

I noticed the 'crawl' along the bottom of the TV screen this morning mention that NPR had fired Juan Williams over some comments that he had made. When I was able to get to a computer, I found a link to this story in my RSS reader. I thought it was fitting that the story came from Fox News since Mr. Williams is a regular contributor to Fox and his fateful comments were made on a Fox program. The linked story cites this quote as the reason for the firing:

I mean, look, Bill, I'm not a bigot. You know the kind of books I've written about the civil rights movement in this country. But when I get on a plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they're identifying themselves first and foremost as Muslims, I get worried. I get nervous.

Mr. Williams's first mistake was prefacing his comments with "I'm not a bigot." Whenever someone prefaces a comment with, "I'm not X", at best, it means that he/she fears that his/her comments will be interpreted so as to paint him/her as X and, at worst, that that person really is X. It's sort of the same way that the phrase "with all due respect" is interpreted as "I have no respect for you".

I have to admit, though, that I don't really see what the uproar about this particular comment is all about. The September 11th attacks were carried out by Al-Qaeda, a militant Islamic group. The Christmas Day bomber and the Times Square bomber both cited their religion as reasons for their actions. The U.S. continues to agitate Muslims around the world with its continued presence in Iraq and the war in Afghanistan in addition to indefinitely detaining and torturing people without charges when it is not just killing them both on and off the battlefield. In light of those actions, it seems reasonable to expect further violence to be attempted, if not perpetrated, against the U.S. by the very recipients of this U.S.-style democracy. I'm not sure that being nervous about flying with a Muslim is entirely irrational.

Glenn Greenwald takes up the case against Juan Williams this morning. In his article, some more context is provided for Mr. Williams's comments. Immediately prior to the earlier quote, Mr. Williams said this:

Well, actually, I hate to say this to you because I don't want to get your ego going. But I think you're right. I think, look, political correctness can lead to some kind of paralysis where you don't address reality.

This was said in response to Bill O'Reilly's "Talking Points Memo" which had aired just previous to Mr. Williams's comments in which Mr. O'Reilly had said:

The world is on edge because millions of Muslims accept violence and enable jihad. In order to correct the economy and the terrorist threat, those [referring also to the fact that private businesses are not hiring] things must be understood and stated.

These two statements properly deserve all of the outrage, in my opinion. Millions of Muslims do not accept violence and enable jihad. The U.S. government, itself, says that there are probably less than 100 Al-Qaeda members fighting in Afghanistan. It admits that many are probably hiding in Pakistan, but even being generous would probably place the total number under 1,000. Muslims make up almost a quarter of the world's population. If they all really supported violence and jihad, even if merely millions of them supported it, they would have destroyed the U.S., whose military only numbers about 1.4 million, quite decisively a long time ago. In fact, most (the percentage of "radical" Muslims is almost infinitesimal, but still prevents one from saying "all") Muslims are peaceful, preach peace, and abhor the violence perpetrated in their religion's name.

I'm not really sure how I feel about Juan Williams being fired by NPR. To be honest, I don't care enough to try and decide. He may have been a good reporter, but I never cared too much for his opinion pieces on various Fox shows. What is interesting to me is the outcry from the political right that his free speech rights are being violated because NPR gets a significant portion of its funding from the federal government. (Funny, that in this instance, they are, all of a sudden, civil libertarians.) Eugene Volokh contends that acceptance of government funds does not, on its face, make one a government actor and therefore obligate one to protect the free speech of others. I tend to agree. To argue the opposite is to open up a Pandora's box of (further) government intrusion into private affairs. As Mr. Volokh reasons, there is nothing preventing Congress from attaching strings to funds that it allocates (which it has not done in this case), but I would argue that Congress shouldn't be allocating funds to private businesses in the first place.

Terrorists: Criminals or Warriors?

I like Glenn Greenwald. I subscribe to his RSS feed, and I read most of what he writes. Most times I agree with him; sometimes, I don't. But sometimes, on rare occasion, I disagree enough to sit down and write a response. (I would have commented directly to his blog, but Salon.com requires you to create an account, something I'm not interested in doing, for a number of reasons.)

Back to the topic at hand. Today, Glenn wrote an article entitled "Fulfilling Al-Qaeda's 'warrior' wish." It's worth reading, but for those of you who don't, I'll summarize. He says that terrorists are common "murderous criminals" and should be treated as such. They should not be glorified as warriors or participants in some grand cause.

I want to agree with Glenn that terrorists like he describes: Richard Reid (a.k.a. the shoe bomber) and Khalid Sheikh Mohammed (the so-called mastermind of 9/11) are criminals. I further believe that they along with all of the other terrorists we're holding deserve a trial (but that's another post). My issue with what Glenn wrote this morning is that to take away the "warrior" or "soldier" title from these people, while gratifying to the rest of us, ignores the reasons for their actions.

To treat these people as common criminals is to assume simply that they're evil, that their actions are the product of an unwarranted hatred of the United States. In the statements posted in Glenn's article given by Richard Reid and Khalid Sheikh Mohammed, they both list retaliation for the killing of innocent civilians and U.S. oppression as reasons for their actions. Aside from the war in Afghanistan and the war in Iraq, the U.S. is also dropping bombs in Pakistan and now Yemen. In fact, the Christmas Day bomber claimed that his attempt to blow up his flight was in retaliation for the U.S. strikes in Yemen. To treat these people as common criminals is to deny they fact that they have very real and valid claims against U.S. actions.

But they attacked us first, on 9/11, you say. Why do you suppose that was? No, they don't hate our freedom. They hate our unqualified support of Israel and implicit backing of their treatment of their Palestinian neighbors. They hate the fact that we set up military bases around the world including on what they believe to be holy land. Look at it another way. Just yesterday, China announced plans to set up a military base in the Middle East. What do you think about the possibility of Chinese military bases on American soil? If you don't like the idea, then why do you think it's right for the U.S. to set up bases elsewhere?

Still not convinced? After being attacked on 9/11, why did the U.S. invade Afghanistan? Ostensibly, it was to find and destroy Al-Qaeda, a group of maybe 300 people at the time, but instead it ousted the Taliban government; a government that the U.S. itself had propped up and to whom the U.S. was providing aid up until 9/11. The U.S. invaded a sovereign nation, without a declaration of war, and ousted its government. It did the same thing in Iraq two years later, all the while, killing innocent civilians and causing all sorts of collateral damage. It's gearing up to do it again in a number of places. Iran, Pakistan, and Yemen are all possibilities. Predator drone strikes are already having disastrous results in Pakistan.

Now consider being on the receiving end of all of this "democracy." This spread of democracy looks a lot like terrorism, doesn't it? It should also put terrorist actions like trying to bomb a plane in a little better perspective. Don't get me wrong; I'm not trying to justify terrorism or the killing of innocent civilians (or anyone for that matter). My point is simply that U.S. actions around the world are contributing to the terrorism against it, and to simply label these people criminals, without understanding their motivations and their view of themselves as justified warriors, is to attack the symptom and not the underlying problem.