Eugene Volokh's Blog, page 2677
November 6, 2011
Myths About Population
Global population is believed to top 7 billion. Is this a problem? Does 7 billion people constitute "overpopulation"? Nicholas Eberstadt doesn't think so. In today's Washington Post, Eberstadt punctures five "myths" about global population.
The myths:
The world is overpopulated.Rapid population growth keeps poor countries poor.For all its ethical problems, China's one-child policy boosts its economy.If your population declines, your economy does too.The world will have 10 billion people by 2100.Eberstadt's essay underscores the principle that institutions are more important than absolute numbers. Whether a given region or society can accommodate a given number of people is a more function of the underlying economic institutions (and technological capabilities) than the total number of people or rate of population growth. In addition, there is every reason to believe that global population growth will slow in the coming decades, and even turn negative, as birth rates tend to decline as wealth and education improves.
William Easterly Reviews Daniel Kahneman's Thinking, Fast and Slow
Daniel Kahneman has spent his career studying the ways in people behave rationally and irrationally, for which he has won a Nobel in economics and largely founded the field of behavioral economics. As development economist William Easterly notes in his Financial Times review, there "have been many good books on human rationality and irrationality, but only one masterpiece. That masterpiece is Daniel Kahneman's 'Thinking, Fast and Slow'." (The FT review appears to be public.)
Kahneman presents our thinking process as consisting of two systems. System 1 (Thinking Fast) is unconscious, intuitive and effort-free. System 2 (Thinking Slow) is conscious, uses deductive reasoning and is an awful lot of work. System 2 likes to think it is in charge but it's really the irrepressible System 1 that runs the show. There is simply too much going on in our lives for System 2 to analyse everything. System 2 has to pick its moments with care; it is "lazy" out of necessity ... Of course, Kahneman is one of the fathers of the field of cognitive biases, and most of the book is indeed spent on the mistakes made by System 1. We get probability and uncertainty terribly wrong, usually leading to overconfidence and mistaken decisions. We react to identical situations differently depending on what is already on our minds. Even worse, we don't know what we don't know.
The observation of systematic cognitive bias leads to calls for policies of paternalism, expert guidance to correct for mass cognitive biases. But as Easterly emphasizes, the experts also have systematic cognitive biases:
Kahneman's endorsement of "libertarian paternalism" contains many good ideas for nudging people in the right direction, such as default savings plans or organ donations. But his case here is much too sweeping, because it overlooks everything the rest of the book says about how the experts are as prone to cognitive biases as the rest of us. Those at the top will be overly confident in their ability to predict the system-wide effects of paternalistic policy-making – and the combination of democratic politics and market economics is precisely the kind of complex and spontaneous order that does not lend itself to expert intuition.
I just purchased this book, on Easterly's recommendation. But on the basis of the best-seller Nudge, which argued explicitly for libertarian paternalism, I agree with the criticism of "libertarian paternalism." The problem with Nudge, as many critics pointed out, was that it had one or two terrific examples of where re-setting the default behavior would have a huge and positive effect on outcomes without compromising liberty very much. Everyone properly focuses on the default opt-out of the company 401(k) plan, rather than opt-in, for example. Fair enough. But many of the other applications seemed to critics, and to me, as "shove" rather than "nudge." So I will be curious to read this book and see if it seems to me any different.
Comments are open. I am curious whether commenters who have read this literature (whether this book, or Nudge, or others in this category) agree that there is a problem with "shove" over "nudge." I am also interested in how commenters address the question of experts having their own cognitive biases — ones that are just as powerful, and which often have large consequences for everyone else, as those of the masses whom they manage. Bill Easterly, as those who know his work would note, has reasons for wanting to emphasize that expert biases can easily be far more important than those of ordinary people. But in that case, how does one get out of the cognitive bias-skepticism regress, in which there is always another layer of skepticism that undermines the ability to act? Easterly does point to a particular feature of Kahneman's views — the formation of judgment, the ability to use the lessons of "system 2″ to train "system 1."
Finally, we might ask whether and in what ways that differs from what Aristotle and deliberate inculcation of character to the "proper" formation of judgment. Skepticism, Aristotle and the virtue-ethicists today might say, is essential — but ultimately too easy. There's always another layer of skepticism; eventually it becomes a paralyzing cost, rather than a benefit, to action. Skepticism is easy, judgment is hard.
November 5, 2011
University of Arkansas Panel on the War on Drugs
This Monday at noon, I will be taking part in a Federalist Society panel on the War on Drugs at the University of Arkansas School of Law. Joining me will be University of Arkansas lawprofs Mark Killenbeck (constitutional law) and Laurent Sacharoff (criminal law).
This is a very timely event because both public and elite support for the War on Drugs is rapidly eroding. Public support for marijuana legalization recently broke 50% for the first time, and a variety of groups such as the NAACP, the Global Commission on Drug Policy, and a prominent British panel have called for an end to the War on Drugs this year. Although the Obama administration has so far failed to take advantage of it, there is now much broader political support for at least scaling back the War on Drugs than ever before.
Privacy Victims by the Million: Federal Law Turns Parents and Children into Liars ... and Criminals?
A recent report by Danah Boyd and others reveals that turning parents and children into liars is a principal effect of the Children's Online Privacy Protection Act, or COPPA. According to Consumer Reports, 7.5 million kids under 13 have joined Facebook. Since Facebook prohibits kids of that age from the service, that's 7.5 million children who lied in the signup process. And most of them got help in telling the lie from their parents. According to Boyd's study, the vast majority of parents were aware that their children joined Facebook before reaching 13; in fact, more than two-thirds of these parents helped their under-age kids join.
That's a lot of lying.
COPPA more or less forces Facebook into excluding thirteen-year-olds. The law and the FTC regs implementing it set stringent limits on the kinds of information that web services can collect from kids under 13 in the absence of "verifiable parental consent." Obtaining verifiable consent requires mail, fax, phone calls, or credit card numbers; email is allowed only if accompanied by a cryptographically secure digital signature. It is quite deliberately a hassle. And once the consent is received, the service is charged with knowledge that the customer is a child, which triggers special legal protections and limits, not to mention FTC and state attorney general oversight.
All in all, unless you're running a site focused exclusively on preteens, you'd be crazy to let them join. Facebook isn't crazy. It excludes children. But staying off Facebook isn't really an option for kids with a social life, or grandparents for that matter. So the real effect of the law and Facebook's policy is to force children and their parents to lie about the child's age. 
Teaching kids to lie isn't exactly a government policy to be proud of. But federal law has another unintended legal consequence in store for those parents and kids. As Orin Kerr and I have pointed out, Facebook users who violate the site's terms of service also violate the Computer Fraud and Abuse Act, at least according to the Justice Department. Which would make every one of those parents and children guilty of a federal misdemeanor.
By my count, that's well over ten million misdemeanors, not to mention ten million privacy victims.
Now, you might ask, "Who the hell is the government to take away the decision whether my kids can join Facebook?" Actually, most parents feel exactly this way. When the study asked them who should have the final say about whether or not their child should be able to use online services, 93% chose the parents, 3% opted for the company providing the service, 2% chose the government, and 2% would leave the decision to the child.
So how did we end up with an online regime that is this intrusive, stupid, and unpopular?
It wasn't easy. It took a lot of lobbying, and the story may help explain why we have so many stupid privacy rules.
First, in the 1990s, when parents and children were just beginning to go online, no one knew what that would be like. There was a lot of free-floating anxiety. By the late 1990s, the Federal Trade Commission and groups like the Consumer Federation of America were maneuvering to focus that anxiety on fear that evil websites would extract information from trusting youngsters without parental knowledge. My guess is that the Commission and the consumer groups wanted an overarching online privacy law, and they thought that a law focusing on children's privacy would be a good first step.
The FTC released a study in 1998 that painted the online industry in dark colors:
The results with respect to the collection of information from children are … troubling. Eighty-nine percent of children's sites surveyed collect personal information from children. While 54% of children's sites provide some form of disclosure of their information practices, few sites take any steps to provide for meaningful parental involvement in the process. Only 23% of sites even tell children to seek parental permission before providing personal information, fewer still (7%) say they will notify parents of their information practices, and less than 10% provide for parental control over the collection and/or use of information from children. The Commission's examination of industry guidelines and actual online practices reveals that effective industry self-regulation with respect to the online collection, use, and dissemination of personal information has not yet taken hold.
Later, in testifying before Congress, the FTC highlighted a few extreme examples:
One child-directed site collected personal information, such as a child's full name, postal address, e-mail address, gender, and age. The site also asked a child extensive personal questions about financial information, such as whether a child previously had received gifts in the form of stocks, cash, savings bonds, mutual funds, or certificates of deposit; who had given a child these gifts; and whether a child had put monetary gifts into mutual funds, stocks or bonds. The site also asked for family financial information including whether a child's parents owned mutual funds. Apparently in exchange for providing this information, a child was entered into a contest. Elsewhere on the Web site, contest winners' full names, age, city, state, and zip code were posted.
Another child-directed site collected personal information to register a child for a chat room. The information included a child's full name, e-mail address, city, state, gender, age, and hobbies. The Web site had a lotto contest that asked for a child's full name and e-mail address. Lotto contest winners' full names were posted on the site. For children who wished to find an electronic pen pal, the site offered a bulletin board service that posted messages, including children's e-mail addresses. While the Web site said it asked children to post messages if they were looking for a pen pal, in fact anyone of any age could visit this bulletin board and use the Web site information directly to contact a child.
Those examples would have a lot less power today, partly because the gathering of online data doesn't seem as alien or scary as it did in 1998. We've given our email addresses to a lot of sites without 
being stalked by predators. We also know that there are practical limits on web services data collection and usage. Sites that ask kids for too much information are unlikely to prosper because, as Boyd's study shows, parents play a pretty big role in their preteens' decision to join a service.
But in 1998 the FTC's stories were seen as disturbing portents of a dystopian future. And how could we head off this future? Not to worry; the FTC also had a solution. Casting itself as a vigilant defender of parental rights, the Commission told Congress that the solution was – what else? – an expansion of Commission authority over online privacy practices: "As a result of our activities over the past three years, the Commission has developed significant expertise regarding children's privacy. … The Commission strongly supports the approach adopted in this legislation."
The bill was enacted later that year.
Where were the privacy groups while this was going on? On the case, sort of. The Center for Democracy and Technology testified in favor of the overall bill, but it wanted changes to give parents even less knowledge about their kids' online activities; it asked (with some success) for modification of provisions that would have given parents access to any information their child provided to a website and alerted them when the child gave his email address to a website.
If you were a parent in 1998, you probably felt pretty good when you heard about COPPA's passage. You'd been told that it was going to protect your kids' privacy by empowering you. But in fact, it mainly empowered a government agency to decide what your kids can do online. And the privacy groups you thought were on your side? They were more interested in protecting your kids from, well, you.
This isn't just history. The story of COPPA is by and large the story of most privacy legislation: a new technology emerges, followed by a "privacy panic" over how it might be misused (often engineered by interested agencies and privacy groups), followed by hasty legislation with large-scale unintended consequences — and, soon, a new class of privacy victims.
If I were a libertarian, I'd be particularly troubled by the FTC's role in this drama. In the name of privacy and parental control, we let the FTC create a legal regime that expanded government's authority over the Internet and took away parents' ability to control their childrens' online memberships, at least without lying.
And this weird mix of the authoritarian and the libertarian is not a bug unique to COPPA; it is a deliberate feature embraced by most of the privacy lobby whenever they talk about setting privacy rules for the private sector. Considering how many supporters of privacy legislation tend to be dubious about government authority, it's remarkable how often privacy legislation empowers some bureaucrat to regulate some part of the economy more aggressively.
Photo credit: http://www.flickr.com/photos/joebehr/5130944038/sizes/o/in/photostream/
Guatemala's Lost Photographs from the 1980s
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Congratulations today to my Beloved Wife, Jean-Marie Simon, for a front page photograph illustrating an article in the Wall Street Journal today on Guatemala's presidential election. The photograph dates back to 1982, when Jean-Marie was a photographer and freelance journalist covering the civil war in Guatemala. She worked there for Human Rights Watch and Amnesty International, and later published a book of text and photographs of the war and Guatemalan society in that period, in English from WW Norton in 1988.
The risks of covering the war — Guatemala's military pioneered the phenomenon of disappearances during the 1970s and 80s — made it impossible for local journalists or photographers to go out into the rural conflict zones. So Jean-Marie's photographs are a rare record of those years in Guatemala. Remarkably, although her photo book was available in the US in English, the sensitivities around the war meant that the photographs were never seen in Guatemala. Two years ago, that began to change, and she did several exhibitions of her photographs in Guatemala, in the capital city as well as rural towns, in the municipalities. Several foreign embassies, including the US embassy, provided financial support, and the photographs received much comment inside Guatemala.
A lot of the attention was not really about the war in the 1980s — but, rather, this was one of the very few documentary records of what Guatemala looked like — its physical geography, its urban and rural landscape, its people both urban and rural, thirty or more years ago. In addition, however, controversy erupted over the subject of her photograph in the WSJ today, Otto Perez Molina — he is one of the candidates in the current presidential election, but thirty years ago was also an Army commander in some of the most contested zones in the countryside.
Jean-Marie is publishing a Spanish language photo book of the photographs from the decade in which she lived and photographed there, covering the lost war years. The aim is to produce an accessible archive of those photographs, reasonably priced for a Guatemalan audience, one that can be used in schools there and other ways to ensure that there is some record of the missing conflict years. (Jean-Marie is seeking support for the publication project at the crowd-funding site Kickstarter, if you want to support it.) The cover photograph, which I'm pleased to say I urged strenuously, is here:
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And here is Beloved Wife, from back in the early 1980s, when I first met her, in her war photographer days in Guatemala:
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How Grade Inflation Hurts Math and Science Education
The New York Times has an interesting story on the declining number of math and science majors in universities. The article identifies many potential culprits, including grade inflation in the humanities and social sciences.
It is no surprise that grades are lower in math and science, where the answers are clear-cut and there are no bonus points for flair. Professors also say they are strict because science and engineering courses build on one another, and a student who fails to absorb the key lessons in one class will flounder in the next.
After studying nearly a decade of transcripts at one college, Kevin Rask, a professor at Wake Forest University, concluded last year that the grades in the introductory math and science classes were among the lowest on campus. The chemistry department gave the lowest grades over all, averaging 2.78 out of 4, followed by mathematics at 2.90. Education, language and English courses had the highest averages, ranging from 3.33 to 3.36.
Ben Ost, a doctoral student at Cornell, found in a similar study that STEM students are both "pulled away" by high grades in their courses in other fields and "pushed out" by lower grades in their majors.
If taking math, science and engineering courses requires students to sacrifice their GPAs and class standing, it should be no surprise that many choose other courses of study.
November 4, 2011
Reforming Higher Education: The Australian Model for Financing Education
Instapundit points us to an article by Diane Auer Jones in the Chronicle of Higher Education, asking whether the US might do better in financing higher education to shift from the current student loan system to the Australian system:
[W]e might look to the Australian system of student aid for guidance on how to develop a better plan. In Australia, students each know in advance how much money is in their student-loan "account" so to speak. They know that when the money runs out, government support is over (unless the student is moving on to professional school, for example, in which case supplemental funds are made available). This means that the student has the incentive to make good decisions, stick with the program, and complete their studies in a timely manner. In other words, there is no such thing as a stipend runner who simply stays in the system for as long as possible to keep collecting student-aid rebates and avoid entering the repayment period.
Australian student loans do not have interest associated with them in the traditional sense and unlike in the U.S. system, it is current economic conditions, as opposed to a person's birth year, that determine the total cost he or she will bear in repaying student loans. For example, American students who enter college next year will pay over 6-percent interest on subsidized Stafford loans as opposed to students this year, who will pay only 3 percent. Meanwhile, the economic conditions next year are likely to be similar to current economic conditions.
In Australia, student loans are assessed an up-front fee that has remained relatively constant over the years (just now increasing from 20 to 25 percent). The fee does not increase beyond that, even if the borrower needs to interrupt repayment to pursue an advanced degree, to recover from an economic hardship, or to take time off of work for medical or family leave. There is no interest to accumulate, but instead the current value of the Australian student loan is determined based on the national Consumer Price Index. Loan costs rise and fall based on the annual economic performance of the country, as opposed to the individual student's personal or professional circumstances.
In Australia, there is no such thing as a grace period, deferment, or forbearance. Instead, there is a minimum threshold income at which student-loan repayment is expected to commence. Currently, that threshold income is around $45,000 per year and as soon as the borrower meets that threshold, whether it is while the student is still in school or even years after graduation, repayments begin. The monthly payment amount is not based on the size or term of the loan, but instead on the borrower's level of income, with students at the threshold level paying 4-percent of their earnings in loan payments and those earning higher wages paying no more than 8 percent of their earnings. Unlike in our Income Based Repayment program, interest does not capitalize and the total amount due does not increase just because a longer repayment term is in order (unless the economy is so strong that CPI increases dramatically over that period of time, in which case one would assume that wages would maintain a similar rate of growth).
Perhaps most importantly, there are no defaults in the Australian student-loan program. It is the Australian Tax Authority that collects student loan payments, not the Department of Education, and the borrower has the option of either making payments through routine payroll deductions (similar to the way in which Americans pay their FICA and other taxes) or through annual tax assessments.
Jones suggests that this system responds to three core needs of a reasonably efficient and fair financing system for higher education: "How do we design a financial aid program that better serves the needs of all students, that respects the ability of adults to make decisions for themselves and that provides adequate return to the taxpayer for his or her investment in others?" Jones' essay appears in a series of blog posts called "brainstorming," and I agree that it is a good moment to think about the foundations of higher education, from inputs to methods to outputs, including financing.
Comments are open, and I'd particularly appreciate reasoned views on whether this Australian system could work here, what its upsides are and its downsides. Although there are obviously important questions about how a society could transition, at this point it's a less important issue than what its tradeoffs are. Please be civil and reasoned in any responses. Thanks.
How About Occupy Hollywood?
One of the obvious dangers of the Internet Age is that we'll be so distracted by everything going on around us — lots of it interesting, complicated, and even important (not to mention all the stuff that's idiotic and unimportant and fundamentally uninteresting) — that we will fail to recognize the truly important stuff when it comes along.
The IP bills that Congress now has before it — the Senate version of which is known as PROTECT-IP, the House version as SOPA (Stop Online Piracy Act), sometimes known as the "E-Parasite" bill — are deep and profound threats to the Net and to our freedom on the Net. If anyone has good ideas about how to fight back other than to stand on the street-corner, as I am doing now, and shouting to the rooftops, I'd be interested to hear them.
I helped draft a Law Profs Letter in Opposition, and I've blogged about it a number of times before, as have others — good places to start if you are unfamiliar with the issue are the EFF site, the CDT site, and Techdirt. But I'm going to keep at it because this is an issue that really needs more public traction than it is getting. I'm not going to stand here and say that this law will destroy the Internet as we know it, though I actually believe that to be true. I'm not going to say it, because predicting the future is impossible and I like to avoid doing it in public — though, like all of us, I have my own beliefs about what the future will bring. So I'll put that aside and focus on the principles at stake; even if the damned thing weren't going to destroy the Net as we know it, it is of surpassing ugliness, and if you care about freedom and liberty, you'll agree with me.
Here's the Internet we get after this becomes law. The prosecutor walks into a courtroom with evidence that a website — or, more likely, 1000 websites — are "dedicated to infringing activities." If he/she can persuade the judge of that, those websites vanish from the Net (through a complex wave of judicially-mandated action that has to be obeyed by ISPs, domain name registrars, etc.). No need for messy "adversary proceedings," "due process," or similar niceties. No need to bother with details like "is there a defense to the charge?" No need even for the prosecutor, under the statutory terms, to prove what a copyright plaintiff would have to prove if this were an ordinary infringement suit: i.e., that the website operator in question had "actual knowledge of specific infringing files" on the site in question. None of that.
It's nice of Congress, I suppose, to provide that a neutral judge has to have seen the evidence and issued an order before sites can be eliminated; I'm sure there are plenty of folks in Congress and the US Attorney's Office who would like to eliminate that last bit of messiness and administrative inconvenience, too. But there's a good reason why, except in truly extraordinary circumstances where public health and safety are imminently threatened, we don't throw people in jail, or deprive people of their livelihoods, or divest them of their property, whenever a prosecutor and a judge agree that those are just punishments.
And it's a lot worse than even that. Get this: The House version makes it unlawful (and subjects you to this elimination order) if you:
"tak[e] deliberate actions to avoid confirming a high probability of the use of the [website] to carry out acts that constitute a violation of [the copyright or trademark statutes]."
Take a careful look at what's going on here. If the prosecutors have been snooping around on my website to find infringing material and I take "deliberate steps" that prevent them from "confirming" that I have such material on the site — perhaps I have this pet peeve about government agents crawling around what I might regard as private space and I have tried to keep them out — then I have violated the statute even if I don't actually have infringing material on the site. That is, it's an independent violation of law to keep the prosecutors from "confirming" that you're violating the law — all the prosecutor has to show, to make you vanish from the Net, is that you've somehow tried to keep the prosecutor off of your website!
It violates principles I'm tempted to call sacred — and all for what?? To protect the rights of our intellectual property owners — to make the world safe for our record companies and movie studios and publishing houses. Even if it was going to work, if the price for protecting those rights is that we have to abandon due process, and the notion that there are 2 sides to every story, and the notion that government agents do not have an inalienable right to know everything that I am doing on the Internet or anywhere else, that price is way too high.
And of course it's not going to work. I guarantee that. It's too easy to circumvent — anyone who understands the technology will agree with that. Sure, it will ensnare many unlawful actors. But at Internet scale, ensnaring some of the bad guys does not and cannot appreciably affect the conduct in question. Think of it this way: If there are 10 bad guys out there, and you've got a way to catch, say, 5 of them, that's usually a pretty good scheme. We'll have 5 fewer bad guys, and who knows, maybe just by probabilistic chance you'll catch all 10; after all, if you're 50 percent likely on average to catch each bad guy, it's unlikely but by no means impossible that you'll get 'em all.
But if there are 10 million bad guys and you get rid of half of them, there are still 5 million bad guys out there. And, with intellectual property, 5 million bad guys can do precisely as much "damage" to your intellectual property as 10 million. If "stamping out copyright infringement" looks like a nightmarish game of whack-a-mole that you can't possibly win — well, I'm sorry about that, but that's just the way the world is, so get over it. There's more — much more — peer-to-peer file-sharing going on today than in the heyday of Napster and Grokster. Deal with it — not by killing my Internet, thank you very much.
UPDATE: Anthony Falzone over at the Stanford Center for Information and Society points out a couple of places where people can speak out about this — see his posting at here, the petition at whitehouse.gov, and the EFF's "Write Your Congressperson" page
Florence and the Plaintiff's Bar
Jess Bravin of the Wall Street Journal has a very interesting article on the dispute among two plaintiff's attorneys involved in Florence v. Board of Chosen Freeholders of the County of Burlington, the pending Fourth Amendment strip-search case, about who would litigate that case and with what goals. The article is behind a paywall, so to read it you have to go here and click on the link.
An excerpt:
"Susan Chana Lask is an incompetent dolt," said Mr. Keach of Amsterdam, N.Y.
Ms. Lask, who practices in Manhattan, is no less blunt. Mr. Keach—or, as she sometimes calls him, "Mr. Leech"—is a "monster" who put profits ahead of the victims' cause, she said.
. . .
For [Ms. Lask] called Mr. Keach, who was becoming a pro at strip-search cases after securing a $2.7 million settlement from Rensselaer County, N.Y., on behalf of 2,000 minor offenders."I've done like 20 of these," said Mr. Keach, who began teaming up with attorney friends to do the work and share the fees. The payoff for ex-inmates ranges from $100 to $3,000, but "the mainline figure is $1,000 a head," he said.
. . .
Nonetheless, the two took an immediate dislike to each other."Not only was this woman not ready for prime time, she wasn't ready for public access," said Mr. Keach. Fearing she would blow the case and set bad precedent, Mr. Keach said his team offered to run the case, while guaranteeing Ms. Lask a cut of any settlement.
"They start saying, 'Give us the case, you can sit back and do nothing,' " is how Ms. Lask remembers it. "[You can] go buy yourself a yacht and retire," Mr. Keach told her, she said, promising her a share of the "good life" he enjoyed through strip-search proceeds.
"I didn't want to be any part of these nasty people," Ms. Lask said. "They were like fleas, going from prison to prison to prison," sucking out settlements. When she declined Mr. Keach's invitation, he "started screaming at me and freaking out, and I hung up," she said.
Rebuffed, Mr. Keach's group took a drastic step, filing court papers to oust Ms. Lask as class counsel. "They wanted to steal the case from me," she said.
"We were going to take over her case because of the sheer level of incompetence she was showing," Mr. Keach said. But Ms. Lask fought back, and eventually Mr. Keach gave up the effort.
, , ,
When the appeals panel in Philadelphia ruled against Ms. Lask, effectively ending strip-search class actions in three states, Mr. Keach was beside himself."Congratulations, Susan," he told her by email. "You killed the golden goose."
"I thought, 'What a pig,' " said Ms. Lask.
Thanks to Howard Bashman for the link.
Inside Executive Branch Policy-Making on Drone Strikes
Adam Entous, Siobhan Gorman, and Julian Barnes of the Wall Street Journal's national security reporting team have a front page article today detailing the inside debates and, as the article says, policy changes around drone strikes in Pakistan over the several months. It is a must-read for everyone who follows drone and targeted killing policy debates, and, I'm told, reflects months of reporting. It is not a "here-is-the-leaked-document" kind of article, but instead a synthesis of many sources and an attempt to put together an account of months of debate and policy back-and-forth over how, when, who, and with whose permission to launch drone strikes in Pakistan's territory. It is long, detailed, and bears close reading if you deal in these policy areas.
Among other things, the article follows arguments, raised in earlier news stories, among State, DOD, the National Security Council, the CIA, and others over the weight to be given the Pakistan government's anger over both the strikes — and, more exactly, not being told in advance or being asked permission for attacking particular targets. This was primarily a concern raised by the State Department, and the then-new US ambassador, Cameron Munter. One difficulty, noted in earlier articles, was that advance warning to Pakistan sometimes resulted in obvious leaks to the targets. But to judge by today's piece, the permissions process has been altered to give more weight to State's concerns:
Mr. Obama instituted an appeals procedure to give the State Department more of a voice in deciding when and if to strike. If the U.S. ambassador to Pakistan objected to a strike, for example, the CIA director or his deputy would first try to talk through their differences with the ambassador. If the conflict was unresolved, the secretary of state would appeal directly to the CIA director. If they couldn't reach agreement, however, the CIA director retained the final say. Since the changes were made, officials say internal tensions over the strikes have eased and agencies were acting more in concert with each other.
There were concerns expressed by other US government actors in the internal discussions. The Defense Department expressed concern over Pakistani government anger leading to increased difficulties in using Pakistan to move supplies to Afghanistan. Others expressed concerns over whether the program would destabilize the Pakistani government itself. Some people questioned whether, given the killing of Bin Laden, whether the whole program could be scaled back or even ended.
These concerns resulted in a high level review of the two drone programs conducted by the CIA in Pakistan. Notably, the administration remains as firmly and strongly committed to drones and targeted killing as key elements in national counterterrorism policy as it has ever been, if not more so — in Pakistan and elsewhere. Moreover, although greater mechanisms of consultation have been built in, the CIA retains the final say. It is noteworthy that there appears to be no sense anywhere in the US government that there is a legal issue with the CIA conducting the strikes, despite the on-going debate among academics and others outside of the US government.
A crucial distinction — one first made public, so far as I know, by these Wall Street Journal reporters a couple of years ago — is between targeting "high value" terrorist targets, "personality strikes," on the one hand, and so-called "signature strikes" on groups of fighters, on the other, often low level fighters who, for example, might be moving from Pakistan to Afghanistan to fight US and Aghan forces there. The personality strikes are at the core of the US's counterterrorism program, whereas the signature strikes are much more part of the counterinsurgency campaign — attacking safe havens, fighters who would otherwise wind up in Afghanistan, etc. (A distinct legal debate, as Charlie Savage has reported in the Times, took place over the legal authority for engaging in signature strikes in places outside of Afghanistan and Pakistan's border regions, such as Yemen, but it appear to have been resolved at this point in favor of a legal view that such strikes are permitted, but as a policy matter do not make sense for the United States at this point.)
Much of the policy debate within the administration seems to have revolved around the extent of signature strikes which, by their nature, attack a group of people who the US has identified as fighters, rather than individual as in a targeted killing. Indeed, this illustrates the important point that as drone uses ramify, targeted killing is only one such use (and targeted killing, too, might be carried out with a human team; targeted killing and drone warfare only partly overlap). Signature strikes are supposed to produce a larger number of people killed, because the people being targeted are supposed to be groups of fighters. But the larger number of casualties raised these other concerns within the administration:
Officials asked what precautions were being taken to aim at highly valued targets, rather than foot soldiers. "Donilon and others said, 'O.K., I got it; it's war and it's confusing. Are we doing everything we can to make sure we are focused on the target sets we want?'" said a participant in the discussions. "You can kill these foot soldiers all day, every day and you wouldn't change the course of the war." A senior Obama administration official declined to comment on Mr. Donilon's closed-door discussions but said that he wasn't second-guessing the CIA's targeting methodology and pointed to his long-standing support for the program. The official said the White House wanted to use the drone program smartly to pick off al Qaeda leaders and the Haqqanis. "It's about keeping our eyes on the ball," the official said.
In the end, it appears that there is greater discussion over interagency concerns about targeting, but the final decisions remain with the CIA. Or, as the article's closing quote put it:
"It's not like they took the car keys away from the CIA," a senior official said. "There are just more people in the car."
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