The Reconstruction

If you, the reader, are not asking yourself, “why should I listen to this guy?”, I’m flattered. If, however, you’ve asked that question regarding me, I’m not offended. It’s a fair question. The answer? Because I tend to be right when the pundits are wrong. For example, earlier this week I wrote:

Q: All right, then. Why don’t you tell me why in the world the Bush administration would engage in this if it’s probably illegal and they could just get warrants anyway?

A: Because they’re not telling us the extent of the program– and they couldn’t get warrants for what they’re doing. They’re intercepting a large fraction of phone calls and screening them with computers that are searching for particular phrases or patterns. If a match comes up, the tip is passed along to others who can follow up on it. This method could, in theory, catch a terrorist who is under the radar. The vast majority of what comes up will be the conversations of innocent citizens, though…

That’s my guess, at least.

Surprise, surprise… Today’s Washington Post is carrying this revelation:

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well…

The Bush administration refuses to say — in public or in closed session of Congress — how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000.

The program has touched many more Americans than that. Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears.

Successive stages of filtering grow more intrusive as artificial intelligence systems rank voice and data traffic in order of likeliest interest to human analysts. But intelligence officers, who test the computer judgments by listening initially to brief fragments of conversation, “wash out” most of the leads within days or weeks.

The Post article is worth reading, it offers a more textured view of the situation than anything else published thus far.

Thursday’s New York Times will be carrying this piece, entitled “Senate Panel Rebuffed on Documents on U.S. Spying”. A highlight:

In the interview, Mr. Specter said that he wanted a fuller explanation as to how the Justice Department asserts that the eavesdropping operation does not conflict with the 1978 Foreign Intelligence Surveillance Act, which set strict and “exclusive” guidelines for intelligence wiretaps. 

The operation was approved by President Bush, to allow the National Security Agency to conduct wiretaps on Americans’ international communications without a court warrant. Mr. Specter said his view was that the operation “violates FISA – there’s no doubt about that.”

He also questioned why the administration did not go to Congress or the intelligence court to seek changes in the process before moving ahead on its own with the classified program after the Sept. 11 attacks.

While I disagree with him on some issues, I must say that Arlen Specter is one of the good ones.

If I were given the assignment of saying one negative and one positive thing about the President’s State of the Union address last night, this is what I would offer…

Negative:

Yesterday I wrote a FAQ explaining the illegal wiretapping point-by-point. And yesterday, Bush repeated the same disproven points again:

It is said that prior to the attacks of September the 11th, our government failed to connect the dots of the conspiracy. We now know that two of the hijackers in the United States placed telephone calls to al Qaeda operatives overseas. But we did not know about their plans until it was too late. So to prevent another attack — based on authority given to me by the Constitution and by statute — I have authorized a terrorist surveillance program to aggressively pursue the international communications of suspected al Qaeda operatives and affiliates to and from America. Previous Presidents have used the same constitutional authority I have, and federal courts have approved the use of that authority. Appropriate members of Congress have been kept informed. The terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America. If there are people inside our country who are talking with al Qaeda, we want to know about it, because we will not sit back and wait to be hit again. 

Of course, we already know that the terrorist program hasn’t actually helped prevent any attacks, and that there’s really no reason to perform the surveillance illegally. Further, we know that Bush’s definition of “appropriate members of Congress” is quite limited, and that some of those members have objected. We also know that federal courts have not approved the authority that Bush is invoking. This doesn’t matter to the President, however. He’s interested in saying whatever he has to say to be able to do as he pleases– whether or not it’s honest and accurate.

Positive:

This is the challenging part.I can’t endorse anything he said without reservation, and usually I wish he had said or promised more. However, one program he mentioned caught my attention and is worthy of note:

We’ll also fund additional research in cutting-edge methods of producing ethanol, not just from corn, but from wood chips and stalks, or switch grass. Our goal is to make this new kind of ethanol practical and competitive within six years. 

Yes, it’s only a research goal, and it may disappear as other promised programs did, but ethanol production from switch grass would be a major plus. Despite Alexander Farrell’s recent work arguing that corn-based ethanol production is in fact energy-positive, I still have serious reservations about the technology. These reservations stem primarily from the fact that Farrell’s logic regarding credits for byproducts assumes that each additional unit of a byproduct will displace one unit of production elsewhere, and that even with these credits included, the process is barely energy-positive. Ethanol from switch grass and other plants with high cellulose content can be produced much more efficiently than ethanol from corn, making ethanol a viable energy source, as opposed to a mere transport medium for energy. Ethanol certainly has other disadvantages, but no energy source is perfect. So for this move, however small it may be, I applaud the President.

To commemorate tonight’s State of the Union address, in which President Bush is certain to defend his probably-unconstitutional wiretapping program (he can’t tell you the details, just trust him), I present:

The Secret NSA Wiretapping Program FAQ
(With extra Alito’s-confirmation-is-today tie-in)

Q: Okay, so what happened?

A: The short-but-sweet version is that the Bush administration has been wiretapping calls between people in the United States and people overseas without consulting the Foreign Intelligence Surveillance Court, which was established by the Congress for the specific purpose of providing judicial oversight of these activities.

Q: Wow, a secret intelligence court? When did that happen?

A: The law (the Foreign Intelligence Surveillance Act, or FISA) was passed in 1978. It’s Title 50, Subchapter 36, Title I (§1801-§1811) of the U.S. Code. You can read it all here.

Q: President Bush says that the program is legal. Is it?

A: We can’t be sure unless the Supreme Court rules on the matter, but it’s probably unconstitutional. The Congressional Research Service, a non-partisan research arm of the Library of Congress, reviewed [PDF] the administration’s arguments for the constitutionality of the program and concluded that, while they could not say for sure because the details of it have been kept secret, they could find no basis in law for the President’s actions.

Q: Other than the memo from the Congressional Research Service, do we have reason to believe that some sort of illegal activity occurred?

A: Yes. Even NSA officials had concerns about the legality of the program. From the December 16, 2005 New York Times:

Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president. 

In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.

Q: What are the consequences for using information gathered without a warrant?

A: Interesting that you should ask. Under §1809,

A person is guilty of an offense if he intentionally… discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute… An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both. 

Q: Would each instance count as a single offense? That would mean a maximum possible sentence of tens of thousands of years in prison!

A: That’s an interesting point. I don’t know.

Q: Could this law be used to hold President Bush responsible for his actions?

A: Strictly in theory, yes. However, to see that happen while Bush was in office, you’d need a federal prosecutor to be told by his boss to prosecute both the prosecutor’s boss and his boss’s boss. That’s not going to happen.

Q: What about the challenge that the ACLU has brought?

A: It’s a nice P.R. move, but it has little chance of success. The trick here is that to bring a legal case, one has to have standing. The government will argue that it cannot confirm nor deny that any individual was under surveillance, and it will do so by invoking national security concerns. If the courts accept this line of reasoning, nobody could actually establish that they have standing to bring suit. Thus, it would be a surprise to see the case before the Supreme Court. How it would fare before the new court would be another matter entirely, particularly given Alito’s fondness for broad executive powers.

Q: Some people (Gen. Hayden of the NSA in particular) have said that President Bush had to do the warrantless surveillance because the “probable cause” standard in FISA is too high. Is this the case?

A: There are a few issues with this argument. The first is that FISA does not prevent surveillance of suspected terrorists or of individuals in contact with terrorists at all. All it requires is that the government have probable cause to believe that the people are, in fact, terrorists before they start tapping their phones. The second is that if the President finds the law to be inadequate, there’s a solution for that. It’s called Congress, sometimes known as the legislative branch– a part of the balance of powers. The third issue is that the Bush administration already rejected a proposal in June 2002 to lower the evidentiary standard. So this argument is pretty weak, at best.

Q: Couldn’t we miss valuable information while waiting for a warrant from a FISA court?

A: No. FISA allows the Attorney General to authorize surveillance first and ask for permission from the court up to three days later. Specifically, under §1805 (f), the Attorney General “may authorize the emergency employment of electronic surveillance if a judge… is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application… is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.”

Q: Vice President Cheney says that the warrantless wiretapping program “has helped to detect and prevent possible terrorist attacks against the American people.” Isn’t this a good justification for the program?

A: No, on two counts. First, even if the program had prevented terrorist attacks, it is not at all clear that it being carried out without judicial oversight helped prevent these attacks. FISA would not have prevented wiretapping of the individuals in any of the cases we know about–and there’s no reason to believe that it would have prevented any wiretapping that has proved useful in any investigations we don’t know about. So yes, wiretapping can be a useful tool–but to point this out is to distract from the fact that it’s being done without any sort of oversight, oversight which would not impede its usefulness. Second, it’s unclear that the Vice President’s claims are entirely accurate. From the January 17, 2004 New York Times:

The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. “There were no imminent plots – not inside the United States,” the former F.B.I. official said. 

Some of the officials said the eavesdropping program might have helped uncover people with ties to Al Qaeda in Albany; Portland, Ore.; and Minneapolis. Some of the activities involved recruitment, training or fund-raising.

But, along with several British counterterrorism officials, some of the officials questioned assertions by the Bush administration that the program was the key to uncovering a plot to detonate fertilizer bombs in London in 2004. The F.B.I. and other law enforcement officials also expressed doubts about the importance of the program’s role in another case named by administration officials as a success in the fight against terrorism, an aborted scheme to topple the Brooklyn Bridge with a blow torch. Some officials said that in both cases, they had already learned of the plans through prisoner interrogations or other means.

So it’s unclear as to how useful the program has actually been, and in any case, it being a useful program doesn’t justify it being done illegally. The whole point of warrants is to protect citizens’ rights– yes, it would certainly be expedient if I could tell an officer about the bag of marijuana that you keep in your sock drawer and he could just burst into your house and seize it, but we make officers get warrants because our founders believed that the right to privacy was worth protecting, particularly as a safeguard against tyranny:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 

Q: President Bush has said, “You know, it’s amazing that people say to me, ‘Well, he was just breaking the law.’ If I wanted to break the law, why was I briefing Congress?” How open was the President with Congress about the details of this plan?

A: The extent to which Congress was informed is not fully known. What we do know is that President Bush wasn’t briefing Congress as a whole, or even the entirety of either the House or Senate intelligence committees. So it is misleading to say that he was “briefing Congress.” It is also not known whether the full extent of the program was disclosed to these members of Congress, however, enough information was disclosed that at least one Senator expressed concerns about the program. From the December 16, 2005 New York Times:

After the special program started, Congressional leaders from both political parties were brought to Vice President Dick Cheney’s office in the White House. The leaders, who included the chairmen and ranking members of the Senate and House intelligence committees, learned of the N.S.A. operation from Mr. Cheney, Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency’s director and is now a full general and the principal deputy director of national intelligence, and George J. Tenet, then the director of the C.I.A., officials said. 

It is not clear how much the members of Congress were told about the presidential order and the eavesdropping program. Some of them declined to comment about the matter, while others did not return phone calls.

Later briefings were held for members of Congress as they assumed leadership roles on the intelligence committees, officials familiar with the program said. After a 2003 briefing, Senator Rockefeller, the West Virginia Democrat who became vice chairman of the Senate Intelligence Committee that year, wrote a letter to Mr. Cheney expressing concerns about the program, officials knowledgeable about the letter said. It could not be determined if he received a reply. Mr. Rockefeller declined to comment. Aside from the Congressional leaders, only a small group of people, including several cabinet members and officials at the N.S.A., the C.I.A. and the Justice Department, know of the program.

Q: President Bush has said, “These are not phone calls within the United States. This is a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States.” How extensive is this program?

A: The program is designed to only intercept conversations in which one or both ends of the conversation are outside the United States. It has, apparently by accident, intercepted a small but unknown number of purely domestic communications. From the December 20, 2005 New York Times:

But in at least one instance, someone using an international cellphone was thought to be outside the United States when in fact both people in the conversation were in the country. Officials, who spoke on condition of anonymity because the program remains classified, would not discuss the number of accidental intercepts, but the total is thought to represent a very small fraction of the total number of wiretaps that Mr. Bush has authorized without getting warrants. 

The fact that the few purely domestic conversations intercepted without a warrant were by accident is a good thing, as the case law is entirely settled in this area. In United States v. United States District Court, 407 U.S. 27, the Supreme Court unanimously held that,

[W]here practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen’s private premises or conversation… These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch… Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure. 

Extra Alito-Confirmation-Day Bonus

As a result of U.S. v. U.S. District Court, a man named Keith Forsyth sued Nixon’s attorney general, John Mitchell, over conversations of his that had been illegally wiretapped. The case, Mitchell v. Forsyth, 472 U.S. 511, was argued in 1985. According to an article in the Los Angeles Times, Samuel Alito, then a Reagan administration lawyer, stated that he did not question that the attorney general should have absolute immunity from civil lawsuits stemming from decisions made while in office, but encouraged the solicitor general to argue the case on different grounds for tactical reasons. Forsyth won the case.

Q: All right, then. Why don’t you tell me why in the world the Bush administration would engage in this if it’s probably illegal and they could just get warrants anyway?

A: Because they’re not telling us the extent of the program– and they couldn’t get warrants for what they’re doing. They’re intercepting a large fraction of phone calls and screening them with computers that are searching for particular phrases or patterns. If a match comes up, the tip is passed along to others who can follow up on it. This method could, in theory, catch a terrorist who is under the radar. The vast majority of what comes up will be the conversations of innocent citizens, though.

So Bush is doing this because he thinks the program might help, and he places this small chance that it might over the implications it has for civil liberties. He hasn’t asked for Congressional or judicial review of the program because he doesn’t want details of the program known, and he has a definite contempt for the other branches of government, anyway.

That’s my guess, at least.

I’d like to apologize for the lull in activity as of late. As those of you who know me are well aware, my life has been in a state of major upheaval since I last promised to write. I’m slowly working my way back to something resembling normality, though “normal” will certainly be different from now on. Part of this will be getting back to writing– I’ll have new material within a few days.

If this is your first time visiting the site, I’d like to offer a few pieces that I think you might find interesting:
Grand Central Station and Adam Mickiewicz
This CAFE Sucks!
Environmentalism Needs Fewer Socialists

I hope you enjoy it.

Matthew McCormick

Michael John McCormick
January 3, 1945 – November 26, 2005

Editor’s dry humor made job fun

Upbeat editor was beloved News man

Funeral Home Obituary

Alas, but from time to time, life intrudes on writing. I hope to find the time to write some new and interesting things within the next week. In the meantime, think about the coming holiday– giving thanks is one of the best reasons possible for a holiday (celebrate the meaning, if not the history)– and take a look at this piece on Slate. It’s a part of their “College Week” series, and I link to it because I strongly agree with the author. This is a rare occurrence, as I usually find the arguments on Slate to be pointlessly contrarian. Regarding this particular piece, I mentioned in passing the need for a widespread understanding of statistics in a previous post titled “Hard Problems“, and I do believe that it is an entirely sensible requirement for undergraduates, painful as it may be.

Debunkings are great. It’s always nice to clear out fact from wild assertion, particularly when the wild assertions are supported by a community that constantly references and reinforces itself without any actual allegiance to objective fact. Holocaust deniers (actually, you can find them for just about any genocide), Creationists, et cetera– they’re a fascinating study on how people choose the seize upon the “facts” that support their worldview and ignore or discount all other evidence. One such group is the tax protesters– those folks who think that taxes are unconstitutional or find some other justification for not paying them. A one-stop debunking of tax protesters can be found at the Tax Protester FAQ, written by Daniel Evans.

The back-and-forth between Michael Mandel and others over the importance of saving was already strange. His rebuttal to PGL from Angry Bear, however, is even stranger. The criticism from PGL read as follows:

“An increase in government-sponsored R&D might be a very nice thing as Mandel suggests, but he seems to dodge the question as to how we pay for this extra expenditure. Do we cut some form of private or government consumption? If so, then I’d call this saving.” 

Mandel’s response to this is again confused– he’s clear about his belief that saving is overrated, and that government should fund R&D, but his reasoning is the product of someone who has spent too much time away from his basic economics roots. He begins his argument by taking issue with the title of Angry Bear’s post, namely “More Free Lunch Economics from Michael Mandel”, and repeating his proposition that capital expenditure is not that important to growth:

“First, I like free lunch economics. The economic history of the past 200 years is basically one long free lunch, with productivity growth far outrunning anything which could be justified on the basis of physical capital investment alone. Since 1948 output per person has grown by 2.3% annually. Out of that, the contribution of physical capital is only 0.9% (see page 6 of this BLS release)” 

His argument is accurate on its face, but ignores something I pointed out in my previous post.

A simplification of the table to which he refers:

Mandel’s argument is that saving is overrated– and, from the table, it appears at first glance that he’s probably right. Saving appears most obviously in this table in the row titled “Contribution of capital intensity”. Increases in capital intensity are responsible for about 39% of the growth in output per hour we experienced between 1948 and 2002. Increases in output per hour due to the labor component are responsible for only about 9% of the total. The other component, “Multifactor productivity”, is responsible for the other 52% of growth in output per hour. Multifactor productivity is considered to be a measure of the effects of technological progress. Thus, Mandel’s prescription for increased government expenditure on R&D.

However, what we encounter with this table is another form of an error I pointed out before, when I stated that “traditional investment is always required to take advantage of new technologies.” Multifactor productivity is called what it is and not “Technological progress” because to take advantage of technological progress, we need to put those technologies into practice. In short, capital expenditure is a huge component of multifactor productivity. If there is exaggeration, it is on the part of Mandel, as he understates the importance of saving (and thus capital expenditure), not on the part of “capital fundamentalists” as he has claimed.

This does not mean that expenditure on R&D is a bad idea, however. It simply means that saving is also important. As I stated before, increased expenditure on basic research is likely a very good idea. Where Mandel and I differ in our policy prescriptions is on how to pay for it. Mandel argues,

“If R&D is an investment, then spending on R&D creates a long-lived asset with a rate of return. If that rate of return exceeds the interest rate on debt, then it is socially beneficial to borrow to fund R&D expenditures. I don’t need to find other cuts to fund it. 

“To put it another way, suppose we were going to do the government budget the right way, and divide it into an operating budget and a capital budget. Then the right policy goal would be to hold down the deficit in the operating budget. R&D, however, would fall on the capital side of the ledger (because it’s a long-lived asset) and wouldn’t count against the operating budget deficit.”

In his post, Mandel asserts that PGL misunderstands the arithmetic of R&D. In fact, the error is Mandel’s. He’s committing one of two errors: he’s either conflating the fiscal and current accounts, or he’s overestimating the benefits of what would be a rather odd policy.

If we first assume that Mandel intends for the government to spend money on basic research, through NSF grants or some other mechanism, he’s conflating the fiscal and current accounts. If we assume that the product of such research would have a positive effect on overall growth (larger than the borrowing necessary to finance the research), we could consider, from a national account standpoint, that the initial “investment” would generate a return, and would thus justify the borrowing. What it would not do, however, is generate a return for the federal government. Thus, the government’s borrowing wouldn’t be offset (as the growth would have to be unrealistically high for increased tax revenues to cover the expenditure), and the government would still have to cut the budget or raise taxes to finance its expenditure– which is perfectly okay, it just happens to be what Mandel has argued is unnecessary.

If we instead assume that Mandel intends what is implied in the passage, that the R&D would be government-directed, presumably targeted (he mentioned energy in a previous post), and result in government-held patents that would be an asset generating a return, we find a different problem. In such a case, we’d be assuming that the government could generate a higher rate of return on its investments than the private sector. If the return on the investment would be worthwhile, why not cut that R&D from the budget, and let the private sector make the investment? It does tend to be a more efficient solution. Government borrowing, as I said before, tends to crowd out private investment. That crowding out effect does affect private-sector R&D expenditure as well as investments in physical capital, making this policy inadvisable.

In sum, Mandel’s a smart guy, and he has some useful thoughts, but it seems as though he’s unwilling to accept that, while major portions of his argument make a lot of sense, not all of his assertions are pure gold. It seems that that he’s jumped from trying to reach the best available knowledge on the subject to trying to win an argument– never a pretty sight. He’s right that savings doesn’t take into account all aspects of growth. He’s also right that encouraging basic research would be a beneficial move– if we assume that we can fund it through cuts elsewhere. He’s not right, however, that cutting the budget deficit isn’t necessary, nor is he right that the R&D can do all the things he wants it to do simultaneously.

Wilma: Highly uncertain, models generally forecasting significant weakening of the storm and a movement towards Southern Florida over the next three days. Might end up not being a big deal for Florida.

The tropical wave over the Lesser Antilles: Could become a tropical cyclone, but again, highly uncertain.

24-Hour News Networks: We have a high confidence level in our forecast of breathless news coverage. It will likely involve a “Situation Room” and possibly reporters standing in a stiff breeze, trying to convince viewers that the apocalypse is nigh. They’re so invested in the story at this point, they won’t be able to let go, even if Wilma shows up in Florida only to lovingly accept Fred’s foibles, even after his outrageous but family-friendly adventure with Barney.

For the nerds: output from several computer models used to predict tropical cyclone track and intensity. These aren’t forecasts– they’re some of the information used by forecasters in their analyses.