Saturday, August 16, 2008

I'm sure I'm on the No Fly List now.

The original version of this entry is posted at Rolling Doughnut. I think it's relevant here, too. I've trimmed out the meta references.


I flew to Buffalo this morning. Everything was fine until I reached the security checkpoint at Dulles. A TSA employee approached me with a strange device strapped to his arm. Allow me to roughly quote our conversation:

TSA: We're testing a new device that scans for liquid explosives. Do you mind if I scan your bag? It will only take about 20 seconds.

Me: Do I have a choice? Can I say no?

TSA: Yes.

Me: Then I'm saying no.

First things first. I worded my question with the same careful consideration TSA - all law enforcement, really - used to craft theirs. If they could search my bag just because, they would've demanded rather than asked. I've watched enough episodes of Cops to be wise to the game. Anyway, I already knew the answer to my question. But initially playing dumb makes sense because authority has a tendency to get mean after realizing it's been out-smarted. Also, it's more fun.

After I said "no", the TSA employee walked away. I watched as he returned to the security desk rather than moving on to people behind me and began a conversation I could not hear. I knew what it was, though, because our national security-at-all-costs mindset is so predictable. I also saw what happened in front of me. I reached the front of the line and handed my boarding pass and ID to the next TSA employee. He eyed me a moment too long, then looked at my ID. He carried this on for several cycles, apparently trying to stare me into submission. Another TSA employee had also stepped in front of the line and held everything up. Crisis management with manufactured crisis.

The TSA employee with my boarding pass and ID handed them back. I stepped forward and another TSA employee, flanked by two more employees, motioned me aside from the other passengers and away from the metal detectors. The two extraneous individuals stood behind her, one looking over each shoulder. Our conversation:

TSA 1: Sir, is there a reason you refused the scan of your bags when we asked?

Me: Yes. I asked if I had a choice. He said yes. So I said no. I don't see how that gives you a reason to pull me aside now.

TSA 2: You do understand why we do this?

Me: I have rights. I'm exercising them. Are we done?

TSA 1: Yes.

I proceeded through security with no more trouble, which was a nice surprise. Still, the TSA's policy approach to security is clear. Submit. Don't question. Stand up for your rights, or even mere logic, and we will make your life hell, even if it's only in this inconvenience. You don't want another 9/11, do you? But who feels better knowing that the full attention of at least seven TSA employees focused on one man exercising his rights? That's nothing more than security theater.

Update: I just opened my checked bag. Everything had been searched thoroughly and haphazardly, or perhaps maliciously. My toiletries bag was unzipped, a pocket in my suitcase was unzipped, and the car charger case was unzipped. All three were zipped when I finished packing my suitcase this morning. And my clothes were stuffed back in.

Thursday, August 14, 2008

Of Searches and Seizures

Via Instapundit and, oddly enough, TalkLeft comes this story about the increasingly common use of GPS devices to track criminal suspects without a warrant. According to the story, police are in some (unknown and super secret) way attaching GPS devices to vehicles of persons suspected of crimes. Courts have regularly upheld the use of these devices even when no warrant is obtained for their use under the theory that one's actions while driving on a public street are not entitled to a reasonable expectation of privacy.

According to the article, and verified by the arguments made at TalkLeft, it would seem that the primary argument being made by privacy advocates and civil libertarians is that the use of GPS systems and the storage of data collected therefrom is far in excess of any information that could be collected simply by having a police officer tail the suspect. Civil libertarians note that GPS devices permit tracking even when the vehicle is entirely on private property where there is no dispute that a reasonable expectation of privacy exists.

Unfortunately, I think the civil libertarians are barking up the wrong tree on this one. To be sure, the concept of the creeping surveillance state is more than a little worrisome and is generally quite un-libertarian, but constitutionally (or at least under now longstanding constitutional precedent) I think the State is on relatively firm ground insofar as it argues that there is no reasonable expectation of privacy on public streets.

But that doesn't mean that this is the only argument against the use of these devices. As Glenn Reynolds notes, the act of placing the tracking device on the vehicle constitutes the tort of trespass to chattels, for which a private citizen would be liable to another private citizen. Unfortunately, simply permitting law enforcement to do things that would be illegal in any other context and holding them to a lower standard of behavior is pretty much par for the course these days.

Still, I think there is an argument to be made that the use of these GPS devices without a warrant constitutes a 4th Amendment violation - just not of the sort suggested by the folks at TalkLeft. The 4th Amendment does not just include a prohibition on warrantless unreasonable searches (generally interpreted to include invasions of privacy in certain circumstances), but also on unreasonable "seizures." Naturally, when we think of a "seizure," the first thing that comes to mind is a situation where the government quite literally uses the force of law to deprive a property owner of ownership. But that's not the full definition of a "seizure," which is as far as I can tell consistently defined as "the taking possession of person or property by legal process." And what, pray tell, is the legal meaning of the word "possession"? "The having, holding, or detention of property in one's power or command; actual seizin or occupancy; ownership, whether rightful or wrongful." In almost any respect, the intentional attaching of an item to another's property without that individual's permission is an act of ownership. Moreover, if the placement of the GPS devices is, in fact, a trespass to chattels (unfortunately not a tort I have much experience with), then it's worth noting that the tort of trespass to chattels is defined to require the "dispossession" of a chattel (aka, physical property other than real estate).

So, assuming this would be a trespass to chattels, the question becomes "Can the government 'dispossess' an individual of that individual's property without a warrant while still complying with the Fourth Amendment's prohibition against unreasonable seizures?"

I'll cop to having done barely any research on this issue, which is outside the strongest areas of my legal knowledge, so if my theory on this turns out to be more or less cockamamie or has been rejected by the SCOTUS already, please let me know.

Wednesday, August 13, 2008

College: A Liberaltarian Take

(via Memeorandum)

If you ask me, I will deny to my grave that I am a "left-libertarian." But that doesn't mean that I think modern liberalism and libertarianism are fully incompatible as prospective coalition partners, as I've pointed out far too many times.

In any event, Charles Murray (of The Bell Curve fame) has a piece today that argues that, "For Most People, College Is A Waste of Time." Murray opens his column thusly:

Imagine that America had no system of post-secondary education, and you were a member of a task force assigned to create one from scratch. One of your colleagues submits this proposal:

"First, we will set up a single goal to represent educational success, which will take four years to achieve no matter what is being taught. We will attach an economic reward to it that seldom has anything to do with what has been learned. We will urge large numbers of people who do not possess adequate ability to try to achieve the goal, wait until they have spent a lot of time and money, and then deny it to them. We will stigmatize everyone who doesn't meet the goal. We will call the goal a "BA.""

You would conclude that your colleague was cruel, not to say insane. But that's the system we have in place."

This gets at a point that I've long tried to make - our current assumption that college is a necessity is an assumption that not only ignores the irrelevance of college to most careers, but also generates enormous entry barriers to those careers for low-income people. Unfortunately, Murray then proposes a solution that is as bad or worse than the problem: certification exams in just about every field, aka, licensing. (Rather than reading me explain all that is wrong with this proposal, just pretend like the standard libertarian diatribe against licensing has been inserted here). But ignoring for the moment Murray's problematic solution, the basic point about the value of a college education (or lack thereof) is one that ought to accord beautifully with standard liberal critiques of capitalism and corporate America, as I point out below.

Unfortunately, in response to Murray's article, one of the folks at the Lefty blog Pandagon goes on a rant about how Murray's diagnosis and solution just reinforce the notion that he is a racist whose sole aim is to privatize education in order to prevent minorities from receiving government grants and loans for the education. Alas, in obsessing over attacking the caricature of Murray, the Pandagon blogger misses how the first part of Murray's argument, pertaining to the lack of value in a college education, accords shockingly well with modern liberal criticisms of corporate America, racism, and classism. As a result, I wrote:

"Murray gets the diagnosis right, but his proposal is far from an improvement. I'm not going to rehash all the problems with his proposal which have been made above, which amount to pointing out the inherent bias in any certification/licensing scheme (something which most libertarians find far worse than employer emphases on BA's).

But on the issue of the value of college, I think he is right in principle, though perhaps wrong in application. The problem is that for the vast majority of people college does little to enhance their career prospects and, for that matter, does little to teach them "how to think." Obviously, people who major or minor in the liberal arts (including the "hard" sciences) learn plenty about how to think critically, but four years of learning how to do so is overkill for most people (hence the reason most people don't
major in the liberal arts). Moreover, as I said, most people do not major or minor in the liberal arts but instead major in more "practical" things - majors that largely didn't exist until relatively recently. This is not good - at best people in these majors learn a percentage of what they would learn by gaining four years of experience in their preferred field. To the extent they do learn some of what they otherwise would have, they are paying a huge amount for it. And guess what? Their future employer gets to reap the benefits without having to pay a red cent, since there is virtually no
premium paid for the college-educated employee in these fields. Indeed, the employer actually gets to save the salary they would have paid the prospective employee to provide the employee with training - in this way, college in these fields amounts to employee-subsidized training. There's probably no better way to demonstrate this fact than to point out that [according to liberal critics] real wages have effectively stagnated during a period where the percentage of people with college degrees has exploded. Frankly, this makes sense as well - as an employer, would you really be willing to pay more money to someone fresh out of college, with no "real world" track record, than you would to someone with four to six years experience who is demonstrably reliable? Probably not.

Put another way - the current assumption that everyone should have a college degree is an assumption that (1) almost entirely benefits employers, who receive any benefits of the employee's education free of charge, and (2) places extreme financial burdens on future employees in pursuit of obtaining unnecessary qualifications. To be sure, there are still some professions where a liberal arts degree provides a significant benefit (law and research science, for example), and certainly a liberal arts education can be marginally useful in creating a more critical citizenry. But for the vast majority of people, the assumption that they need to incur tens of thousands of dollars in debt while forgoing any meaningful income for four to six years is an assumption that provides little benefit in exchange for tremendous cost.

As I indicated at the top of this post, a critique of our social emphasis on higher education is a critique that can closely agree with many standard liberal critiques of capitalism. To the extent that Progressives/modern liberals seek to defend the assumption that higher education is inherently a desirable thing, the effect of doing so is to defend a state in which employers (aka, "corporate America") receive benefits at no cost to them, but at great cost to the employee. Of course, many Progressives would respond by arguing that costs of higher education should be borne by expanding grant programs and the like. But all that does is shift the costs from the individual student to taxpayers as a whole - "corporate America" still gets its subsidy.

Tuesday, August 12, 2008

The Good Stuff

I've done a "linkfest" style post approximately, well, never. But a combination of an extremely busy few weeks at my paying job and some really, really good posts has left me with no choice but to finally throw out some quick hit links (not that there's anything wrong with that).


John Schwenkler notes the bizarre lack of self-awareness in The National Review's terming Russia's treatment of Georgia as a "war crime in itself."

As noted in my post downblog, the Newshoggers have been on the ball in trying to sort through all the propaganda (on all sides) in the Georgia-Russia battle. BJ Bjornson's post on the claimed end of combat operations is just the latest example, and at least indirectly destroys the notion that Russia is the new Nazi Germany (or, if you will, the new Russia, err, Soviet Union).

Sticking with the (inadvertent) Georgia theme, our friend Kip points out the giant elephant in the room exposed by the longstanding problems in South Ossetia (and, by implication, Abkhazia): the failure of the nation-state model. Kip hits on a particularly critical issue that I've been pondering for a long, long time: "I have no idea what model can, should or will replace Westphalian sovereignty in the mosaic regions of the world. But I do know, as a libertarian and as a member of an insular political minority myself, that whatever "new world order" emerges, it will have to be based, not on ethnicities, religions or languages, nor on rivers, mountains or latitudes. It must be based on legitimacy, built from within and not imposed from without. "

Switching topics (finally) but staying with Kip, we have further proof of John Yoo's complete lack of legal acumen. That this man is now teaching future laws sends shivers down my spine.

Via Jim Henley at Unqualified Offerings, Radley Balko asks readers which American wars were justified (in retrospect). For the most part, I'm with Jim; I tend to think the Revolution was justified, but only to the extent it was a grassroots rebellion against illegitimate authority . I think the Civil War was legitimate, but only because the basis for secession (protection of slavery, emphasis on states' rights over individual rights) was illegitimate - had the South had a legitimate fear of interference with individual rights, secession would have been justified and the ensuing war would not have been. I think the first Gulf War was justified as a matter of international law, and I also think that Bush I appropriately limited the war to liberating Kuwait's sovereignty rather than pursuing a full-scale invasion of Iraq. It's hard not to justify Afghanistan, even if I have serious concerns with the manner in which we have been involved.

What Matters Most...

I've long abandoned any pretense of supporting Obama. But that doesn't mean I still don't think he's a less-bad choice than McCain. As much as Obama has increasingly come to parrot the foreign policy establishment consensus that has held sway in Washington for, well, a really long time, Obama's consensus view is far less dangerous than the reflexive aggression characterized by the last eight years and, yes, Senator McCain. It is the rejection of this reflexive aggression, which adds trillions to the national debt, destroys American credibility and moral standing, and directly destroys untold thousands of lives both at home and abroad, that I view as the single most important issue this fall.

The events of the last week or so related to the conflict in Georgia/South Ossetia, and the responses of the candidates do a good job demonstrating this. To be sure, McCain is now receiving plaudits for immediately blaming Russia when hostilities began in earnest last Friday in a way that not even President Bush was willing to do. But Hilzoy points out why, exactly, those plaudits are entirely undeserved - the bottom line is that at the time McCain's statement was issued, the known facts made clear that both Russia and Georgia were at fault in their own way. Although the facts on the ground have changed and Russia is now clearly going far beyond any sense of a proportional response, this does not change the fact that McCain's statement was simply wrong at the time it was made to the extent that it laid all blame for the situation on Russia.

McCain's response reflects a simplistic world view in which those nations deemed inherently enemies of the US are reflexively blamed in toto for any conflicts, wars, or disagreements. Those deemed allies are reflexively held to be innocent - and not only innocent, but also bastions of liberal virtue and democracy.

Unfortunately, in the case of Georgia, the narrative of the bastion of democracy is far from the truth. This is not to praise the Russians or Putin or Medvedev - only to point out that neither set of players is particularly sympathetic or worth defending on a political level. Yet the knee-jerk reactions of "National Greatness" conservatives again pretends to defend liberal virtue and democracy by defending one group of authoritarians against another simply because the friendly authoritarians like the other authoritarians even less than we do.

And so we get the "National Greatness" crowd (which usually includes McCain) rattling sabers all over again, demanding that we "do something" to aid the Georgians in their fight against the Russians. And let us not forget the longstanding insistence of McCain and others that Georgia be admitted to NATO, no matter whether that would have obligated us to come completely and totally to Georgia's defense this week, as required in any chills me to think what we would have done in such a situation at a time when the US military is already fighting in two armed conflicts.*

The fact is that the simplistic view of good and evil advocated by so many on the political Right results in a situation where all foreign policy follows the dictum "the enemy of my enemy is my friend." While unintended consequences are inevitable in almost anything government does, a foreign policy based on this dictum is a recipe and guarantor for the worst kinds of unintended consequences. It results in needless provocation of enemies or potential enemies; it further destroys American moral standing by propping up autocracies that are barely distinguishable from the enemy autocracies over which we claim moral superiority; it entangles us in foreign adventures that only minimally implicate American interests, if at all; and it ensures the ever-upward increase in military spending (and thus the national debt).

More at memeorandum.

Also - a quick plug for the crew at Newshoggers, who have done an outstanding job trying to piece together the reality of the Russia-Georgia conflict. They may be slightly too anti-Georgian, but their takes are easily the most nuanced and intellectually honest that I've seen.

*This is not to say I'm against all alliances, or even NATO itself - quite the contrary, for reasons that I may try to explain in a future post. But it is difficult to imagine a worse candidate for inclusion in that alliance than Georgia.