We Still Need Police Reform

Sorrow over recent the murder of two New York policemen should not detract from the continued need for reform of all institutions exercising the legal monopoly on the use of force. The need for fundamental reform extends far beyond the police forces to encompass corrections officers, border security, the intelligence services, and the military. It is unfortunate that many conservatives who normally are the loudest defenders of personal freedom and state limits in the economic sphere tend to blindly support government agencies when more personal freedoms are at stake. The editorial page of the Wall Street Journal leaps to mind.

Put plainly, there is a vast difference between arguing that a rookie officer should not kill a 12-year old holding a toy gun and advocating violence against officers. One can object to choking a man to death for selling illegal cigarettes without approving the looting that accompanied demonstrations in Ferguson. Those who represent the nation’s enforcers need to distinguish between political opposition and lawlessness. Their job is not to support all applications of force, no matter how unproked, no matter how violent.

The state’s monopoly on the legitimate use of force should be subject to a high standard of conduct. Yet the great political deference to state officials has instead fostered a climate of mediocrity in which officials accustomed to uncritical deference grow lax in both their competence and their respect for civil rights. Our border security officials are beyond management. The culture of prison guards has become corrupt and violent. The vast resources that intelligence agencies spend collecting data on ordinary citizens detracts them from the difficult job of collecting intelligence on foreign enemies. The military has lost the ability to apply power subtly or supply its troops at an acceptable cost. Police departments display a fetish for military hardware and finance themselves with extrajudicial seizures.  Just as the Catholic Church seemed to attract a disproportionate share of sexually confused males, these agencies increasingly attract petty men with a fetish for power. I remember a time when to raise the issue of abuse by clergy was to question the representative of God on Earth. One would think that the many great men in these institutions would object to the corruption that threatens them.

No nation can be great, no democracy can be safe, unless those who exercise the monopoly on legal force are fully answerable to the people over whom they hold that power. That cannot happen if the institutions supervising them are not fully independent. It cannot happen absent openness and debate about the conditions under which the state can gather information and use force.

I increasingly find that my personal interactions with police officers are annoying rather than pleasant. Resources seem to be devoted to the collection of revenue and the enforcement of minor laws rather than the protection of public safety. As the father of a minority son, I deeply resent the need to talk to him about how to navigate the heightened dangers he faces if stopped by an agent of the state.

The vast majority of Americans are law-abiding and patriotic. They have the right to expect their government to act on that assumption.


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The Cost of Sochi

The Sochi winter games will soon open and whether by choice or sheer over powering much of the world’s attention will be directed to Russia. Although the opening ceremony and most of the athletic events will be carefully choreographed to display pageantry and the triumph of internationalism over politics, it is worth considering what the games are likely to cost us.

The formal price of Sochi has now been estimated at $50 billion. A figure far in excess of anyone’s imagination at that time that the Olympic Committee awarded the games to Russia. In theory the money has gone into transforming a relatively quaint resort into an international sports mecca. In practice most of the money, like much Russian wealth before it, has gone to line the pockets of oligarchs. Still, if the theft of Russian resources were the only cost of these games one could perhaps overlook it. Unfortunately, the games are likely to be costly in at least three more dimensions.

The first is in the integrity of the games themselves. Parading at Sochi requires deception on many levels; in pretending that shoddy infrastructure is first rate, in pretending that the imposition of a police state mentality is routine security, in pretending that the personal pursuit of an authoritarian ruler of a dying country represents the collective celebration of a rising nation, and perhaps most of all in pretending that the Olympic games themselves bear no responsibility for the tremendous financial waste and political repression that have accompanied them.

The second area of cost is likely to be the personal security of the athletes and spectators at the games. By voluntarily deciding to award the games to  Russia, the Olympic Committee inserted itself into a political climate built on repression and violence. It is virtually certain that groups will try to disrupt the games with violence. It is very possible that they will succeed. Security can move the barrier surrounding the games far from the arenas where they actually occur but only at a cost to the games themselves. Moreover, it cannot erase it completely. An attack at the barrier is an attack on the games and an attack on the games will affect them profoundly even if it does not disrupt the schedule.

Finally, the integrity of the events themselves is likely to suffer. This is Russia after all. Every Olympics has had its share of judging controversies but the Moscow games perhaps set the pace. The nature of hosting, especially in Russia means that the events are not totally under the control of the Olympic Committee. Having done so poorly in the last games and spent so much on Sochi, Putin’s government is unlikely to lose gracefully.

The lesson is that international sports bodies cannot be excused from taking responsibility for the decisions they make. There is an obligation to the athletes and fans to chose venues that are adequate and safe. But there is also an obligation to refrain from lending the credibility of major sports events to corrupt and incompetent governments whether they be in Russia, Bahrain, or Brazil. If these bodies want politics to stop while the games go on, they will have to wait until the poor are no longer hungry and the dissidents are no longer in jail.

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A Good Example of Bad Medicine

The New York Times reported on a recent decision by the American Board of Obstetrics and Gynecology to severely restrict the practice of their members. One of the key restrictions covers the ability of board-certified doctors to see male patients. This anti-competitive act should draw the immediate attention of antitrust officials and state licensing offices.

Although the Board recently backed off of a similar restriction on seeing males who are at a high risk of anal cancer, its broader determination to limit the practice of its members and thereby limit both competition among doctors and care for their patients should call into question the role of medical boards in licensing doctors.

The Board’s decision is not motivated by any evidence that doctors are delivering sub-standard care. There is no allegation that seeing male patients in any way detracts from the care that female patients receive. Rather, the decision seems to be driven by a desire to further separate the specialty from other areas of medicine. Why such as separation would benefit anyone but the leadership of the Board itself is unclear.

It is also not clear why private boards should possess such influence over licensing decisions, especially if the motivating factor in is self-interest rather than public welfare. Private boards may have an advantage in testing professionals for specific knowledge and then certifying the acquisition of that knowledge so that hospitals and patients can rely on it. Government agencies still need to oversee these standards to make sure that they are not hidden attempts to limit entry into a field. But boards should have absolutely no right to restrict doctors’ practice of that knowledge within arbitrary limits. The question of whether a given doctor possesses the somewhat arbitrary minimum amount of knowledge and experience needed to obtain board certification is totally unrelated to the question of whether the doctor should be allowed to use that and other knowledge to help any given patient. In fact, to be consistent with the ethical standards of medicine, the Board should encourage doctors to apply their knowledge to any patient that they can help.

The medical industry needs to demonstrate much higher productivity over the next two decades. To achieve this it will be necessary to break apart many of the institutional barriers that protect providers from competition to reduce costs and improve care. The Board has just provided an excellent example of the type of restrictions that need to be removed.

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Why the NSA Should be Uprooted (if not abolished)

The latest revelations make it hard for even the intelligence communities stanchest friends to continue to defend it. It is now apparent that the NSA spied on vast numbers of people, misled the courts, Congress, and (if Obama is to be believed) even the White House about what it was doing. Yet it continues to act in complete denial of the position it is in.

The damage done by the intelligence community is immense. The spying exceeds even the worst case imaginings of many civil liberties groups. Its scope, as well as the reluctant responses of the intelligence community, have shaken public confidence in the those who say they are defending us. The ability of Congress to oversee a major part of our defense establishment is severely compromised. America’s leadership in the Internet and cloud computing is threatened because the federal government apparently takes the position that it should have complete access to the data of foreign citizens who use Google, Facebook, and similar services. The National Institute of Standards and Technology’s role in helping to set encryption standards is jeopardized because the NSA apparently built a back door to one of the common standards. Our relationships with key allies has been set back because we apparently tap their leaders’ communications.

And yet, to hear the intelligence leaders talk, none of this is their fault. It is all Edward Snowden’s. Its as if you met someone who recently lost their job, their family, and their freedom because he watched child pornography and all he can talk about is how their secretary ruined his life by turning him in. An agency and a community that continues to be in this type of denial is probably beyond redemption. Since the beginning of these revelations, the response of Director of National Intelligence James Clapper and NSA Director General Keith Alexander remind me most of Anthony Comstock, whose single-mindedness in setting himself up as defending America against his own demons ruined many lives before the country regained its common sense.

The irony is that if the agencies had asked for this power openly and visibly subjected themselves to the type of strong controls needed to protect democracy, they probably would have gotten strong support for using most of the data they seek.

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Whither Syria (things I still do not understand)

I would appear that the Obama administration might have lucked into an out on Syria, but probably not. While the recent possibility of a Russian-coordinated transfer of chemical weapons into international control would be an very successful outcome for the president, there are several things that trouble me.

First, why would Syria agree to transfer the weapons? I can see why it might agree to say it will transfer them, but the actual transfer is something else. Assad realizes that for him and many of his backers this is a fight to the death. He knows what happened to Gaddafi. After two years of brutal warfare and over 100,000 dead, the cost to him of losing is pretty plain. He dies. All his family dies. All his top supporters die. And a significant portion of the Alawite community either dies or goes into exile. He strikes me as the type of guy that, when push comes to shove, takes as many of the opposition and those that supported him out with him.

The Administration’s hope for a negotiated settlement seems naive. We are way past that moment and I suspect that, even if Assad were losing on the battlefield, the Russians would not give him a safe haven. This will not be solved until Assad either wins or dies.

Second, why would Russia want to help Obama out of the corner he as put himself in? Neither they nor the Assad regime can be that confident that the tide of the war has turned enough to ensure their victory. Nor is it clear that a U.S. strike would have seriously degraded his capabilities. Doe Putin strike you as a guy who has our back?

Maybe most important, how does the transfer of weapons actually work? How do we ensure that, in the midst of war, Assad discloses all his weapons? How do we, again in the midst of war, safely handle and move them? And finally, what do we do with them? Although flying them out into a safe country for disposal might make the most sense, no country, including ours probably wants to take that risk. So we either guard them in Syria or destroy them there. Either way it is not exactly easy.

Lastly, how exactly did the firm threat of a strike pressure the regime and why postpone the Congressional vote? The obvious answer to the second half of that question was that Obama was apparently going to lose it. But if everyone knew that, why would Syria fear a strike unless Obama was going to order one even if Congress failed to approve it? In which case, why ask for a vote in the first place? I think the prospect of a negotiated solution might actually have made the vote closer as Congress tried to give the President more leverage. Apparently Obama believes that the failure of negotiations will change the minds of Congress and voters. I doubt it.

I suspect Obama wishes he had not drawn the red line. Having watched silently as a brutal dictator mowed down tens of thousand of his people with every weapon available except chemical weapons, it is a little hard to say that the U.S. now has a vital interest in avenging roughly a thousand deaths because they died differently or that this vengeance should be decisive, but not too decisive. The President should get Congress’ support on this vote, but it is not because Obama has put forward a sensible policy in Syria or outlined intelligent goals for a strike. It is because, contrary to what Obama said in his speech, the U.S. is the world’s policeman. We cannot stop every crime, nor should we try.  But no group of countries seems capable of solving any of the world’s major problems unless we lead the way. We derive tremendous benefits from this role and when we abandon it, the world and we suffer. It must mean something if the president draws a line in the sand, even if it is not a well-thought out one and even if his response is questionable.

There was a time long ago when decisive action by Obama might have tipped the balance in Syria and produced an outcome similar to those in Tunisia and Libya. That was before the involvement of Islamic extremists, before Hezbollah’s help, before 100,000 dead. Neither country is stable now, but both are preferable to the continuation of a brutal Assad-led regime hostile to the United States. Doing so might have continued the momentum into Iran. But the administration seemed more concerned with preserving the stability of Bahrain, Egypt, and Saudi Arabia than with seizing an historic opportunity to reshape the strategic map. Had we been this timid during the fall of the Soviet Union we would be facing a much different world.

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The Difficulty of Having an Honest Debate About Surveillance Programs

Earlier this week, the Information Technology and Innovation Foundation hosted a forum on the impact of the PRISM program on digital trade policy. This particular event did not deal with the merits of PRISM but rather its secondary effects on the efforts of American negotiators and companies to convince other countries not to discriminate against U.S. providers of advanced technology services. Those efforts have been severely damaged by the sudden awareness by both foreign users and their governments that use of U.S. companies gives the U.S. government access to the resulting data. Furthermore, because the users are not American citizens, Constitutional protections do not apply.

While foreign governments may overlook such dangers in exchange of their own access, their citizens may be less forgiving. Public resistance to American providers could cost U.S. companies billions of dollars. The best way to ensure that American companies compete on an equal ground is to have an open and honest debate about 1) what data can be collected, 2) who, including the government, can have access to it and for what purposes and 3) what controls will exist to make sure that the data are not misused and how those controls will be enforced.

The problem is that it is impossible to have that discussion when the U.S. government takes the position that 1) the public has no right to learn of these programs and should not have learned of them, 2) the national security agencies have the right to actively mislead Congress and perhaps the FISA courts in order to protect their interpretation of national security, and 3) although this is less certain, the current Administration seems to take the position that even if U.S. statutes clearly prohibited the gathering and use of certain information, the President has the inherent power secretly to override those limitations in the interests of national security.

We have long since past the point where the self-imposed costs of limitations on American freedom outweigh any likely threat that our enemies could inflict. A similar overreaction has followed every other military threat in our history. This one is driven not by Americans who are afraid, but by politicians who like power and security firms that like business. It is about time we grew out of it.

The ironic thing is that an honest debate might produce a program very much like the one we  have, except more open. Government officials would probably face a few more limits on what they could collect, how long they could keep it, and what they could do with it. More searches would require prior judicial approval. Most importantly, there would be public safeguards to ensure that the agencies respected the law. But again, how can we ever reach such an agreement as long as the Administration takes the position that security interests trump the law? And until we do, why would you ever believe that U.S. companies are not being forced to give the government access to your information?

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Obama Avoids the Law Again

U.S. law generally prohibits foreign assistance to “the government of any country whose duly elected head of government is deposed by military coup or decree.” You might think that this is a problem for Egypt, whose military recently deposed the elected head of government and is now beginning to crack down on dissenters. President Obama is not so sure.

In a bizarre interpretation of the law, the Administration has apparently decided that it does not have to decide what happened in Egypt. As one official told the New York Times: “We will not say it was a coup, we will not say it was not a coup, we will just not say.” The Administration is not releasing the legal reasoning behind this novel position.

President Morsi was an incompetent leader. But some in Obama’s party have said the same about recent U.S. presidents. We did not depose them. As bad as Morsi was, the generals are likely to be far worse over the long-term. Their suffocation of Egypt’s civil society and economy will continue, but now there is unlikely to be any democratic check against it. While the mandatory cutoff of aid may have inconvenienced the administration, the law is supposed to be the law.

This Administration has made a travesty of U.S. policy in the Middle East. Faced with an historic chance to side with the economic and political dreams of the vast majority of Arabs, it has time and again been paralyzed by fear and indecision. When so many in these countries hope for a life like ours, we have focused on the threat posed by a few Islamic radicals rather than on the tremendous benefits of having these countries become full participants in the modern world. And we have probably missed a rare opportunity to cleave the anti-American bloc of Iran, Hezbollah, and Syria by ensuring the fall of the Assad regime. Indeed by not acting we have helped ensure what we most feared: a steady dissent into prolonged broader sectarian conflict that threatens the neighboring countries.

Even if one were to overlook incompetence, illegality is another matter. This Administration has a strong disregard for any legal constraints that hamper its ability to pursue its goals. This cute refuge in blindness is only the latest insult to plain language and common sense. A democracy is not supposed to work that way.


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