Per Curiam
-- A man has to do something for a livin' these days

-- Bloggin' ain't much of a living, boy
Friday, March 26, 2004
Why did 9/11 happen?: This is obviously the big question that the Commission is trying to answer. In my opinion, the "who" part is sort of like "Who lost China?" An interesting question, but one in which the important answer is not "who," but "why?"

Amy Zegart offers an important piece of the answer, courtesy of Mark Kleiman:
The Commission asked the wrong question. Was terrorism a priority? Of course it was. The real question is how many other priorities both administrations were confronting. I'll tell you: too many. Clinton wrote a Presidential Decision Directive in 1995 that sought to establish clear priorities for the intelligence community. There were so many in the top tier, they actually divided them into Tier 1A and Tier 1B. But it gets better (or worse). There was also a Tier 0, apparently for the very very very top priorities. Note to self: when you can't list priorities with regular numbers, you haven't really made priorities.

As time passed, priorities were added to the list but old ones were never removed. By 9/11, the National Security Agency had roughly 1,500 formal requirements, and developed 200,000 "Essential Elements of Information." I'm not making this up. See the Congressional Intelligence Committees' Joint Inquiry Report, December 2002, p.49....

I have no doubt that terrorism was a priority. The problem is, when everything is a priority, nothing is.
Phil Carter adds his own, interesting commentary:
if you don't establish priorities for intelligence collection and analysis, your scouts and analysts will work very hard on a lot of disparate things that may or may not add up to a complete and accurate picture of the battlefield. Our observer/controllers used to tell us on the 4ID plans staff that we should have no more than 10 priority intelligence requirements for the division -- those things the general absolutely had to know in order to defeat the enemy. In theory, the same principles of simplicity should apply at the national strategic level too, although with much greater consequences and implications.
Phil is right on -- problems need to be given priority at the national strategic level. I have no doubt that a failure to identify al Qaeda as public enemy number one is in part responsible for our lack of an effective response during the 1990s and early 2000s.

But why didn't we focus on al Qaeda? First, look at the foreign policy priorities of the Clinton administration. Back in 2000, I was highly critical of the Clinton-Gore foreign policy because it seemed that they were prioritizing the wrong issues - and I wasn't touting the dangers of terrorism (except, like Dick Clarke, millennium terrorism, but that's a separate issue). In the late 1990s, the Clinton foreign policy was focused on two things: a negotiated piece between Palestinians and Israelis, and the creation of a set of multilateral treaties to advance their vision of interdependent, trust-based global institutions (see, e.g. the International Criminal Court, the Kyoto Treaty, the Chemical Weapons Convention, the The United Nations Treaty on the Elimination of all Forms of Discrimination Against Women, etc.).

When the Bush team was elected, they faced a number of problems that they erroneously evaluated as higher-priority, simply because of their neglect, or what was perceived as a wrong, Clinton-era approach. So we had a hardened line towards China, incorporating the Hainan Island P-3 incident; we had an attempt to clamp down on Saddam Hussein; we had an attempt to figure out if we'd totally blown our opportunity to prevent North Korea from becoming a nuclear power; and we had to make efforts to withdraw ourselves from international treaties that harmed our national interest.

This was a substantial task, and it required re-evaluating our foreign policy and national security direction around the world, and I believe, for the better. But it's hardly surprising that terrorism, with the Clinton team already pursuing the one mainstream policy approach widely-accepted before 9/11 (the "law-enforcement" approach), was not subject to the same re-evaluation. In comparison to these other problems, it probably did seem minor; and it likely seemed that we were already doing what needed to be done.

Thursday, March 25, 2004
Could the Newdow Decision Impact Gay Marriage?: In the aftermath of the Newdow arguments, it now rests in the hands of eight justices to decide whether or not the phrase "under God" in the Pledge of Allegiance violates the Establishment Clause. Will the Court decide the case on standing? Or will the Supreme Court reach the merits, deciding the issue for the entire nation? I believe the Court will dismiss the case on standing -- it is a credible argument and I do not believe the Court is ready to weigh in on this controversial issue. If they do weigh in, accounts of the argument lead me to believe the 9th Circuit will be reversed.

But, assuming the Court does reach the merits and affirms the 9th Circuit, banning the words from the Pledge of Allegiance, the outrage and implications could be far-reaching. Public reaction following the 9th Circuit ruling was somewhere between disbelief and outrage. Republican politicians, including President Bush, called the opinion "ridiculous" and "just nuts." Following the decision, the Senate passed a resolution 99-0 "expressing support for the Pledge of Allegiance," before standing on the steps of the Capitol and reciting the words. On both sides of the political spectrum, people decried the ruling and called for its reversal.

To be certain, the political climate of the nation has changed in the past two years. The events of 9/11 are much farther in the rearview mirror and the ideologically-divided nation is preparing for a highly contentious Presidential election. However, one can assume that if the Supreme Court were to strike down the Pledge of Allegiance, public outrage would be just as great. [Note: The Court would not strike down the whole Pledge, but just the "under God" phrase. This is also what the 9th Circuit did, in theory; however, this distinction was lost on the country the first time and would probably be missed again.]

Now, how would this affect the gay marriage debate? As the argument goes, this would be another example of an elitist court stepping in and acting in a countermajoritarian way, imposing its will despite the beliefs of the public. Just as the public continues to oppose gay marriage, the overwhelming majority of people support the Pledge of Allegiance as written. The backlash could be not only against the decision, but also against courts in general. The debate (right or wrong) over "activist" judges would regain force, possibly lowering public confidence in the courts. Could this lead to a constitutional amendment? It is unlikely, especially on the federal level, but individual states could act to counter efforts for gay marriage or civil unions through legislation or amendments.

In addition, an adverse decision in the Pledge case could rally the religious right and give them yet another rallying call. Not only has the sanctity of marriage "been vilified," now our children cannot even honor God in the Pledge of Allegiance. How arrogant is man not to recognize the existence of a higher being? The Pledge decision could allow these groups to recruit more members on the common ground of "the Pledge must be protected," perhaps even convincing some along the way that gay marriage is bad.

In the end, I don't believe this to be a likely outcome, as I have trouble believing the Court would affirm the decision in this case. But Michael Newdow represented himself very well in front of the Court, and it only takes four members in this case to set off a national firestorm, that could affect much more than "under God."

"Outrageously costly and completely ineffective": S. Fred Singer, professor emeritus of environmental science at UVA, provides a "post-mortem" for the Kyoto Protocol. Prof. Singer's description of the scientific basis underlying the Protocol is concise and damning:
[Climate change predictions] are based on crude climate models whose validity had never been tested by observations—and even today, there remains no validation for the climate models that are at the heart of most claims of climate catastrophe...

[D]ata from weather satellites and weather balloons show no significant rise in the global mean temperature of the atmosphere, in stark contradiction to the climate models...

[The] third IPCC report says that “new evidence” makes it likely that “most of the warming observed over the last 50 years” comes from the human production of greenhouse gases. This “new evidence” is based on a single analysis of “proxy” data (that is, data that do not come from thermometers but rather from sources like tree rings, ice cores, corals, and ocean and lake sediments) showing the twentieth century to be the warmest in the past thousand years. Not only does this analysis conflict with other published analyses of proxy data, but it was also exploded in a re-analysis published in 2003, which showed that the IPCC claim was the result of a gross mishandling of the underlying data. If the dispute is settled in favor of the re-analysis—as seems likely—the IPCC claim of a “human influence on global climate” will be severely damaged.
Prof. Singer then highlights my principal complaint about Kyoto -- that because President Clinton and Vice-President Gore badly wanted an agreement, any agreement, they allowed the United States to be saddled with burdens unfair relative to virtually any other country:
The choice of 1990 as the base year made it relatively easy for Germany and Britain to meet these targets. Germany had just completed its reunification and was shutting down the former East Germany’s highly inefficient industries. Britain had started to substitute North Sea natural gas for coal in its power plants, which drastically reduced the country’s carbon dioxide emissions.
He also points out its overwhelming irrelevancy:
The Kyoto Protocol, therefore, would have practically no impact on global temperatures. Even if punctiliously adhered to, it would reduce the calculated temperature rise by 0.05 degrees Celsius at most—an amount so insignificant it can hardly be measured. When confronted with that little-publicized fact, supporters of the Protocol admit that Kyoto is intended only as a first step, and that greenhouse gases will someday have to be further reduced by between 60 and 80 percent of 1990 emission levels. This fact, too, has not been much publicized by Kyoto’s supporters, and with good reason: such drastic reductions would cripple the global economy.
Prof. Singer doesn't even mention that the Europeans are failing to meet their Kyoto targets, or that the IPCC report is based on not-credible economic assumptions (i.e. that Libya's per capita income will surpass that of the United States), or that technology will have an unpredictable impact on future energy use.

WMD Update: Israel shares the blame. Parliamentary investigators there have concluded that Israel also "produced a flawed picture of Iraqi weapons capabilities," and "substantially contributed to mistakes made in U.S. and British prewar assessments on Iraq."

It goes to show just how difficult a task intelligence agencies have.

Unfortunately, the story perpetuates the media myth: " Since ousting Saddam Hussein, the U.S.-led coalition's technical experts have failed to find any such weapons..."

Once again, that's now what David Kay has said:
What have we found[?]...

Reference strains of biological organisms concealed in a scientist's home, one of which can be used to produce biological weapons...

Agent R&D work that paired overt work with nonpathogenic organisms serving as surrogates for prohibited investigation with pathogenic agents. Examples include: B. Thurengiensis (Bt) with B. anthracis (anthrax), and medicinal plants with ricin... one scientist confirmed that the production line for Bt could be switched to produce anthrax in one week...

Special-interest blog: Sigurd De Keyser, Stephen Deisher, and Elliot Kulakow have a blog tracking X-Prize news. Between the Mars rovers and the X-Prize, 2004 is turning out to be a huge year for spaceflight.

Juan Non-Volokh keeps discussion of the Justice Scalia's airline ticket-contract violation alive. The newest posts he links to, by TMLutas and Contendem, argue that Ayres and Nalebuff overstate the value of flying one-way only by comparing unrestricted one-way prices to restricted round-trip prices.

At the same time, Ayres and Nalebuff neglect another argument they could have made that enhances Justice Scalia's savings (it doesn't affect the dollar values cited in their argument because they've elected to assume the worst case possible). That's this: The cheapest round-trip fares are often strictly limited in terms of availability, as anyone who has spent an hour with Orbitz's grid features or Travelocity's best-fare search already knows. By purchasing his round-trip with no intention of using one leg, Justice Scalia could buy that unused leg on any day at all, not just the day that he wanted to fly. As a result, it's much more likely that his fare would approach the cheapest fare available on the route, particularly because most airline fare rules permit the use of a cheap fare in one direction even when a more expensive fare is purchased in the other direction.

Wednesday, March 24, 2004
Blogs in the Real World: The Office of Naval Research has begun testing weblogs as an asset in the weapons procurement process:
The first program to use the blog is evaluating a night-vision technology developed by Ford Motor Corp. The team members include Ford, the Marine Corps, the Army's Night Vision Lab, the Defense Acquisition University, and the New York Police Department.
I'm surprised that more hasn't being done with blogs. After all, the Navy has been using instant-messaging for years and more recently, has begun combining it with machine translation.

Talk of the Times: No one should be surprised that Times columnist Paul Krugman continues to ignore reality, or worse, lie about it. At least the Times printed Ari Fleischer's correction, although Donald Luskin correctly details its inadequacy.

Today brings proof that the Times' headline writers are colluding in the endeavor, and out-of-touch reality. Exhibit 1: Letters to the Editor. Indeed, I'm surprised that Luskin doesn't take issue with the headline on Fleischer's letter: "A Briefing by the Former Press Secretary."

Does that sound interesting? Does that give any idea what the letter is about? It identifies neither the speaker, nor the subject, nor the original story being responded to. Compare it to today's other letters: "The President, the Insider, and 9/11", "A Scandal over Iraq: the UN Responds", "Can We Curb Our Appetite for Gasoline", and "My Methodists, My Choir, and a Welcome to Gays."

Which of the headlines tells you the least? Which is the least likely that you will open? Online readers choose letters solely based on these headlines, and the headlines are key to determining what print readers, who usually have to skim past the Times' penchant for excessive detail, will read as well.

An even more ridiculous headline in today's Times, however, is a headline that outright contradicts the actual article: "For a Day, Terrorism Transcends Politics as Panel Reviews Failures".

The clear implication: terrorism is usually about politics. Uh huh. I think someone's starting to buy into the conspiracy theories of folks like Madeline Albright. There's no "real" terrorist threat; it's just one that's being made up by the Bush administration to ensure their re-election. Try telling that to the people of Spain.

More amazingly, the article itself acknowledges this reality, describing the agreement among witnesses and the fact that "their public presence was a powerful sign that terrorism transcends politics."

Helicopter Turbulence: Just weeks after the rotary-wing aviation business was thrown into turmoil by the long-overdue cancellation of the Army's Comanche helicopter program, the contract award for the new Marine One, the helicopter flown by HMX-1, the presidential helicopter squadron, has been delayed.

Unlike the Comanche decision, here there's no question of whether the program is necessary: Marine One can't be replaced by UAVs, for example, because its function is to be manned. In my opinion, a longer decision process may allow for a better choice to be made, hopefully without protectionist considerations playing a large role.

The pressure to award a Marine One contract has been based both on the repercussions of the Comanche cancellation and on the supposed increased threat to presidential safety from terrorist attacks. Neither interest is really that strong. The first argument is essentially "we need our pork-barrel spending" -- without government money, we won't be able to survive. Acquisition decisions and timelines simply can't be based on a full-employment policy.

And given that the earliest possible deployment date of a new helicopter is 2008, it hardly seems that the difference will be a life-and-death matter. Indeed, the fact that the program has taken well over two years to get to this stage, despite the fact that the White House worried about the safety of Air Force One on 9/11, suggests to me that this is a false urgency.

Next to fall: the line between fact and metaphor:
Atrios commends Rep. Barney Frank for discussing his personal life in the congressional debate over gay marriage. I agree that Rep. Frank's comments are a welcome addition to the debate -- I suspect that many members of Congress have kept their heads in the sand for political reasons and have never really thought about the lives of the gay people they undoubtedly know.

Atrios then takes David Espo of the AP to task for claiming that "lawmakers... seldom refer to their personal lives." My guess is that he's right: on the floor or away from it, I'm sure there are uncounted references to wives, children, parents, etc.

The point is actually a broader one. In general, members of Congress discuss their personal experience all the time, especially when it's relevant to a debate under way. (From a quick search of the Congressional Record, here's Rep. Nadler describing his experience with Australian exchange students and Rep. McDermott discussing post-traumatic stress syndrome. It's also not uncommon for Members to read personal letters from constituents. So when the debate on the floor is about family, it of course makes sense for people to discuss their family lives.

Where Atrios misses the boat, though, is with his supporting citation:
Sen. John Cornyn... dismissed as a "myth" the notion that "my marriage doesn't affect your marriage." "Redefining marriage in a way that reduces it to a financial and legal relationship will only accelerate the deterioration of family life," Cornyn said...

What a weird-ass thing to say. Is Cornyn having marital problems? Is the thought that maybe, just maybe, he could go out and marry Mark Foley causing his family life to deteriorate... If his family life is deteriorating, shouldn't he be home trying to patch things up[?]
What rubbish. Sen. Cornyn is most likely using figurative language with his "my marriage" and "your marriage" comments -- this was in an opening statement, not a conversation with someone in particular. What he means is "everyone's marriage affects everyone else's marriage." That's a statement that you can argue with, but general statements don't indicate individual identification, as Atrios seems to assume.

Tuesday, March 23, 2004
Good reads: It's been a little dull around here because Greg and I have been off running for the masthead of the Journal of Law & Technology. While we lost in our campaign for co-Editors-in-Chief, Greg will be an Executive Editor, and I will be the Submissions Editor for Volume 18.

My thinking and posting will be back to full strength soon, but in the meantime, here are some of my favorite links from today.

Lee Jenkins of the New York Times gives country music a good shout-out in an update on Sweet Sixteen contender Vanderbilt's abolition of their athletic department: "Vanderbilt has fit right in to a town that sings about struggle and glorifies the little guy."

The Texas Law Blog links to an article on a Texas town that will stay dry because of invalid signatures on the petition. More fuel to the controversy over voter verification and disenfranchisement? I doubt it. But you gotta have some sympathy for voters who still can't get a Silver Bullet because someone wrote down the wrong SSN.

Phil Carter has an AP report that U.S. "technical experts" may be in Pakistan. Two thoughts: 1.) How expert can they be -- haven't we learned enough about tunnels from the DMZ in Korea, from Vietnam, from Iraq, etc. to have foreseen the one in Pakistan. 2.) I'm surprised to hear President Musharraf admit to having accepted assistance from the United States. My analysis has been that overt assistance from the United States might cause sufficient dissatisfaction in the military, and perhaps anger in the street, to unseat him.

And finally, don't you wish you were in Fiji right now? Spring break is just three days away...