A trail of stalled or abandoned HUD projects

By Debbie Cenziper and Jonathan Mummolo, Published: May 14

The federal government’s largest housing construction program for the poor has squandered hundreds of millions of dollars on stalled or abandoned projects and routinely failed to crack down on derelict developers or the local housing agencies that funded them.

Nationwide, nearly 700 projects awarded $400 million have been idling for years, a Washington Post investigation found. Some have languished for a decade or longer even as much of the country struggles with record-high foreclosures and a dramatic loss of affordable housing.

The U.S. Department of Housing and Urban Development, which oversees the nation’s housing fund, has largely looked the other way: It does not track the pace of construction and often fails to spot defunct deals, instead trusting local agencies to police projects.

The result is a trail of failed developments in every corner of the country. Fields where apartment complexes were promised are empty and neglected. Houses that were supposed to be renovated are boarded up and crumbling, eyesores in decaying neighborhoods.

In Inglewood, Calif., a sprawling, overgrown lot two blocks from city hall frustrates senior citizens who were promised a state-of-the-art housing complex more than four years ago. Although the city invested $2 million in HUD funds, the developer doesn’t have the financing to move forward.

In Newark, two partially completed duplexes sit empty in a neighborhood blighted by boarded-up homes lost to foreclosure. The city paid nearly $400,000 to build the houses, but after a decade of delays, the developer folded and never finished. The money has not been repaid.

In Orange, Tex., 35-year-old laborer Jay Breed lives next to a dumping ground littered with tires and other trash, where a nonprofit developer was supposed to build 50 houses for the poor. Five years later, with $140,000 in HUD money gone, no homes have gone up.

“It’s a wasteland,” Breed said.

The Post examined every major project currently funded under the HUD program, analyzing a database of 5,100 projects worth $3.2 billion, studying more than 600 satellite images and collecting information from 165 housing agencies nationwide.

The yearlong investigation uncovered a dysfunctional system that delivers billions of dollars to local housing agencies with few rules, safeguards or even a reliable way to track projects. The lapses have led to widespread misspending and delays in a two-decade-old program meant to deliver decent housing to the working poor.

The Post found breakdowns at every level:

• Local housing agencies have doled out millions to troubled developers, including novice builders, fledgling nonprofits and groups accused of fraud or delivering shoddy work.

• Checks were cut even when projects were still on the drawing boards, without land, financing or permits to move forward. In at least 55 cases, developers drew HUD money but left behind only barren lots.

• Overall, nearly one in seven projects shows signs of significant delay. Time and again, housing agencies failed to cancel bad deals or alert HUD when projects foundered.

• HUD has known about the problems for years but still imposes few requirements on local housing agencies and relies on a data system that makes it difficult to determine which developments are stalled.

• Even when HUD learns of a botched deal, federal law does not give the agency the authority to demand repayment. HUD can ask local authorities to voluntarily repay, but the agency was unable to say how much money has been returned.

The D.C. region has a particularly troubled track record. In Prince George’s County, the nonprofit Kairos Development Corp., received $750,000 in 2005 to build dozens of homes. Six years later, Kairos has not built a single house.

“When Kairos came along, I thought this would be something that would help the community,” said Clinton Adams, a local landowner who discussed selling property to Kairos. “What did they do with the money?”

Dozens of housing agencies nationwide acknowledge botched deals and often blame the economy for leaving developers without financing to finish the work.

But hundreds of stalled projects predate the troubled financial markets, with developers tapping HUD’s program for easy money and then escaping even rudimentary oversight from local and federal authorities. The agency’s inspector general for years has chronicled scores of delayed projects and millions in waste.

“We need to reduce the risk for HUD funding in development deals,” said Annemarie Maiorano, who manages HUD money for Wake County, N.C. “There needs to be basic standards.”

HUD officials said they have recently tried to determine why developments are delayed and have begun to cancel projects. In response to inquiries from The Post, the agency last month launched investigations into a series of defunct deals, finding questionable payments and excessive delays, and in recent weeks has sought the return of more than $4 million from housing agencies in the District and Prince George’s County.

“We can do better and we will,” said Mercedes Marquez, HUD’s assistant secretary for community planning and development, who was nominated by President Obama in 2009. “HUD, the Congress and every taxpayer I know expects these funds to be put to work. . . . I won’t hesitate to do what’s necessary.”

A program that began with great promise for the poor

Past HUD scandals have involved misused vouchers for rental properties, unsafe conditions in public housing and corruption in grant-making programs. The Post’s investigation is the first systemic look at the progress of construction in HUD’s affordable-housing fund, known as the HOME Investment Partnerships Program.

The program launched with great promise two decades ago, when Congress vowed to fund the construction or renovation of thousands of apartments and houses for working-poor families.

Since 1992, HUD’s vast main office on 7th Street in Southwest Washington and its 43 field offices have overseen $32 billion in funding, which is distributed in block grants to 642 cities, counties and states. They, in turn, partner with developers, giving out grants or loans with generous terms such as delayed repayment, low interest rates and outright forgiveness of debt.

HUD’s money typically doesn’t cover all construction costs. The program is meant to provide partial funding for developers who are expected to draw additional financing from banks and other sources.

Clearly, building in blighted neighborhoods can be challenging, with private financing and political will hard to come by. Over the years, local housing agencies and their development partners have completed thousands of projects.

But hundreds of current projects have faced years-long delays, with a similar pattern playing out in city after city.

Behind many of the deals are developers who didn’t have land, permits, financial capacity or commitments for private financing. HUD has few underwriting standards: Housing agencies are required to ensure that developers have a proposed budget and construction schedule — but not proof that they have the money to start building.

Other developers have had little housing experience or were dogged by foreclosures, cost overruns, liens and allegations of defective work. In most cases, HUD requires only that housing agencies ensure that developers have not been barred from doing business with the federal government.

HUD officials say local agencies are supposed to apply their own rules and choose developers capable of beginning construction within a year and eventually completing the job. “This is what comes with having the flexibility of a block grant, where you respect local decisions,” Marquez said.

In the District, which receives $9 million annually in HUD housing construction funds, the lapses have produced a series of troubled projects.

Alicia Marshall was a 33-year-old novice landlord in 2004 when she bought an aging, six-unit apartment building on Foote Street NE for $245,000. Within months, city inspectors cited Marshall for code violations that included leaks, cracked ceilings, broken doors and no heat.

Marshall agreed to renovate if tenants gave up their rent-controlled units. Although she had little construction experience, the District gave her $600,000 in HUD funds in 2008.

A project plan in city files noted that Vincent Ford, the former D.C. chief building inspector, would oversee the renovation. Ford, however, told The Post that he did not act as the project manager. “Didn’t happen,” he said.

The plan also noted that the construction work would be done by Calvert County resident Richard Hagler, 54, whose company, according to the plan, had worked for government agencies, built custom homes and refurbished apartment buildings. The Post found that Hagler and his companies have faced a string of civil judgments, and in 2006 agreed to a $250,000 settlement after being sued for shoddy construction. He has declared bankruptcy three times in the last decade, records show.

Neither Marshall nor Hagler responded to calls or letters seeking comment.

In 2009, Marshall’s building twice failed District construction inspections, a city official said. Later that year, after months of delays, the city approved a certificate of occupancy.

But evidence of substandard work continues to crop up. Soon after retired truck driver Grady Baxter moved in last year, part of his bathroom ceiling collapsed and sewage from the apartment upstairs soaked the walls.

“They started work on it,” he said, “but didn’t come back.”

The D.C. Department of Housing and Community Development defended the project. “Marshall assembled a skilled team to manage the renovations,” spokeswoman Najuma Thorpe said.

When contacted by The Post last month, HUD officials initiated an investigation into the quality of construction.

Many nonprofit agencies lacking in experience

One of the few rules HUD imposes actually contributes to the number of failing projects. Federal law mandates that housing agencies give 15 percent of their funding to community-based nonprofit groups, which are often undercapitalized and lack experience.

“Development is hard for developers. It’s complex. It’s risky,” said Maiorano of Wake County. “Then there are these mom and pops who don’t know things . . . we’re asking them to try to do something that they have no experience in.”

In Newark, the Department of Economic and Housing Development invested more than $2 million since 1995 in five projects that promised dozens of new homes. But every development ran aground when the developers, mostly small nonprofits, could not complete the work or fell into foreclosure, records show.

On South 13th Street in the shadow of downtown Newark, children play next to an empty lot filled with trash and mattresses, where a nonprofit developer drew $50,000 but built nothing. “It’s just dirt,” said eight-year-old Shakina Boulding. “There should be grass and flowers.”

One mile away, on a distressed stretch of Littleton Avenue, two partially completed duplexes that cost the city nearly $400,000 sit empty behind an unlatched fence.

“They’ve been like that for over seven years now,” said Wade Tapp, 45, a recreation center director who owns an apartment building across the street. “It’s quite shameful.”

Newark’s new housing chief, Michael Meyer, said he is trying to recoup money and change the city’s policies. “The public has not gotten what it intended to get when we started these projects,” he said.

Two of the most troubled projects in the D.C. region were proposed by Kairos Development Corp., which won $400,000 in HUD funding from Prince George’s County in May 2005 after promising several houses and an apartment complex with as many as 150 units on a winding, rural stretch of Middleton Lane in Camp Springs.

The nonprofit had little construction experience, offered none of its own money and had no other funding committed to the project, records show.

Kairos eventually bought two properties with the HUD money, but six years later, nothing has been built.

At the same time in 2005, Kairos received a second HUD loan from the county, for $350,000, for 56 condominiums proposed on a wooded hillside on Naylor Road near the District line. The nonprofit did not own the land or have permission to build on it.

The owners of the property were Lashelle Adams, a hairdresser, and her father, Clinton, who ultimately decided not to sell to Kairos.

The project exists now only as a three-digit number on HUD’s books.

Harold Davis, executive director at Kairos, blamed the delays on the economic downturn and a surplus of condominiums in the region, adding that the money was spent on architectural, development, legal and consulting fees. In a written response to The Post, he said the Naylor Road project became “unfeasible due to significant change in selling prices.” He said the Middleton Lane project is still viable.

County spokeswoman Angela Wright said a new administration has no knowledge of either project. Kairos was allowed to keep the HUD money; the county wrote off both loans. It is unlikely that the group could repay anyway: On its 2009 tax return, the nonprofit reported that it was $1.2 million in the red.

When contacted by The Post, HUD officials said the loans made to Kairos were excessive. Last month, federal officials sent a letter to Prince George’s County seeking the return of nearly $550,000. HUD has also banned Prince George’s County from awarding any more money to community-based groups without the agency’s approval.

“I’m appalled, just appalled,” said Marquez, HUD assistant secretary. “We’re just not standing for it.”

A resident asks,

‘Where did the money go?’

At the heart of the problem lies HUD’s failure to track the pace of construction.

HUD monitors only when local agencies draw money from their federal accounts, not what is actually being built. That leaves HUD with little way of knowing when projects stall or die. Local housing agencies are supposed to notify the federal government, but they often fail to say anything.

“If [housing agencies] fail to terminate projects as they should, we may not be aware of them right away,” Marquez said.

She said that it is not feasible for HUD to monitor thousands of ongoing developments and that local agencies should have their own project-tracking systems.

The Post independently analyzed HUD data to find about 700 troubled projects that were awarded $400 million.

But the actual number of stalled or terminated projects is likely to be much higher. The Post identified an additional 2,800 projects worth $1 billion that are in “final draw,” meaning the projects drew all of their allotted HUD funding but are still listed as open and ongoing in HUD’s records.

In some cases, the work was completed, but local agencies had failed to tell HUD. In other cases, however, projects were delayed or scrapped. The Post found abandoned projects in final draw from Texas to Florida to the D.C. region.

One dead project listed in final draw was proposed for downtown Rockville, where the nonprofit Montgomery Housing Partnership received $550,000 in 2008 to build a 109-unit apartment building.

The project struggled with funding gaps, opposition from neighbors and a lack of support from elected officials. Three years later, nothing has been built.

Montgomery Housing Partnership President Robert Goldman said the development is no longer viable and the nonprofit is hoping to roll the money into a future project. “This is really a very unusual circumstance,” he said.

The nonprofit had another project go bad adjacent to that empty lot.

In the 1990s, the group renovated a 14-unit building that was later condemned with leaks and mold. It is still shuttered, with a sign on the front door that warns, “Dangerous and Unsafe.”

One of the oldest unfinished projects in the country sits on a desolate stretch of High Street in Southeast Washington, where the shells of three apartment buildings rise above overgrown brush and rotting heaps of trash. In 2001, the District delivered nearly $800,000 in HUD funding to the nonprofit Safe Haven Outreach Ministry, but a decade later, no renovations have been done.

A neighbor posted a makeshift sign in front of the rubble: “Celebrating Life in Anacostia.”

Nearby resident Bernadine Thomas wants to move into a refurbished apartment but can’t find one that she can afford in a region with some of the highest rents in the country. She drives by the unfinished buildings on High Street and imagines a different life.

“Where did the money go?” said Thomas, a 60-year-old retired apartment manager who has lived for three years in a leaky complex that reeks of sewage. “I’ve worked all my life. All I want is a decent place to live.”

Marsha Richerson, Safe Haven’s executive director, said that the nonprofit did not anticipate problems getting permits and private funding, and that the housing agency was aware of the delays.

“They knew everything,” she said. “They knew we had a credible defense.”

City officials extended Safe Haven’s construction deadlines, hoping the project would eventually be completed. The agency “makes every attempt to work with developers to bring these projects to fruition,” said Thorpe, the D.C. housing agency spokeswoman.

In December, HUD identified the project as stalled through an audit and asked the District to repay the $800,000. So far, no money has been repaid. District officials said they are going to ask HUD to reconsider.

HUD can’t compel local authorities to repay

Even when HUD learns of a bungled deal, federal law does not give the agency the ability to compel local authorities to repay. HUD can only ask agencies to voluntarily return money by replenishing their federal accounts from local funds, essentially moving their own money around. HUD officials said local authorities almost always comply when asked to repay. HUD, however, could not provide statistics on how much has been returned. Officials said they have not felt a need to compile the data because it is tracked by HUD field offices.

The agency can reduce grants to housing agencies if HUD funding is not spent quickly enough, which creates pressure to move money out but does not ensure that construction is completed. Grant reductions for missed spending deadlines have happened just 20 times since 1992, with HUD taking back a total of $7.5 million, The Post found. Much of the money came from Prince George’s County, which last year forfeited $2.2 million.

HUD also has an enforcement center staffed with lawyers who can pursue repayments before an administrative law judge or in a criminal case in federal court. The agency has taken five cases to enforcement since the program began two decades ago, recouping about $19 million, The Post found. The agency has never taken a case to court.

HUD officials said they don’t need a more robust enforcement effort, again citing the success of voluntary repayments.

Marquez said the agency is focused more than ever on delayed projects and recouping money.

“This will get cleaned up,” she said.


Staff researchers Jennifer Jenkins, Meg Smith and Julie Tate contributed to this report.

http://www.washingtonpost.com/investigations/a-pattern-of-hud-projects-stalled-or-abandoned/2011/03/14/AFWelh3G_story.html

As Used-Car Prices Soar, ‘Clunkers’ Are Missed

Posted by Walter Olson

Cato scholars have been appropriately scathing about the federal government’s 2009 “cash for clunkers” program, which paid several billion taxpayer dollars to have older cars scrapped and their engines destroyed, with owners getting vouchers toward new vehicles. When Chris Edwards nominated cash-for-clunkers as the “dumbest government program ever,” he listed among its effects: “Low-income families, who tend to buy used cars, were harmed because the clunkers program will push up used car prices.”

Guess what’s the newest trouble to hit the car business? As news outlets around the country are reporting, the price of used cars has lately soared to a modern-day record, with some cars commanding more used than they sold for when new. News accounts commonly finger the Japanese earthquake and high gas prices as reasons, but there are some problems fitting either reason to the case. While the earthquake affected the supply of new cars, it’s the previously driven kind that has scored the more impressive price jump. And while the rise in gas prices would explain a relative shift in buyer demand from SUVs and trucks toward smaller vehicles — which has indeed happened — the strength of the used-vehicle market lately has been such that even the thirstier vehicles have advanced in price, $4 gas or no.

No doubt there are multiple reasons for the price spike, including the severe general slump in new-auto sales in recent years, which has reduced the volume of newer cars coming onto the resale market. But — as Washington scrambles to take undeserved credit for whatever passes for normalization in the auto business these days — it’s worth remembering that an artificial scarcity of used cars isn’t just bad for the poor as a group: it’s bad in particular for the upwardly mobile poor, since in most of the country landing a job means needing to line up transportation to get to that job. When it suddenly costs $6,000 instead of $3,000 to get wheels, the move from unemployment to a paying job faces a new and discouraging barrier.

There’s a further irony too. Just as the federal housing stimulus lured many buyers into unwise house purchases at a time when home prices still had a good distance to fall — leaving them worse off in retrospect — so many owners who jumped for the cash-for-clunkers program would have been better off holding on to their cars a while longer. At least that’s what one might conclude from what Frederick, Maryland used-car dealer Robert Cox told his local paper, the News-Post:

People who got $3,500 for the cars they turned in would probably get $5,000 to $7,000 for the same trade today, Cox said.

Nice going, Washington.

http://www.cato-at-liberty.org/as-used-car-prices-soar-clunkers-are-missed/

Nothing to see here, move along.

THE SECRET SHARER
Is Thomas Drake an enemy of the state?
by Jane Mayer
MAY 23, 2011

Drake, a former senior executive at the National Security Agency, faces some of the gravest charges that can be brought against an American citizen. Photograph by Martin Schoeller.

On June 13th, a fifty-four-year-old former government employee named Thomas Drake is scheduled to appear in a courtroom in Baltimore, where he will face some of the gravest charges that can be brought against an American citizen. A former senior executive at the National Security Agency, the government’s electronic-espionage service, he is accused, in essence, of being an enemy of the state. According to a ten-count indictment delivered against him in April, 2010, Drake violated the Espionage Act—the 1917 statute that was used to convict Aldrich Ames, the C.I.A. officer who, in the eighties and nineties, sold U.S. intelligence to the K.G.B., enabling the Kremlin to assassinate informants. In 2007, the indictment says, Drake willfully retained top-secret defense documents that he had sworn an oath to protect, sneaking them out of the intelligence agency’s headquarters, at Fort Meade, Maryland, and taking them home, for the purpose of “unauthorized disclosure.” The aim of this scheme, the indictment says, was to leak government secrets to an unnamed newspaper reporter, who is identifiable as Siobhan Gorman, of the Baltimore Sun. Gorman wrote a prize-winning series of articles for the Sun about financial waste, bureaucratic dysfunction, and dubious legal practices in N.S.A. counterterrorism programs. Drake is also charged with obstructing justice and lying to federal law-enforcement agents. If he is convicted on all counts, he could receive a prison term of thirty-five years.

The government argues that Drake recklessly endangered the lives of American servicemen. “This is not an issue of benign documents,” William M. Welch II, the senior litigation counsel who is prosecuting the case, argued at a hearing in March, 2010. The N.S.A., he went on, collects “intelligence for the soldier in the field. So when individuals go out and they harm that ability, our intelligence goes dark and our soldier in the field gets harmed.”

Top officials at the Justice Department describe such leak prosecutions as almost obligatory. Lanny Breuer, the Assistant Attorney General who supervises the department’s criminal division, told me, “You don’t get to break the law and disclose classified information just because you want to.” He added, “Politics should play no role in it whatsoever.”

When President Barack Obama took office, in 2009, he championed the cause of government transparency, and spoke admiringly of whistle-blowers, whom he described as “often the best source of information about waste, fraud, and abuse in government.” But the Obama Administration has pursued leak prosecutions with a surprising relentlessness. Including the Drake case, it has been using the Espionage Act to press criminal charges in five alleged instances of national-security leaks—more such prosecutions than have occurred in all previous Administrations combined. The Drake case is one of two that Obama’s Justice Department has carried over from the Bush years.
Gabriel Schoenfeld, a conservative political scientist at the Hudson Institute, who, in his book “Necessary Secrets” (2010), argues for more stringent protection of classified information, says, “Ironically, Obama has presided over the most draconian crackdown on leaks in our history—even more so than Nixon.”

ne afternoon in January, Drake met with me, giving his first public interview about this case. He is tall, with thinning sandy hair framing a domed forehead, and he has the erect bearing of a member of the Air Force, where he served before joining the N.S.A., in 2001. Obsessive, dramatic, and emotional, he has an unwavering belief in his own rectitude. Sitting at a Formica table at the Tastee Diner, in Bethesda, Drake—who is a registered Republican—groaned and thrust his head into his hands. “I actually had hopes for Obama,” he said. He had not only expected the President to roll back the prosecutions launched by the Bush Administration; he had thought that Bush Administration officials would be investigated for overstepping the law in the “war on terror.”

“But power is incredibly destructive,” Drake said. “It’s a weird, pathological thing. I also think the intelligence community coöpted Obama, because he’s rather naïve about national security. He’s accepted the fear and secrecy. We’re in a scary space in this country.”

The Justice Department’s indictment narrows the frame around Drake’s actions, focussing almost exclusively on his handling of what it claims are five classified documents. But Drake sees his story as a larger tale of political reprisal, one that he fears the government will never allow him to air fully in court. “I’m a target,” he said. “I’ve got a bull’s-eye on my back.” He continued, “I did not tell secrets. I am facing prison for having raised an alarm, period. I went to a reporter with a few key things: fraud, waste, and abuse, and the fact that there were legal alternatives to the Bush Administration’s ‘dark side’ ”—in particular, warrantless domestic spying by the N.S.A.

The indictment portrays him not as a hero but as a treacherous man who violated “the government trust.” Drake said of the prosecutors, “They can say what they want. But the F.B.I. can find something on anyone.”

Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, says of the Drake case, “The government wants this to be about unlawfully retained information. The defense, meanwhile, is painting a picture of a public-interested whistle-blower who struggled to bring attention to what he saw as multibillion-dollar mismanagement.” Because Drake is not a spy, Aftergood says, the case will “test whether intelligence officers can be convicted of violating the Espionage Act even if their intent is pure.” He believes that the trial may also test whether the nation’s expanding secret intelligence bureaucracy is beyond meaningful accountability. “It’s a much larger debate than whether a piece of paper was at a certain place at a certain time,” he says.

Jack Balkin, a liberal law professor at Yale, agrees that the increase in leak prosecutions is part of a larger transformation. “We are witnessing the bipartisan normalization and legitimization of a national-surveillance state,” he says. In his view, zealous leak prosecutions are consonant with other political shifts since 9/11: the emergence of a vast new security bureaucracy, in which at least two and a half million people hold confidential, secret, or top-secret clearances; huge expenditures on electronic monitoring, along with a reinterpretation of the law in order to sanction it; and corporate partnerships with the government that have transformed the counterterrorism industry into a powerful lobbying force. Obama, Balkin says, has “systematically adopted policies consistent with the second term of the Bush Administration.”

On March 28th, Obama held a meeting in the White House with five advocates for greater transparency in government. During the discussion, the President drew a sharp distinction between whistle-blowers who exclusively reveal wrongdoing and those who jeopardize national security. The importance of maintaining secrecy about the impending raid on Osama bin Laden’s compound was likely on Obama’s mind. The White House has been particularly bedevilled by the ongoing release of classified documents by WikiLeaks, the group led by Julian Assange. Last year, WikiLeaks began releasing a vast trove of sensitive government documents allegedly leaked by a U.S. soldier, Bradley Manning; the documents included references to a courier for bin Laden who had moved his family to Abbottabad—the town where bin Laden was hiding out. Manning has been charged with “aiding the enemy.”

Danielle Brian, the executive director of the Project on Government Oversight, attended the meeting, and said that Obama’s tone was generally supportive of transparency. But when the subject of national-security leaks came up, Brian said, “the President shifted in his seat and leaned forward. He said this may be where we have some differences. He said he doesn’t want to protect the people who leak to the media war plans that could impact the troops.” Though Brian was impressed with Obama’s over-all stance on transparency, she felt that he might be misinformed about some of the current leak cases. She warned Obama that prosecuting whistle-blowers would undermine his legacy. Brian had been told by the White House to avoid any “ask”s on specific issues, but she told the President that, according to his own logic, Drake was exactly the kind of whistle-blower who deserved protection.

As Drake tells it, his problems began on September 11, 2001. “The next seven weeks were crucial,” he said. “It’s foundational to why I am a criminal defendant today.”
The morning that Al Qaeda attacked the U.S. was, coincidentally, Drake’s first full day of work as a civilian employee at the N.S.A.—an agency that James Bamford, the author of “The Shadow Factory” (2008), calls “the largest, most costly, and most technologically sophisticated spy organization the world has ever known.” Drake, a linguist and a computer expert with a background in military crypto-electronics, had worked for twelve years as an outside contractor at the N.S.A. Under a program code-named Jackpot, he focussed on finding and fixing weaknesses in the agency’s software programs. But, after going through interviews and background checks, he began working full time for Maureen Baginski, the chief of the Signals Intelligence Directorate at the N.S.A., and the agency’s third-highest-ranking official.
 
Even in an age in which computerized feats are commonplace, the N.S.A.’s capabilities are breathtaking. The agency reportedly has the capacity to intercept and download, every six hours, electronic communications equivalent to the contents of the Library of Congress. Three times the size of the C.I.A., and with a third of the U.S.’s entire intelligence budget, the N.S.A. has a five-thousand-acre campus at Fort Meade protected by iris scanners and facial-recognition devices. The electric bill there is said to surpass seventy million dollars a year.

Nevertheless, when Drake took up his post the agency was undergoing an identity crisis. With the Cold War over, the agency’s mission was no longer clear. As Drake puts it, “Without the Soviet Union, it didn’t know what to do.” Moreover, its technology had failed to keep pace with the shift in communications to cellular phones, fibre-optic cable, and the Internet. Two assessments commissioned by General Michael Hayden, who took over the agency in 1999, had drawn devastating conclusions. One described the N.S.A. as “an agency mired in bureaucratic conflict” and “suffering from poor leadership.” In January, 2000, the agency’s computer system crashed for three and a half days, causing a virtual intelligence blackout.

Agency leaders decided to “stir up the gene pool,” Drake says. Although his hiring was meant to signal fresh thinking, he was given a clumsy bureaucratic title: Senior Change Leader/Chief, Change Leadership & Communications Office, Signals Intelligence Directorate.

The 9/11 attacks caught the U.S.’s national-security apparatus by surprise. N.S.A. officials were humiliated to learn that the Al Qaeda hijackers had spent their final days, undetected, in a motel in Laurel, Maryland—a few miles outside the N.S.A.’s fortified gates. They had bought a folding knife at a Target on Fort Meade Road. Only after the attacks did agency officials notice that, on September 10th, their surveillance systems had intercepted conversations in Afghanistan and Saudi Arabia warning that “the match begins tomorrow” and “tomorrow is Zero Hour.”

Drake, hoping to help fight back against Al Qaeda, immediately thought of a tantalizing secret project he had come across while working on Jackpot. Code-named ThinThread, it had been developed by technological wizards in a kind of Skunk Works on the N.S.A. campus. Formally, the project was supervised by the agency’s Signals Intelligence Automation Research Center, or SARC.

While most of the N.S.A. was reeling on September 11th, inside SARC the horror unfolded “almost like an ‘I-told-you-so’ moment,” according to J. Kirk Wiebe, an intelligence analyst who worked there. “We knew we weren’t keeping up.” SARC was led by a crypto-mathematician named Bill Binney, whom Wiebe describes as “one of the best analysts in history.” Binney and a team of some twenty others believed that they had pinpointed the N.S.A.’s biggest problem—data overload—and then solved it. But the agency’s management hadn’t agreed.

Binney, who is six feet three, is a bespectacled sixty-seven-year-old man with wisps of dark hair; he has the quiet, tense air of a preoccupied intellectual. Now retired and suffering gravely from diabetes, which has already claimed his left leg, he agreed recently to speak publicly for the first time about the Drake case. When we met, at a restaurant near N.S.A. headquarters, he leaned crutches against an extra chair. “This is too serious not to talk about,” he said.

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11. ThinThread, the “little program” that he invented to track enemies outside the U.S., “got twisted,” and was used for both foreign and domestic spying: “I should apologize to the American people. It’s violated everyone’s rights. It can be used to eavesdrop on the whole world.” According to Binney, Drake took his side against the N.S.A.’s management and, as a result, became a political target within the agency.
Binney spent most of his career at the agency. In 1997, he became the technical director of the World Geopolitical and Military Analysis Reporting Group, a division of six thousand employees which focusses on analyzing signals intelligence. By the late nineties, the N.S.A. had become overwhelmed by the amount of digital data it was collecting. Binney and his team began developing codes aimed at streamlining the process, allowing the agency to isolate useful intelligence. This was the beginning of ThinThread.

In the late nineties, Binney estimated that there were some two and a half billion phones in the world and one and a half billion I.P. addresses. Approximately twenty terabytes of unique information passed around the world every minute. Binney started assembling a system that could trap and map all of it. “I wanted to graph the world,” Binney said. “People said, ‘You can’t do this—the possibilities are infinite.’ ” But he argued that “at any given point in time the number of atoms in the universe is big, but it’s finite.”

As Binney imagined it, ThinThread would correlate data from financial transactions, travel records, Web searches, G.P.S. equipment, and any other “attributes” that an analyst might find useful in pinpointing “the bad guys.” By 2000, Binney, using fibre optics, had set up a computer network that could chart relationships among people in real time. It also turned the N.S.A.’s data-collection paradigm upside down. Instead of vacuuming up information around the world and then sending it all back to headquarters for analysis, ThinThread processed information as it was collected—discarding useless information on the spot and avoiding the overload problem that plagued centralized systems. Binney says, “The beauty of it is that it was open-ended, so it could keep expanding.”

Pilot tests of ThinThread proved almost too successful, according to a former intelligence expert who analyzed it. “It was nearly perfect,” the official says. “But it processed such a large amount of data that it picked up more Americans than the other systems.” Though ThinThread was intended to intercept foreign communications, it continued documenting signals when a trail crossed into the U.S. This was a big problem: federal law forbade the monitoring of domestic communications without a court warrant. And a warrant couldn’t be issued without probable cause and a known suspect. In order to comply with the law, Binney installed privacy controls and added an “anonymizing feature,” so that all American communications would be encrypted until a warrant was issued. The system would indicate when a pattern looked suspicious enough to justify a warrant.

But this was before 9/11, and the N.S.A.’s lawyers deemed ThinThread too invasive of Americans’ privacy. In addition, concerns were raised about whether the system would function on a huge scale, although preliminary tests had suggested that it would. In the fall of 2000, Hayden decided not to use ThinThread, largely because of his legal advisers’ concerns. Instead, he funded a rival approach, called Trailblazer, and he turned to private defense contractors to build it. Matthew Aid, the author of a heralded 2009 history of the agency, “The Secret Sentry,” says, “The resistance to ThinThread was just standard bureaucratic politics. ThinThread was small, cost-effective, easy to understand, and protected the identity of Americans. But it wasn’t what the higher-ups wanted. They wanted a big machine that could make Martinis, too.”

The N.S.A.’s failure to stop the 9/11 plot infuriated Binney: he believed that ThinThread had been ready to deploy nine months earlier. Working with N.S.A. counterterrorism experts, he had planned to set up his system at sites where foreign terrorism was prevalent, including Afghanistan and Pakistan. “Those bits of conversations they found too late?” Binney said. “That would have never happened. I had it managed in a way that would send out automatic alerts. It would have been, Bang!”

Meanwhile, there was nothing to show for Trailblazer, other than mounting bills. As the system stalled at the level of schematic drawings, top executives kept shuttling between jobs at the agency and jobs with the high-paying contractors. For a time, both Hayden’s deputy director and his chief of signals-intelligence programs worked at SAIC, a company that won several hundred million dollars in Trailblazer contracts. In 2006, Trailblazer was abandoned as a $1.2-billion flop.

oon after 9/11, Drake says, he prepared a short, classified summary explaining how ThinThread “could be put into the fight,” and gave it to Baginski, his boss. But he says that she “wouldn’t respond electronically. She just wrote in a black felt marker, ‘They’ve found a different solution.’ ” When he asked her what it was, she responded, “I can’t tell you.” Baginski, who now works for a private defense contractor, recalls her interactions with Drake differently, but she declined to comment specifically.

In the weeks after the attacks, rumors began circulating inside the N.S.A. that the agency, with the approval of the Bush White House, was violating the Foreign Intelligence Surveillance Act—the 1978 law, known as FISA, that bars domestic surveillance without a warrant. Years later, the rumors were proved correct. In nearly total secrecy, and under pressure from the White House, Hayden sanctioned warrantless domestic surveillance. The new policy, which lawyers in the Justice Department justified by citing President Bush’s executive authority as Commander-in-Chief, contravened a century of constitutional case law. Yet, on October 4, 2001, Bush authorized the policy, and it became operational by October 6th. Bamford, in “The Shadow Factory,” suggests that Hayden, having been overcautious about privacy before 9/11, swung to the opposite extreme after the attacks. Hayden, who now works for a security-consulting firm, declined to respond to detailed questions about the surveillance program.

When Binney heard the rumors, he was convinced that the new domestic-surveillance program employed components of ThinThread: a bastardized version, stripped of privacy controls. “It was my brainchild,” he said. “But they removed the protections, the anonymization process. When you remove that, you can target anyone.” He said that although he was not “read in” to the new secret surveillance program, “my people were brought in, and they told me, ‘Can you believe they’re doing this? They’re getting billing records on U.S. citizens! They’re putting pen registers’ ”—logs of dialled phone numbers—“ ‘on everyone in the country!’ ”

Drake recalled that, after the October 4th directive, “strange things were happening. Equipment was being moved. People were coming to me and saying, ‘We’re now targeting our own country!’ ” Drake says that N.S.A. officials who helped the agency obtain FISA warrants were suddenly reassigned, a tipoff that the conventional process was being circumvented. He added, “I was concerned that it was illegal, and none of it was necessary.” In his view, domestic data mining “could have been done legally” if the N.S.A. had maintained privacy protections. “But they didn’t want an accountable system.”

Aid, the author of the N.S.A. history, suggests that ThinThread’s privacy protections interfered with top officials’ secret objective—to pick American targets by name. “They wanted selection, not just collection,” he says.

A former N.S.A. official expressed skepticism that Drake cared deeply about the constitutional privacy issues raised by the agency’s surveillance policies. The official characterizes him as a bureaucrat driven by resentment of a rival project—Trailblazer—and calls his story “revisionist history.” But Drake says that, in the fall of 2001, he told Baginski he feared that the agency was breaking the law. He says that to some extent she shared his views, and later told him she feared that the agency would be “haunted” by the surveillance program. In 2003, she left the agency for the F.B.I., in part because of her discomfort with the surveillance program. Drake says that, at one point, Baginski told him that if he had concerns he should talk to the N.S.A.’s general counsel. Drake claims that he did, and that the agency’s top lawyer, Vito Potenza, told him, “Don’t worry about it. We’re the executive agent for the White House. It’s all been scrubbed. It’s legal.” When he pressed further, Potenza told him, “It’s none of your business.” (Potenza, who is now retired, declined to comment.)

Drake says, “I feared for the future. If Pandora’s box was opened, what would the government become?” He was not about to drop the matter. Matthew Aid, who describes Drake as “brilliant,” says that “he has sort of a Jesus complex—only he can see the way things are. Everyone else is mentally deficient, or in someone’s pocket.” Drake’s history of whistle-blowing stretches back to high school, in Manchester, Vermont, where his father, a retired Air Force officer, taught. When drugs infested the school, Drake became a police informant. And Watergate, which occurred while he was a student, taught him “that no one is above the law.”

Drake says that in the Air Force, where he learned to capture electronic signals, the FISA law “was drilled into us.” He recalls, “If you accidentally intercepted U.S. persons, there were special procedures to expunge it.” The procedures had been devised to prevent the recurrence of past abuses, such as Nixon’s use of the N.S.A. to spy on his political enemies.

Drake didn’t know the precise details, but he sensed that domestic spying “was now being done on a vast level.” He was dismayed to hear from N.S.A. colleagues that “arrangements” were being made with telecom and credit-card companies. He added, “The mantra was ‘Get the data!’ ” The transformation of the N.S.A., he says, was so radical that “it wasn’t just that the brakes came off after 9/11—we were in a whole different vehicle.”

ew people have a precise knowledge of the size or scope of the N.S.A.’s domestic-surveillance powers. An agency spokesman declined to comment on how the agency “performs its mission,” but said that its activities are constitutional and subject to “comprehensive and rigorous” oversight. But Susan Landau, a former engineer at Sun Microsystems, and the author of a new book, “Surveillance or Security?,” notes that, in 2003, the government placed equipment capable of copying electronic communications at locations across America. These installations were made, she says, at “switching offices” that not only connect foreign and domestic communications but also handle purely domestic traffic. As a result, she surmises, the U.S. now has the capability to monitor domestic traffic on a huge scale. “Why was it done this way?” she asks. “One can come up with all sorts of nefarious reasons, but one doesn’t want to think that way about our government.”

Binney, for his part, believes that the agency now stores copies of all e-mails transmitted in America, in case the government wants to retrieve the details later. In the past few years, the N.S.A. has built enormous electronic-storage facilities in Texas and Utah. Binney says that an N.S.A. e-mail database can be searched with “dictionary selection,” in the manner of Google. After 9/11, he says, “General Hayden reassured everyone that the N.S.A. didn’t put out dragnets, and that was true. It had no need—it was getting every fish in the sea.”

Binney considers himself a conservative, and, as an opponent of big government, he worries that the N.S.A.’s data-mining program is so extensive that it could help “create an Orwellian state.” Whereas wiretap surveillance requires trained human operators, data mining is automated, meaning that the entire country can be watched. Conceivably, U.S. officials could “monitor the Tea Party, or reporters, whatever group or organization you want to target,” he says. “It’s exactly what the Founding Fathers never wanted.”
On October 31, 2001, soon after Binney concluded that the N.S.A. was headed in an unethical direction, he retired. He had served for thirty-six years. His wife worked there, too. Wiebe, the analyst, and Ed Loomis, a computer scientist at SARC, also left. Binney said of his decision, “I couldn’t be an accessory to subverting the Constitution.”

ot long after Binney quit the N.S.A., he says, he confided his concerns about the secret surveillance program to Diane Roark, a staff member on the House Permanent Select Committee on Intelligence, which oversees the agency. Roark, who has flowing gray hair and large, wide-set eyes, looks like a waifish poet. But in her intelligence-committee job, which she held for seventeen years, she modelled herself on Machiavelli’s maxim that it is better to be feared than loved. Within the N.S.A.’s upper ranks she was widely resented. A former top N.S.A. official says of her, “In meetings, she would just say, ‘You’re lying.’ ”

Roark agrees that she distrusted the N.S.A.’s managers. “I asked very tough questions, because they were trying to hide stuff,” she says. “For instance, I wasn’t supposed to know about the warrantless surveillance. They were all determined that no one else was going to tell them what to do.”

Like Drake and Binney, Roark was a registered Republican, skeptical about bureaucracy but strong on national defense. She had a knack for recruiting sources at the N.S.A. One of them was Drake, who introduced himself to her in 2000, after she visited N.S.A. headquarters and gave a stinging talk on the agency’s failings; she also established relationships with Binney and Wiebe. Hayden was furious about this back channel. After learning that Binney had attended a meeting with Roark at which N.S.A. employees complained about Trailblazer, Hayden dressed down the critics. He then sent out an agency-wide memo, in which he warned that several “individuals, in a session with our congressional overseers, took a position in direct opposition to one that we had corporately decided to follow. . . . Actions contrary to our decisions will have a serious adverse effect on our efforts to transform N.S.A., and I cannot tolerate them.” Roark says of the memo, “Hayden brooked no opposition to his favorite people and programs.”

Roark, who had substantial influence over N.S.A. budget appropriations, was an early champion of Binney’s ThinThread project. She was dismayed, she says, to hear that it had evolved into a means of domestic surveillance, and felt personally responsible. Her oversight committee had been created after Watergate specifically to curb such abuses. “It was my duty to oppose it,” she told me. “That is why oversight existed, so that these things didn’t happen again. I’m not an attorney, but I thought that there was no way it was constitutional.” Roark recalls thinking that, if N.S.A. officials were breaking the law, she was “going to fry them.”

She soon learned that she was practically alone in her outrage. Very few congressional leaders had been briefed on the program, and some were apparently going along with it, even if they had reservations. Starting in February, 2002, Roark says, she wrote a series of memos warning of potential illegalities and privacy breaches and handed them to the staffers for Porter Goss, the chairman of her committee, and Nancy Pelosi, its ranking Democrat. But nothing changed. (Pelosi’s spokesman denied that she received such memos, and pointed out that a year earlier Pelosi had written to Hayden and expressed grave concerns about the N.S.A.’s electronic surveillance.)

Roark, feeling powerless, retired. Before leaving Washington, though, she learned that Hayden, who knew of her strong opposition to the surveillance program, wanted to talk to her. They met at N.S.A. headquarters on July 15, 2002. According to notes that she made after the meeting, Hayden pleaded with her to stop agitating against the program. He conceded that the policy would leak at some point, and told her that when it did she could “yell and scream” as much as she wished. Meanwhile, he wanted to give the program more time. She asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.” She asked him directly if the government was getting warrants for domestic surveillance, and he admitted that it was not.

In an e-mail, Hayden confirmed that the meeting took place, but said that he recalled only its “broad outlines.” He noted that Roark was not “cleared to know about the expanded surveillance program, so I did not go into great detail.” He added, “I assured her that I firmly believed that what N.S.A. was doing was effective, appropriate, and lawful. I also reminded her that the program’s success depended on it remaining secret, that it was appropriately classified, and that any public discussion of it would have to await a later day.”

During the meeting, Roark says, she warned Hayden that no court would uphold the program. Curiously, Hayden responded that he had already been assured by unspecified individuals that he could count on a majority of “the nine votes”—an apparent reference to the Supreme Court. According to Roark’s notes, Hayden told her that such a vote might even be 7–2 in his favor.

Roark couldn’t believe that the Supreme Court had been adequately informed of the N.S.A.’s transgressions, and she decided to alert Chief Justice William H. Rehnquist, sending a message through a family friend. Once again, there was no response. She also tried to contact a judge on the FISA court, in Washington, which adjudicates requests for warrants sanctioning domestic surveillance of suspected foreign agents. But the judge had her assistant refer the call to the Department of Justice, which had approved the secret program in the first place. Roark says that she even tried to reach David Addington, the legal counsel to Vice-President Dick Cheney, who had once been her congressional colleague. He never called back, and Addington was eventually revealed to be one of the prime advocates for the surveillance program.

“This was such a Catch-22,” Roark says. “There was no one to go to.” In October, 2003, feeling “profoundly depressed,” she left Washington and moved to a small town in Oregon.

Drake was still working at the N.S.A., but he was secretly informing on the agency to Congress. In addition to briefing Roark, he had become an anonymous source for the congressional committees investigating intelligence failures related to 9/11. He provided Congress with top-secret documents chronicling the N.S.A.’s shortcomings. Drake believed that the agency had failed to feed other intelligence agencies critical information that it had collected before the attacks. Congressional investigators corroborated these criticisms, though they found greater lapses at the C.I.A. and the F.B.I.

Around this time, Drake recalls, Baginski warned him, “Be careful, Tom—they’re looking for leakers.” He found this extraordinary, and asked himself, “Telling the truth to congressional oversight committees is leaking?” But the N.S.A. has a rule requiring employees to clear any contact with Congress, and in the spring of 2002 Baginski told Drake, “It’s time for you to find another job.” He soon switched to a less sensitive post at the agency, the first of several.

As for Binney, he remained frustrated even in retirement about what he considered the misuse of ThinThread. In September, 2002, he, Wiebe, Loomis, and Roark filed what they thought was a confidential complaint with the Pentagon’s Inspector General, extolling the virtues of the original ThinThread project and accusing the N.S.A. of wasting money on Trailblazer. Drake did not put his name on the complaint, because he was still an N.S.A. employee. But he soon became involved in helping the others, who had become friends. He obtained documents aimed at proving waste, fraud, and abuse in the Trailblazer program.

The Inspector General’s report, which was completed in 2005, was classified as secret, so only a few insiders could read what Drake describes as a scathing document. Possibly the only impact of the probe was to hasten the end of Trailblazer, whose budget overruns had become indisputably staggering. Though Hayden acknowledged to a Senate committee that the costs of the Trailblazer project “were greater than anticipated, to the tune of, I would say, hundreds of millions,” most of the scandal’s details remained hidden from the public.

In December, 2005, the N.S.A.’s culture of secrecy was breached by a stunning leak. The Times reporters James Risen and Eric Lichtblau revealed that the N.S.A. was running a warrantless wiretapping program inside the United States. The paper’s editors had held onto the scoop for more than a year, weighing the propriety of publishing it. According to Bill Keller, the executive editor of the Times, President Bush pleaded with the paper’s editors to not publish the story; Keller told New York that “the basic message was: You’ll have blood on your hands.” After the paper defied the Administration, Bush called the leak “a shameful act.” At his command, federal agents launched a criminal investigation to identify the paper’s source.

The Times story shocked the country. Democrats, including then Senator Obama, denounced the program as illegal and demanded congressional hearings. A FISA court judge resigned in protest. In March, 2006, Mark Klein, a retired A.T. & T. employee, gave a sworn statement to the Electronic Frontier Foundation, which was filing a lawsuit against the company, describing a secret room in San Francisco where powerful Narus computers appeared to be sorting and copying all of the telecom’s Internet traffic—both foreign and domestic. A high-capacity fibre-optic cable seemed to be forwarding this data to a centralized location, which, Klein surmised, was N.S.A. headquarters. Soon, USA Today reported that A.T. & T., Verizon, and BellSouth had secretly opened their electronic records to the government, in violation of communications laws. Legal experts said that each instance of spying without a warrant was a serious crime, and that there appeared to be hundreds of thousands of infractions.

President Bush and Administration officials assured the American public that the surveillance program was legal, although new legislation was eventually required to bring it more in line with the law. They insisted that the traditional method of getting warrants was too slow for the urgent threats posed by international terrorism. And they implied that the only domestic surveillance taking place involved tapping phone calls in which one speaker was outside the U.S.

Drake says of Bush Administration officials, “They were lying through their teeth. They had chosen to go an illegal route, and it wasn’t because they had no other choice.” He also believed that the Administration was covering up the full extent of the program. “The phone calls were the tip of the iceberg. The really sensitive stuff was the data mining.” He says, “I was faced with a crisis of conscience. What do I do—remain silent, and complicit, or go to the press?”

Drake has a wife and five sons, the youngest of whom has serious health problems, and so he agonized over the decision. He researched the relevant legal statutes and concluded that if he spoke to a reporter about unclassified matters the only risk he ran was losing his job. N.S.A. policy forbids initiating contact with the press. “I get that it’s grounds for ‘We have to let you go,’ ” he says. But he decided that he was willing to lose his job. “This was a violation of everything I knew and believed as an American. We were making the Nixon Administration look like pikers.”

Drake got in touch with Gorman, who covered the N.S.A. for the Baltimore Sun. He had admired an article of hers and knew that Roark had spoken to her previously, though not about anything classified. He got Gorman’s contact information from Roark, who warned him to be careful. She knew that in the past the N.S.A. had dealt harshly with people who embarrassed it.

Drake set up a secure Hushmail e-mail account and began sending Gorman anonymous tips. Half in jest, he chose the pseudonym The Shadow Knows. He says that he insisted on three ground rules with Gorman: neither he nor she would reveal his identity; he wouldn’t be the sole source for any story; he would not supply her with classified information. But a year into the arrangement, in February, 2007, Drake decided to blow his cover, surprising Gorman by showing up at the newspaper and introducing himself as The Shadow Knows. He ended up meeting with Gorman half a dozen times. But, he says, “I never gave her anything classified.” Gorman has not been charged with wrongdoing, and declined, through her lawyer, Laura Handman, to comment, citing the pending trial.

Starting on January 29, 2006, Gorman, who now works at the Wall Street Journal, published a series of articles about problems at the N.S.A., including a story describing Trailblazer as an expensive fiasco. On May 18, 2006, the day that Hayden faced Senate confirmation hearings for a new post—the head of the C.I.A.—the Sun published Gorman’s exposé on ThinThread, which accused the N.S.A. of rejecting an approach that protected Americans’ privacy. Hayden, evidently peeved, testified that intelligence officers deserved “not to have every action analyzed, second-guessed, and criticized on the front pages of the newspapers.”

At the time, the government did not complain that the Sun had crossed a legal line. It did not contact the paper’s editors or try to restrain the paper from publishing Gorman’s work. A former N.S.A. colleague of Drake’s says he believes that the Sun stories revealed government secrets. Others disagree. Steven Aftergood, the secrecy expert, says that the articles “did not damage national security.”

Matthew Aid argues that the material Drake provided to the Sun should not have been highly classified—if it was—and in any case only highlighted that “the N.S.A. was a management nightmare, which wasn’t a secret in Washington.” In his view, Drake “was just saying, ‘We’re not doing our job, and it’s having a deleterious effect on mission performance.’ He was right, by the way.” The Sun series, Aid says, was “embarrassing to N.S.A. management, but embarrassment to the U.S. government is not a criminal offense in this country.” (Aid has a stake in this debate. In 1984, when he was in the Air Force, he spent several months in the stockade for having stored classified documents in a private locker. The experience, he says, sensitized him to issues of government secrecy.)

While the Sun was publishing its series, twenty-five federal agents and five prosecutors were struggling to identify the Times’ source. The team had targeted some two hundred possible suspects, but had found no culprits. The Sun series attracted the attention of the investigators, who theorized that its source might also have talked to the Times. This turned out not to be true. Nevertheless, the investigators quickly homed in on the Trailblazer critics. “It’s sad,” an intelligence expert says. “I think they were aiming at the Times leak and found this instead.”

Roark was an obvious suspect for the Times leak. Everyone from Hayden on down knew that she had opposed the surveillance program. After the article appeared, she says, “I was waiting for the shoe to drop.” The F.B.I. eventually contacted her, and in February, 2007, she and her attorney met with the prosecutor then in charge, Steven Tyrrell, who was the head of the fraud section at the Justice Department. Roark signed an affidavit saying that she was not a source for the Times story or for “State of War,” a related book that James Risen wrote. She also swore that she had no idea who the source was. She says of the experience, “It was an interrogation, not an interview. They treated me like a target.”

Roark recalls that the F.B.I. agents tried to force her to divulge the identity of her old N.S.A. informants. They already seemed to know about Drake, Binney, and Wiebe—perhaps from the Inspector General’s report. She refused to coöperate, arguing that it was improper for agents of the executive branch to threaten a congressional overseer about her sources. “I had the sense that N.S.A. was egging the F.B.I. on,” she says. “I’d gotten the N.S.A. so many times—they were going to get me. The N.S.A. hated me.” (The N.S.A. and the Justice Department declined to comment on the investigations.)

In the months that followed, Roark heard nothing. Finally, her lawyer placed the case in her “dead file.”

n July 26, 2007, at 9 A.M. Eastern Standard Time, armed federal agents simultaneously raided the houses of Binney, Wiebe, and Roark. (At Roark’s house, in Oregon, it was six o’clock.) Binney was in the shower when agents arrived, and recalls, “They went right upstairs to the bathroom and held guns on me and my wife, right between the eyes.” The agents took computer equipment, a copy of the Inspector General complaint and a copy of a commercial pitch that Binney had written with Wiebe, Loomis, and Roark. In 2001, the N.S.A. indicated to Binney that he could pursue commercial projects based on ThinThread. He and the others thought that aspects of the software could be used to help detect Medicare fraud.

Binney professed his innocence, and he says that the agents told him, “We think you’re lying. You need to implicate someone. ” He believed that they were trying to get him to name Roark as the Times’ source. He suggested that if they were looking for criminal conspirators they should focus on Bush and Hayden for allowing warrantless surveillance. Binney recalls an agent responding that such brazen spying didn’t happen in America. Looking over the rims of his owlish glasses, Binney replied, “Oh, really?”
Roark was sleeping when the agents arrived, and didn’t hear them until “it sounded as if they were going to pull the house down, they were rattling it so badly.” They took computers and a copy of the same commercial pitch. Her son had been interested in collaborating on the venture, and he, too, became a potential target. “They believed everybody was conspiring,” Roark says. “For years, I couldn’t talk to my own son without worrying that they’d say I was trying to influence his testimony.” Although she has been fighting cancer, she has spoken with him only sparingly since the raid.

The agents seemed to think that the commercial pitch contained classified information. Roark was shaken: she and the others thought they had edited it scrupulously to insure that it did not. Agents also informed her that a few scattered papers in her old office files were classified. After the raid, she called her lawyer and asked, “If there’s a disagreement on classification, does intent mean anything?” The question goes to the heart of the Drake case.

Roark, who always considered herself “a law-and-order person,” said of the raid, “This changed my faith.” Eventually, the prosecution offered her a plea bargain, under which she would plead guilty to perjury, for ostensibly lying to the F.B.I. about press leaks. The prosecutors also wanted her to testify against Drake. Roark refused. “I’m not going to plead guilty to deliberately doing anything wrong,” she told them. “And I can’t testify against Tom because I don’t know that he did anything wrong. Whatever Tom revealed, I am sure that he did not think it was classified.” She says, “I didn’t think the system was perfect, but I thought they’d play fair with me. They didn’t. I felt it was retribution.”

Wiebe, the retired analyst, was the most surprised by the raid—he had not yet been contacted in connection with the investigation. He recalls that agents locked his two Pembroke Welsh corgis in a bathroom and commanded his daughter and his mother-in-law, who was in her bathrobe, to stay on a couch while they searched his house. He says, “I feel I’m living in the very country I worked for years to defeat: the Soviet Union. We’re turning into a police state.” Like Roark, he says of the raid, “It was retribution for our filing the Inspector General complaint.”

Under the law, such complaints are confidential, and employees who file them are supposed to be protected from retaliation. It’s unclear if the Trailblazer complaint tipped off authorities, but all four people who signed it became targets. Jesselyn Radack, of the Government Accountability Project, a whistle-blower advocacy group that has provided legal support to Drake, says of his case, “It’s the most severe form of whistle-blower retaliation I have ever seen.”
few days after the raid, Drake met Binney and Wiebe for lunch, at a tavern in Glenelg, Maryland. “I had a pretty good idea I was next,” Drake says. But it wasn’t until the morning of November 28, 2007, that he saw armed agents streaming across his lawn. Though Drake was informed of his right to remain silent, he viewed the raid as a fresh opportunity to blow the whistle. He spent the day at his kitchen table, without a lawyer, talking. He brought up Trailblazer, but found that the investigators weren’t interested in the details of a defunct computer system, or in cost overruns, or in the constitutional conflicts posed by warrantless surveillance. Their focus was on the Times leak. He assured them that he wasn’t the source, but he confirmed his contact with the Sun, insisting that he had not relayed any classified information. He also disclosed his computer password. The agents bagged documents, computers, and books, and removed eight or ten boxes of office files from his basement. “I felt incredibly violated,” he says.

For four months, Drake continued coöperating. He admitted that he had given Gorman information that he had cut and pasted from secret documents, but stressed that he had not included anything classified. He acknowledged sending Gorman hundreds of e-mails. Then, in April, 2008, the F.B.I. told him that someone important wanted to meet with him, at a secure building in Calverton, Maryland. Drake agreed to the appointment. Soon after he showed up, he says, Steven Tyrrell, the prosecutor, walked in and told him, “You’re screwed, Mr. Drake. We have enough evidence to put you away for most of the rest of your natural life.”

Prosecutors informed Drake that they had found classified documents in the boxes in his basement—the indictment cites three—and discovered two more in his e-mail archive. They also accused him of shredding other documents, and of deleting e-mails in the months before he was raided, in an attempt to obstruct justice. Further, they said that he had lied when he told federal agents that he hadn’t given Gorman classified information.

“They had made me into an enemy of the state just by saying I was,” Drake says. The boxes in his basement contained copies of some of the less sensitive material that he had procured for the Inspector General’s Trailblazer investigation. The Inspector General’s Web site directs complainants to keep copies. Drake says that if the boxes did, in fact, contain classified documents he didn’t realize it. (The indictment emphasizes that he “willfully” retained documents.) The two documents that the government says it extracted from his e-mail archive were even less sensitive, Drake says. Both pertained to a successor to Trailblazer, code-named Turbulence. One document listed a schedule of meetings about Turbulence. It was marked “unclassified/for official use only” and posted on the N.S.A.’s internal Web site. The government has since argued that the schedule should have been classified, and that Drake should have known this. The other document, which touted the success of Turbulence, was officially declassified in July, 2010, three months after Drake was indicted. “After charging him with having this ostensibly serious classified document, the government waved a wand and decided it wasn’t so classified after all,” Radack says.

Clearly, the intelligence community hopes that the Drake case will send a message about the gravity of exposing government secrets. But Drake’s lawyer, a federal public defender named James Wyda, argued in court last spring that “there have never been two documents so benign that are the subject of this kind of prosecution against a client whose motives are as salutary as Tom’s.”

Drake insists, too, that the only computer files he destroyed were routine trash: “I held then, and I hold now, I had nothing to destroy.” Drake, who left the N.S.A. in 2008, and now works at an Apple Store outside Washington, asks, “Why didn’t I erase everything on my computer, then? I know how to do it. They found what they found.”
ot everyone familiar with Drake’s case is moved by his plight. A former federal official knowledgeable about the case says, “To his credit, he tried to raise these issues, and, to an extent, they were dealt with. But who died and left him in charge?”

In May, 2009, Tyrrell proposed a plea bargain: if Drake pleaded guilty to one count of conspiring to violate the Espionage Act and agreed to coöperate against the others, he would get a maximum of five years in prison. “They wanted me to reveal a conspiracy that didn’t exist,” Drake says. “It was all about the Times, but I had no knowledge of the leak.” Drake says that he told prosecutors, “I refuse to plea-bargain with the truth.”

That June, Drake learned that Tyrrell was leaving the government. Tyrrell was a Republican, and Drake was hopeful that a prosecutor appointed by the Obama Administration would have a different approach. But Drake was dismayed to learn that Tyrrell’s replacement, William Welch, had just been transferred from the top spot in the Justice Department’s public-integrity section, after an overzealous prosecution of Ted Stevens, the Alaska senator. A judge had thrown out Stevens’s conviction, and, at one point, had held Welch in contempt of court. (Welch declined to comment.)

In April, 2010, Welch indicted Drake, shattering his hope for a reprieve from the Obama Administration. But the prosecution’s case had shrunk dramatically from the grand conspiracy initially laid out by Tyrrell. (Welch accidentally sent the defense team an early draft of the indictment, revealing how the case had changed.) Drake was no longer charged with leaking classified documents, or with being part of a conspiracy. He is still charged with violating the Espionage Act, but now merely because of unauthorized “willful retention” of the five documents. Drake says that when he learned that, even with the reduced charges, he still faced up to thirty-five years in prison, he “was completely aghast.”

Morton Halperin, of the Open Society Institute, says that the reduced charges make the prosecution even more outlandish: “If Drake is convicted, it means the Espionage Law is an Official Secrets Act.” Because reporters often retain unauthorized defense documents, Drake’s conviction would establish a legal precedent making it possible to prosecute journalists as spies. “It poses a grave threat to the mechanism by which we learn most of what the government does,” Halperin says.

The Espionage Act has rarely been used to prosecute leakers and whistle-blowers. Drake’s case is only the fourth in which the act has been used to indict someone for mishandling classified material. “It was meant to deal with classic espionage, not publication,” Stephen Vladeck, a law professor at American University who is an expert on the statute, says.

The first attempt to apply the law to leakers was the aborted prosecution, in 1973, of Daniel Ellsberg, a researcher at the RAND Corporation who was charged with disclosing the Pentagon Papers—a damning secret history of the Vietnam War. But the case was dropped, owing, in large part, to prosecutorial misconduct. The second such effort was the case of Samuel L. Morison, a naval intelligence officer who, in 1985, was convicted for providing U.S. photographs of a Soviet ship to Jane’s Defence Weekly. Morison was later pardoned by Bill Clinton. The third case was the prosecution, in 2005, of a Defense Department official, Lawrence Franklin, and two lobbyists for the American-Israel Public Affairs Committee. Franklin pleaded guilty to a lesser charge, and the case against the lobbyists collapsed after the presiding judge insisted that prosecutors establish criminal intent. Unable to prove this, the Justice Department abandoned the case, amid criticism that the government had overreached.

Drake’s case also raises questions about double standards. In recent years, several top officials accused of similar misdeeds have not faced such serious charges. John Deutch, the former C.I.A. director, and Alberto Gonzales, the former Attorney General, both faced much less stringent punishment after taking classified documents home without authorization. In 2003, Sandy Berger, Clinton’s national-security adviser, smuggled classified documents out of a federal building, reportedly by hiding them in his pants. It was treated as a misdemeanor. His defense lawyer was Lanny Breuer—the official overseeing the prosecution of Drake.

Jack Goldsmith, a Harvard law professor who served in the Bush Justice Department, laments the lack of consistency in leak prosecutions. He notes that no investigations have been launched into the sourcing of Bob Woodward’s four most recent books, even though “they are filled with classified information that he could only have received from the top of the government.” Gabriel Schoenfeld, of the Hudson Institute, says, “The selectivity of the prosecutions here is nightmarish. It’s a broken system.”
Mark Feldstein, a professor of media and public affairs at George Washington University, warns that, if whistle-blowers and other dissenters are singled out for prosecution, “this has gigantic repercussions. You choke off the information that the public needs to judge policy.”

Few people are more disturbed about Drake’s prosecution than the others who spoke out against the N.S.A. surveillance program. In 2008, Thomas Tamm, a Justice Department lawyer, revealed that he was one of the people who leaked to the Times. He says of Obama, “It’s so disappointing from someone who was a constitutional-law professor, and who made all those campaign promises.” The Justice Department recently confirmed that it won’t pursue charges against Tamm. Speaking before Congress, Attorney General Holder explained that “there is a balancing that has to be done . . . between what our national-security interests are and what might be gained by prosecuting a particular individual.” The decision provoked strong criticism from Republicans, underscoring the political pressures that the Justice Department faces when it backs off such prosecutions. Still, Tamm questions why the Drake case is proceeding, given that Drake never revealed anything as sensitive as what appeared in the Times. “The program he talked to the Baltimore Sun about was a failure and wasted billions of dollars,” Tamm says. “It’s embarrassing to the N.S.A., but it’s not giving aid and comfort to the enemy.”

Mark Klein, the former A.T. & T. employee who exposed the telecom-company wiretaps, is also dismayed by the Drake case. “I think it’s outrageous,” he says. “The Bush people have been let off. The telecom companies got immunity. The only people Obama has prosecuted are the whistle-blowers.” ♦

http://www.newyorker.com/reporting/2011/05/23/110523fa_fact_mayer?currentPage=all

The Oil Drill

Three Senate Democrats angry about the high price of gasoline propose to raise taxes on the firms that produce it. No, it does not make any sense to us, either. For Democrats, expensive gas is just the price of scoring a moral victory over Big Oil, and American consumers will be expected to pay any price and bear any burden that Harry Reid & Co. inflict upon them.

The “Close Big Oil Tax Loopholes Act” is a minotaur’s labyrinth of economic illiteracy, with Democratic senators Robert Menendez (N.J.), Sherrod Brown (Ohio), and Claire McCaskill (Mo.) lurking at the center of it. This A-team of financial sophisticates has taken a hard look at rising gasoline prices and concluded that the most reasonable course of action is to increase the cost of producing oil by “closing tax loopholes” for the five biggest oil companies. Why the five biggest? Why not four or six? Why not all oil companies? Because this is not a bill about tax reform, but a bill about Democrats’ bitterness and impotency in the face of unpleasant economic realities.

The first thing you should know about these oil-company loopholes is that the main items under discussion are not exactly oil-company loopholes. In 2004, Congress enacted an ill-considered tax break for manufacturing companies — one of many harebrained efforts to improve the U.S. economy by empowering politicians to hand out favors to their friends — and the definition of manufacturer was written in such a way as to cover just about any firm with investments in physical capital: Starbucks qualifies for manufacturers’ benefits under the relevant section of the law, known as Section 199. If you hire a guy to build a diving board for your home swimming pool, he’s as much a manufacturer as General Motors.

Which is to say, it is a stupid law, but it is not a law that grants special privileges to oil companies. Congress would be wise to repeal Section 199 in its entirety. In truth, our corporate tax code is a Hieronymus Bosch nightmare of political favoritism, market distortion, and rent-seeking representing the worst aspects of the unsavory nexus between Big Business and Big Government. For that matter, so is the individual tax code, and both should be reformed in roughly the same way: by eliminating exemptions, deductions, and hamfisted attempts at imposing economic policy through the tax regime. Such an approach to reform would, intelligently applied, enable us to reduce tax rates without reducing tax revenue, a very happy result indeed for a great many taxpayers.

Don’t count on that happening. The Democrats would rather use the tax code as an enemies list, and they’re already fighting about what to do with the money they foresee expropriating from oil producers and, indirectly, from gasoline consumers. Some want to use the funds to pretend to reduce the deficit. Sen. Max Baucus (D., Mont.), getting in touch with his inner Barack Obama, has his eyes on the money, too, with big plans to use it to subsidize politically favored automobile manufacturers and enterprises engaged in the alternative-fuels business — as though one ethanol boondoggle and one GM bailout were not enough of a national embarrassment.

Consumer gasoline prices are highly responsive to oil producers’ costs. In a meaningful sense, oil companies are not so much taxpayers as tax-collectors. Singling oil companies out for tax-code punishment may give Democrats a political tingle, but it’s drivers and consumers (How do you think your groceries get to the store?) who will pay the freight.

Along with Section 199, there are other aspects of the corporate tax code that cry out for revision. Rules covering operating expenses and investment costs need to be made consistent. Above all, the treatment of foreign income needs to be updated: The United States, alone among the developed world, makes a tax claim on income earned beyond its legal jurisdiction, placing American companies at a great disadvantage — and leaving trillions of dollars of potentially productive investment capital stranded offshore. Investment analysts took note this week of Microsoft’s purchase of the Internet-telephony firm Skype for $8.5 billion. Microsoft, like many U.S. firms, has a lot of international earnings that it does not wish to pay a 35 percent penalty on for the privilege of returning them to the United States, and it was from these exiled funds that it purchased Skype, which is incorporated not in the United States but in Luxembourg. Being incorporated in the United States would have cost Skype billions of dollars on the deal, a fact not lost on venture capitalists and start-up entrepreneurs — the people who create high-paying jobs, along with goods and services in demand in the real economy.

That’s just one example of how bad tax law is costing the United States jobs, growth, investment — and tax revenue, too. We should simply simplify — a fact that ought to be obvious enough even for these simple senators.

http://www.nationalreview.com/articles/267021/oil-drill-editors

And I've already detailed issues I've dealt with in the past. One example I used here are the standards of banter used in the kitchen v. the standards of banter in a civil service gig. If utterings in the former were detailed in the latter all sorts of consternation would ensue. You can imagine no future employer who might take issue with your online habits? Plenty of your posts would cause a lot of raised eyebrows in some quarters. Is your email better sanitized than your online life? Plenty of folks already contending with HR opprobrium due to their posting habits on Facebook, do we really want a net of undefined size and duration to be cast even further? You can't imagine that resource ever being abused or standards changing to the point that something commonplace in the past is taboo today?

The Failure of American Schools

WHO BETTER TO LEAD AN EDUCATIONAL REVOLUTION THAN JOEL KLEIN, THE PROSECUTOR WHO TOOK ON THE SOFTWARE GIANT MICROSOFT? BUT IN HIS EIGHT YEARS AS CHANCELLOR OF NEW YORK CITY’S SCHOOL SYSTEM, THE NATION’S LARGEST, KLEIN LEARNED A FEW PAINFUL LESSONS OF HIS OWN—ABOUT FECKLESS POLITICIANS, RECALCITRANT UNIONS, MEDIOCRE TEACHERS, AND OTHER ENDURING OBSTACLES TO SCHOOL REFORM.

By Joel Klein

Above: Joel Klein in Brooklyn on the first day of school, two months before he resigned as chancellor
IMAGE CREDIT: RAMIN TALAIE/CORBIS

THREE YEARS AGO, in a New York Times article detailing her bid to become head of the American Federation of Teachers union, Randi Weingarten boasted that despite my calls for “radical reform” to New York City’s school system, Mayor Michael Bloomberg and I had achieved only “incremental” change. It seemed like a strange thing to crow about, but she did have something of a point. New York over the past nine years has experienced what Robert Schwartz, the academic dean of Harvard’s education school, has described as “the most dramatic and thoughtful set of large-scale reforms going on anywhere in the country,” resulting in gains such as a nearly 20-point jump in graduation rates. But the city’s school system is still not remotely where it needs to be.

That story holds more than true for the country at large. Nearly three decades after A Nation at Risk, the groundbreaking report by the National Commission on Excellence in Education, warned of “a rising tide of mediocrity that threatens our very future as a Nation and a people,” the gains we have made in improving our schools are negligible—even though we have doubled our spending (in inflation-adjusted dollars) on K–12 public education. On America’s latest exams (the National Assessment of Educational Progress), one-third or fewer of eighth-grade students were proficient in math, science, or reading. Our high-school graduation rate continues to hover just shy of 70 percent, according to a 2010 report by the Editorial Projects in Education Research Center, and many of those students who do graduate aren’t prepared for college. ACT, the respected national organization that administers college-admissions tests, recently found that 76 percent of our high-school graduates “were not adequately prepared academically for first-year college courses.”



 

VIDEO: Joel Klein explains the twisted politics of New York education in a conversation with Atlantic editor James Bennet
While America’s students are stuck in a ditch, the rest of the world is moving ahead. The World Economic Forum ranks us 48th in math and science education. On international math tests, the United States is near the bottom of industrialized countries (the 34 members of the Organization for Economic Cooperation and Development), and we’re in the middle in science and reading. Similarly, although we used to have one of the top percentages of high-school and college graduates among the OECD countries, we’re now in the basement for high-school and the middle for college graduates. And these figures don’t take into account the leaps in educational attainment in China, Singapore, and many developing countries.

During the first three-quarters of the 20th century, America developed an enormously successful middle class, first by making high school universal, and then, after the Second World War, by making college much more available, through the GI Bill and other scholarship programs. As a result, our educational attainment kept pace with our strong technological advancement. But that’s changed markedly since 1980, and now our technological progress is advancing more rapidly than our educational attainment. From 1960 to 1980, our supply of college graduates increased at almost 4 percent a year; since then, the increase has been about half as fast. The net effect is that we’re rapidly moving toward two Americas—a wealthy elite, and an increasingly large underclass that lacks the skills to succeed.

This division tears at the very fabric of our society. Nevertheless, there’s little national urgency to fix its underlying causes. Unlike a bad economy, poor educational achievement creeps up on us. Right now, if you were running for office, would you be more concerned with unemployment or education? Also, unlike terrorism, an educational crisis has a different impact on the powerful than it does on most of society. Their children, who are in private schools or elite public schools, receive a decent education, so it’s hard to get them fully engaged in the broader national debate. Plus, unlike in health care, for example, where we perceive the quality of care to be good and worry instead about controlling costs and covering the uninsured, in education, despite massive increases in expenditure, we don’t see improved results. That leads too many people to suspect that poverty is destiny, that schools can make only a small difference, and that therefore we’re unable to fix this problem, regardless of its seriousness. So why try?

If the forces behind reform seem scattered and weak, those defending the status quo—the unions, the politicians, the bureaucrats, and the vendors—are well organized and well financed. Having spent eight years trying to ignite a revolution in New York City’s schools under Bloomberg’s leadership, I am convinced that without a major realignment of political forces, we won’t get the dramatic improvements our children need.

TO COMPREHEND THE depth of the problem, consider one episode that still shocks me. Starting in 2006, under federal law, the State of New York was required to test students in grades three through eight annually in math and English. The results of those tests would enable us, for the first time, to analyze year-to-year student progress and tie it to individual teacher performance—a metric known in the field as “teacher value-added.” In essence, you hold constant other factors—where the students start from the prior year, demographics, class size, teacher length of service, and so on—and, based on test results, seek to isolate the individual teacher’s contribution to a student’s progress. Some teachers, for example, move their class forward on average a quarter-year more than expected; others, a quarter-year less. Value-added isn’t a perfect metric, but it’s surely worth considering as part of an overall teacher evaluation.

After we developed data from this metric, we decided to factor them into the granting of tenure, an award that is made after three years and that provides virtual lifetime job security. Under state law at the time, we were free to use these data. But after the New York City teachers union, the United Federation of Teachers, objected, I proposed that the City use value-added numbers only for the top and bottom 20 percent of teachers: the top 20 percent would get positive credit; the bottom would lose credit. And even then, principals would take value-added data into account only as part of a much larger, comprehensive tenure review. Even with these limitations, the UFT said “No way,” and headed to Albany to set up a legislative roadblock.

Seemingly overnight, a budget amendment barring the use of test data in tenure decisions materialized in the heavily Democratic State Assembly. Joe Bruno, then the Republican majority leader in the State Senate, assured me that this amendment would not pass: he controlled the majority and would make sure that it remained united in opposition. Fast-forward a few weeks: the next call I got from Senator Bruno was to say, apologetically, that several of his Republican colleagues had caved to the teachers union, which had threatened reprisals in the next election if they didn’t get on board.

As a result, even when making a lifetime tenure commitment, under New York law you could not consider a teacher’s impact on student learning. That Kafkaesque outcome demonstrates precisely the way the system is run: for the adults. The school system doesn’t want to change, because it serves the needs of the adult stakeholders quite well, both politically and financially.

Let’s start with the politicians. From their point of view, the school system can be enormously helpful, providing patronage hires, school-placement opportunities for connected constituents, the means to get favored community and business programs adopted and funded, and politically advantageous ties to schools and parents in their communities.

During my maiden testimony before the State Assembly, I said that we would end patronage hires, which were notorious under the old system of 32 school districts, run by 32 school boards and 32 superintendents (a 2002 state bill granting Bloomberg mayoral control of the city’s schools abolished the 32 boards). At my mention of patronage, the legislators, like Captain Renault in Casablanca, purported to be “shocked.” Nevertheless, after the hearing, when I went to thank committee members, one took me aside and said: “Listen, they’re trying to get rid of a principal in my district who runs a Democratic club for us. If you protect him, you’ll never have a problem with me.” This kind of encounter was not rare.

Similarly, I faced repeated requests for “constituent services,” meaning good school placements for wired constituents. After we reorganized the system and minimized the power of the 32 local superintendents—the go-to people for politicians under the past regime—a local official called me and asked, “Whom do I call for constituent services after your reorg?” I replied, “What’s that?” Impatiently, he asked, “How do I get a kid into a school when I need to?” I jokingly answered, “Oh, we must have left out that office in the reorg” (actually thinking, silly me, that the school system should use equitable rules for admission). He said, “Go fuck yourself,” and hung up. Despite our constant efforts, or because of them, this kind of political pressure—and payback if we weren’t responsive—happened at every level. Even more important, politicians can reap enormous political support from the unions representing school employees. The two national unions—the American Federation of Teachers and the National Education Association—together have some 4.7 million members, who pay hundreds of millions of dollars in national, state, and local dues, much of which is funneled to political causes. Teachers unions consistently rank among the top spenders on politics.

Moreover, millions of union members turn out when summoned, going door-to-door, staffing phone banks, attending rallies, and the like. Teachers are extremely effective messengers to parents, community groups, faith-based groups, and elected officials, and the unions know how to deploy them well. And just as happy unions can give a politician massive clout, unhappy unions—well, just ask Eva Moskowitz, a Democrat who headed the City Council Education Committee when I became chancellor in 2002. Brilliant, savvy, ambitious, often a pain in my neck, and atypically fearless for an elected official, she was widely expected to be elected Manhattan borough president in 2005. Until, that is, she held hearings on the New York City teachers-union contract—an extraordinary document, running on for hundreds of pages, governing who can teach what and when, who can be assigned to hall-monitor or lunchroom duty and who can’t, who has to be given time off to do union work during the school day, and so on. Truth is, the contract defied parody. So when Moskowitz exposed its ridiculousness, the UFT, then headed by Randi Weingarten, made sure that Moskowitz’s run for borough president came up short. After that, other elected officials would say to me, “I agree with you, but I ain’t gonna get Eva’d.”

In short, politicians—especially Democratic politicians—generally do what the unions want. And the unions, in turn, are very clear about what that is. They want, first, happy members, so that those who run the unions get reelected; and, second, more members, so their power, money, and influence grow. As Albert Shanker, the late, iconic head of the UFT, once pointedly put it, “When schoolchildren start paying union dues, that’s when I’ll start representing the interests of schoolchildren.” And what do the members want? Employees understandably want lifetime job security (tenure), better pay regardless of performance (seniority pay), less work (short days, long holidays, lots of sick days), and the opportunity to retire early (at, say, 55) with a good lifetime pension and full health benefits; for their part, the retirees want to make sure their benefits keep coming and grow through cost-of-living increases. The result: whether you work hard or don’t, get good results with kids or don’t, teach in a shortage area like math or special education or don’t, or in a hard-to-staff school in a poor community or not, you get paid the same, unless you’ve been around for another year, in which case you get more. Not bad for the adults.

But it’s just disastrous for the kids in our schools. While out-of-school environment certainly affects student achievement, President Obama was on to something in 2008 when he said: “The single most important factor in determining [student] achievement is not the color of [students’] skin or where they come from. It’s not who their parents are or how much money they have. It’s who their teacher is.” Yet, rather than create a system that attracts and rewards excellent teachers—and that imposes consequences for ineffective or lazy ones—we treat all teachers as if they were identical widgets and their performance didn’t matter.

In fact, notwithstanding union rhetoric that “tenure is merely due process,” firing a public-school teacher for non-performance is virtually impossible. In New York City, which has some 55,000 tenured teachers, we were able to fire only half a dozen or so for incompetence in a given year, even though we devoted significant resources to this effort.

The extent of this “no one gets fired” mentality is difficult to overstate—or even adequately describe. Steven Brill wrote an eye-opening piece in The New Yorker about the “rubber rooms” in New York City, where teachers were kept, while doing no work, pending resolution of the charges against them—mostly for malfeasance, like physical abuse or embezzlement, but also for incompetence. The teachers got paid regardless. (To add insult to injury, these cases ultimately were heard by an arbitrator whom the union had to first approve.) Before we stopped this charade—unfortunately by returning many of these teachers to the classroom, as the arbitrators likely would have required—it used to cost the City about $35 million a year.

In addition, more than 1,000 teachers get full pay while performing substitute-teacher and administrative duties because no principal wants to hire them full-time. This practice costs more than $100 million annually.

Perhaps the most shocking example of the City’s having to pay for teachers who don’t work involves several teachers accused of sexual misconduct—including at least one who was found guilty—whom the union-approved arbitrators refuse to terminate. Although the City is required to put them back in the classroom, it understandably refuses to do so. And the union has never sued the City to have these teachers reinstated, even though it knows it could readily win. It has also never helped figure out how to get these deadbeats off the payroll, where they may remain for decades at full pay, followed by a lifetime pension. No one—and the union means no one—gets fired.

Next, consider the consequences of the ubiquitous practice of paying the same for math and physical-education teachers. Given the other job opportunities for talented mathematicians—but not for phys-ed teachers—the same salary will attract many more of the latter than the former. It’s simple supply and demand. But when you’re short of qualified math teachers—as virtually every major urban school district is—poor kids with the greatest needs invariably get cheated, because most teachers prefer to teach highly motivated kids who live in safe communities, and whose parents will contribute private money to the school. The result: too few effective math and science teachers in high-poverty schools.

Finally, coming on top of these other senseless policies is the remarkable way that benefits and seniority drive overall teacher compensation. It’s possible for a teacher in New York City to retire at 55 and draw down an annual pension of more than $60,000, plus lifetime health benefits for herself and her family. The pension is not subject to New York State or local taxes and goes up with cost-of-living increases. The huge value of this lifetime stream of benefits is rarely mentioned when we talk about teachers’ compensation, but the teachers are well aware of it and act rationally in response to it. What we end up with is both a form of lock-in for employees and an enormous long-term financial exposure for the taxpayers.

The impact of the lock-in shapes the entire compensation system, because the “big” money comes only after a certain number of years—in New York City, for example, many teachers get their full pension after working 25 years, and a far smaller pension if they work for only 24 years. As a result of backloaded policies like this, after 10 years fewer than 1 percent of teachers leave the system, and after 15 years only about 0.1 percent leave. Many have candidly told me they are burned out, but they can’t afford to leave until their pension fully vests. So they go through the motions until they can retire with the total package.

Aggravating the perverse incentive of the benefit lock-in is the nature of almost all pay increases in public education, which are either automatic if you stay another year or so, or take 30 college credits; or across-the-board percentage raises—for example, 10 percent over three years, meaning that every veteran teacher making $80,000 gets an $8,000 increase, while every beginning teacher making $40,000 gets a $4,000 increase.

None of these pay increases makes sense. Why pay someone more for simply working another year or for taking a few courses? Starting last year, Mayor Bloomberg refused to give teachers in New York a raise, because he was facing budget cuts. But the overall pay for teachers still went up nearly 3.5 percent automatically, simply for longevity and college credits. (According to a Department of Education internal analysis, the average NYC teacher works fewer than seven hours a day for 185 days and costs the city $110,000—$71,000 in salary, $23,000 in pensions, and $16,000 in health and other benefits.) And why give all teachers making $80,000, or more, a 10 percent raise? They’re not going to leave, since they’re close to vesting their lifetime pensions. By contrast, increasing starting salaries by $8,000 (rather than $4,000) would help attract and retain better new teachers. But because of seniority, we can’t do it that way.

Now consider the financial burden that comes with providing lifetime benefits. Given the time between first putting aside the money to fund such a “long-tail exposure” and having to begin paying it, the amount “reserved” by the employer necessarily depends on a host of imprecise assumptions—about the rate of return that the money invested in the pension fund will earn, about how long employees will live, and even about how much overtime employees will work during their last few years, which is normally included in calculations of the amount of the pension. Each dollar set aside this year to cover the ultimate pension exposure must be taken from what would otherwise be current operating dollars.

Consequently, elected officials have had every incentive to make extraordinarily optimistic assumptions about the pension plan—or to simply underfund it—so they can put as little as possible into the reserve. Unfortunately, but predictably, that’s exactly what has happened: most states “assumed” they would get an average 8 percent return on their pension reserves, when in fact they were getting significantly less. Over the past 10 years, for example, New York City’s pension funds earned an average of just 2.5 percent. Now virtually every pension plan in America that covers teachers has huge unfunded liabilities. A recent study by the Manhattan Institute estimated the total current shortfall at close to $1 trillion. There’s only one way to pay for that: take the money from current and future operating budgets, robbing today’s children to pay tomorrow’s pensions. In NYC, for example, the portion of the overall budget set aside for education pensions went from $455 million in 2002 to $2.6 billion in 2011, most of it for teachers. Not surprisingly, retirees remain politically vigilant, and vote at much higher levels than active teachers in union elections (50 percent versus 24 percent in New York’s last UFT election).

DURING MY TENURE, I fought to break this institutional stranglehold of defenders of the status quo. I did so because I believed that our kids are not getting the education they deserve, that we have clear examples showing dramatically better results, and that we won’t achieve those results if we just keep tinkering. Since 2007, my colleague Michelle Rhee, in Washington, D.C., has been making the same noises. The response, often from friends as well as opponents, was that we were unrealistic: complex systems don’t change easily, impatience is immature, and directly challenging the educational establishment is not a winning strategy. “You need to be more collaborative and less controversial,” we were repeatedly admonished.

That’s bad advice. Collaboration is the elixir of the status-quo crowd. Consider one of the most cherished mantras in public education today—“We’ll never fix education until we fix poverty.” This lets the school system off the hook: “We can’t do too much with these poor kids, so don’t blame us (but give us more money).” Sure, money, a stable family, and strong values typically make educating a child easier. But we also now know that, keeping those things constant, we can get dramatically different outcomes with the same kid, based on his or her education. Texas and California, for example, have very similar demographics. Nevertheless, even though Texas spends slightly less per pupil than does California, it outperforms California on all four national tests, across demographic groups. The gap is around a year’s worth of learning. That’s big. And the gaps are even bigger when we compare similar demographic groups in large urban districts. Low-income black students in Boston or New York, for example, are several years ahead of those in Detroit or Los Angeles on the national exams.

At the individual school level, the differences can be breathtaking. One charter school in New York City, Harlem Success Academy 1, has students who are demographically almost identical to those attending nearby community and charter schools, yet it gets entirely different results. Harlem Success has 88 percent of its students proficient in reading and 95 percent in math; six other nearby schools have an average of 31 percent proficient in reading and 39 percent in math. And according to the most-recent scores on New York State fourth-grade science tests, Success had more than 90 percent of its students at the highest (advanced) level, while the city had only 43 percent at advanced, and Success’s black students outperformed white students at more than 700 schools across the state. In fact, Success now performs at the same level as the gifted-and-talented schools in New York City—all of which have demanding admissions requirements, while Success randomly selects its students, mostly poor and minority, by lottery.

These school-level differences ultimately reflect the effectiveness of a child’s particular teachers. Eric Hanushek, an economist at Stanford, has shown that, while some teachers get a year and a half’s worth of learning into a year, others get in only half a year’s worth of learning with essentially the same students. Imagine the cumulative impact of the best teachers over 13 years of elementary and secondary education. Indeed, even if California raised its performance to Texas’s level, Detroit to Boston’s, the neighborhood schools in Harlem to Harlem Success’s—that is to say, if our least effective teachers performed at the level of our most effective—the impact would be seismic.

Critics are strangely eager to discredit these differences. Writing last year in The New York Review of Books, the educational historian Diane Ravitch argued that schools like Harlem Success aren’t the answer, because, as a group, charter schools in the U.S. don’t outperform public schools. To make her case, Ravitch relied on a study by Margaret Raymond at Stanford; but curiously, Ravitch failed to mention that Raymond applied precisely the same analysis to New York City (where the school district was atypically supportive of charters), and found that charter schools there were getting significantly better reading and math results with their students than were comparable traditional public schools. And even Ravitch had to acknowledge that some charter schools are getting “amazing results.” If that’s the case, then instead of relying on the kind of group-think that pits charter schools against non-charter schools, shouldn’t we be asking why some schools get much better results, and focus on how we can replicate them?

SEVERAL RECENT DEVELOPMENTS offer some hope. In the past year, 42 states, as well as the District of Columbia and the U.S. Virgin Islands, have agreed to adopt a new set of highly demanding core standards in English and math to replace the current state-by-state standards. The Obama administration has also granted two consortia of states $330 million to design tests aligned with these new standards. As a result, we’ll have a more realistic sense of how our kids are performing, we’ll be able to compare kids in one jurisdiction with those in another, and, most important, we’ll know that kids who graduate from high school will actually be prepared for college.

But we still won’t get to where we need to go unless we’re prepared to do three difficult, but essential, things: rebuild our entire K–12 system on a platform of accountability; attract more top-flight recruits into teaching; and use technology very differently to improve instruction.

Surprisingly enough, the best case for greater accountability was made by Albert Shanker, four years before he died, in his capacity as the leader of the American Federation of Teachers. In a truly remarkable speech to the 1993 Pew Forum on Education Reform, which I’ve never seen quoted by any teachers-union official since, Shanker said:

 The key is that unless there is accountability, we will never get the right system. As long as there are no consequences if kids or adults don’t perform, as long as the discussion is not about education and student outcomes, then we’re playing a game as to who has the power.
Two points are critical here. First, Shanker makes clear that accountability needs to be measured by “student outcomes,” which he goes on to explain must be based on progress on standardized tests. And second, he calls out the fundamental truth about the system: because it’s not anchored to outcomes, it ends up being about “who has the power,” which can then be used to serve other agendas—such as better pay, political support, or vendor contracts.

Accountability, in most industries or professions, usually takes two forms. First and foremost, markets impose accountability: if people don’t choose the goods or services you’re offering, you go out of business. Second, high-performing companies develop internal accountability requirements keyed to market-based demands.

Public education lacks both kinds of accountability. It is essentially a government-run monopoly. Whether a school does well or poorly, it will get the students it needs to stay in business, because most kids have no other choice. And that, in turn, creates no incentive for better performance, greater efficiency, or more innovation—all things as necessary in public education as they are in any other field.

A full-scale transition from a government-run monopoly to a competitive marketplace won’t happen quickly. But that is no reason not to begin introducing more competition. Many middle-class families have plenty of choice (even beyond private schools): they can move to another neighborhood, or are well-connected enough to navigate the system. Those families who are least powerful, however, usually get one choice: their neighborhood school. That has to change.

In the lower grades, we should make sure that every student has at least one alternative—and preferably several—to her neighborhood school. We implemented this strategy by opening more than 100 charter schools in high-poverty communities. Tellingly, almost 40,000 families chose these new schools, and another 40,000 are on waiting lists. The traditional schools, as well as their employees and the unions, are screaming bloody murder, something vividly depicted in The Lottery, a recent documentary that shows community agitators brought in by the union to oppose giving public-school space to the Harlem Success network. But this kind of push-back is actually a good sign: it means that the monopolists are beginning to feel the effects of competition.

At the middle- and high-school levels, where students are more mobile, we can also create community-based choice systems, or even citywide choice systems. In New York City, for example, high-school students now have citywide choice (with some geographic priority), and schools know they have to recruit—and compete for—students.

To support effective choice, moreover, we need to provide real funding equity: the money must be for the child, not the school. So if Juan goes to PS 11, which gets $20,000 as a result, then that same $20,000 must go to a KIPP charter school if Juan decides to go there. Similarly, capital funds, or space within a school building, must also follow the child—either to PS 11 or to KIPP—on equitable terms.

Unfortunately, the likelihood of rapidly expanding choices remains small. Witness, for example, those 40,000 families wait-listed for charter schools in New York City. By the time the City opens another 100 schools to meet that demand, at least another 40,000 families will likely be waiting. And now that the union and its allies have seen the smashing impact of the first 100 charter schools, they won’t make it any easier to open the next 100.

That’s why internal accountability along the lines that Shanker discussed is critical. School districts need a system to fairly evaluate the effect of schools and teachers on kids, which is the best proxy we have for assessing “consumer preference” in a largely monopolistic system. Shanker also had the right idea about how to measure outcomes: by looking at student progress on apples-to-apples metrics, rather than at whether students do well or poorly against an absolute, static index. On a four-point scale, for example, a teacher deserves credit for moving a kid from a 1 to a 2 and should lose credit for letting another kid fall from a 4 to a 3, even though a 3 is better than a 2 in an absolute sense. Some kids come to school way ahead of others, and giving the school or teacher credit for that makes no sense. But if schools or teachers have essentially the same kids, with the same challenges, and the same starting performance levels, it’s pretty easy to measure which are helping the kids make progress and which aren’t.

Finally, as Shanker emphasized, meaningful teacher accountability means major consequences for student outcomes. Those teachers and principals whose students do well should get substantial merit pay; those who don’t should be fired. Similarly, schools that do poorly should be replaced. Without real consequences tied to performance, the results won’t significantly change. Again, resistance to this kind of accountability is always fierce. In New York, we closed many large, overwhelmingly minority high schools that were posting abysmal graduation rates—some even below 40 percent—and replaced them with new, small high schools. Although research showed that the new schools were getting significantly better results, I wasn’t surprised when the teachers union sued us to block future closures—they want to protect their members. But I was shocked when the NAACP joined the suit. How could it defend schools that were consistently graduating fewer than half their African American children?

Despite the setbacks, we are seeing progress. In response to President Obama’s $4.3 billion Race to the Top Fund, which requires states to compete for big federal grants, and rewards accountability systems that measure whether teachers add value, several states—including Colorado, Florida, Louisiana, New Mexico, and Ohio—have enacted legislation moving in this direction. Under Michelle Rhee’s leadership, Washington, D.C., adopted the best of these systems with the agreement of its local and national teachers unions, including the union headed by Randi Weingarten. The District was authorized to award substantial merit pay (resulting in salaries of up to $130,000) and to fire teachers who were not performing well. Rhee fired more than 200 of them.

But although Weingarten’s union had agreed to the contract, it reportedly spent $1 million and mobilized huge numbers of volunteers to defeat Washington’s mayor, Adrian Fenty, when he was up for reelection two months later. That intervention surely sent a message to other reformers throughout the country: we unions talk reform, but firing incompetent teachers will never be a real part of that.

The second big thing we need to change is the people we attract into teaching. When McKinsey and Company compared educational performance around the world, it came to the seemingly obvious, yet often disputed, conclusion that “the quality of an education system cannot exceed the quality of its teachers”:

 The top-performing school systems [internationally] attract more able people into the teaching profession, leading to better student outcomes … The top-performing systems we studied recruit their teachers from the top third of each cohort [that graduates] from their school system … Conversely, lower-performing school systems rarely attract the right people into teaching. The New Commission on the Skills of the American Workforce observes that, “We are now recruiting our teachers from the bottom third of high-school students going to college.”
By recruiting teachers mostly from the middle and bottom of their college classes, as America has done for decades now, not only did we not get the talent we needed, but we also fostered a culture where excellence and merit don’t matter.

A rational compensation scheme is critical to fixing this core human-capital weakness: rather than just pay for longevity and lifetime benefits, we must reward excellence and enable the system to meet its needs. If, going forward, we eliminated all the automatic raises and promises of huge lifetime benefits, we’d have an enormous amount of money to devote to merit pay, hardship-assignment incentives, and recruiting in subjects where we have shortages. If we could front-load compensation, new teachers could get as much as $80,000 by year three or four. This would make a huge difference. If you have any doubt, just ask the talented, ambitious young teachers who come through Teach for America or comparable programs. Many leave well before they peak, even though they like the work, because their pay remains quite low in the early years—up to about $55,000—and they are unwilling to commit to staying around for 25 years to cash in on the back-loaded pay structure.

I once proposed a portion of this—simply eliminating the lifetime, defined-benefit pension, monetizing the savings, and then paying it to teachers in their early years—in a conversation with union officials. I was prepared to give each new teacher a choice between the current pay scale (with the existing pension) and this new pay proposal. Although no teacher would have been compelled to switch, the UFT rejected the idea as “anti-union.” But we have evidence to show that these monetary incentives can work. In Washington, D.C., Michelle Rhee negotiated a merit-based compensation system—where teachers could get paid much more in the early years. As a result, it appears, significant numbers of teachers from D.C.’s charter schools apply to teach in its traditional public schools. Only money can explain that.

Of course, another way to attract and retain very effective teachers would be to create more schools that work. In my experience, many of the best public-school teachers apply to high-functioning charter schools, even though they usually give up job security, and lifetime health care and pensions, while generally getting a similar or slightly higher salary (although often augmented by modest merit pay). They go because they want to be part of a successful school, where teachers are treated like professionals and not subjected to endless administrative and union micromanagement.

Last, to shake up the system, we must change how we use technology to deliver instruction. (This is what I’m now seeking to do at News Corporation.) The present resistance to innovation is breathtaking. Consider this story: When we replaced many large, failing high schools with more, much smaller schools, many of the new schools had only a handful of kids who wanted to take rigorous Advanced Placement courses, which can earn students college credit. Several good online programs teach the necessary course content. But in New York state, you cannot get high-school credit unless you’re taught by a live teacher (a requirement referred to as “seat time”), and these small schools didn’t have enough students to bring in an AP teacher. I approached our State Education Department in Albany, which had the authority to waive the seat-time requirement: if a kid could get college credit for passing an online AP course, surely she should be able to get high-school credit as well.

As soon as the UFT heard that we had requested a waiver from the state, it faxed us a letter saying, “The elimination of seat-time requirements needs to be negotiated,” making clear that if we tried to proceed, this would be war. You see, if we opened the door to online AP courses, maybe we’d end up needing fewer teachers, and that wouldn’t be good for union membership, dues, or power. I got nowhere.

But one of the best things we could do is hire fewer teachers and pay more to the ones we hire. And, as in any other field, technology can help get us there. If you have 5,000 math teachers, many of whom are underperforming, significantly improving overall quality is nearly impossible. But if you get the best math professors in the world—who are great teachers and who deeply understand math—and match them with great software developers, they can create sophisticated interactive programs that engage kids and empower teachers. Why not start with such a program and then let teachers supplement it differently, depending on the progress of each student?

That’s a whole lot easier than trying to teach the same math lesson to 30 kids, some of whom are getting it quickly and some of whom aren’t getting it at all. We now have multiple ways to teach the same lessons. As a result, we can tailor both the means and the pacing to each student. We can use digital games where kids progress based on solving increasingly difficult math problems, virtual classes that kids can take online, and tutors whom kids can work with online, as well as, of course, teachers working with large or small groups in person. The possibilities are enormous. We should be trying them all and constantly improving how we do the work. That’s exactly what New York City is doing in a pilot program called the School of One, which was designed to move from the classroom as the locus of instruction to the individual student as the focus of instruction.

More broadly, we need to foster a fundamental shift from a top-down, one-size-fits-all culture—mandated class-size reduction, after-school programs, and the like—to a culture that supports innovation. In New York City, we set out to change these preexisting dynamics by allowing educators and community groups—rather than the central bureaucracy—to design and run new schools to replace the failing ones. The result was a lot of innovation. For example, New York City is now piloting something called the Generation School, which uses staff time very differently and thus extends the school day and year significantly. Last year, the City also opened something called the New American Academy, where four teachers are collectively responsible for educating 60 kids, and they stay with those children from kindergarten through the fifth grade. The teachers are categorized as Master, Partner, Associate, and Apprentice, and they are paid very differently and get promoted from one level to the next based on performance as well as peer and supervisory review.

Change is possible. In New York City, it took a mayor willing to assume control over the system and risk significant political capital. It required time—Mayor Bloomberg and I had more than eight years together, while most urban superintendents serve for about three and a half years. It required taking risks, knowing that not every change will work out and that your critics will focus mercilessly on those that don’t. But most of all, it required building community and political support. Toward the end of my tenure, we were engaged in an enormous fight to lift the state-imposed cap on our number of charter schools—an initiative the teachers unions strongly opposed precisely because our expansion of charter schools had been so successful. In fact, six months earlier, a similar effort had gone down to defeat at the unions’ hands. But this time, the families with kids in charter schools and our allies in the community were prepared to help us fight. Philanthropic and business interests raised millions to support the mobilization effort, run ads, and hire lobbyists. We prevailed, and the cap was raised substantially.

Sadly, that kind of success is still exceptional. In the three decades since A Nation at Risk came out, many have echoed its cries of alarm, but few have heeded its calls for bold change. Indeed, in his 1993 Pew Forum speech, Al Shanker spoke in shockingly candid terms:

 We are at the point that the auto industry was at a few years ago. They could see they were losing market share every year and still not believe that it really had anything to do with the quality of the product I think we will get—and deserve—the end of public education through some sort of privatization scheme if we don’t behave differently. Unfortunately, very few people really believe that yet. They talk about it, and they don’t like it, but they’re not ready to change and stop doing the things that brought us to this point.
Time is running out. Without political leadership willing to take risks and build support for “radical reform,” and without a citizenry willing to insist on those reforms, our schools will continue to decline. And just as it was with Detroit, the global marketplace will be very unforgiving to a populace that doesn’t have the skills it demands. McKinsey estimates that the benefits of bringing our educational levels up to those of the highest-performing countries would have raised our gross domestic product by about $2 trillion in 2008. By the same token, every year we fail to close that gap is like living with the equivalent of a permanent national recession. Shocking as that may sound, the costs in human terms, to our nation and to the kind of people we aspire to become, will be even greater.

This article available online at:

http://www.theatlantic.com/magazine/archive/2011/06/the-failure-of-american-schools/8497/

Precisely my point: with a federally mandated storage regimen yesterday's harmless bit of fun becomes today's pattern of behavior. I regularly cull professional communications after 3 years just so I don't have to worry about sifting through tens of thousands of emails looking for what some lawyer might putatively consider germane as he instead tries to foist a lot of time wasting discovery in the hope a settlement becomes deemed easier than complying with his fishing expedition. And now the Feds want to archive all that stuff? For how long? Who has access? To what end? Looks to me like they are casting a huge net without answering fundamental questions. Hell, this act might save the USPS by increasing the use of first class mail, which would not be subject to these requirements. Yet.

Who Will Police the Criminologists?
The dangers of politicized social science

If you’ve ever wondered why police officers tend to be skeptical about social science, pick up volume 9, issue 4 of Criminology & Public Policy, a journal published by the American Society of Criminology. The issue is titled “Reducing Homeless-Related Crime,” and its focal point is a research paper by University of Pennsylvania professors Richard Berk and John MacDonald that evaluates the Safer City Initiative (SCI). SCI was implemented by the Los Angeles Police Department in 2006 to reduce crime, lawlessness, and disorder in the Skid Row neighborhood. Despite its limitations, Berk and MacDonald’s useful evaluation concludes that SCI had a significant impact on serious crime, and it adds to the literature illustrating the impact of Broken Windows policing. The remainder of the issue comprises essays that reflect on either the study’s methodology or its public policy implications. An essay that examines the former—University of Cincinnati professor John Eck’s “Policy Is in the Details”—is especially valuable, emphasizing the need for criminologists like Berk and MacDonald to “describe the policies they study.”

But Eck’s observation happens to underscore a fundamental weakness in the public policy essays that follow: for the most part, their authors ignore or seriously misrepresent the nature of Skid Row’s difficulties before SCI was implemented. Instead of seeking out data that accurately document conditions on the ground, they accept a piece of conventional wisdom, one that the title of the issue makes plain and that, over time, has evolved into an ideological position: that homelessness, rather than a culture of lawbreaking, was at the root of Skid Row’s woes.

That view is more pernicious than it may sound, since it has long contributed to criminology’s party line about Skid Row–like situations and Broken Windows policing. It dates back to the late 1980s, when seemingly everyone in New York City—the Metropolitan Transit Authority, the New York Times, politicians, advocacy groups—thought that the main problem in the city’s subways was homelessness. Conventional wisdom held that the solutions were homes, jobs, and welfare. Yet if one went into the subways and observed conditions there, as two of us (Kelling and Bratton) did, such assumptions became shaky: youths were blocking entrances and forcibly collecting fares from passengers, predators were stalking fare booths and breaking open fare boxes to steal money, and 250,000 people were riding without paying fares—all because of homelessness? Yes, a troubled population—homeless, mentally ill, or drug-addicted—was trying to use the subway as a surrogate shelter, often encouraged by irresponsible advocates, who ignored the risks that these vulnerable people would face there. Yet homelessness was a relatively small part of the subway’s real problem: lawlessness. Homeless individuals can still be seen in New York’s subways today, but gone is the culture of lawlessness that plagued the subway until 1990, when the transit police created a safer environment.

Skid Row’s crisis in the early 2000s was even more complex than the New York subway’s had been. Fires raged in the middle of streets at night; people urinated, defecated, and engaged in sex acts in open view; youths partied with drugs and alcohol; sexual predators roamed free; the neighborhood became a dumping ground for released prisoners and for sick people, probably homeless, whom ambulances left on the street, still in hospital garb and on gurneys. The area was such a lucrative place to deal drugs that gangs didn’t bother fighting over turf. Certainly, there were large numbers of homeless, in part because the city’s missions and service centers lay in the heart of Skid Row. But the neighborhood’s core problem wasn’t homelessness. Just as in New York, it was a culture of lawlessness that had been tolerated for decades (see “The Reclamation of Skid Row,” Autumn 2007). If any of these researchers had bothered to go into the streets, they would have seen that.

The authors of the public policy essays also misrepresent the nature of SCI, presenting a preconceived image of the LAPD’s approach rather than a description of what it actually did. Yale professors Michael Rowe and Maria O’Connell—observing that one of us, Chief William Bratton, brought to Skid Row the Broken Windows tactics that he developed in New York—say that those tactics “demonize persons” and are “applied to putatively ‘broken people’ who apparently . . . are not to be fixed but instead are cited for the crime of brokenness and removed from sight.” Likewise, Arizona State University professor Michael D. White characterizes SCI as “zero tolerance policing, which is perhaps the antithesis of peacekeeping.” He goes on to argue that “the adoption of zero tolerance strategies represents a step away from professional policing,” characterizes the LAPD’s approach as “ ‘homelessness-is-a-crime’ philosophy,” and deems it “poor craft.” Where are the descriptions of actual tactics used by the LAPD? Where are the primary data on SCI implementation upon which to base such conclusions?

White argues that SCI should have been built on problem solving and community policing. In fact, it was. Sponsored by the mayor’s office, with strong support from the city attorney, the initiative sought to include every relevant public and private agency, even groups often hostile to police approaches, such as the American Civil Liberties Union. (These groups continue to meet with one another.) The strongest support for SCI came from the area’s missions, not-for-profit organizations established to help the genuinely homeless. The goals of SCI included not just crime reduction but also developing support among social agencies, reducing citizen fear, getting agencies like the city’s health department to meet their responsibilities, involving the private sector (through Business Improvement Districts and the like), protecting the personal property of people living on the street, fostering street civility, and increasing shopping in neighborhood stores.

The journal’s examination of SCI exemplifies a politicized social science. It’s particularly discouraging that such a flawed approach would appear in a publication of the American Society of Criminology. Unfortunately, it represents at least the second generation of such misrepresentation. In response to earlier crime reductions in New York City, many scholars eagerly attempted to prove that the declines had little to do with police efforts. Then, as now, they interpreted data—reported crime, arrests, police stops—without bothering to do firsthand research. The consequences of confusing research and scholarship with hubris, polemics, and uncritical secondary-data analysis—in short, of politicized social science—are enormous: distrust between academia and policing, gross misrepresentations of policing, and, above all, widespread failure to understand what works and what doesn’t work in policing.

Charlie Beck is chief of the Los Angeles Police Department. William Bratton is former chief of the Los Angeles Police Department. George L. Kelling is an emeritus professor at the School of Criminal Justice at Rutgers University in Newark and a senior fellow at the Manhattan Institute.

http://www.city-journal.org/2011/21_2_snd-criminology.html

As someone who has already explained to you how postings of mine did indeed come back to haunt me I am less than reassured, particularly in view of bits of info like this:

http://www.cato-at-liberty.org/record-number-of-americans-targeted-by-national-security-letters

As the feds have already pooped all over citizen's live's enforcing foreign laws the citizens in question had no knowledge of, it does not take a lot of wild eyed extrapolation to conjure a circumstance where and ISP could be forced to hand over information it had been mandated to store that then goes on to be used by LEOs as evidence of some sort of malfeasance for which the target of the investigation was unaware. Conspiracy to import undersized lobsters, anyone?

Indeed, as someone who deals with his share of HR issues I've already had to contend with interesting discovery requests. What happens to civil litigation when there are decades worth of records stored somewhere only in need of a court order to sift through? You can't see that being ability being abused, either?

http://reason.com/archives/2011/05/10/environmentalists-were-for-fr
Reason Magazine


Environmentalists Were For Fracking Before They Were Against It

Shale gas is still the bridge fuel to a low-carbon energy future.

Ronald Bailey | May 10, 2011

The world’s projected natural gas supplies jumped 40 percent last year. How is such a thing possible? Until a decade ago, experts believed that it would be technically infeasible to exploit the potential resource base of natural gas locked in 48 shale basins in 32 countries around the world. Then horizontal drilling combined with hydraulic fracturing, also known as fracking, was perfected. The shale gas rush was on, and last year the U.S. Energy Information Administration (EIA) issued an analysis revising its estimates of available natural gas dramatically upward.

The ability to produce clean burning natural gas from shale could transform the global energy economy. Right now we burn about 7 trillion cubic feet (tcf) of natural gas to generate about 24 percent of the electricity used in the United States. The U.S. burns a total of 23 tcf annually to heat homes and to supply industrial processes as well produce electricity. Burning coal produces about 45 percent of U.S. electricity.

A rough calculation suggests that 100 percent of coal-powered electricity generation could be replaced by burning an additional 14 tcf of natural gas, boosting overall consumption to 37 tcf per year. The EIA estimates total U.S. natural gas reserves at 2,543 tcf. This suggests that the U.S. has enough natural gas to last about 70 years if it entirely replaced the current level of coal-powered electricity generation.

Similarly, it would be notionally possible to replace the entire current U.S. gasoline consumption with about 17 tcf of natural gas per year. So replacing coal and gasoline immediately would require burning 54 tcf annually, implying a nearly 50 year supply of natural gas.

What about the greenhouse gas implications? The EIA estimates that the U.S. emitted 5.2 billion tons of carbon dioxide in 2009 (the last year for which figures are available). Burning coal emitted 1.75 billion metric tons of carbon dioxide into the atmosphere. Similarly, burning petroleum in the transportation sector emitted 1.7 billion metric tons of CO2, of which about two-thirds came from consuming gasoline. By comparison, the natural gas burned to generate electricity emitted 373 million metric tons of CO2. A rough calculation suggests that replacing coal and gasoline with natural gas would reduce overall U.S. carbon dioxide emissions by about 25 percent.

Given its greenhouse gas benefits, environmental activists initially welcomed shale gas. For example, in August 2009 prominent liberals Timothy Wirth and John Podesta, writing on behalf of the Energy Future Coalition, hailed shale gas as “a bridge fuel to a 21st-century energy economy that relies on efficiency, renewable sources, and low-carbon fossil fuels such as natural gas.” The same year, environmentalist Robert Kennedy, Jr., head of the Waterkeeper Alliance, declared in the Financial Times, “In the short term, natural gas is an obvious bridge fuel to the ‘new’ energy economy.”

That was then, but this is now. Practically en masse, the herd of independent minds that constitutes the environmentalist community has now collectively decided that natural gas is a “bridge to nowhere.” Why? In his excellent overview, The Shale Gas Shock [download], published last week by the London-based Global Warming Policy Foundation, journalist Matt Ridley explains: “As it became apparent that shale gas was a competitive threat to renewable energy as well as to coal, the green movement has turned against shale.”

And indeed natural gas is cheaper than renewable sources of energy even if one includes the costs of carbon capture and sequestration. The EIA’s Annual Energy Outlook for 2011 calculates the levelized costs of electric power generation for various fuel sources. Levelized costs include all capital, operating and maintenance, fuel, and transmission costs for building plants now that would switch on by 2016.

In cost terms, natural gas is the clear winner. Electricity produced using natural gas in a combined cycle generating plant comes in at $66 per megawatt-hour. If one includes carbon capture and sequestration, basically burying carbon dioxide underground, the cost rises to $89 per megawatt-hour. In contrast conventional coal costs $95 per megawatt-hour rising to $136 using carbon capture and sequestration.

How does natural gas compare with various carbon-free and renewable energy sources? Nuclear clocks in at $104 per Mwh, offshore wind at $243 per Mwh, photovoltaic at $211 per Mwh, solar thermal at $312 per Mwh, geothermal at $102 per Mwh, and biomass at $113 per Mwh. The only renewable sources that are close to competitive with natural gas are onshore wind at $97 per Mwh and hydroelectric at $86 per Mwh. With regard to transportation, the price of compressed natural gas currently hovers around the equivalent of $2 per gallon of gasoline.

Keep in mind that the above is just a thought experiment. Junking coal-fired plants and dramatically expanding natural gas production as well as the infrastructure to burn it to generate electricity and dispense it as transport fuel would be costly. Increased demand for natural gas would also tend to boost its price.

Since renewables come off so badly in comparison with natural gas and offer energy independence as well, once-enthusiastic activists evidently began to search for other reasons for opposing it. Ridley cites five claims: fracking fluids contain dangerous chemicals that might contaminate groundwater; wells allow gas to escape into aquifers; well waste water is contaminated with salt and radioactive elements that pollute streams; it uses too much freshwater; and drilling damages landscapes.

First, the shale that contains natural gas lies below thousands of feet of impermeable rock so that the fracking process itself will not contaminate drinking water aquifers that are generally only a few hundred feet below the surface at most. A 2010 Pennsylvania Department of Environmental Protection report “concluded that no groundwater pollution or disruption of underground sources of drinking water have been attributed to hydraulic fracturing of deep gas formations.”

On the other hand, the drilling companies did their industry no favors by keeping their proprietary fracking fluid formulas secret. The cloak-and-dagger approach alarmed the sorts of folks who are easily alarmed. But as Ridley points out, the fracking fluids are actually 99.9 percent water and sand. The small amounts of added chemicals reduce friction, fight microbes, and prevent scaling. In any case, many states are now requiring companies to reveal their formulas. The U.S. Environmental Protection Agency is expected to issue a report on the safety of fracking in 2012. In the meantime, the Obama administration appointed a new panel last week to look into fracking and make recommendations in 90 days on how to improve on the safety of the technique. It is unlikely that whatever new regulations that emanate from these bureaucracies will derail the shale gas industry.

Just as for conventional wells, it is possible that natural gas can escape into aquifers if the wells are not properly sealed using steel and cement casings. A new study in the Proceedings of the National Academy of Sciences published today finds elevated levels of natural gas in groundwater wells within 3,000 feet of active gas well sites. The researchers conclude that the source is likely leaky casings.

However, the study more reassuringly “found no evidence for contamination of the shallow wells near active drilling sites from deep brines and/or fracturing fluids.” In any case, should their findings stand up to subsequent research, the problem is not fracking, but improperly sealed well-casings. It should be noted that the wells were not tested for methane before gas drilling began. It would be interesting to repeat the study looking at conventional gas wells.

But what about radioactive contamination of streams by well waste water? The Pennsylvania Department of Environmental Protection announced that after checking samples from waste water plants that had treated gas well water, it found that “all samples were at or below background levels of radioactivity; and all samples showed levels below the federal drinking water standard for Radium 226 and 228.”

With regard to using too much fresh water, Ridley points out that gas drilling in Pennsylvania uses about 60 million gallons per day, which compares to 1,550 million gallons used by public water systems. Ridley also notes that each well site takes up about six acres to extract gas beneath 1,000 acres which is largely left alone once a well begins producing. Ridley notes that “each wellhead capable of producing gas from up to 12 wells, or about 50 billion cubic feet over 25 years, the output of one drilling pad is equivalent to the average output of about 47 giant 2.5 megawatt wind turbines.” Speaking of intrusions into the landscape, that many turbines would typically take up 188 acres of land.

Finally, an April study in the journal Climatic Change by a team of researchers led by ecologist Robert Howarth from Cornell University suggested that the greenhouse gas emissions released by natural gas production are worse than coal when it comes to man-made global warming. Natural gas is methane, and methane, on a molecule per molecule basis, has a much greater ability to trap heat from the sun than does carbon dioxide. Howarth claims that methane leaking from natural gas wells contributes so much to global warming that the benefits of substituting it for coal are overwhelmed.

Critics have pointed to a number of problems with this study including the fact that it uses a global warming potential factor of 105 over 20 years compared to carbon dioxide. In contrast, the United Nations Intergovernmental Panel on Climate Change generally prefers using a factor of 25 over a 100-year period. In addition, Howarth bases his leakage data on long distance Russian gas pipelines and by assuming that “lost and unaccounted for gas” is not mostly an accounting measure. Lost and unaccounted for gas includes the gas burned to run the turbines to keep pipelines pressurized. It is early days, but my bet is that further research will find that Howarth’s claims are considerably exaggerated.

No industrial process is completely benign and all have environmental consequences. The relevant question is: Do the benefits outweigh the costs? Are people better off using the resource than they would otherwise be? If one is worried about man-made global warming, natural gas remains the affordable way to supply lower carbon energy to the world as technologists work to bring renewable energy costs down. Let's hope that environmentalists will recognize the current faults of wind and solar and fall in love with natural gas all over again.

Science Correspondent Ronald Bailey is author of Liberation Biology: The Scientific and Moral Case for the Biotech Revolution (Prometheus Books).

Most of us think of our online warblings as ethereal things with a short shelf life. Should you come under government scrutiny, words long since forgotten could be used as reason to launch a criminal investigation. To my mind, it's like if the post office opened, copied, and stored every piece of mail, with you finding out decades later that something long discarded is now being used to start criminal proceedings against you.

Journalism and Generality

Posted by Jason Kuznicki

The media makes it hard for ordinary people to be libertarians. In large part, this is because journalism is in the business of selling panic—panic about terrorism, panic about drugs, panic about food, panic about pornography, panic about our health care system. If it’s not an emergency, it’s not news. To the lazy journalist, everything becomes an emergency—and emergencies always—always—demand state action.

The media makes things hard for the would-be libertarian in other ways, too. Consider this story from today’s Washington Post, about… well, it’s hard to say, actually:

Senate Democrats unveiled a plan Tuesday to save $21 billion over the next decade by eliminating tax breaks for the nation’s five biggest oil companies, a move designed to counter Republican demands to control the soaring national debt without new taxes.

With the proposal, Democrats sought to reframe the debate over debt reduction to include fresh revenue as well as sharp cuts in spending. For the first time, Democratic leaders suggested an equal split between spending cuts and new taxes — “50-50,” said Senate Majority Leader Harry M. Reid (Nev.).

That represents a larger share for taxes than has been proposed by either President Obama or the bipartisan commission he appointed to recommend how to cut the national debt.

So far, the Democratic tax agenda is focused on ending subsidies for big oil companies, a hugely popular proposal involving what Democrats see as a prime example of wasteful giveaways in the tax code. By raising the issue, Democrats are trying to force Republicans either to drop their rigid stance against new taxes or to defend taxpayer subsidies for some of the world’s most profitable corporations, including Ex xon Mobil, Shell, BP, Chevron and ConocoPhillips.

The proposal came in response to remarks Tuesday by House Speaker John A. Boehner (R-Ohio), who said raising taxes is “off the table.” A day earlier, he gave a speech demanding more than $2 trillion in spending cuts in exchange for GOP support for an increase in the legal limit on government borrowing through the end of next year.

Where am I confused, you ask? On almost everything a libertarian ought to care about. I’ll explain.

One of the key aspects of any good law is generality—that is, equality before the law. As F. A. Hayek put it:

[T]hough government has to administer means which have been put at its disposal (including the services of all those whom it has hired to carry out its instructions), this does not mean that it should similarly administer the efforts of private citizens. What distinguishes a free from an unfree society is that in the former each individual has a recognized private sphere clearly distinct from the public sphere, and the private individual cannot be ordered about but is expected to obey only the rules which are equally applicable to all….

The general, abstract rules, which are laws in the substantive sense, are… essentially long-term measures, referring to yet unnkown cases and containing no references to particular persons, places, or objects. Such laws must always be prospective, never retrospective, in their effect (The Constitution of Liberty, chapter 14, section 2).

Now, with every passing day our government stomps all over this generality requirement again and again, chiefly in the economic sphere. But is it doing so on the front page of today’s Washington Post? That’s a good question.


I can think of lots of ways we might deny a tax break to a certain five oil corporations. Some are decidedly better than others in their generality. Consider the following, ranked from least general to most:

“The corporations known as Ex xon Mobil, Shell, BP, Chevron and ConocoPhillips are hereby denied tax break X. All others still qualify, or not, as they did before.”
“Oil corporations with an annual revenue above $198 billion are denied tax break X.”
“We find that tax break X itself is lacking in generality. It is hereby repealed, and the overall corporate tax rate is increased accordingly.”
Which one are they proposing? From the story’s first paragraph, we could easily conclude that it was (1). Many people on the left would be happy with (1), because big corporations are anathema to them, and everything they do is evil, and punishing them—generality be damned—is just great.

But then, it could also be (2), and this measure is somewhat more general, even if ConocoPhillips—the smallest company on the list—just so happens to have an annual revenue of $198.655 billion. As Hayek noted, “[C]lassification in abstract terms can always be carried to the point at which, in fact, the class singled out consists only of particular known persons or even a single individual” (ibid., section 4). Hypocrisy is the tribute vice pays to virtue.

And finally, there’s (3), clearly the winner in terms of generality. Is that in fact the proposal being discussed by members of Congress? Or is it still more general than that—something perhaps as described by my colleagues Jerry Taylor and Peter Van Doren earlier this month?

Last week President Barack Obama responded to rising public anger over soaring gasoline prices by banging the drums for the elimination of various tax breaks enjoyed by the oil and gas industry…

[L]et the record show that President Obama is right… about these tax breaks. They make the economy less — not more — efficient and do nothing to reduce prices at the pump.

Rigging the tax code to make investments in manufacturing artificially more attractive than investments in something else is an enterprise designed to harm non-manufacturers for the benefit of … manufacturers. Conservatives who want government to leave markets alone have no business throwing their political bodies in front of this tax break. If their political rhetoric means anything, they would see the president’s bid and raise him by calling for total repeal of this tax break for everyone, not just for oil and gas companies.

If only we were so lucky! Getting back to the Post, we learn much later in the story—in the fifteenth paragraph —that the congressional proposal “would close several long-standing tax loopholes, yielding roughly $2 billion a year in savings to be applied to lowering the deficit. It would affect only the five largest oil companies, excluding smaller producers.”

This is confusing to the point of deception. Does it really “close” a loophole to take a few entities and exclude them from the prior exclusion from the tax? By my understanding, it makes the law less general, more convoluted and more arbitrary, than it was before. Close the loophole—or just don’t close it, I think a Hayek might say. Don’t make companies play human Tetris to figure out whether they aren’t not un-disincluded.

One day I think people will look back on our era—from roughly the civil rights movement to the present—and marvel. They will be amazed at how, while the law grew much more general regarding many non-economic matters, it became increasingly partial and favoritist when it came to running a business. At times our journalism and even our language seemed blind to this contradictory development, which only encouraged it. Even thinking about the generality of our laws is made difficult when it’s just not a topic on the national media’s radar.

But equality before the law should apply, well, equally. Shouldn’t it?

http://www.cato-at-liberty.org/journalism-and-generality/

And retroactive self-incrimination, too.

DoJ to Congress: Make ISPs keep tabs on users
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Many wireless companies — which must collect some data — also do not retain some other records. | AP Photo Close
By TONY ROMM | 5/10/11 12:05 PM EDT

As a new Senate privacy panel considers the data collected by iPhones, Androids and BlackBerrys, the Department of Justice is reminding lawmakers that it needs Internet providers to store more data about their users to help with federal investigations.

Current law doesn't require those Internet service providers to "retain any data for any particular length of time," although some already do, said Jason Weinstein, deputy assistant attorney general at the DOJ's Criminal Division. And many wireless companies — which must collect some data — also "do not retain records that would enable law enforcement to identify a suspect's smartphone based on the IP address collected by websites the suspect visited," he noted in prepared testimony.

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That's why Weinstein urged the Senate Judiciary’s Privacy, Technology and the Law subcommittee on Tuesday to consider data-retention legislation as it weighs new privacy efforts in the digital age. The top DOJ official said such a congressional fix would boost the agency's ability to investigate privacy breaches, prosecute other digital crimes and ferret out abuses in the offline world.

"Those records are an absolutely necessary link in the investigative chain," Weinstein told the panel.

Data retention has proven to be a particularly divisive issue in the privacy community. Some top tech stakeholders believe it would allow companies and law enforcement agencies too much access to consumers' personal information, such as the websites they visit. The resulting caches of information could further be subject to data breach, many argue.

But data-retention rules are particularly appealing to DOJ, which argued at a hearing earlier this year that such legislation would assist greatly with cyberstalking and other tough law enforcement investigations. Weinstein stressed Tuesday the department seeks a law that would require providers to keep records for a “reasonable period of time,” and seeks a “balance” between the needs of law enforcement, private industry and consumers.

http://www.politico.com/news/stories/0511/54658.html

I'm not in total agreement, but thought the author raised interesting points, liked his description of the amalgam of failed ideologies that condense around anti-Israeli breast beating, and thought he had some insights as to how those yo-yos manage to be so blithely inconsistent without necessarily having to be anti-semetic.

A Lesson for Israel Advocates from the OBL Reaction
from The Volokh Conspiracy by David Bernstein
(David Bernstein)

The nonsense spewing from the various usual suspects–the European left, left-wing NGOs, leftist international law experts [update: here’s an excellent example from an Israeli commentator]–regarding the takedown of Osama bin Laden by U.S. forces should provide an important lesson for advocates of Israel.

The hostility emanating to Israel emanating from these sources is not, primarily, a result of anti-Semitism or other Jewcentric mental maladies. Rather, it is a natural result of a cauldron of ideologies–pacifism, anti-liberalism, Third Worldism, hostility to the West, warmed-over Marxism, and so on, combined with a dash of naive human rights idealism–that dominates certain intellectual circles.

Israel receives more grief than almost anyone else from such circles for several reasons: (1) because of its precarious security situation, it uses military force more regularly than other potential targets; (2) because of its precarious political situation, it is far more vulnerable to such criticism than, say, the U.S. (which will studiously ignore criticism of the OBL operation); and (3) unlike in the U.S, Israel has a significant and influential domestic far left that encourages and magnifies such criticisms. Indeed, given universal military service among Jewish non-Haredi adults, Israel often faces criticism from its own leftist soldiers and reservists of the sort quite rare in the U.S.

That’s not to deny that some leftist critics of Israel are anti-Semites, and that an even greater number are content to play on anti-Semitic themes when they find it rhetorically useful. But let’s face it: if you can’t get the leftist Europeans, NGOs, etc. behind a surgical strike on Osama Bin Laden, they are hardly going to approve of much broader Israeli military action in Gaza or Lebanon.

Given that many Jewish supporters of Israel have left-wing tendencies themselves (though the hard leftist types have long abandoned Israel), it’s far more comfortable for them to identify anti-Semitism as the main source of anti-Israel hostility. But the first step in defeating an intellectual enemy is to identify that enemy’s underlying, motivating ideology, and, in this case, for the most part, anti-Semitism isn’t it.

http://volokh.com/2011/05/07/a-lesson-for-israel-advocates-from-the-obl-reaction/

I've been finding a lot of interesting material in the Long War Journal, though I'm still assessing 'em as a source. Lotta good illustrated material at the link.

Afghan National Army update, May 2011
By CJ RADINMay 9, 2011


The Afghan National Army's area of operations. Click map to view.

This article addresses the current status of the Afghan National Army (ANA). The updated Order of Battle is here and the unit location map is here. Future articles will address ANA issues and plans.

Growing the ANA

The Afghan army reached its previous goal of 134,000 troops in July 2010. The current goal is to have 171,600 by October 2011. As of March 2011, there were 160,000 troops on its rolls, 4,000 ahead of the March goal.

Earlier this year, there was discussion of increasing the size of the army beyond the current 171,600-troop goal, but this plan has not yet been officially adopted. The proposal suggests increasing the size of the force to between 195,000 and 208,000 by October 2012. Reaching the higher number would depend on meeting recruiting, retention, and attrition goals, which is not certain. Most of the additional troops would be used to expand the ANA's support structure [see "Specialized technical skills," below]. Some additional combat units would be added to fill out the existing organizational structure.

ANA Organization

As part of its continuing drive toward self-sufficiency, the Afghan National Army created the Ground Force Command (GFC) headquarters. GFC commands the six ANA corps plus the 111st Capitol division. The GFC is modeled on the International Security Assistance Force's Joint Command and is commanded by Lieutenant General Murad Ali Murad. The GFC is scheduled to reach initial operational capability by March 2012 and full operational capability by August 2012.

In May 2010, Regional Command -South (RC-S) was split into two regions. The newly created Regional Command-South West (RC-SW) and its 215th Corps took over the provinces of Helmand and Nimroz, and portions of Farah. RC-S and its 205th Corps retained Zabul, Kandahar, Uruzgan, and Daikundi provinces.

ANA Special Operations Command (ANASOC) brigade


Structure of the Afghan National Army Special Forces Command (ANASOC). Click image to view.

The ANA has established a new Special Operations Forces organization. The newly established Afghan Special Operations Command (ANASOC) is setting up a division headquarters at Camp Moorehead in Wardak province. It will command two different types of units, the existing ANA Commandos and a newly formed unit, the ANA Special Forces (ANASF).

The ANA Commandos are the ANASOC's "direct action" force. The existing nine Commando battalions will eventually be organized into two Commando brigades. However, the current 1st Commando brigade headquarters was dissolved in order to provide a cadre to staff the new ANASOC division headquarters. A new 1st Commando Brigade headquarters staff is being trained and will be operational soon. The 2nd Commando Brigade headquarters is planned to be operational by September 2011.

The ANASOC will also command the 1st Special Forces Brigade. Modeled on the US Special Forces, the brigade's missions will include "internal defense" and "SOF reconnaissance" as well as "direct action." The brigade headquarters is planned to be operational by September 2012. The brigade will consist of four battalions, the first one being fielded by June 2011. Each battalion will have 18 A-Teams, for a total of 72 A-Teams. The A-Teams are designed along US SOF lines. Each 15-member team is led by a captain, with a first lieutenant executive officer and a team sergeant. In addition, there are two each of medical sergeants, weapons sergeants, engineer sergeants, and communications sergeants; two intelligence sergeants; an information dissemination sergeant; and a civil-military operations specialist.

ANASF internal defense mission

The ANASF has been created to provide a special operations force capable of countering enemy efforts at the lowest level, the Afghan tribe and village. The ANASF brigade will accomplish this through the Village Stability Operations (VSO) program.

The VSO program is designed to help individual villages defend themselves against encroaching insurgency. Villages organize their own defense units, the Afghan Local Police. An ANASF brigade A-Team is assigned to each VSO village. The team's role is to support the village leadership to organize the overall project and mediate local disputes. They also train and advise the ALP. Up until now, US Special Operations Forces A-Teams have been running the VSO; however, the goal is to have ANASF replace the US SOF in this role. It is expected that the ANASF will be able to bring a better understanding of local cultural, economic, and political issues.

ANASF A-Team training

The first two classes of ANASF candidates were recruited exclusively from the Commando battalions. (Note: This necessitated a pause in the creation of new Commando battalions in order to free up resources to create the ANASF. The Commandos will be capped at nine battalions, with the formation of the 10th, 11th and 12th battalions postponed.) Because the ANASF candidates were already trained in direct action, the US trainers focused on the skills required for internal defense and SOF reconnaissance. This allowed the length of the first two classes to be reduced to 10 weeks. Future classes, recruited from across the ANA, will be larger, consisting of about 300 soldiers compared to 80 in each of the first two classes, and will take 15 weeks.

The first class started training in March 2010 and completed it in May; they were then grouped into four A-teams, one of which will be held back to form an Afghan cadre to help train the next class. At this point the teams were considered" mission-capable", but were not considered "Special Forces qualified" until they completed 26 weeks of "on-the- job training" during which each ANA A-team was partnered with a US SOF A-team.

The first A-Team was deployed to Khakrez district, northwest of Kandahar City, in May 2010. By March 2011, a total of 14 A-teams had completed training. All 72 A-Teams are expected to be fielded by 2014.

ANA development priorities

In 2010, the overall ANA priority was to grow an infantry-centric force that could immediately participate in counterinsurgency operations. Most of the effort was directed toward fielding additional infantry units.

The priority for 2011 has been to continue to grow the force but also to begin building the support functions necessary for self-sufficiency. This includes leadership, specialized technical expertise, and literacy training.

Leadership training

There is currently a significant shortage of both officers and NCOs within the ANA. In November 2010 there were 18,191 officers where 22,646 are required; and there were only 37,336 NCOs where 49,044 are required. To address the officer shortage, training capacity has been increased. Two additional Officer Candidate School companies opened in December 2010, and two more are to have opened by April 2011. The additional capacity is expected to reduce, but not entirely eliminate, the shortage by October 2012. For NCOs, training capacity is also being increased. The Regional Training Center in Darulaman has been converted from Basic Training to NCO training. Additionally, NCOs are being trained in the United Arab Emirates.The shortfall is expected to be eliminated by October 2012.

Specialized technical skills

In 2010, the ANA began setting up training institutions to teach the specialized skills needed to make it self-sufficient. Twelve "Branch Schools" are being set up:

Artillery
Human Resources
Signals
Infantry
Engineering
Legal
Military Police
Logistics
Religious and Cultural affairs
Intelligence
Finance
Eleven of these 12 branch schools have reached initial operating capability (IOC). The last school (Military Police) will reach IOC by June 2011. None, however, have reached full capacity due to limitation in facilites and ISAF trainers.

Logistics support development includes the establishment of Army Support Command. This will control six new Regional Support Commands (RLSCs), one for each of ANA's six corps. These units will provide medical, equipment maintenance, and logistics distribution capability. In addition, a National Depot Operation and National Vehicle Maintenance Facility will also be stood up in 2011.

Literacy training

About 86% of ANA enlisted recruits are illiterate. This constitutes a significant obstacle in the development of a competent army. An illiterate soldier cannot read a map, a training manual, or the serial number of his rifle. Furthermore, specialized fields such as medicine, logistics, and communications cannot be taught to an illiterate person.

The problem is being addressed by the establishment of an extensive literacy training program. Starting in March 2010, mandatory basic literacy and numeracy training was instituted for all ANSF enlisted personnel, both ANA and ANP. The goal is to train every member of the ANSF to at least a third-grade level. The curriculum is the equivalent of 312 hours of training. (Note: This program applies to enlisted and NCOs, since over 90% of officers are literate.)

For the ANA, literacy training begins in Basic Training. Each recruit is brought in two weeks early and taught basic reading and writing so he can at least write his name and read the serial number on his weapon. Literacy training continues through Basic Training, adding up to a total of 64 hours. Additional training occurs during seven weeks of unit training. When the recruits go to the field, or for troops already in the field, the program provides for continued training on the order of one to two hours per day over seven to eight months. For a soldier selected for specialty training in a Branch School, additional training is provided up to the sixth-grade level. By March 2011 there were 60,000 ANA soldiers and ANP police receiving literacy training.

http://www.longwarjournal.org/archives/2011/05/afghan_national_army_4.php

The GOP Stupids Step Out
It’s so much easier being a loser — just ask John McCain

I can’t tell you how excited I am at the news that good ol’ SpongeBob is throwing his and Callista’s Squarepants into the ring for the Stupid Party’s 2012 designated-loser/presidential-candidate sweepstakes, thus joining an already crowded field of unelectables, has-beens, never-wases, never-will-be’s, who’s-he mystery men, libertarians, radical libertarians, pizza guys, former governors of Minnesota, and just plain nut jobs. Way to go, GOP! No wonder we call you the Stupid Party. You’ve earned it.

Not that Mr. Newt isn’t brilliant. He could probably whip us all on Jeopardy, especially if they asked real questions about history and stuff, instead of about Justin Bieber and Lady Gaga. But he was born in 1943, which makes him six years older than my dad, the sainted “Che” Kahane, and there’s no way I’m voting for my old man for president.

I mean, here you have His Serene Majesty the Emperor Barack Hussein Obama II, Lord of the Flies, Keeper of the Hoops, Master of the Greens, Bringer of Kinetic Military Action, Vacationer-in-Chief, Slayer of Osama, and Protector of the Holy Cities of Honolulu and Chicago, who — despite his impressive array of titles — is probably the most beatable incumbent since George H. W. Bush, and you won’t even try to beat him? Good Gaia, people, where’s the politically correct fighting spirit that negotiated a peace-process settlement with the West? The government program that subsidized the wagon trains? Libby Custer’s grief counselors after the Little Big Horn? Your intrepid forebears would be ashamed of you. Ours, not so much, since they were in therapy at the time.

Like almost none of you, I was riveted by the first-in-the-Fox-nation Republican debate the other day, and thrilled to make the acquaintance of a bunch of guys I’ll probably never lay eyes on again. While personally I’m glad that you wingnuts now officially favor legalizing heroin and sending women who exercise their semi-divine right to choose to Gitmo for enhanced interrogation, I don’t think this is a winning combo, blue-state-wise. If you’re going to beat Li’l Barry, you’re going to need to take off the gloves and bring out the A-team, not the Expendables.

Now, before you start getting all wee-wee’d up about the likes of Mr. Newt, Mitt, Michele, Sarah, Rudy, Mitch, and some Chinese guy named Huntsman, take a deep breath, settle back on the Barcalounger, and call your Obamacare state-approved caregiver — you’re having a hallucination. None of these folks is going to be president.

Newt has had as many wives as Osama, while Massachusetts Mitt is a hologram, an astral projection brought on by advanced medical technology that can produce the simulacrum of a candidate without, you know, the actual substance. Sarah will soon be best known as “Herself” on Bristol Palin’s new reality show. Michele still needs a map to find Lexington and Concord, and anyway shouldn’t she be at home with her 10,000 kids? Now that Obama’s killed Osama, Rudy seems like Encino Man, and I’m still not clear on who the Chinese guy is, except that we really, really want you to nominate him.

Which brings us to Mitch Daniels.

Don’t get me wrong — just like some of you, I’m jazzed about Mitch. Who wouldn’t be? Colorless, diffident, weird, a homunculus with hair that former frontrunner Donald Trump probably secretly envies since there’s so little of it, Daniels is the perfect puss of the Republican party in this year of our Common Era, 2011. Let’s celebrate his diverse qualifications:

● He’s from Indiana, a state with as politically incorrect a name as can be imagined. I mean, why don’t they just call it Redskinland and be done with it? Indiana is like Delaware writ a tiny bit larger, one of those states you couldn’t pick out of a police lineup if it mugged you and got arrested at the scene by Ohio and Illinois. Half of it’s a suburb of Obama, Tony Rezko, and Bill Ayers’s neighborhood on the South Side of Chicago, for crying out loud. Not that there’s anything wrong with that!

● He’s basically an accountant. Nothing gets the political juices flowing and the passions boiling like a green-eyeshade guy solemnly warning the nation that a big hangover’s coming while the band’s still playing, the girls are dancing in their skivvies on the bar, and nobody’s called the cops yet. Sure, the teabaggers are all het up about the deficit and whatnot, but the rest of us love our entitlements and won’t hear a word against them. When one in seven of our fellow citizens is on food stamps, and half the population contributes a grand total of whiz-all in federal income taxes, we don’t call that a bug, we call it a feature! Free stuff for everybody, now and forever — that’s our winning campaign slogan, and if you don’t like it, try to come up with a better one.

● He’s . . . zzzzzzzzz. What? Sorry, fell asleep there for a sec. Fine now.

I know that some of you are sitting around waiting for a deus ex machina to descend from the sky and start singing a castrati aria. As you lie in bed hugging your pillow and ogling that dreamboat Glenn Beck at two in the morning, you start to fantasize about Mr. Right . . . and then a tall, dark, fat, and handsome Chris Christie emerges from the shadows like Fabio on the cover of a bodice-ripper and sweeps you off your feet, or your bum, or whatever, and into the perfumed night . . .

Well, let me let you in on a little secret — your beautiful dream is our worst nightmare. Except that we don’t see Christie as Fabio, we see him as another Italian, namely Tony Soprano. Unlike Mitt, Mitch, and the Diana-figure from The Shanghai Gesture, Chris Christie Superstar knows how to bring it; he would take the fight to Barry in a debate like Tony beating the bejesus out of the bartender at the Bada Bing club only, you know, with words and Pine Barren ’tude. Talk about a cheer moment — even those of us on the left who’ve had to swallow our formerly principled opposition to Gitmo, waterboarding, rendition, Special Ops, and, well, assassination in the interests of national solidarity might feel a thrill or two.

But the Fat Man says he ain’t running, nohow, no way. And I can respect that: When the Boss is one of your subjects, who wouldn’t want to be King of the Boardwalk? Nucky Johnson’s got nothing on Chris. Still, can you imagine a Christie/Allen West ticket — two cans of whup-ass in a one-can cubicle. Even Hillary ’12! couldn’t stand up to that.

So what are you poor slobs going to do? Who’s going to be the tomato can offering sham opposition to His Highness’s media-ordained second term in exchange for face-time emoluments down the line? Who’s going to be the designated patsy in the next Obama hagiography by Mark Halperin and John Heilemann? Who’s going to want to see his or her reputation trashed, the family dragged through the mud, the appearances on Morning Joe and Meet the Press at least temporarily halted? Whom will you find to cause Mika Brzezinski to sigh and roll her eyes prettily at the very mention of the unholy name? In short, who’s going to be the palooka?

Luckily, you’ve already got him, a candidate who’s tanned, rested, tested, and ready to lose. A man who’s seen both sides now, who’s experienced the E-ticket ride from the heights of media adulation to the depths of ignominious and disgraceful defeat and up again. A hero for our times, who’s fought back from the electoral disaster of 2008 to resume his rightful place among the Talking Heads Elect. The man to whom you owe absolutely nothing for your transient victories in the midterms. The man who, more than anybody else, gave us the glorious reign of the Emperor Hussein.

The man who never saw an aisle he didn’t want to reach across, even if he has to regenerate a new limb or two every few weeks. The fighter pilot with the common touch, who has so many houses, thanks to his rich second wife, that he can’t remember how many there are. A man of peace who never met a war he didn’t want to start, especially if we can bomb the bastards into submission without getting shot down. A man of such political bravery that he’s willing to attack his own side wherever and whenever it’s expedient. A man who takes a licking, likes it, and keeps on licking.

Ladies and gentlemen and Republicans, I give you John McCain.

Go ahead. You know you want to. It’s so much easier on all of us this way.

— As a Hollywood insider, David Kahane remains scrupulously nonpartisan in his politics: He votes for liberals and Democrats alike. You can sign on to DAVEPAC ’12 by writing to him at kahanenro@gmail.com or by abjectly begging him to be your illusory “friend” on Facebook, just as long as you shell out for your personal copy of Rules for Radical Conservatives. Proof of purchase required. Hey — it’s still a capitalist country, for the nonce.

http://www.nationalreview.com/articles/266866/gop-stupids-step-out-david-kahane

Could likely be posted more than one place:

China and Cybersecurity: Trojan Chips and U.S.–Chinese Relations
Published on May 5, 2011 by Dean Cheng and Derek Scissors, Ph.D. WEBMEMO #3242

One subject of the third round of the U.S.–China Strategic and Economic Dialogue will be cybersecurity. Part of Secretary of Defense Robert Gates’s proposed Strategic Security Dialogue, it reflects the growing prominence of cybersecurity in Sino-American strategic relations.   

The concerns include computer network exploitation and computer network attacks, but also tampering with the physical infrastructure of communications and computer networks. Vulnerabilities could be introduced in the course of manufacturing equipment or created through purchase of malignant or counterfeit goods. Recent experience highlights these problems.
Such possibilities have brought calls for trade barriers, ranging from random entry-point inspections of various types of goods and equipment (e.g., chips and routers) to prohibition of some imports (e.g., communications hardware), especially from a major manufacturer, the People’s Republic of China (PRC).
The trade proposals tend to be vague because the cyber threat itself, while real, is vaguely presented. While an ill-defined threat certainly bears watching, it does not justify protectionism. Cybersecurity is largely classified, but trade is not, and trade policy cannot be held hostage to cybersecurity unless specific dangers are put forward.
What Is the Threat?
A longstanding fear has been that cyber attacks against the U.S. might result in disruptions to power, banking, and communications systems at a critical moment. The cyber attacks on Estonia and Georgia, which disrupted commerce and communications, raise the specter that the U.S. might undergo the equivalent of a cyber Pearl Harbor. Efforts by the Defense Advanced Research Projects Agency (DARPA) to improve verification capabilities highlight the limitations of current computer engineering skills in, for example, diagnosing cyber intrusions. Initial studies on the Trusted Integrated Circuit program, seeking to create a secure supply chain, were requested in 2007. As of late 2010, DARPA was still seeking new research proposals for determining whether a given chip was reliable, and whether it had been maliciously modified, as part of the Integrity and Reliability of Integrated Circuits (IRIS) program.[1]
A more recent worry is vulnerabilities “hardwired” into the physical infrastructure of the Internet. In the last several years, the FBI has warned that counterfeit computer parts and systems may be widespread.
This can manifest itself in two ways: fake parts and systems, which may fail at dangerously higher rates, or contaminated systems that might incorporate hardwired backdoors and other security problems, allowing a foreign power to subvert a system.[2] Similar problems have been identified by American allies; the U.K. has identified counterfeit parts entering into its military supply chain.
Much cyber-related attention has been focused on the PRC. China is reportedly the source of many of the hacking efforts directed at U.S. military and security computer networks. Chinese computer infiltration has reputedly obtained access to such sensitive programs as F-35 design information. Such efforts as Titan Rain, Ghostnet, and others have reportedly attacked U.S. and other nations’ information systems systematically and have infiltrated email servers and networks around the world. One example is the “Shadow network,” which affected “social networking websites, webmail providers, free hosting providers and services from some of the largest companies.”[3] Many have been traced back to the PRC—but attribution to any specific Chinese entity is extremely difficult.
A growing concern is that China can exploit its position as one of the world’s largest producers of computer chips, motherboards, and other physical parts of the Internet to affect American and allied infrastructure. China has apparently already demonstrated an ability to tamper with Domain Name System (DNS) servers based in China, “effectively poisoning all DNS servers on the route.”[4]
The fear is that they could now affect foreign-based routers. In this regard, the issue of Chinese counterfeit parts is compounded by uncertainty about whether fake parts are being introduced as part of a concerted intelligence campaign or simply the result of profiteering by local contractors.
Public Information Is Lacking
The arcane nature of the threat enhances uncertainty. Understanding the workings of computer viruses, patches, and the vulnerabilities of routers or microchips is difficult. Comprehending the intricacies of global supply chains and tracing the ultimate source of sub-systems and components can be equally difficult. Former NSA and CIA Director General Michael Hayden writes that “Rarely has something been so important and so talked about with less clarity and less apparent understanding.”[5]
Several studies highlight some of the myriad vulnerabilities.
The 2005 Defense Science Board Task Force on High Performance Microchip Supply identified the growing security problem of microchips being manufactured (and more and more often designed) outside the United States.
The 2007 Defense Science Board Task Force on Mission Impact of Foreign Influence on DOD Software noted that software frequently incorporates pieces of code from a variety of sources, any of which might be a point of vulnerability.
The 2008 National Defense Industrial Association’s handbook “Engineering for System Assurance” provides a comprehensive overview of system assurance, which in turn highlights how difficult it can be to achieve it.
Over-classification is also a problem. General Hayden notes that much of the information on cyber threats is “overprotected.” Greg Garcia, head of the Bush Administration’s efforts on cybersecurity, has similarly noted that “there was too much classified…Too much was kept secret.”[6]
Leave Trade Alone
The ambiguity on the security side actually clarifies the trade side. If the cyber threat is understood only tenuously, testing imported goods for cyber threats will be inadequate to identify compromised equipment. With ineffective testing, banning some importers would not be worthwhile. In a global economy, equipment will simply be re-routed. The U.S. does not have the resources necessary to track the true source of goods when dangerous items cannot be easily discovered—and discovery may even be impossible.
If the threat was well understood but national security argued against the disclosure of vital information, this at least suggests that the danger from trade is secondary to other dangers. America retains the option, of course, of simply restricting trade on national security grounds without disclosing its reasons. This would be unwise.
One drawback of restricting trade would be the costs incurred by the U.S. in terms of spending on import inspections and the loss of availability of certain goods. The defense community is often not well-positioned to anticipate the extent of these economic costs. People will not relinquish scarce resources voluntarily when the gains from doing so are not spelled out.
The second drawback is the reaction of American trade partners. American exports already suffer from undocumented national security justifications for protectionism. Were the U.S. to introduce a new set of potentially sweeping restrictions based on hidden national security requirements, the global trade environment would immediately and sharply deteriorate. Costs would be far higher than indicated by looking at American actions alone.
Balancing Economic and Security Responsibilities
Security. For policymakers and the public to properly comprehend the magnitude of the problem, the Department of Defense must be as transparent as possible. Some material will be classified. But the trade-off between security classification and the ability to promptly and adequately respond to a threat should be weighted more heavily to the transparency side than it is at present.
Trade. The Department of Commerce and United States Trade Representative should restrict trade only in accordance with what can be defended publicly and systematically. Introduction of ad hoc trade restrictions that claim a classified basis will harm the American economy.
For now, it is unreasonable to impose considerable economic costs for the sake of a serious but vaguely presented threat.
Dean Cheng is Research Fellow in Chinese Political and Security Affairs and Derek Scissors, Ph.D., is Research Fellow in Asia Economic Policy in the Asian Studies Center at The Heritage Foundation.

http://www.heritage.org/Research/Reports/2011/05/China-and-Cyber-Security-Trojan-Chips-and-US-Chinese-Relations

And yes, I can tell the difference between the two. In view of Obamacare, over-criminalization, EPA CO2 rulings, insanely complex tax code, second amendment restrictions, and so on, can you understand why one might not be pleased by yet further federal encroachment, particularly by an agency that has not caught a single terrorist, regularly fails security audits, hasn't addressed gaping security holes where airport staff are concerned, et al? Or are we supposed to pretend they provide competent security as we imagine ourselves to be a free people?

Me too: on the ever expanding nanny state which strays ever further from the founding vision for this nation.

If Supermarkets Were Like Public Schools
What if groceries were paid for by taxes, and you were assigned a store based on where you live?
By DONALD J. BOUDREAUX

Teachers unions and their political allies argue that market forces can't supply quality education. According to them, only our existing system—politicized and monopolistic—will do the trick. Yet Americans would find that approach ludicrous if applied to other vital goods or services.

Suppose that groceries were supplied in the same way as K-12 education. Residents of each county would pay taxes on their properties. Nearly half of those tax revenues would then be spent by government officials to build and operate supermarkets. Each family would be assigned to a particular supermarket according to its home address. And each family would get its weekly allotment of groceries—"for free"—from its neighborhood public supermarket.

No family would be permitted to get groceries from a public supermarket outside of its district. Fortunately, though, thanks to a Supreme Court decision, families would be free to shop at private supermarkets that charge directly for the groceries they offer. Private-supermarket families, however, would receive no reductions in their property taxes.

Of course, the quality of public supermarkets would play a major role in families' choices about where to live. Real-estate agents and chambers of commerce in prosperous neighborhoods would brag about the high quality of public supermarkets to which families in their cities and towns are assigned.

Being largely protected from consumer choice, almost all public supermarkets would be worse than private ones. In poor counties the quality of public supermarkets would be downright abysmal. Poor people—entitled in principle to excellent supermarkets—would in fact suffer unusually poor supermarket quality.

How could it be otherwise? Public supermarkets would have captive customers and revenues supplied not by customers but by the government. Of course they wouldn't organize themselves efficiently to meet customers' demands.

Responding to these failures, thoughtful souls would call for "supermarket choice" fueled by vouchers or tax credits. Those calls would be vigorously opposed by public-supermarket administrators and workers.

Opponents of supermarket choice would accuse its proponents of demonizing supermarket workers (who, after all, have no control over their customers' poor eating habits at home). Advocates of choice would also be accused of trying to deny ordinary families the food needed for survival. Such choice, it would be alleged, would drain precious resources from public supermarkets whose poor performance testifies to their overwhelming need for more public funds.

As for the handful of radicals who call for total separation of supermarket and state—well, they would be criticized by almost everyone as antisocial devils indifferent to the starvation that would haunt the land if the provision of groceries were governed exclusively by private market forces.

In the face of calls for supermarket choice, supermarket-workers unions would use their significant resources for lobbying—in favor of public-supermarkets' monopoly power and against any suggestion that market forces are appropriate for delivering something as essential as groceries. Some indignant public-supermarket defenders would even rail against the insensitivity of referring to grocery shoppers as "customers," on the grounds that the relationship between the public servants who supply life-giving groceries and the citizens who need those groceries is not so crass as to be discussed in terms of commerce.

Recognizing that the erosion of their monopoly would stop the gravy train that pays their members handsome salaries without requiring them to satisfy paying customers, unions would ensure that any grass-roots effort to introduce supermarket choice meets fierce political opposition.

In reality, of course, groceries and many other staples of daily life are distributed with extraordinary effectiveness by competitive markets responding to consumer choice. The same could be true of education—the unions' self-serving protestations notwithstanding.

Mr. Boudreaux is professor of economics at George Mason University and a senior fellow at the Mercatus Center.

http://online.wsj.com/article_email/SB10001424052748704436004576299571015982098-lMyQjAxMTAxMDAwNDEwNDQyWj.html

Amtrak: 40 Years, $40 Billion
For National Train Day, let’s look at the company’s financial failures.

There is a special event coming down the tracks tomorrow — National Train Day. It’s likely few Americans, other than Amtrak enthusiast Vice President Joe Biden, put this date on their calendars. Amtrak, which created the holiday in 2008, will be using this day to kick off its year-long 40th-anniversary celebration. Supporters of Amtrak’s sister endeavor, high-speed rail, will also use the day to push for more funding.

Given America’s soft spot for trains — Thomas the Tank Engine and The Little Engine That Could are still popular among children — lawmakers are likely to be running to the nearest station for a photo op with those shiny engine cars. But instead of celebrating Amtrak’s anniversary, they should shine a light on the company’s financial failures and take its difficulties under advisement when considering costly new investments in high-speed rail.

When Congress created it in 1970, Amtrak was intended to be a profitable enterprise; instead, it has cost taxpayers a total of $40 billion. According to a 2009 study by the Pew Charitable Trust, 41 of Amtrak’s 44 lines lost money in 2008. Per-passenger losses ranged from $5 per passenger on the Northeast Regional to $462 on the Sunset Limited line, which runs all the way from New Orleans to Los Angeles. According to the Amtrak inspector general’s September 2010 semiannual report, the rail service covered only about 84 percent of its operating costs in fiscal year 2010.

Of course, Amtrak could save tax dollars by cutting its less profitable lines, but the anniversary-celebration lineup makes it clear that this engine of wasteful spending is accelerating. According to Amtrak’s Facebook page, the rail service will introduce four new P-42 diesel-electric trains, each with a “historic paint scheme,” and a separate “exhibit train” that will travel through the country for a year carrying educational exhibits; publish a book called “Amtrak: An American Story”; release a DVD on its history; and launch an anniversary website. In addition, Gladys Knight is acting as National Train Day spokesperson.

Defenders of Amtrak — and of high-speed rail — argue that most of the nation’s transportation industry is subsidized. Amtrak’s subsidy, however, is by far the most generous. According to a 2009 study by the Heritage Foundation, Amtrak subsidies totaled $237.53 per 1,000 passenger-miles. In contrast, the subsidy for commercial aviation was $4.23. These subsidies don’t make train travel more affordable. Randal O’Toole of the Cato Institute notes a one-way ticket between Washington, D.C., and New York City on Amtrak’s high-speed Acela costs $139, while bus service costs less than $15.

Taxpayers understand that if the government can’t turn a profit on lower-cost, low-speed rail (Amtrak), it will never earn a dime on higher-cost, high-speed rail. That’s why some governors, including Florida’s Rick Scott (R) and Ohio’s John Kasich (R), have said “No, thank you” to high-speed-rail funding that would put state taxpayers on the hook for years to come.

In preparation for a possible government shutdown in April, Amtrak president Joe Boardman instructed workers not to worry, because the company could still rely on ticket revenues to operate. That is, if Amtrak had to live without taxpayer subsidies, it would remain in business. The only difference is that it would be forced — like any other business — to cut unprofitable ventures and to meet its bottom line. Since, according to the Heritage Foundation, Amtrak accounts for 0.5 percent of all interstate passenger travel, and 40 percent of that travel occurs in the Northeast Corridor, it is unlikely most Americans would even notice such a change in service.

Across the country, many businesses, including other transportation services, have found ways to improve their bottom lines. Amtrak won’t be forced to make those types of decisions until taxpayer support is derailed. It is time for Congress to end Amtrak subsidies, consider the costly lessons learned, and apply them to the debate over high-speed rail.”

— Tom Schatz is president of Citizens Against Government Waste, a national nonprofit devoted to eliminating waste, mismanagement, and inefficiency in the federal government.

http://www.nationalreview.com/articles/266575/amtrak-40-years-40-billion-tom-schatz

Sure, when you cite the part that allows you to trim your toenails. Or are limited, enumerated powers as clearly described by the framers concepts too difficult to grasp?

While I watched the speech I also thought the personal pronoun use was pretty telling and far less than magnanimous.

The First-Person Presidency
President Obama takes credit for operations that would have been impossible had Senator Obama’s views prevailed.

Here are a few excerpts from President Obama’s speech on Sunday night about the killing of Osama bin Laden.

“Tonight, I can report . . . And so shortly after taking office, I directed Leon Panetta . . . I was briefed on a possible lead to bin Laden . . . I met repeatedly with my national security team . . . I determined that we had enough intelligence to take action. . . . Today, at my direction . . . I’ve made clear . . . Over the years, I’ve repeatedly made clear . . . Tonight, I called President Zardari . . . and my team has also spoken. . .These efforts weigh on me every time I, as Commander-in-Chief . . . Finally, let me say to the families . . . I know that it has, at times, frayed. . . .”

Most of these first-person pronouns could have been replaced by either the first-person plural (our, we) or proper nouns (the United States, America). But they reflect a now well-known Obama trait of personalizing the presidency.

The problem of first-personalizing national security is twofold. One, it is not consistent. Good news is reported by Obama in terms of “I”; bad news is delivered as “reset,” “the previous administration,” “in the past”: All good things abroad are due to Obama himself; all bad things are still the blowback from George W. Bush.

Two, there is the small matter of hypocrisy. The protocols for taking out Osama bin Laden were all established by President Bush and all opposed by Senator and then candidate Obama. Yet President Obama never seeks to explain that disconnect; indeed, he emphasizes it by the overuse of the first person. When the president reminds us this week of what “over the years I’ve repeatedly made clear,” does he include his opposition to what he now has institutionalized?

Guantanamo proves to have been important for gathering intelligence; Barack Obama derided it as “a tremendous recruiting tool for al-Qaeda.”

Some key intelligence was found by interrogating prisoners abroad; Barack Obama wished to end that practice: “This means ending the practices of shipping away prisoners in the dead of night to be tortured in far-off countries, of detaining thousands without charge or trial, of maintaining a network of secret prisons to jail people beyond the reach of law.” “That will be my position as president. That includes renditions.” Renditions have not ended under Obama, but expanded.

In some cases we are trying suspects through military tribunals; here again, Barack Obama used to deplore the practice he now has adopted: “a flawed military-commission system that has failed to convict anyone of a terrorist act since the 9/11 attacks and that has been embroiled in legal challenges.”

Senator Obama complained about airborne attacks on the Afghanistan-Pakistan borderlands. President Obama increased Predator assassination attacks fivefold. He has killed four times as many terrorist suspects by Predators in 27 months than did President Bush in eight years.

In January 2007 — three weeks after President Bush announced the surge — Senator Obama introduced the “Iraq War De-escalation Act of 2007.” If it had passed, that law would have removed all troops from Iraq by March 2008. Obama derided the surge in unequivocal terms both before and after its implementation: “I don’t know any expert on the region or any military officer that I’ve spoken to privately that believes that that is going to make a substantial difference on the situation on the ground.” “Here’s what we know. The surge has not worked.”

Candidate Obama criticized warrantless wiretaps, in accusing the Bush administration in the harshest terms: “This administration acts like violating civil liberties is the way to enhance our security. It is not.” A disinterested examination of present policy regarding both wiretaps and intercepts would show no change from the Bush administration, or indeed considerable expansion of the use of these tools.

If one wonders why former President Bush did not attend ceremonies with President Obama this week in New York, it might be because of past rhetoric like this about policies Obama once derided and then codified: “I taught constitutional law for ten years at the University of Chicago, so . . . um . . . your next president will actually believe in the Constitution, which you can’t say about your current president.” George Bush did not believe in the U.S. Constitution?

In sum, Senator Obama opposed tribunals, renditions, Guantanamo, preventive detention, Predator-drone attacks, the Iraq War, wiretaps, and intercepts — before President Obama either continued or expanded nearly all of them, in addition to embracing targeted assassinations, new body scanning and patdowns at airports, and a third preemptive war against an oil-exporting Arab Muslim nation — this one including NATO efforts to kill the Qaddafi family. The only thing more surreal than Barack Obama’s radical transformation is the sudden approval of it by the once hysterical Left. In Animal Farm and 1984 fashion, the world we knew in 2006 has simply been airbrushed away.

Times change. People say one thing when they are candidates for public office, quite another as officeholders with responsibility of governance. Obama as president naturally does not wish to be treated in the manner in which he once treated President Bush. Conservatives might resent Obama’s prior demagoguery at a critical period in our national security, as much as they are relieved that he seems to have grown up and repudiated it.

Okay, the public perhaps understands all that hypocrisy as the stuff of presidential politics. But I think it will not quite accept the next step of taking full credit in hyperbolic first-person fashion for operations that would have been impossible had his own views prevailed.

— NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution, the editor of Makers of Ancient Strategy: From the Persian Wars to the Fall of Rome, and the author of The Father of Us All: War and History, Ancient and Modern.

http://www.nationalreview.com/articles/266580/first-person-presidency-victor-davis-hanson

More HUD Community Development Duds

Posted by Tad DeHaven

Local officials, like their federal and state counterparts, spend other people’s money. Policymakers are naturally unlikely to spend other people’s money as carefully as they would their own. This situation is exacerbated when local officials spend money obtained from federal taxpayers. At least when local taxpayers foot the bill, they have an incentive to keep an eye on how their money is spent. That incentive is largely nonexistent when the money comes from Washington.

HUD community development programs illustrate what happens when the federal government severs the relationship between local officials and local taxpayers. Originally targeted to large cities in decline, community development funding is spread widely to communities rich and poor, large and small.

Local officials love these programs because they amount to a free lunch. As a result, they lobby Washington hard for these subsidies, which means federal policymakers generally only hear wonderful tales of the “economic growth” and “job creation” fostered by the programs. However, a Cato essay on HUD community development programs explains that in addition to complexity and wasteful bureaucracy, these programs are susceptible to financial abuses.

Recent stories in the news provide further evidence.

First, years of mismanaging federal community development funds have caught up to the City of Buffalo. The Buffalo News reports that a HUD inspector general audit says the city “could not provide assurance that more than $20.1 million in transactions was properly accounted for.” According to the article, the audit findings are not surprising:

An investigation published in The News in 2004 found the city had frittered away much of its block grant money through parochial politics and bureaucratic ineptitude.

More than half the spending went to “soft costs” that include covering bad loans, paying city salaries and subsidizing an overblown network of neighborhood agencies, The News found. Relatively little went to brick-and-mortar projects, and what was spent to revitalize downtown and neighborhoods was haphazard, with money sometimes going to risky and futile projects.

The mayor and Common Council failed to make major reforms in the program in recent years, and problems have persisted. Two years ago, a HUD monitoring report found continued shortcomings that included too much spending on bureaucrats, questionable financing for upscale housing developments and sloppy fiscal management of several programs.

Next, LA Weekly reports that the City of Los Angeles plans to give $1 million in federal community development funds to the global architecture firm designing the downtown’s proposed NFL football stadium:

Gensler plans to move from Santa Monica to downtown L.A., where it will use the $1 million in federal community-development block grant funds to create a hip, new atmosphere for its relocated employees at the “jewel box,” a three-story building nestled between two skyscrapers at City National Plaza.

Unfortunately, the “hip, new atmosphere” paid for by federal taxpayers probably won’t be the “job creator” that city officials are claiming:

[Mayor] Villaraigosa and City Council members since February have claimed that enticing Gensler from Santa Monica to downtown L.A. is a job creator. But that’s debatable. Some temporary jobs will be created for the jewel box renovation, but Gensler is moving its offices just 20 miles. Many economists would describe L.A.’s action as merely shifting jobs within an intricately intertwined economic area.

A HUD official called the situation “entirely healthy.”

Finally, HUD recently informed the City of Montebello (California) that it had uncovered 31 violations regarding the city’s use of HOME program funds, which are to be used for affordable housing. According to the Whittier Daily News, the report “was so damning it brought interim city administrator Peter Cosentini to tears”:

Last year, HUD demanded that Montebello repay $1.3 million because the city gave a developer HOME money to help build a housing project with affordable units and reported to the federal agency the project was complete, but construction hasn’t started. And a key document submitted to HUD appeared to have been forged, according to the report.

In February, HUD notified city officials that Montebello must also repay nearly $900,000 it used to purchase another parcel of land. The city failed to give HUD needed documents on the property acquisition, including an appraisal, documentation of expenditures and current ownership, according to a Feb. 18 letter from [HUD official] Vasquez to the city.

Cosentini responded in writing, saying city staff has been sent to training as recommended by HUD. Montebello is also conducting an internal investigation into the possible document forgery. The city’s internal investigation of the $1.3 million has been slowed because the developer isn’t cooperating and is “stonewalling” city staff, he wrote. Cosentini also asked for more time to repay the money.

But the city missed a March 1 deadline to submit a repayment plan, according to a letter from Vasquez. And HUD will seek an additional repayment of $2.7 million, Cosentini wrote in the memo.

Take heart federal taxpayers – Montebello city bureaucrats are being “sent to training” per HUD’s recommendation!

http://www.cato-at-liberty.org/more-hud-community-development-duds/

Physics for safer ports: New technology uses nuclear 'fingerprints' to scan cargo ships
April 29th, 2011 in Technology / Engineering   

Enlarge

The Port of Savannah is the fourth largest container port in the United States, importing hundreds of large metal boxes from cargo ships shown here. Credit: Georgia Department of Economic Development.
While 700 million travelers undergo TSA's intrusive scans and pat-downs each year, 11 million cargo containers enter American ports with little screening at all. And the volume of those containers, roughly equivalent to 590 Empire State Buildings of cargo, could contain something even worse than box knives or exploding shoes, namely nuclear weapons.
Two teams of North Carolina physicists are mapping the intricacies of the atomic nucleus, which could provide better security at the ports. The scientists have identified new "fingerprints" of nuclear materials, such as uranium and plutonium. The fingerprints would be used in new cargo scanners to accurately and efficiently identify suspicious materials. The physics might also be used to improve analysis of spent nuclear fuel rods, which are a potential source of bomb-making materials.
The problem starts at ports, where terrorists may try to smuggle an entire dirty bomb or even smaller amounts of plutonium or uranium by hiding it within the mountains of cargo that pass into the country each day. Cargo scanners using the new nuclear fingerprints would be sensitive enough to spot an entire bomb or the smaller parts to build one, according to Mohammad Ahmed, a nuclear physicist at Duke University.
Ahmed and his colleagues are developing the fingerprints for the next-generation detectors with HIGS, the High Intensity Gamma-Ray Source. It is the world's most intense and tunable source of polarized gamma rays and is located on Duke's campus as part of the Triangle Universities Nuclear Laboratory. HIGS produces gamma rays that are guided to collide with target materials, causing a variety of nuclear reactions.
In the reaction Ahmed and his Duke colleagues study, the collision creates a spray of particles, which fly into a group of detectors. The detectors count the number of neutrons knocked from the atomic nuclei of the target material in either a parallel or perpendicular direction, compared to the polarization plane of the gamma-ray beam. Dividing the number of neutrons emitted parallel to the plane by the number emitted perpendicular is distinct to each material, giving it a unique fingerprint.
Ahmed said these fingerprints could eventually be used to distinguish special nuclear materials, like weapons-grade uranium, from naturally occurring uranium or ordinary objects such as clothing or granite countertops, distinctions that current port scanners cannot make.
In a separate but related project, nuclear physicists from three North Carolina universities are slamming the HIGS beam into atomic nuclei and observing the energy pattern and distribution of the gamma rays that fluoresce back out of the collision. Each material has a distinct fluorescence pattern based on its nuclear structure, according to physicist Calvin Howell, who leads the Duke group.

Enlarge
New neutron "fingerprints" discovered with polarized gamma-rays at Duke could be the foundation for new port security scanners. Graphic: Ashley Yeager, Duke
Howell and his collaborators are studying the fluorescence patterns of potentially dangerous nuclear materials and non-nuclear contraband such as explosives and drugs. They are also identifying the patterns of steel and lead because terrorists can use the metals to conceal and ship weapon-making materials.
The two anti-terrorism projects were developed with the support of the Department of Homeland Security's Domestic Nuclear Detection Office, or DNDO. The agency awarded Ahmed and his colleagues a $2 million grant, while Howell and his collaborators received grants totaling $2 million. DNDO is funding both projects in response to the SAFE (Security and Accountability For Every) Port Act of 2006, which requires security agents to scan for nuclear materials in all of the containers entering the United States through the nation's 22 busiest ports.
Five years after Congress and the president approved the legislation, the equipment to satisfy this mandate still doesn't exist. Meanwhile, the United States transfers about 20 percent of the world's freight across its borders and has more than 300 maritime ports for sea containers and an additional 300 access points, such as border crossings, where dangerous materials might enter the country.
The Duke scientists say their use of polarized gamma-ray beams could one day help satisfy the SAFE policy, and they are building the fingerprint library to make it happen.
The HIGS data show, for example, that a precisely tuned gamma beam at 6 MeV causes weapons-grade uranium, U-235, to emit one neutron parallel to the polarization plane for each neutron emitted perpendicular to the plane, giving the material a neutron fingerprint of one.
Naturally occurring uranium, U-238, emits three parallel neutrons for every one emitted perpendicular to the polarization plane of the beam, giving it a neutron fingerprint of three.
Beryllium, which can also be a neutron source in nuclear weapons, has a neutron fingerprint of 10. The team is now measuring the neutron fingerprints of plutonium and other fissile materials, Ahmed said.
Howell and his collaborators, meanwhile, work at lower energies on HIGS, about 3 MeV. (Surgeons, for comparison, use a "Gamma Knife" at roughly 1 MeV to treat brain tumors.) Their team has already identified the fluorescence patterns of several special nuclear materials and lead.
Both teams will report their results at a meeting with DNDO officials on Thursday, April 28 in Washington D.C. and will store their results in a nuclear identification database.
Ahmed and Howell said that engineers at one private security company and scientists at U.S. national laboratories have already begun using the database to design new port security scanners.
The new detectors will search cargo for the fingerprints using an electron accelerator, possibly coupled to lasers that produce a finely tuned gamma-ray beam, said Craig Wuest of the Global Security Principal Directorate at Lawrence Livermore National Laboratory (LLNL).
The design sounds complex, but in some ways it resembles medical scanning equipment and appears promising to pursue, he said.
Howell's "nuclear resonance fluorescence" approach is interesting because it uses a beam with lower-energy gamma rays and reduces the potential irradiation and contamination of cargo while providing "sufficient detection sensitivity," Wuest, who was not involved in the research, added.
One of Wuest's colleagues at LLNL, nuclear physicist Dennis McNabb,is more intrigued with Ahmed's and Weller's technique. Scientists are only just beginning to measure the fingerprints and background signatures from this neutron-scattering process, and because "the research is in progress, how to best use the data is still an open question," McNabb said.
He also explained that cargo scanners using the data from both teams could be ready for use at ports in about 10 years.
Still, some scientists question whether the emerging science and technology can mature fast enough to meet the real-world threats of terrorists and dirty bombs. For instance, Thomas Cochran, a physicist and senior scientist at the Natural Resources Defense Council, voiced "serious doubts" and said the government should focus instead on eliminating inventories of highly enriched uranium, improving port security, boosting intelligence efforts and training first responders.
Other experts disagree and are urging the government to accelerate research on new science and technologies that could significantly reduce the threat of nuclear weapons smuggling, which seems likely to persist into the next decade. McNabb, a proponent, said, "it takes time to develop new technologies" and suggests that the research may accelerate development in other areas of nuclear security.
The new information from HIGS could improve analysis of spent nuclear fuel rods, which are an environmental issue as well as a potential source of bomb materials, according to Duke physicist Anton Tonchev.
He works on the nuclear resonance fluorescence project with Howell and said the technique provides a nondestructive way to measure the quantities of plutonium and other nuclear materials that remain after the rods are removed from a nuclear reactor.
Currently, the spent fuel rods must be opened and tested to assess what materials remain in them. The process is expensive, but critical for the International Atomic Energy Agency to accurately calculate the amount of leftover fissile and nuclear materials. McNabb and Tonchev said that a new technique to distinguish the leftover U-235, U-238 and plutonium in the spent rods without opening them could substantially lower the costs to manage and account for nuclear waste to prevent nuclear proliferation by terrorists.
Regardless of how fast engineers turn the fingerprint data and new approaches into workable scanning and nuclear fuel devices, the Duke scientists said there is immediate value in compiling a robust database of both the neutron and nuclear resonance fluorescence fingerprints. Government officials at the DNDO concur and cite HIGS as the only facility with the ability to produce such a database, according to Ahmed.
Because of the demand, the physicists have recruited graduate and undergraduate students from Duke, University of North Carolina, North Carolina Agricultural and Technical State University, North Carolina Central University, James Madison University and George Washington University to help with the effort. They especially encourage students from historically black colleges and universities to participate, hoping the effort will help broaden the diversity of nuclear physicists working to identify new ways to curb the threat of future terror attacks.
Provided by Duke University

http://www.physorg.com/news/2011-04-physics-safer-ports-technology-nuclear.html

Bin Laden’s Revenge
By Randall Holcombe
Tuesday May 3, 2011 at 12:17:08 PM PDT

 

I just returned from a conference.  The guy sitting next to me on the plane had with him a laptop computer, an iPad, an iPod, and a phone.  Yep, four “portable electronic devices.”  I figured the guy was probably a terrorist.  Because they keep announcing it to potential terrorists on aircraft, I know that portable electronic devices can interfere with the aircraft’s navigation system.  And this guy had four of them.

Now that bin Laden has been killed some have conjectured that al Qaeda will initiate some retaliation, and they probably would want to strike quickly.  Targeting aircraft would be difficult because of the heavy security already in place.  For example, someone wanting to bring down an aircraft using toothpaste would have a difficult time because the TSA prohibits carrying toothpaste, except in extremely small quantities, on aircraft.

So, you’d have to think that anyone wanting to initiate a terrorist attack with toothpaste, shampoo, mouthwash, or soft drinks would have a very difficult time getting those dangerous and banned items onto an aircraft.  The big loophole in all this is portable electronic devices which, despite repeated announcements about their danger to aircraft, are still allowed on board.

How hard would it be, for example, for al Qaeda to book a dozen operatives onto a flight, all of whom had four portable electronic devices like my recent seat-mate, and then when below 10,000 feet, to all turn them on at once?  That would be 48 portable electronic devices, which would cripple the aircraft’s navigation system and bring the aircraft down.  Don’t need box cutters.  Don’t need toothpaste.  It can be done with something the TSA routinely lets through checkpoints, even as the flight attendants announce on every flight how dangerous they are.

Skeptical readers will argue that despite these announcements, portable electronic devices pose no threat to aircraft navigation, and perceptive passengers will note that even as the airline crews announce the dangers of these devices on every flight, the airlines have even started selling in-flight internet service (above 10,000 feet), so we can all fire up our portable electronic devices and surf the web rather than focusing on the fact that we are hurling along six miles above the surface of the Earth, where the air is too thin to breathe, at 550 mph in an aluminum cylinder.  Could it be that these devices interfere with aircraft navigation below 10,000 feet, but not in the thinner air above?

Most people don’t question things we’re told to do for our safety.  On one of my flights this trip, a passenger didn’t turn off his portable music player as the aircraft descended and the familiar announcement was made, and was accosted by a fellow passenger who told the offending music listener that his player could “mess up” the aircraft’s navigation system, and that he was endangering our flight.  Meanwhile, for our own safety, we disrobe at TSA checkpoints, and don’t carry dangerous items like mouthwash and shampoo, remaining compliant because most people think this makes us safer.

The damage al Qaeda’s attack caused when it destroyed the World Trade Center was about $10 billion (not including the substantial cost in terms of human life).  Meanwhile, the TSA’s annual budget is $6.3 billion, so we’re spending more than half the cost of the destruction of the World Trade Center every year to protect ourselves from another attack.  Clearly, the bulk of the cost of the September 11, 2001 attack has come in terms of the costs we have incurred since that day, not the cost of the actual destruction from the attack.  That is bin Laden’s revenge.

Part of bin Laden’s revenge comes in the form of the monetary cost, and part comes in the form of our ready acceptance of our loss of liberty.  Our Constitution says, “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated… but upon probable cause…”  Yet everyone who takes an airline flight undergoes such a search, with no probable cause.  The TSA has yet to discover anyone at any checkpoint poised to undertake any terrorist activity.

Yes, there was the financial cost and loss of life, but perhaps a bigger victory, and an on-going one, for bin Laden, is the undermining of our constitutional rights.  I talk with people all the time who tell me they believe our loss of rights is worth it to make flying safer.  They don’t question the nonsensical TSA rules.  We’re training compliant citizens, and those citizens trained to be more compliant to government mandates at TSA checkpoints indirectly are being trained not to question government mandates in all areas of our lives.

No thinking person can believe that preventing people from carrying their own bottled water onto airplanes, or carrying their own toothpaste and shampoo, makes us safer.  Even preventing people from carrying knives on board does not make us safer.  Prior to September 11, 2001, the conventional wisdom on an aircraft hijacking was to quietly comply with the hijacker’s demands so everyone could land safely.  That conventional wisdom disappeared before that day was over, as the passengers on United Airlines Flight 93 heard about the other hijackings and overpowered the hijackers.  Passengers will no longer be compliant with hijackers’ demands, and if the passengers had knives, it would enable them to more effectively fight back, as they would do today.

We can debate the wisdom of allowing people to carry knives on board aircraft, but how about deodorant, or shampoo?  Where do we draw the line?  The answer is that we don’t.  We have been intimidated, by bin Laden’s terrorist network and our own federal government, into complying with demands that everyone should recognize as absurd, and a violation of our constitutional rights.

The Constitution always has been a pesky obstacle standing in the way of the government taking away more of our liberties.  Bin Laden’s attacks were aimed directly at the constitutional safeguards that make ours a free country.  Bin Laden is gone, but his revenge is the erosion of our constitutional liberties that will live on.

http://www.independent.org/blog/index.php?p=10419

Suppose John Brennan Had Simply Repeated Harold Koh?
Kenneth Anderson • May 5, 2011 1:54 am

I wonder whether the current kerfuffle over whether there was a legal obligation to invite OBL to surrender would be different had the Obama administration, and John Brennan in particular, not inexplicably displayed a certain hesitation on the question of capture.

Suppose that faced with that initial, and entirely predictable, question — did the SEALs attempt to capture Bin Laden? — Brennan had instead brooked no opposition and snapped back with visible irritation — of course they were not attempting to capture him, they were there to kill him and had been sent to kill him.  This was an armed lethal attack upon a a criminal adversary of the United States in an armed conflict, without cavil or apology.  They were sent to attack and kill him as someone who was targetable with lethal force and no warning at any time.  Which, as explanations go, and at least as it appears at this moment, does have the virtue of being true, as well as legally sound.

The NGOs and advocates and activist-academics have an instinctive sense for exploitable weakness and go after it; after all it’s part of their job. Brennan (as well as later spokespeople, including Holder) was not direct in stating that of course it was legal to target OBL, legal to target with lethal force, legal to target without warning or invitation to surrender, and that has always been the US legal position.  I don’t understand how this entirely obvious question wasn’t briefed and anticipated, with an answer directly from Harold Koh’s 2010 American Society of International Law address on exactly this point:

Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force ....

The principles of distinction and proportionality that the US applies are … implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law ....

Some have argued that our targeting practices violate domestic law, in particular, the longstanding domestic ban on assassinations. But under domestic law, the use of lawful weapons systems — consistent with the applicable laws of war — for precision targeting of specific high-level belligerent leaders when acting in self-defence or during an armed conflict is not unlawful, and hence does not constitute ‘assassination’.

Isn’t that what the US government actually thinks is legally correct?  Of course it is — it was stated a year ago as the “considered view” of the United States government by the chief international and foreign relations legal counsel to the United States.  And isn’t this what it must eventually get around to saying, no matter what?  It seems peculiar that high level officials would seem unprepared to articulate this.  And had it done so, I wonder if some of the challenges to its position that the administration faces on its Europhile left wing would not have found far less traction.  I agree that ultimately these are not politically serious objections and generally are aimed at appealing to various constituencies among the advocacy communities.

Still, the administration is in a strange position — not one I would have anticipated.  And not one the administration would have anticipated either, I reckon:

A strand of the left wing insisting that OBL should have been arrested or at least killed resisting arrest for the sake of good legal form;
a strand of the right wing crying vindication for enhanced interrogation techniques and, it desperately hopes, crucial information obtained through waterboarding; and
a middle wing, including most of the left and right and in-between, looking at where OBL was living in Pakistan and among whom, and thinking, WTF?

(Update:  The question raised in some of the comments of refusing quarter or refusing surrender is a separate one.  Firing on a lawful target, even an unarmed one and even when one knows a human target is unarmed, is not unlawful — that is what potentially happens when one drops a bomb, after all.  Refusing to grant quarter or refusing to grant surrender, on the other hand, is a serious war crime.

However, precisely because it is so serious, the act of surrender requires clear evidence of completion and, because it is fraught with risk and unknowns, is a far more difficult act to establish as a legal fact than is ordinarily supposed.  Over the last several years, I’ve had many discussions with DOD lawyers and JAG, reviewing draft manuals and the like, and at first I was astonished at how much attention was paid by operational law of war lawyers — the JAG tactically advising in the field — to the nitty-gritty of this topic.  They anxiously wanted to discuss and write down practical instructions on many distinct situations.  They wanted to cover the many ways in which forces should not rush to assume that surrender was intended, or assume who exactly was surrendering, whether they would stop surrendering when their own superiors or comrades told them no or kept firing, what happens when individuals try to surrender piece-meal, by individuals but not under responsible command, if you an even know who that is on short notice, and you’re not sure who or whether it’s real — under what circumstances does any of this stop combat and with respect to whom?

We walked through these and many other situations from records of what had happened in many actual tactical situations, and not infrequently with grim results for attackers who had thought surrender by the other side was underway, and it wasn’t. In most of those cases, no perfidy or bad faith was involved, just uncertainty and fog of war on both sides.

This is a topic for another post, but surrender is a vital rule and an easy one to state in the abstract — but far more complicated, even when acting in good faith on both sides, on the ground.  And, operational law lawyers emphasize, until that quite fraught legal act of surrender is accomplished, an attacker has no obligation to stop, or even pause in the attack, because so pausing might well cause the attacker to cede the initiative in the element of surprise on the other side that allows the adversary enough time to regroup and turn the tide.  Is that subject to bad faith?  Yes, just as perfidy and bad faith on the other side might happen.)

(I’ve also cleaned things up a little to emphasize that I think the fragmentation of the debate involves splinters of the right and left.  A couple of the commenters were right in pointing out that I had carelessly taken “left” and “right” as whole things.  However, when one looks abroad, I do believe that more important legal commentators — a Special Rapporteur at the UN, for example, Martin Scheinin — do indeed take the view that some form of invitation to surrender should have been made.  I persist in my view that, however fringe that view is in the US, it has a lot of traction among the international advocacy community, in Europe, at the UN, among the NGOs, and unless confronted directly, will have the effect of reshaping the narrative internationally to a much greater degree than the administration seems to understand.)

http://volokh.com/2011/05/05/suppose-john-brennan-had-simply-repeated-harold-koh/

So much here that's so wrong the mind reels:


MAY 5, 2011 12:00 A.M.
Hamas Mourns Osama
So do the al-Aqsa Martyrs' Brigades. But that can’t be an obstacle to the peace process!

It requires a keen sense of irony to write the headline that Newsweek ran last week: “The Wrath of Abbas: Fed up with stalled peace talks, the Palestinian leader defies Israel and vents about Obama.”

Peace talks between Palestinian president Mahmoud Abbas and Israeli prime minister Benjamin Netanyahu have stalled for one simple reason: Abbas refuses to attend. He has demanded Israeli concessions in exchange for resuming negotiations. In other words, Abbas is stalling the peace talks — and, by golly, he’s fed up with it!

According to Newsweek, Obama encouraged Abbas to take a hard line but then did not put sufficient pressure on Netanyahu. That’s why Abbas decided to “vent” about Obama to Newsweek reporter Dan Ephron, who boasts that Abbas “let Newsweek into his personal space,” which included a specially fitted-out Airbus A318 borrowed from the United Arab Emirates and suites at the Hotel Le Meurice in Paris. Surprise, surprise: Ephron found Abbas “affable” and “moderate in his approach to Israel and unequivocally against violence.”

Just a few days after the article was published, Abbas announced that Fatah, his political party, which rules the West Bank, had agreed to form a “unity government” with Hamas, which rules Gaza and remains openly committed to the extermination of Israel.

Hamas’s ideology is not markedly different from that of al-Qaeda, as was illustrated this week when Ismail Haniyeh, Hamas’s prime minister, responded to the death of Osama bin Laden by saying: “We condemn the assassination and the killing of an Arab holy warrior. We ask God to offer him mercy with the true believers and the martyrs.”

So, it turns out, Abbas has not just “defied Israel” and “vented” about Obama. He also has put Obama in a bind: Does the president now stop aid to the Palestinians?  Or does he try to convince Congress and the American public that spending taxpayer money to support a terrorist organization that mourns bin Laden as a “holy warrior” and “martyr” is a shrewd policy choice?

To complicate matters further, the al-Aqsa Martyrs’ Brigades, a “military wing” of Fatah that reports to Abbas, called bin Laden’s death a “catastrophe,” adding: “We say to the American and Israeli occupier: the [Islamic] nation which produced leaders who changed the course of history through their Jihad . . . is capable of restoring the glory of Islam and the flag of Allah’s oneness, Allah willing.” The “moderate” and “unequivocally against violence” Abbas has not appeared shocked by this expression of jihadism within his organization.

Perhaps that’s because he’s been so busy preparing a “unilateral declaration of statehood” that he wants the U.N. to approve.  He wants the U.N. to say, too, that the borders between this Palestinian state and Israel will be the armistice lines left in place after the first Arab war to eliminate Israel in 1948–49. Those lines remained until 1967 — when Israel’s Arab neighbors made another concerted attempt to wipe Israel off the map.

At the conclusion of that conflict, Israel had taken the Sinai and Gaza from Egypt and the West Bank from Jordan. Israel returned the Sinai to Egypt in exchange for a peace treaty signed in 1979, and withdrew from Gaza in 2005. (Hamas has been launching missiles at Israel from Gaza ever since.) In the past, Israel also has offered to turn over more than 90 percent of the West Bank, but in exchange, it wants — and has been promised by both American governments and international agreements — “defensible borders,” which means not quite the lines Arab armies crossed in 1967.

The Newsweek article concludes by suggesting that Obama could do more about the “unresolved Israeli-Palestinian conflict,” which continues “to be an irritant for Arabs and a source of resentment against the United States.” The reason he isn’t? With elections coming up, he would not want “to risk alienating Israel’s supporters by pressing the peace question.”

Ah yes, it’s “Israel’s supporters” who are the obstacles to peace — not Hamas, not the al-Aqsa Martyrs’ Brigades, and certainly not the affable Mr. Abbas. It requires a wicked sense of humor — or no sense at all — to write that.

— Clifford D. May is president of the Foundation for Defense of Democracies, a policy institute focusing on terrorism and Islamism.

http://www.nationalreview.com/articles/266446/hamas-mourns-osama-clifford-d-may

Sure would be nice if the hand wringers contemplated for a moment the extrajudicial incineration, mangling, crushing et al of 9/11 victims. Don't mess with the eagle if you can't take the talon.

Hmm, this is a New Yorker piece with plenty of lines to read between. The term "damned by faint praise" comes to mind.

THE CONSEQUENTIALIST
How the Arab Spring remade Obama’s foreign policy.
by Ryan Lizza
MAY 2, 2011 Obama has said that his foreign-policy ideas defy traditional categories and ideologies. Photograph by Martin Schoeller.PRINT E-MAIL SINGLE PAGE

Barack Obama came to Washington just six years ago, having spent his professional life as a part-time lawyer, part-time law professor, and part-time state legislator in Illinois. As an undergraduate, he took courses in history and international relations, but neither his academic life nor his work in Springfield gave him an especially profound grasp of foreign affairs. As he coasted toward winning a seat in the U.S. Senate, in 2004, he began to reach out to a broad range of foreign-policy experts––politicians, diplomats, academics, and journalists.

As a student during the Reagan years, Obama gravitated toward conventionally left-leaning positions. At Occidental, he demonstrated in favor of divesting from apartheid South Africa. At Columbia, he wrote a forgettable essay in Sundial, a campus publication, in favor of the nuclear-freeze movement. As a professor at the University of Chicago, he focussed on civil-rights law and race. And, as a candidate who emphasized his “story,” Obama argued that what he lacked in experience with foreign affairs he made up for with foreign travel: four years in Indonesia as a boy, and trips to Pakistan, India, Kenya, and Europe during and after college. But there was no mistaking the lightness of his résumé. Just a year before coming to Washington, State Senator Obama was not immersed in the dangers of nuclear Pakistan or an ascendant China; as a provincial legislator, he was investigating the dangers of a toy known as the Yo-Yo Water Ball. (He tried, unsuccessfully, to have it banned.)

Obama had always read widely, and now he was determined to get a deeper education. He read popular books on foreign affairs by Fareed Zakaria and Thomas Friedman. He met with Anthony Lake, who had left the Nixon Administration over Vietnam and went on to work in Democratic Administrations, and with Susan Rice, who had served in the Clinton Administration and carried with her the guilt of having failed to act to prevent the Rwandan genocide. He also contacted Samantha Power, a thirty-four-year-old journalist and Harvard professor specializing in human rights. In her twenties, Power had reported from the Balkans and witnessed the campaigns of ethnic cleansing there. In 2002, after graduating from Harvard Law School, she wrote “A Problem from Hell,” which surveyed the grim history of six genocides committed in the twentieth century. Propounding a liberal-interventionist view, Power argued that “mass killing” on the scale of Rwanda or Bosnia must be prevented by other nations, including the United States. She wrote that America and its allies rarely have perfect information about when a regime is about to commit genocide; a President, therefore, must have “a bias toward belief” that massacres are imminent. Stopping the execution of thousands of foreigners, she wrote, was, in some cases, worth the cost in dollars, troops, and strained alliances. The book, which was extremely influential, especially on the left, won a Pulitzer Prize, in 2003. Critics considered her views radical and dangerously impractical.

 
FROM THE ISSUE CARTOON BANK E-MAIL THIS
After reading “A Problem from Hell,” Obama invited Power to dinner. He said he wanted to talk about foreign policy. The meal lasted four hours. As a fledgling member of the Senate Foreign Relations Committee, and an ambitious politician with his sights set on higher office, Obama agreed to have Power spend a year in his office as a foreign-policy fellow.

In his first news conference after winning election to the Senate, the press asked whether he intended to run for President, but he assured reporters, as well as his aides, that he would not even consider it until 2012 or 2016. He knew that he could not have a serious impact on issues like Iraq or the Sudan as a junior committee member, but he was determined to learn the institution and to acquire, as Hillary Clinton had, a reputation not for celebrity but for substance. In foreign affairs, as in so much else, he was determined to break free of the old ideologies and categories. But he would take it step by step.

bama entered the Senate in 2005, at a moment of passionate foreign-policy debate within the Democratic Party. The invasion of Iraq was seen as interventionism executed under false pretenses and with catastrophic consequences. Many on the left argued that liberal interventionists, particularly in Congress and in the press, had given crucial cover to the Bush Administration during the run-up to the war. Hillary Clinton, who often sided with the humanitarian hawks in her husband’s White House, and who went on to vote for the Iraq war, in 2002, seemed to some to be the embodiment of all that had gone wrong.

One reaction among liberals to the Bush years and to Iraq was to retreat from “idealism” toward “realism,” in which the United States would act cautiously and, above all, according to national interests rather than moral imperatives. The debate is rooted in the country’s early history. America, John Quincy Adams argued, “does not go abroad in search of monsters to destroy. She is the well-wisher to freedom and independence of all,” but the “champion and vindicator only of her own.”

In 1966, Adams’s words were repeated by George Kennan, perhaps the most articulate realist of the twentieth century, in opposing the Vietnam War. To Kennan and his intellectual followers, foreign-policy problems are always more complicated than Americans, in their native idealism, usually allow. The use of force to stop human-rights abuses or to promote democracy, they argue, usually ends poorly. In the fall of 2002, six months before the invasion of Iraq, Kennan said, “Today, if we went into Iraq, as the President would like us to do, you know where you begin. You never know where you are going to end.”

As Obama sorted through the arguments, other foreign-policy liberals were determined to prevent Iraq from besmirching the whole program of liberal internationalism. Humanitarian intervention—which Power helped advance, though she vigorously opposed the Iraq War—should not be abandoned because of the failures in Baghdad. Nor should American diplomacy turn away from emphasizing the virtues of bringing the world democracy. Anne-Marie Slaughter, a professor of international affairs at Princeton and a Democrat, wrote in the liberal journal Democracy that an overreaction to the Bush years might mean that “realists could again rule the day, embracing order and stability over ideology and values.”

After little more than a year in the Senate, Obama was bored, and began to take seriously the frequent calls to run for President. To be a candidate, he needed to distinguish himself from his foremost potential opponent, Hillary Clinton, as well as from President Bush. One of the clearest paths to distinction, especially in the primaries, was to emphasize his early opposition, as a state senator, to the Iraq war. He started to move away from the ideas of people like Power and Slaughter. He pointedly noted that George H. W. Bush’s management of the end of the Cold War was masterly. The President had sometimes kept quiet about the aspirations of pro-democracy activists in Russia, Ukraine, and elsewhere, in order to maintain the confidence of Mikhail Gorbachev in the Kremlin. It was just the sort of political performance to which Obama aspired.

In making the case against Hillary Clinton, Obama slyly argued that the George W. Bush years were in some ways a continuation of the Bill Clinton years, and that the United States needed to return to the philosophy of an earlier era. The proselytizing about democracy and the haste to bomb other countries in the name of humanitarian aid had “stretched our military to the breaking point and distracted us from the growing threats of a dangerous world,” Obama said in a speech in 2006, a few weeks before he announced his Presidential candidacy. He spoke of “a strategy no longer driven by ideology and politics but one that is based on a realistic assessment of the sobering facts on the ground and our interests in the region. This kind of realism has been missing since the very conception of this war, and it is what led me to publicly oppose it in 2002.”

In 2007, Obama called Zbigniew Brzezinski, President Carter’s national-security adviser and the reigning realist of the Democratic foreign-policy establishment. Obama told him that he had read his recent book, “Second Chance,” in which Brzezinski criticized Presidents Clinton and George W. Bush and their handling of the post-Cold War world. They began to speak and exchange e-mails about policy, and Brzezinski travelled with Obama during a stretch of the campaign. In September, 2007, Brzezinski introduced Obama at an event in Clinton, Iowa, where the candidate discussed the failures in Iraq. “I thought he had a really incisive grasp of what the twenty-first century is all about and how America has to relate to it,” Brzezinski told me. “He was reacting in a way that I very much shared, and we had a meeting of the minds—namely, that George Bush put the United States on a suicidal course.”

As he campaigned in New Hampshire, in 2007, Obama said that he would not leave troops in Iraq even to stop genocide. “Well, look, if that’s the criteria by which we are making decisions on the deployment of U.S. forces, then by that argument you would have three hundred thousand troops in the Congo right now, where millions have been slaughtered as a consequence of ethnic strife, which we haven’t done,” he said. “We would be deploying unilaterally and occupying the Sudan, which we haven’t done.”

At a campaign event in Pennsylvania, Obama said, “The truth is that my foreign policy is actually a return to the traditional bipartisan realistic policy of George Bush’s father, of John F. Kennedy, of, in some ways, Ronald Reagan.”

n the end, Barack Obama overcame Hillary Clinton’s campaign warnings that he was too callow, too naïve about dealing with rogue regimes, too untested to respond to the “3 A.M.” emergencies from all corners of the globe. Obama entered the White House at a moment of radical transition in global politics, and one of his most significant appointments was Clinton as his Secretary of State. Although he had made plain in the campaign that he disagreed with some of her foreign-policy views, he admired her discipline and believed that, as a member of the Cabinet, she wouldn’t publicly break with the President. And he would need her. Obama faced economic catastrophe at home and American wars in Iraq and Afghanistan; serious regional threats from Pakistan and Iran; global terrorism; the ascendance of China and India; and a situation that was almost impossible to discuss—a vivid sense of American decline.

American values and interests are woven together, and no President is always either an idealist or a realist. Officials who identify with the same label often disagree with one another. Humanitarian interventionists were divided over the Iraq war; Cold War realists had split over détente with the Soviet Union. The categories describe only broad ideological directions and tendencies. But, as Richard Haass, the president of the Council on Foreign Relations, observed, “the battle between realists and idealists is the fundamental fault line of the American foreign-policy debate.”

After the Inauguration, the realists began to win that debate within the Administration. The two most influential foreign-policy advisers in the White House are Thomas Donilon, the national-security adviser, and Denis McDonough, a deputy national-security adviser. Donilon, who is fifty-five, is a longtime Washington lawyer, lobbyist, and Democratic Party strategist. McDonough started out as a congressional staffer and campaign adviser to Obama, a role that has given him a reputation as a non-ideological political fixer.

The National Security Council is a bureaucracy that helps the President streamline decision-making, and Donilon seems to have thought extensively about how that system works. Like the President, he values staff discretion. His rule for hiring at the N.S.C. is to find people who are, in his words, “high value, low maintenance.” Obama’s N.S.C. adopted the model of the first Bush Administration. “It’s essentially based on the process that was put in place by General Brent Scowcroft and Bob Gates in the late nineteen-eighties,” Donilon told me, speaking of Bush’s national-security adviser and his deputy, the current Secretary of Defense. The most important feature, Donilon said, is that the N.S.C., based at the White House, controls “the sole process through which policy would be developed.”

One of Donilon’s overriding beliefs, which Obama adopted as his own, was that America needed to rebuild its reputation, extricate itself from the Middle East and Afghanistan, and turn its attention toward Asia and China’s unchecked influence in the region. America was “overweighted” in the former and “underweighted” in the latter, Donilon told me. “We’ve been on a little bit of a Middle East detour over the course of the last ten years,” Kurt Campbell, the Assistant Secretary of State for East Asian and Pacific Affairs, said. “And our future will be dominated utterly and fundamentally by developments in Asia and the Pacific region.”

In December, 2009, Obama announced that he would draw down U.S. troops from Iraq and Afghanistan by the end of his first term. He also promised, in a speech to the United Nations General Assembly last year, that he was “moving toward a more targeted approach” that “dismantles terrorist networks without deploying large American armies.”

“The project of the first two years has been to effectively deal with the legacy issues that we inherited, particularly the Iraq war, the Afghan war, and the war against Al Qaeda, while rebalancing our resources and our posture in the world,” Benjamin Rhodes, one of Obama’s deputy national-security advisers, said. “If you were to boil it all down to a bumper sticker, it’s ‘Wind down these two wars, reëstablish American standing and leadership in the world, and focus on a broader set of priorities, from Asia and the global economy to a nuclear-nonproliferation regime.’ ”

Obama’s lengthy bumper-sticker credo did not include a call to promote democracy or protect human rights. Obama aides who focussed on these issues were awarded lesser White House positions. Samantha Power became senior director of multilateral affairs at the N.S.C. Michael McFaul, a Stanford professor who believes that the U.S. should make democracy promotion the heart of its foreign policy, landed a mid-level position at the White House.

Most of the foreign-policy issues that Obama emphasized in his first two years involved stepping away from idealism. In the hope of persuading Iran’s regime to abandon its nuclear ambitions, Obama pointedly rejected Bush’s “axis of evil” terminology. In a video message to Iranians on March 20, 2009, he respectfully addressed “the people and leaders of the Islamic Republic of Iran.” In order to engage China on economic issues, Obama didn’t press very hard on human rights. And, because any effort to push the Israelis and Palestinians toward a final settlement would benefit from help from Egypt, Jordan, and Saudi Arabia, Obama was not especially outspoken about the sins of Middle Eastern autocrats and kings.

Despite the realist tilt, Obama has argued from the start that he was anti-ideological, that he defied traditional categories and ideologies. In Oslo, in December of 2009, accepting the Nobel Peace Prize, Obama said, “Within America, there has long been a tension between those who describe themselves as realists or idealists—a tension that suggests a stark choice between the narrow pursuit of interests or an endless campaign to impose our values around the world.” The speech echoed Obama’s 2002 address to an antiwar demonstration in Chicago’s Federal Plaza. In Chicago, he had confounded his leftist audience by emphasizing the need to fight some wars, but not “dumb” ones, like the one in Iraq. In Oslo, he surprised a largely left-leaning audience by talking about the martial imperatives of a Commander-in-Chief overseeing two wars. Obama’s aides often insist that he is an anti-ideological politician interested only in what actually works. He is, one says, a “consequentialist.”

eanwhile, Secretary of State Hillary Clinton turned her department into something of a haven for the ideas that flourished late in the Clinton Administration. She picked Anne-Marie Slaughter as her director of policy planning—a job first held by George Kennan, in the Truman Administration. She also brought in Harold Koh, the State Department’s legal adviser and a scholar on issues concerning human rights and democracy. Walking around the mazelike building in Foggy Bottom, you get the sense that if you duck into any office you will find earnest young women and men discussing globalization, the possibility that Facebook can topple tyrannies, and what is called “soft power,” the ability to bend the world toward your view through attraction, not coercion.

Not long ago, I met with Kris Balderston, the State Department’s representative for global partnerships. He started working with Clinton ten years ago, when he guided her through the politics of upstate New York during her Senate race. Now he works on an array of entrepreneurial projects that complement traditional diplomacy. He talked excitedly about working with Vietnamese-Americans to build stronger ties to Vietnam and about distributing vaccines in partnership with Coca-Cola. He pointed to a bookcase stocked with devices that looked like a cross between a lantern and a paint bucket. These were advanced cookstoves. “This is a problem that the Secretary saw when she was First Lady,” Balderston said, explaining how lethal cooking smoke can be. “One half of the world cooks in open fires. Two million people die a year from it—that’s more than malaria and tuberculosis combined, and nearly as much as H.I.V.” On a trip to Congo in 2009, Clinton met a woman in a refugee camp who had been raped in the jungle on the outskirts of the camp while gathering wood for her stove. Telling the story at the State Department, Clinton was angrier than Balderston had ever seen her. “We have got to do something about this,” she said. Balderston spends much of his time trying to build a market for inexpensive, clean-burning cookstoves in the developing world.

But Clinton’s involvement in soft-power initiatives was matched by the kind of hardheadedness about foreign policy she had displayed during her Presidential campaign. She has repeatedly aligned herself with the most consistent realist in the Obama Administration: Secretary of Defense Robert Gates, who was deputy national-security adviser in the first Bush Administration and Secretary of Defense under George W. Bush. Clinton’s advisers told me that, during her first two years in Foggy Bottom, Clinton agreed with Gates on every major issue.

“Secretary Clinton can push the agenda she pushes because she is tough and people know she is tough,” Slaughter said. “It’s very interesting—you’ve had three women Secretaries of State, and she’s the first one who can stand up and say publicly, ‘We are going to empower women and girls around the world. We are going to make development a priority of foreign policy. We are going to engage people as well as governments.’

“Madeleine Albright believed in the importance of those issues, but she could never have made it the core of her public agenda. She was the first woman Secretary of State, which meant that she had to out-tough the tough guys. She did that on the Balkans. Condi Rice helped double foreign aid, but she was first and foremost a Cold Warrior, and she could throw around ‘I.C.B.M.’s and ‘S.L.B.M.’s and ‘MIRV’s with the best of them. That was the only way she could make it, not only as a woman in the nineteen-eighties but as an African-American woman. You had to be way tougher and way more knowledgeable about weapons than any man.” A former Administration official said, “Hillary has to guard her flank. And one of the ways she guards her flank is she rarely deviates from Gates. If she and Gates both weigh in, they are much more likely to get their way.”

bama’s first test at managing the clashing ideologies within his Administration came during the review of Afghanistan policy in 2009. During the campaign, Obama said that he would add troops in Afghanistan, a war, he argued, that Bush had neglected. But Obama’s campaign promise bumped hard against the judgment of several new advisers, including Richard Holbrooke, who tried to convince the President that sending forty thousand more troops to Afghanistan, as the military urged, was counterproductive. It would prevent Obama from rebalancing American foreign policy toward the Pacific, and it would have little impact on Al Qaeda, which is based largely in Pakistan. Obama had appointed Holbrooke his Special Representative for Afghanistan and Pakistan, and Holbrooke, a brash and influential diplomat, found himself in the unusual circumstance of being ignored. He wanted to send far fewer troops and reënergize regional diplomacy, including reconciliation talks with the Taliban. He believed that the lesson of Vietnam was that the diplomats, rather than the generals, needed to be in charge, but he could rarely penetrate the insular world of Obama’s White House to make that case to the President.

Holbrooke had been a devoted supporter of Hillary Clinton during the Presidential campaign, and she protected him from Obama aides who viewed with suspicion his sizable ego and stream of positive press clippings. When a top official at the White House tried to push Holbrooke out, in early 2010, Clinton intervened on his behalf. But Holbrooke still could not get a one-on-one meeting with the President. And at the crucial national-security meetings on Afghanistan Clinton did not adopt Holbrooke’s views. She sided with Gates and the generals in calling for the maximum number of soldiers to surge into Afghanistan. Obama agreed to send thirty thousand more troops, although he insisted that they would start coming home in July, 2011. Holbrooke’s widow, the writer Kati Marton, who has been reviewing her husband’s memos and archives, told me that they “tell a dramatic story of a fractured relationship between the State Department and White House.”

On December 11, 2010, while meeting with Clinton at the State Department, Holbrooke suffered a split aorta, and he died forty-eight hours later. Bill Clinton spoke at Holbrooke’s memorial service, held on January 14th at the Kennedy Center. “I loved the guy—because he could do,” Clinton said. “Doing in diplomacy saves lives.” He went on, “And I never did understand how people would let a little rough edges, which to me was so obvious what he was doing, it was so obvious why he felt the way he did—I could never understand people who didn’t appreciate him.” Several people told Marton they thought that Bill Clinton was sending a message to Obama.

In the end, Obama made a decision about Afghanistan that was at odds with his own goal of rebalancing toward Asia and the Pacific. “The U.S. has been on a greater Middle East detour largely of its own choosing through a war of choice in Iraq and what became a war of choice in 2009 in Afghanistan,” Haass said. “Afghanistan is entirely inconsistent with the focus of time and resources on Asia. If your goal is to reorient or refocus or rebalance U.S. policy, the Administration’s commitment to so doing is at the moment more rhetorical than actual.”

Obama came into office emphasizing bureaucratic efficiency, which he believed would lead to wise rulings. But the Afghanistan decision, like all government work, was driven by politics and ideology. Obama’s eagerness to keep his campaign promise, the military’s view that reducing troops meant a loss of face, Clinton’s decision to align with Gates, and Holbrooke’s inability to influence the White House staff all ultimately conspired to push Obama toward the surge.

bama’s other key campaign promise—to engage with the leaders of countries hostile to the U.S.—sometimes meant deëmphasizing democracy and human rights, which had been tainted by Bush’s “freedom agenda” in the Middle East. Tyrannical regimes are less likely to make deals with you if you talk persistently about overthrowing them. Obama’s speech in Cairo, delivered on June 4, 2009, and devoted to improving America’s relationship with the Muslim world, was organized as a list of regional priorities. He discussed the wars in Iraq and Afghanistan, Arab-Israeli peace, and Iran’s nuclear ambitions. He then gave a hesitant endorsement of America’s commitment to democracy in the region. He began, “I know there has been controversy about the promotion of democracy in recent years, and much of this controversy is connected to the war in Iraq. So let me be clear: no system of government can or should be imposed upon one nation by any other.”

A week later, however, a disputed Presidential election in Iran triggered large demonstrations there, which were soon labelled the Green Revolution. For the first five months after his Inauguration, Obama had tried to engage with the regime of President Mahmoud Ahmadinejad in an effort to persuade Iran to abandon its nuclear ambitions. Now he faced the choice between keeping his distance and coming to the aid of the nascent pro-democracy movement, which was rallying behind Mir-Hossein Mousavi, who had finished second behind Ahmadinejad. Obama chose to keep his distance, providing only mild rhetorical support. In an interview with CNBC after the protests began, he said that “the difference between Ahmadinejad and Mousavi in terms of their actual policies may not be as great as has been advertised.”

During the peak of the protests in Iran, Jared Cohen, a young staffer at the State Department who worked for Slaughter, contacted officials at Twitter and asked the company not to perform a planned upgrade that would have shut down the service temporarily in Iran, where protesters were using it to get information to the international media. The move violated Obama’s rule of non-interference.

White House officials “were so mad that somebody had actually ‘interfered’ in Iranian politics, because they were doing their damnedest to not interfere,” the former Administration official said. “Now, to be fair to them, it was also the understanding that if we interfered it could look like the Green movement was Western-backed, but that really wasn’t the core of it. The core of it was we were still trying to engage the Iranian government and we did not want to do anything that made us side with the protesters. To the Secretary’s credit, she realized, I think, before other people, that this is ridiculous, that we had to change our line.” The official said that Cohen “almost lost his job over it. If it had been up to the White House, they would have fired him.”

Clinton did not betray any disagreement with the President over Iran policy, but in an interview with me she cited Cohen’s action with pride. “When it came to the elections, we had a lot of messages from people inside Iran and their supporters outside of Iran saying, ‘For heaven’s sakes, don’t claim this as part of the democracy agenda. This is indigenous to us. We are struggling against this tyrannical regime. If you are too outspoken in our support, we will lose legitimacy!’ Now, that’s a tough balancing act. It’s easy to stand up if you don’t worry about the consequences. Now, we were very clear in saying, ‘We are supporting those who are protesting peacefully,’ and we put our social-media gurus at work in trying to keep connections going, so that we helped to provide that base for communicating that was necessary for the demonstrations.”

One suggestion that came up in interviews with Obama’s current and former foreign-policy advisers was that the Administration’s policy debates sometimes broke down along gender lines. The realists who view foreign policy as a great chess game—and who want to focus on China and India—are usually men. The idealists, who talk about democracy and human rights, are often women. (White House officials told me that this critique is outlandish.)

Slaughter, who admired Clinton but felt alienated by people at the White House, resigned in February, and in her farewell speech at the State Department she described a gender divide at the heart of Obama’s foreign-policy team. She argued that in the twenty-first century America needed to focus on societies as well as on states. “Unfortunately, the people who focus on those two worlds here in Washington are still often very different groups. The world of states is still the world of high politics, hard power, realpolitik, and, largely, men,” she said. “The world of societies is still too often the world of low politics, soft power, human rights, democracy, and development, and, largely, women. One of the best parts of my two years here has been the opportunity to work with so many amazing and talented women—truly extraordinary people. But Washington still has a ways to go before their voices are fully heard and respected.”

n August 12, 2010, Obama sent a five-page memorandum called “Political Reform in the Middle East and North Africa” to Vice-President Joseph Biden, Clinton, Gates, Donilon, the Chairman of the Joint Chiefs of Staff, and the other senior members of his foreign-policy team. Though the Iranian regime had effectively crushed the Green Revolution, the country was still experiencing sporadic protests. Egypt would face crucial parliamentary elections in November. The memo began with a stark conclusion about trends in the region.

“Progress toward political reform and openness in the Middle East and North Africa lags behind other regions and has, in some cases, stalled,” the President wrote. He noted that even the more liberal countries were cracking down on public gatherings, the press, and political opposition groups. But something was stirring. There was “evidence of growing citizen discontent with the region’s regimes,” he wrote. It was likely that “if present trends continue,” allies there would “opt for repression rather than reform to manage domestic dissent.”

Obama’s analysis showed a desire to balance interests and ideals. The goals of reform and democracy were couched in the language of U.S. interests rather than the sharp moral language that statesmen often use in public. “Increased repression could threaten the political and economic stability of some of our allies, leave us with fewer capable, credible partners who can support our regional priorities, and further alienate citizens in the region,” Obama wrote. “Moreover, our regional and international credibility will be undermined if we are seen or perceived to be backing repressive regimes and ignoring the rights and aspirations of citizens.”

Obama instructed his staff to come up with “tailored,” “country by country” strategies on political reform. He told his advisers to challenge the traditional idea that stability in the Middle East always served U.S. interests. Obama wanted to weigh the risks of both “continued support for increasingly unpopular and repressive regimes” and a “strong push by the United States for reform.”

He also wrote that “the advent of political succession in a number of countries offers a potential opening for political reform in the region.” If the United States managed the coming transitions “poorly,” it “could have negative implications for U.S. interests, including for our standing among Arab publics.”

The review was led by three N.S.C. staffers: Samantha Power, Gayle Smith, who works on development issues, and Dennis Ross, a Middle East expert with a broad portfolio in the White House. Soon, they and officials from other agencies were sitting in the White House, debating the costs and benefits of supporting autocrats. A White House official involved said the group studied “the taboos, all the questions you’re not supposed to ask.” For example, they tested the assumption that the President could not publicly criticize President Hosni Mubarak because it would jeopardize Egypt’s coöperation on issues related to Israel or its assistance in tracking terrorists. Not true, they concluded: the Egyptians pursued peace with Israel and crushed terrorists because it was in their interest to do so, not because the U.S. asked them to.

They tested the idea that countries with impoverished populations needed to develop economically before they were prepared for open political systems—a common argument that democracy promoters often run up against. Again, they concluded that the conventional wisdom was wrong. “All roads led to political reform,” the White House official said.

The group was just finishing its work, on December 17th, when Mohamed Bouazizi, a vegetable vender in Tunisia, set himself on fire outside a municipal building to protest the corruption of the country’s political system––an act that inspired protests in Tunisia and, eventually, the entire region. Democracy in the Middle East, one of the most fraught issues of the Bush years, was suddenly the signature conflict of Obama’s foreign policy.

n January 25th, the first, crucial day of the protests in Egypt, and eleven days after the removal of President Zine el-Abidine Ben Ali, in Tunisia, Secretary Clinton declared her support for free assembly, but added, “Our assessment is that the Egyptian government is stable and is looking for ways to respond to the legitimate needs and interests of the Egyptian people.” That evening, Obama delivered his State of the Union address, in which he praised the demonstrators in Tunisia, “where the will of the people proved more powerful than the writ of a dictator,” and expressed support for the “democratic aspirations of all people.” But he did not mention Egypt. Shady el-Ghazaly Harb, one of the leaders of the coalition that started the Egyptian revolution, told me that the message the protesters got from the Obama Administration on the first day of the revolution was “Go home. We need this regime.”

A number of familiar ex-diplomats and politicians, led by Dick Cheney, Henry Kissinger, and Zbigniew Brzezinski, criticized the treatment of Mubarak, and Israel and Saudi Arabia called on the Administration to stick with him. But, as the protests strengthened, it became clear that Mubarak was doomed. According to a senior Administration official, “The question in our mind was ‘How do you manage that?’ ”

Obama’s instinct was to try to have it both ways. He wanted to position the United States on the side of the protesters: it’s always a good idea, politically, to support brave young men and women risking their lives for freedom, especially when their opponent is an eighty-two-year-old dictator with Swiss bank accounts. Some of Obama’s White House aides regretted having stood idly by while the Iranian regime brutally suppressed the Green Revolution; Egypt offered a second chance. Nonetheless, Obama wanted to assure other autocratic allies that the U.S. did not hastily abandon its friends, and he feared that the uprising could spin out of control. “Look at all the revolutions in history, especially the ones that are driven from the ground up, and they tend to be very chaotic and hard to find an equilibrium,” one senior official said. The French Revolution, for instance, he said, “ended up in chaos, and they ended up with Bonaparte.” Obama’s ultimate position, it seemed, was to talk like an idealist while acting like a realist.

This wasn’t an easy balance to maintain, and the first major problem arose when State Department officials learned that if Mubarak stepped down immediately, the Egyptian constitution would require a Presidential election in sixty days, long before any of the moderate parties could get organized. Egyptian officials warned the Administration that it could lead to the Muslim Brotherhood’s taking over power. “My daughter gets to go out at night,” Ahmed Aboul Gheit, Egypt’s then foreign minister, told Secretary Clinton during one conversation. “And, God damn it, I’m not going to turn this country over to people who will turn back the clock on her rights.”

Obama decided not to call for Mubarak to step down. Instead, the U.S. would encourage a transition led by Mubarak’s newly installed Vice-President, Omar Suleiman. The strategy was to avoid the constitutional process that the State Department feared would lead to chaos. The senior official told me in the midst of the crisis, “I don’t think that because a group of young people get on the street that we are obliged to be for them.”

On January 29th, the White House made two major decisions: the U.S. would announce that it supported a transition in Egypt, and Obama would send an emissary to Mubarak to explain that, in the judgment of the United States, he could not survive the protests. The emissary would tell Mubarak that his best option was to try to leave a positive legacy by steering the country toward a real democratic transformation. Frank G. Wisner, the former U.S. Ambassador to Egypt, who has long known Mubarak well, would deliver the message. The next day, Clinton appeared on five Sunday-morning talk shows to announce that Obama supported an “orderly transition” in Egypt. That afternoon, Wisner boarded a U.S. government plane for Cairo.

On January 31st, Wisner met with Mubarak in Cairo. The next day, word leaked out that Mubarak would address the country. That afternoon, Obama’s national-security advisers met in the Situation Room to discuss two issues: whether Obama should call Mubarak and whether Obama should make a public statement. Obama joined the meeting unexpectedly. As the discussion continued, Mubarak’s speech appeared on television, and the President and his aides paused to watch. “I am now careful to conclude my work for Egypt by presenting Egypt to the next government in a constitutional way which will protect Egypt,” Mubarak said. “I want to say, in clear terms, that in the next few months that are remaining of my current reign I will work very hard to carry out all the necessary measures to transfer power.”

In Tahrir Square, the protesters erupted in rage at the meandering and confusing speech. Obama now seemed to be uncomfortable taking an attitude of cool detachment from the people in the street. He called Mubarak, and tried to find a graceful way for the Egyptian President to exit that would also take care of the constitutional concerns Egyptian officials kept raising. He asked Mubarak if there was a way to alter the constitution to allow for a stable transition. He asked if there was a way to set up a caretaker government. A White House official summarized Mubarak’s response as: “Muslim Brotherhood, Muslim Brotherhood, Muslim Brotherhood.”

Obama then made a public statement that was more confrontational: “An orderly transition must be meaningful, it must be peaceful, and it must begin now.” The urgent message alienated Israel and Saudi Arabia, among other allies. It also startled some people in the State Department. Clinton “walked a very narrow line and managed to do it without making the Egyptians too angry on either side,” a senior State Department official said. “After the President gave his statement, the people surrounding Mubarak began to get quite angry.”

The inherent contradictions of an Administration trying to simultaneously encourage and contain the forces of revolution in Egypt broke into the open on February 5th, when Wisner, who was then in New York, participated via videoconference in an international-affairs conference in Munich. After outlining the constitutional argument for keeping Mubarak in power, he said, “I therefore believe that President Mubarak’s continued leadership is critical; it’s his opportunity to write his own legacy. He’s given sixty years of his life to the service of his country.” According to friends, Wisner, who had talked with Obama before he went to Cairo, believed that his statement was consistent with the policy he was told to follow.

Clinton was at the conference in Munich, and, shortly after Wisner made his remarks, a senior Administration official gathered the press corps travelling with her in a small dining room at the Charles Hotel to brief us on the Secretary’s meetings. The official hadn’t heard Wisner’s comments, but when a reporter read a long excerpt off his BlackBerry the official blanched, his mouth agape.

“Wisner,” the official said, “was not speaking for the U.S. government or the Obama Administration. He was speaking as a private citizen.”

The public and private components of the Administration’s Egypt policy were at odds, and Wisner had risked blowing everything up. His tenure as an envoy was over. “They threw me under the bus,” a close friend remembers him saying.

Wisner referred dismissively to the “reëlection committee” at the White House, according to the friend. But in this case Obama’s political interests—needing to be seen as on the side of the protesters—aligned with the policy views of the idealists. An Obama adviser declared, “Obama didn’t give the Tahrir Square crowds every last thing they sought from him at the precise moment they sought it. But he went well beyond what many of America’s allies in the region wished to see.”

n March, I travelled to Cairo with Secretary Clinton. One evening, she was scheduled to meet with Egyptians who had been prominent in the protests that brought down Mubarak. However, one group, called the Coalition of Youth Revolution, which includes leaders from the activist movements and opposition parties in Egypt, boycotted the meeting. As Clinton talked with other civil-society members upstairs at the Four Seasons Hotel, four members of the abstaining coalition agreed to talk with me and three other journalists in the lobby.

I asked why they weren’t upstairs with the Secretary of State. “Hillary was against the revolution from the beginning to the last day, O.K.?” Mohammed Abbas, of the Muslim Brotherhood, said. “Obama supported this revolution. She was against.”

Abbas and Shady el-Ghazaly Harb, a member of the liberal Democratic Front Party, said that if Obama was upstairs they would meet with him. Abbas lit up at the idea. “We respect Obama’s attitude toward our revolution, and when we were in Tahrir Square we were following all of the leaders all over the world and what were their views,” Abbas said.

“His speeches were more understanding and more appreciative of what we were doing, especially his second one,” el-Ghazaly Harb said, referring to Obama’s demand that the transition “begin now.” He added, “We were in Tahrir Square and people were cheering for Obama’s speech, because they felt he was saying that we”—America—“were inspired by the Egyptian people and we understand what the teen-agers were saying. Maybe he’s using us, but that’s what I see.”

Later, when I relayed these comments to Clinton, she told me she didn’t take the snub personally. She said, “Many years ago, I was active against the Vietnam War, and I was involved in all kinds of student politics, and so I understand there’s always a full range of people in movements like this. And I remember refusing to meet with people.” She was unmoved by the fact that these protesters had been integral to starting the revolution. “The people who start revolutions may or may not be the people who actually end up governing countries.”

The activists she did meet with were not as organized as she had hoped. “As incredibly emotional and moving and inspiring as it was,” she said, speaking of the demonstrations, “I looked at these twenty young people around the table, and they were complaining about how the elections are going to be held, and the Muslim Brotherhood and the Islamists are so well organized, and the remnants of the old National Democratic Party are so well organized. I said, ‘So, well, are you organizing? Do you have an umbrella group that is going to represent the youth of Egypt? Do you have a political agenda?’ And they all looked up and said no. It made my heart sink.”

n March 16th, Clinton flew from Cairo to Tunis to continue her tour of revolutionary North Africa. The route took us over the Mediterranean just off the coast of Libya. The G.P.S. maps in the cabin of Clinton’s Air Force plane lit up with the name “Benghazi,” reminding everyone that, on the ground, Muammar Qaddafi’s men were marching on that city. Earlier in the day, Qaddafi had gone on the radio to warn the citizens of Benghazi. “It’s over. We are coming tonight,” he said. “We will find you in your closets.”

Protesters had started to gather in Benghazi on February 15th. Qaddafi’s security forces reacted with violence four days later, firing on a crowd of some twenty thousand demonstrators in Benghazi and killing at least a hundred of them. On February 26th, the United Nations passed a resolution that placed an arms embargo and economic sanctions on the Libyan regime and referred Qaddafi to the International Criminal Court. Two days later, the U.S., through lobbying led by Clinton and Power, helped remove Libya from its seat on the U.N. Human Rights Council. By tightening an economic noose around Qaddafi and isolating him diplomatically, Obama and the international community were beginning to use the tools that Power had outlined in “A Problem from Hell.”

The debate then narrowed to whether the United States and others should intervene militarily. The principal option was to set up a no-fly zone to prevent Libyan planes from attacking the protest movement, which had quickly turned into a full-scale rebellion based in the eastern half of the country. The decision about intervention in Libya was an unusually clear choice between interests and values. “Of all the countries in the region there, our real interests in Libya are minimal,” Brent Scowcroft told me. For a President whose long-term goal was to extricate the U.S. from Middle East conflicts, it was an especially vexing debate.

Within the Administration, Robert Gates, the Defense Secretary, was the most strenuous opponent of establishing a no-fly zone, or any other form of military intervention. Like Scowcroft, Gates objected to intervention because he did not think it was in the United States’ vital interest. He also pointed out a fact that many people didn’t seem to understand: the first step in creating a no-fly zone would be to bomb the Libyan air defenses. Clinton disagreed with him and argued the case for intervention with Obama. It was the first major issue on which she and Gates had different views.

The days leading up to Obama’s decision were perplexing to outsiders. American Presidents usually lead the response to world crises, but Obama seemed to stay hidden that week. From the outside, it looked as though the French were dragging him into the conflict. On March 14th, Clinton arrived in Paris, but she had no firm decision to convey. According to a French official, when Clinton met with President Nicolas Sarkozy she declined to endorse the no-fly zone, which Sarkozy interpreted as American reluctance to do anything. “We started to wonder where, exactly, the Administration was going,” the official said.

Late that evening, at her suite at the Westin hotel in Paris, Clinton met for forty-five minutes with Mahmoud Jebril, a representative from the Libyan opposition. I waited in the lobby with a number of reporters, hoping to talk to Jebril after the meeting. But all we got was Bernard-Henri Lévy, the French philosopher, who had taken up the cause of the Libyan opposition and was shepherding Jebril to his meetings with diplomats. We later learned that Jebril was dejected by Clinton’s unwillingness to commit to the no-fly zone and, not wanting to face the press, left the hotel by another exit.

The next evening, Obama held a meeting in the Situation Room. By then, it had become clear that the rebels, who had once seemed on the verge of sweeping Qaddafi out of power, were weak, and poorly armed; they had lost almost all the gains of the previous days. In New York, the Lebanese, the French, and the United Kingdom had prepared a U.N. resolution to implement a no-fly zone, and the world was waiting to see if Obama would join the effort. The White House meeting opened with an assessment of the situation on the ground in Libya. Qaddafi’s forces were on the outskirts of Ajdabiyah, which supplies water and fuel to Benghazi. “The President was told Qaddafi is going to retake Ajdabiyah in twenty-four hours,” a White House official who was in the meeting said. “And then the last stop on the train is Benghazi. If he got there, he would complete the military offensive, and that could be the place where he goes house to house and where a massacre could occur.”

Obama asked if a no-fly zone would prevent that grim scenario. His intelligence and military advisers said no. Qaddafi was using tanks, not war planes, to crush the rebellion. Obama asked his aides to come up with some more robust military options, and left for dinner. At a second meeting that night, he was presented with the option of pushing for a broader resolution that would allow for the U.S. to protect the Libyan rebels by bombing government forces. He instructed Susan Rice, the U.S. Ambassador to the U.N., to pursue that option.

On March 17th, I interviewed Clinton in Tunis. She was sitting under a canopy by the hotel pool, eating breakfast. Although she had been noncommittal with the diplomats in France two days earlier, she now made it clear that the Obama Administration had made a decision. It was well known that she favored intervention, but she was frank about the difficulty in making such decisions. “I get up every morning and I look around the world,” she said. “People are being killed in Côte d’Ivoire, they’re being killed in the Eastern Congo, they’re being oppressed and abused all over the world by dictators and really unsavory characters. So we could be intervening all over the place. But that is not a—what is the standard? Is the standard, you know, a leader who won’t leave office in Ivory Coast and is killing his own people? Gee, that sounds familiar. So part of it is having to make tough choices and wanting to help the international community accept responsibility.”

Clinton insisted that the U.S. had to have regional support before it took action, and emphasized that it was crucial that U.N. action had been supported by the Arab League. “So now we’re going to see whether the Security Council will support the Arab League. Not support the United States—support the Arab League. That is a significant difference. And for those who want to see the United States always acting unilaterally, it’s not satisfying. But, for the world we’re trying to build, where we have a lot of responsible actors who are willing to step up and lead, it is exactly what we should be doing.”

The French and the British were shocked by the quick turn of events. Instead of the President announcing the Administration’s position from the East Room of the White House, the U.N. envoy quietly proposed transforming a tepid resolution for a no-fly zone into a permission for full-scale military intervention in Libya. Some officials thought it was a trick. Was it possible that the Americans were trying to make the military options appear so bleak that China and Russia would be sure to block action?

Gradually, it became clear that the U.S. was serious. Clinton spoke with her Russian counterpart, Sergey Lavrov, who had previously told her that Russia would “never never” support even a no-fly zone. The Russians agreed to abstain. Without the cover of the Russians, the Chinese almost never veto Security Council resolutions. The vote, on March 17th, was 10–0, with five abstentions. It was the first time in its sixty-six years that the United Nations authorized military action to preëmpt an “imminent massacre.” Tom Malinowski, the Washington director of Human Rights Watch, wrote, “It was, by any objective standard, the most rapid multinational military response to an impending human rights crisis in history.”

As the bombs dropped on Libyan tanks, President Obama made a point of continuing his long-scheduled trip to South America. He wanted to show that America has interests in the rest of the world, even as it was drawn into yet another crisis in the Middle East.

his spring, Obama officials often expressed impatience with questions about theory or about the elusive quest for an Obama doctrine. One senior Administration official reminded me what the former British Prime Minister Harold Macmillan said when asked what was likely to set the course of his government: “Events, dear boy, events.”

Obama has emphasized bureaucratic efficiency over ideology, and approached foreign policy as if it were case law, deciding his response to every threat or crisis on its own merits. “When you start applying blanket policies on the complexities of the current world situation, you’re going to get yourself into trouble,” he said in a recent interview with NBC News.

Obama’s reluctance to articulate a grand synthesis has alienated both realists and idealists. “On issues like whether to intervene in Libya there’s really not a compromise and consensus,” Slaughter said. “You can’t be a little bit realist and a little bit democratic when deciding whether or not to stop a massacre.”

Brzezinski, too, has become disillusioned with the President. “I greatly admire his insights and understanding. I don’t think he really has a policy that’s implementing those insights and understandings. The rhetoric is always terribly imperative and categorical: ‘You must do this,’ ‘He must do that,’ ‘This is unacceptable.’ ” Brzezinski added, “He doesn’t strategize. He sermonizes.”

The one consistent thread running through most of Obama’s decisions has been that America must act humbly in the world. Unlike his immediate predecessors, Obama came of age politically during the post-Cold War era, a time when America’s unmatched power created widespread resentment. Obama believes that highly visible American leadership can taint a foreign-policy goal just as easily as it can bolster it. In 2007, Obama said, “America must show—through deeds as well as words—that we stand with those who seek a better life. That child looking up at the helicopter must see America and feel hope.”

In 2009 and early 2010, Obama was sometimes criticized for not acting at all. He was cautious during Iran’s Green Revolution and deferential to his generals during the review of Afghanistan strategy. But his response to the Arab Spring has been bolder. He broke with Mubarak at a point when some of the older establishment advised against it. In Libya, he overruled Gates and his military advisers and pushed our allies to adopt a broad and risky intervention. It is too early to know the consequences of these decisions. Libya appears to be entering a protracted civil war; American policy toward Mubarak frightened—and irritated—Saudi Arabia, where instability could send oil prices soaring. The U.S. keeps getting stuck in the Middle East.

Nonetheless, Obama may be moving toward something resembling a doctrine. One of his advisers described the President’s actions in Libya as “leading from behind.” That’s not a slogan designed for signs at the 2012 Democratic Convention, but it does accurately describe the balance that Obama now seems to be finding. It’s a different definition of leadership than America is known for, and it comes from two unspoken beliefs: that the relative power of the U.S. is declining, as rivals like China rise, and that the U.S. is reviled in many parts of the world. Pursuing our interests and spreading our ideals thus requires stealth and modesty as well as military strength. “It’s so at odds with the John Wayne expectation for what America is in the world,” the adviser said. “But it’s necessary for shepherding us through this phase.”

http://www.newyorker.com/reporting/2011/05/02/110502fa_fact_lizza?currentPage=all

Scientists could be months away from discovering antigravity
 
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Scientists at CERN have announced that they've been able to trap 309 atoms of antihydrogen for over 15 minutes. This is long enough that soon, they'll be able to figure out whether antimatter obeys the law of gravity, or whether it's repelled by normal matter and falls "up" instead. It would be antigravity, for real.

While it's never been tested experimentally due to how difficult it is to create and store the stuff, it's disappointingly likely that antimatter will fall "down" just like regular matter. The thinking behind this is that antimatter (despite the "anti-") is made of regular ordinary energy, and even if it's got an opposite charge, it should still obey the same general rules as matter does. Antimatter falling up would mean a violation of the law of conservation of energy, among other things.

That said, if antimatter were to exhibit antigravity, it would go a long way towards explaining some of the peculiarities of our universe. For example, the universe is supposed to have just as much antimatter as it does matter, but we don't know where the antimatter is. If antimatter and normal matter repelled each other, it could mean that there are entire antimatter galaxies out there. Also, that repulsion would explain why the universe is not just expanding, but speeding up its expansion, something that's tricky to figure out when everything in the universe is always attracted towards everything else.

In either case, the team at CERN should be able to put the debate to rest within a couple months, when they plan to trap a blob of antihydrogen and then just watch it to see which way it falls. Down, and the laws of physics stay in place. Up, and you might just get that hoverboard you've always wanted.

http://dvice.com/archives/2011/05/does-antimatter.php

Exactly. That came up way too fast after all the previous stonewalling.

Breaking News: Holder to appear before House Committee Tomorrow

May 2nd, 2011 5:14 pm ET
David Codrea
Gun Rights Examiner
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WASHINGTON DC (Gun Rights Examiner): "Tomorrow, Attorney General Eric Holder will testify before the House Judiciary Committee," an email sent this afternoon by the Deputy Press Secretary, House Committee on Oversight and Government Reform announces:

Congressman Issa will press Attorney General Holder on the role of the ATF’s Phoenix office in 'Operation Fast and Furious', a botched gun tracking project which knowingly allowed guns into the hands of drug cartels leading to the death of  U.S. Customs and Border Patrol agent Brian Terry.

The testimony will occur Tuesday 5/3/2011 at 10:15 a.m. at 2141 Rayburn House Office Building. It will be webcast live at  www.judiciary.house.gov.

Gun Rights Examiner had information about this pending testimony last week from a correspondent in contact with another congressional office, but did not make it public until this announcement at the specific request of the source.

Correction: The initial GRE report stated Holder would appear before Darrell Issa's committee.  He will appear before the House Judiciary Committee.

http://www.examiner.com/gun-rights-in-national/breaking-news-holder-to-appear-before-issa-s-house-committee-tomorrow

Fail:

http://www.theledger.com/article/20110429/NEWS/110429290/0/news01

Doc Holiday

by Michael D. Tanner


This article appeared in The New York Post on May 1, 2011.


The United States already faces a growing physician shortage. As our population ages, we require more and more intensive health care. At the same time, enrollment in medical schools has been essentially flat, meaning we are not producing new physicians at anywhere near the rate we need to. In fact, according to the American Association of Medical Colleges, we face a shortfall of more than 150,000 doctors over the next 15 years.

And it could get a whole lot worse.

The health reform bill signed into law last year is expected to significantly increase the number of Americans with health insurance or participating in the Medicaid program. Meanwhile, an aging population will increase participation in Medicare. This means a greater demand for physician services.

romising universal health coverage is easy. But what does universal coverage mean if you can't actually see a doctor?
But at the same, the bill may drive physicians out of practice.

Existing government programs already reimburse physicians at rates that are often less than the actual cost of treating a patient. Estimates suggest that on average physicians are reimbursed at roughly 78% of costs under Medicare, and just 70% of costs under Medicaid. Physicians must either make up for this shortfall by shifting costs to those patients with insurance — meaning those of us with insurance pay more — or treat patients at a loss.

As a result, more and more physicians are choosing to opt-out of the system altogether. Roughly 13% of physicians will not accept Medicare patients today. Another 17% limit the number of Medicare patients they will see, a figure that rises to 31% among primary care physicians. The story is even worse in Medicaid, where as many as a third of doctors will not participate in the program.

Traditionally, most doctors have been willing to take some Medicare patients either out of altruism or as a "loss leader," to reach other family members outside the Medicare program. Others try to get around Medicare's low reimbursement rates by unbundling services or providing care not covered through the program. (Nearly 85% of seniors carry supplemental policies to cover these additional services). With many office and equipment costs fixed, even a low reimbursement patient may be better than no patient at all for some doctors. This is even more true for hospitals where Medicare patients may account for the majority of people they serve. And doctors can take some comfort in the fact that Medicare is pretty much guaranteed to pay and pay promptly. The same is not always true of private insurance.

But if reimbursements fall much more, the balance could be tipped.

The government's own chief actuary says that reimbursement cuts could mean "reductions in access to care and/or the quality of care." Once the cuts hit hospitals, they too will be in trouble. Medicare's actuaries estimate that 15% of hospitals could close. Inner-city and rural hospitals would be hardest hit.

Nor is the pressure on reimbursement rates likely to be felt solely in government programs. The health care law contains a number of new regulations that are already driving up insurance premiums. The government is responding by cajoling and threatening insurers. If insurers find their ability to pass on cost increases limited, they too may begin to cut costs by cutting reimbursements.

For a lot of older physicians, retirement in Florida may begin to look like a very good option. Roughly 40% of doctors are age 55 or over. Are they really going to want to stick it out for a few more years if all they have to look forward to is more red tape (both government and insurance company) for less money? Those that remain are increasingly likely to join "concierge practices," limiting the number of patients they see and refusing both government and private insurance.

And, at the same time, fewer young people are likely to decide that medicine is a good career. Remember, the average medical school graduate begins their career with more than $295,000 in debt.

A 2010 IBD/TPP Poll found that 45% of doctors would at least consider leaving their practices or taking early retirement as a result of the new health care law. And, an online survey by Sermo.com, a sort of Facebook for physicians, found that 26% of physicians in solo practices were considering closing. Of course, not every doctor who told these polls that he or she would consider leaving the field will actually do so. But if even a small portion depart, our access to medical care will suffer.

In fact, we have already seen the start of this process in Massachusetts, where Mitt Romney's health care reforms were nearly identical to President Obama's. Romney's reforms increased the demand for health care but did nothing to expand the supply of physicians. In fact, by cracking down on insurance premiums, Massachusetts pushed insurers to reduce their payments to providers, making it less worthwhile for doctors to expand their practices. As a result, the average wait to get an appointment with a doctor grew from 33 days to over 55 days.

Promising universal health coverage is easy. But what does universal coverage mean if you can't actually see a doctor?

Obama’s Muddled Energy Policy
High prices are good! No, wait, they’re bad!

If the Obama administration’s energy policy were the script for an old Keystone Kops silent movie, it would be comical. But since energy policy is, in fact, a crucial component of righting this nation’s economic ship, it is anything but funny.

Consider: President Obama entered office with a plan for an “economy-wide” cap-and-trade system that was expressly intended to make conventional fossil fuels more expensive, in order to encourage greater use of less efficient alternative sources of energy. By encouraging alternative sources of energy, the administration reckoned, America would gain energy independence. The outcome would be a new, robust “clean-energy economy.” Cap-and-trade was his cornerstone policy initiative.

That was two years ago. Cap-and-trade, however, proved to be politically unpopular. Moreover, inflationary monetary policy, a devalued U.S. dollar, and global economic growth outside the U.S. have pushed up the prices of energy. So the president is now campaigning against high energy prices. High energy prices “hobble our economy,” he’s argued, and he recently averred that the administration “is in conversations with the major oil producers like Saudi Arabia” to encourage them to produce more oil. Moreover, in early April he traveled to Brazil to congratulate that nation on its expanded offshore oil drilling and pledged that the U.S. would import more Brazilian oil.

In sum, in the first half of Obama’s term, we were told that high energy prices would be good, and thus America ought to adopt a policy to push up the costs of using oil and gas to lessen our reliance on imports. Now, in the second half of his term, we’re being told that high energy prices are bad, so we need to encourage more foreign oil production for the U.S. to import.

Recently, however, things have gotten even more confusing. President Obama has renewed his call to end tax incentives for U.S. oil exploration and production. He wants to end the oil depletion allowance, which lets U.S. oil producers cover the cost of capital expenditures. It is a standard deduction for the cost of doing business, like allowing depreciation for machinery in a manufacturing company. What is most mind-boggling, however, is that this proposal comes on the heels of his Brazil trip, which was tied in to the approval of a subsidized loan from the U.S. Export-Import Bank to help Petrobras, the Brazilian national oil company, expand its oil production. In short, he’s proposing to increase the cost of oil production in the U.S. while approving subsidies for foreign oil production.

The one constant in Obama’s energy policy, though, is his commitment to renewable energy. That hasn’t changed since his cap-and-trade proposal. In fact, the $4 billion saved from the proposed end to the depletion allowance on U.S.-production oil would go to fund even more subsidies for renewable energy.

To put such a swap in context, consider that the U.S. produces more than 2 billion barrels of oil a year. The depletion allowance equates to about five cents per gallon of crude (there are 42 gallons in a barrel). Ethanol, by comparison, receives a subsidy of 45 cents per gallon in the form of a credit on excise taxes that are levied on motor fuel. In short, gasoline is taxed, ethanol is not. Additionally, so-called cellulosic ethanol (made from things like wood, grasses, and plant waste) receives what the Congressional Budget Office calculates as a $3.00-per-gallon subsidy. These subsidies are on top of a federal mandate that ethanol must be used in the fuel supply.

Subsidies aside, President Obama’s plans to revolutionize the economy and gain American energy independence through renewable sources are mislaid. First, ethanol is less efficient than gasoline: Cars get lower mileage on ethanol. Second, supplies are limited. Despite the subsidies and the mandate, there is still not a commercial supply of cellulosic ethanol. Federal law requires the use of 250 million gallons of cellulosic ethanol in 2011, yet according to the Environmental Protection Agency, which administers the mandate, only 6 million gallons will be produced this year in the U.S. This is the second year in a row in which cellulosic production has not met the mandated federal minimum.

The case of corn ethanol has farther-reaching implications. This year ethanol will account for approximately 40 percent of the U.S. corn supply. This has added to food-price inflation, not only domestically but globally. The U.S. is the largest supplier of corn in the world — approximately 70 percent of the world’s tradable corn supply is from the U.S. — so American ethanol policy has serious repercussions for global food stability. Consider this in the context of President Obama’s admonitions to Saudi Arabia about their oil output — they’re a country that is food-deficient and relies on food imports, and our energy policy is helping to destabilize the world food trade.

Moreover, recent history shows that there are reliability issues in using crops as feedstocks for energy. Drought in the U.S. heartland last summer caused corn yields to fall short, leading to the critical supply-and-demand situation we now face. Corn prices in April 2010, before the drought, averaged $3.54 per bushel. Corn prices this April are near $7.50 per bushel. And a wet spring has significantly delayed plantings so far in 2011, raising the possibility of further low yields and even higher prices to come.

Finally, because of the Rube Goldberg nature of our renewable-energy policies, with their subsidies, regulations, and mandates, taxpayer-subsidized U.S. corn ethanol is being exported, while mandates to use non-corn ethanol are — because of the shortfall of cellulosic — being filled by imported sugar ethanol from Brazil, to which a 54-cent-per-gallon tariff is applied. Ironically, with its expanded oil production, Brazil has announced that it will lower its ethanol mandate in order to lower fuel prices domestically. Currently, there is a 25 percent ethanol requirement in Brazil; it will be dropped to 18–20 percent this spring, according to government officials there.

U.S. energy policy needs to encourage domestic oil production, find a realistic and viable role for renewable and alternative sources of energy, and recognize natural-resource and economic realities, domestically and globally. A comprehensive approach based on these principles would be the most productive path toward U.S. energy security and economic stability in the energy sector.

— Dave Juday is an adjunct fellow of the Center for Global Food Issues.

http://www.nationalreview.com/articles/266131/obamas-muddled-energy-policy-dave-juday

Hope the snake eaters got him.

The Hudson River Destruction Project
How the EPA is harming nature and ruining communities
Spring 2011

Visit Fort Edward, 200 miles up the Hudson River from New York City, and you’ll find the waste hard to miss. That isn’t because General Electric once used polychlorinated biphenyls, the chemicals known as PCBs, to manufacture electrical equipment at two local plants. Rather, the waste on display in Fort Edward—now boasting a 110-acre “dewatering” facility built on once-fertile farmland and dozens of ugly barges bobbing on the river—is the wastefulness of the Environmental Protection Agency, which is imposing a costly river cleanup that is both unnecessary and environmentally destructive.

By ordering a dredging operation along 40 miles of the Hudson, the EPA has created a disaster of governmental proportions in this quiet upstate community. For six months in 2009, floating clamshell diggers shoveled day and night, pulling sludge from the river bottom around Fort Edward and depositing it onto barges. Six days a week, 24 hours a day, these barges, containing a total of 286,000 cubic yards of sediment mixed with old PCBs, were offloaded into that massive dewatering facility. There the soggy material was treated and squeezed in giant presses. The cakes of compacted sludge were then moved by truck onto 81-car trains, parked on a new spur of the Canadian Pacific Railway extending into the site. Five of these trains were in constant rotation, circulating the 4,400-mile round trip between the facility and the final dump site in Texas.

It was a Herculean attempt at remediation but one that actually increased PCB levels in the Hudson for a time; it also wreaked havoc on locals’ lives and imposed huge costs on General Electric. And all this work was only “Phase I” of the EPA’s plans. The government is now compelling GE to spend billions of dollars on Phase II, an even larger and longer operation. Dredging will recommence this spring.

The mighty Hudson once secured New York City’s commercial dominance, linking it to Canada, the Great Lakes, and the American heartland via the Erie Canal. For centuries, the river also served as the drainpipe for companies in the Empire State—more often than not, with the government’s blessing. From 1947 until 1977, General Electric’s plants at Fort Edward and nearby Hudson Falls discharged up to 1.3 million pounds of PCBs—the overflow waste of production—into the Hudson, and they did so with the full approval of state and federal agencies, which issued GE all the necessary permits.

This complacency wasn’t surprising, because PCBs had long been regarded as miracle compounds. Developed as a by-product of gasoline refinement and licensed by the Monsanto Company in 1929, PCBs were oily substances that conducted heat but were also fire-retardant. They were mixed into everything from road pavement and carbonless copy paper to household caulking and insulation. Because of their fireproof properties, the power industry found PCBs especially useful as safe coolants for electrical generation and distribution. The chemicals therefore replaced organic, more volatile oils as insulators for electrical components—for example, in the cooling liquids found in those metal cylinders that you see atop telephone poles. The rapid, safe expansion of electrical transmission, which brought prosperity and lifesaving energy to all corners of the United States, took place in a bath of PCBs—sometimes, in fact, through components manufactured at the two GE plants on the upper Hudson.

But the chemicals’ renowned stability also rendered them an environmental hazard. PCBs break down slowly in nature. Soluble in oil but not in water, they can “bio-accumulate” in animals and be passed up the food chain, probably posing health risks to people who ingest them in high enough quantities. But the exact nature of those risks has never been identified. A recent New York Times description pushes the perils of PCBs as far as the fact-checkers allow: “In high doses, they have been shown to cause cancer in animals and are listed by federal agencies as a probable human carcinogen.” So the direct human-cancer link of PCBs is unproven, and the description “probable human carcinogen” comes from the federal agencies that, as we will see, have a vested interest in maligning the chemicals.

Congress banned the manufacturing, sale, and distribution of PCBs in 1976. A year earlier, New York State’s commissioner of environmental conservation had sued General Electric, arguing that state law prohibited the company’s discharge of PCBs into the river regardless of the permits that the state had issued. In the landmark settlement adjudicated by Abraham Sofaer, at the time a professor at Columbia University and now a senior fellow at the Hoover Institution, GE and New York divided responsibility on how they would clean up the remaining PCBs: GE undertook the remediation of its plants, and New York—because it had, after all, approved the original discharges into the Hudson—would deal with the PCB sludge in the river. The settlement specifically stated that GE would not be liable for any future river cleanup.

The company met its mandate well, scrubbing its plants clean and even digging out an ingenious network of tunnels beneath the bedrock of one of its plants to capture every last ounce of PCBs that had seeped into the ground. Meanwhile, the Clean Water Act of 1972 had already begun regulating the discharge of pollutants into American waterways. As the waste pipes were shut off along the Hudson’s banks and sediment began to cover the deposits of PCBs and other chemicals spread out along its bottom, the river began to clean itself, and the recovery of its water became an environmental success story. The federal standard for PCBs in drinking water is capped at 500 parts per trillion; the river now regularly flows with 30 to 50 parts per trillion in the upper Hudson and a tenth of that downriver. The river became cleaner of other pollutants as well. Fort Edward locals remember a time when the Hudson was tinted the color of whatever pigment a nearby paint plant was processing and discharging; today, the water is safe enough to swim in. Some towns along the river even began relying again on the Hudson for their municipal tap.

New York didn’t hold up its end of the 1976 decision as well as GE did. When the state’s Department of Environmental Conservation first tried to clean up the Hudson PCBs in the 1970s and 1980s, it went looking for a convenient dump site for dredged-up pollutants. It eventually settled on a 100-acre dairy farm located near the Champlain Canal, which would allow for easy transportation of the sludge. Sharon Ruggi still lives on the farm, where her husband was born in 1935. One “supper time in October” of 1985, she recalls, state regulators showed up and sat down at the kitchen table. They laid out their papers—agreements to sell—and told the Ruggis to sign. If the Ruggis resisted, the agents warned her, the state would seize the property by eminent domain—but just the farmland. The Ruggis would be left with their house, rendered worthless by its sudden proximity to a toxic dump site.

Despite the threats, Ruggi showed the regulators the door. She then became a full-time activist, joining a farmer-led anti-dredging group called Citizen Environmentalists Against Sludge Encapsulation (Cease). She notified her town about the regulators’ heavy-handed tactics. She wrote to her representatives and testified before Congress about the negative impact of a large-scale PCB cleanup. And she won the day. Without its dump site, New York State had to back off from its cleanup commitment.

But New York had a brilliant idea: passing the buck right back to GE, despite the terms of the settlement, through the new federal law known as Superfund. Officially called the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, the Superfund legislation empowers the Environmental Protection Agency to pursue whatever chemicals it deems unsafe and to force the “responsible party” to foot the bill for a cleanup, regardless of whether that party was a willful polluter or a good citizen discharging waste with the government’s approval. (Usually, the “responsible party” winds up paying after years of wasteful litigation: one-fourth of Superfund expenses go to “transaction costs,” fees to lawyers and consultants whom even the New York Times once described as “federal officials who spun through Washington’s revolving door to trade their Superfund expertise for private gain.”)

And so in 1984, New York got the EPA to declare the entire 200 miles of Hudson from Fort Edward to New York City a Superfund site. But the EPA also at first decided against dredging the river bottom, deeming it a risky, invasive approach that might stir up more PCBs. In 1989, however, New York appealed the decision, and 13 years later—the wait time alone testifies to federal inefficiency—the EPA finally agreed, calling on GE to conduct extensive dredging.

Its reasons were novel. The concentration of PCBs in the river water had dropped to safe levels, after all. So the EPA, searching for another justification for pursuing massive remediation, settled on PCB accumulation in the river’s fish. PCBs in river water, plants, and sediment could pass in incremental amounts to the fish around them (through ingestion and respiration) and then pass to the people who eat the fish, the EPA reasoned. But here, too, the river was showing stark improvements. In 1975, before the chemicals were banned, the concentration of PCBs in Hudson fish averaged 17.39 parts per million and could go as high as 50.7 parts per million, according to John Cronin, an environmentalist who worries about the dimensions and impact of the dredging project. By 2007, the mean concentration was 0.89 parts per million—well below the two parts per million that the Food and Drug Administration has set for commercially sold fish—and the maximum was 3.56.

Through the calculus of bio-accumulation, however, the EPA has learned to claim that even infinitesimal amounts of PCBs in the environment are major health concerns. A potential exists, says the agency, for PCBs to build up through gradual ingestion, even if that would require a superhuman consumption of a single food source for years on end. This was the argument that finally allowed the EPA to compel the multibillion-dollar cleanup of the Hudson by GE. As Hudson fish were already approaching acceptably safe levels for moderate consumption, the EPA set a new target of 0.05 parts per million in the river’s fish. Such numbers, argued the EPA, would allow for “unrestricted consumption” of Hudson fish by what the agency called “subsistence fishers.” It would be an undeniable achievement to restore the river to its antediluvian glory, with fish safe to pluck and eat at every meal. And the way to achieve that goal, said the EPA, was a massive dredging of the river bottom.

At what cost would such a pristine state be achieved? The dredging in Phase I alone cost General Electric about $500 million. If GE had contested its obligations to dredge, Superfund would have allowed the EPA to conduct the cleanup itself and then collect four times the cost from the company. “If it costs the state $1 billion, we could collect $4 billion, so that’s a pretty heavy stick,” says David King, director of the EPA’s Hudson River field office.

In addition to the $500 million, GE says that it has paid the EPA another $90 million so far to cover the agency’s oversight of the cleanup. In other words, the Superfund program produces windfalls for the government agencies that enforce it at both the federal and state levels. By mandating that GE dredge the Hudson, regulators who oversee the project can submit their own expenses to the company for reimbursement. Indeed, “what propelled the PCB case to the forefront is not just the toxicity of PCBs but also the significant financial resources of General Electric,” Cronin wrote in the New York Times. Superfund only works, needless to say, when there is a viable company to pay for it. (The Hudson site is one of 50 or so Superfund obligations that GE currently faces throughout the country.)

The cost of the EPA’s quest wasn’t just financial. Strolling through Julie Wilson’s daylily garden in Fort Edward last fall, I almost forgot the enormous dewatering facility that the federal government had located next door. This area of farmland, with Vermont’s Green Mountains rising in the distance, can be particularly radiant. Nearby, a steady stream of sailboats with lowered masts floated south from Canada through the last locks of the Champlain Canal into the Hudson. Thanks to regular watering, a mountain of chemical-laden dirt, dredged from the Hudson and still awaiting pickup just over the rise behind Wilson’s flowerpots, was releasing acceptably low levels of dusty contaminants in my direction.

When the facility was in full operation during Phase I, life for Wilson was quite a bit worse. Dredging is a dirty business. Because the river bottom was being disrupted, PCB levels in water, air, and fish all rose dramatically and exceeded federal limits. By every measure, the health of the river and the surrounding community deteriorated, at least temporarily, through the EPA’s intervention. The messiness of the operation was a necessary evil, the agency maintained, the collateral damage of doing good.

Such assurances mean little to Wilson, now 72, as she contemplates the start of Phase II. Even before the processing facility went into high gear, when the neighboring farm was stripped of its topsoil to make way for the construction of the dewatering facility, she had to confront clouds of dust. Her asthmatic daughter still can’t visit on bad days. As he was dying of cancer, Wilson’s husband, James, had to leave the homestead, overcome by the commotion. “There were so many noises, clanging and banging and shouting, motors and unloaders and dump trucks dropping rocks,” Wilson tells me. “You have no idea what it is like. Twenty-four hours a day. It can drive you crazy. The stress level can affect almost every function—cardiac, gastrointestinal, and elimination.” The beeping of the vehicle backup alarms, she says, was the worst.

Wilson’s property value is now down 50 percent. Keeping clients interested in her flower business has also been difficult. “I tried to do garden tours until I could no longer compete with the noise. When you have to raise your voice to shouting, you lose the effect of the tour.” She adds that birds and other wildlife have abandoned her property. “I have such a love of the land here that when I see the site over there, I could just weep.” The sentiment puts her in an unusual position. What do you do when the organization responsible for destroying your environment is none other than the Environmental Protection Agency?

Little stands in the way of Phase II; certainly the EPA itself isn’t likely to cancel the project. Under administrator Lisa Jackson—“the agency’s most progressive chief ever” and “one of the most powerful members of Obama’s Cabinet,” according to an admiring Rolling Stone profile headlined eco-warrior—the EPA has been flexing its regulatory muscle as never before. Because of its own “endangerment finding,” the EPA is attempting to regulate carbon dioxide emissions under the Clean Air Act, a move that could have a profound effect on American industry. The agency has also been raiding New York City public schools in search of PCBs in fluorescent lighting; it recently called for a remediation plan that could, the city initially said, cost up to $1 billion. The EPA is even attempting to impose regulations on the dairy industry by arguing that the Spill Prevention, Control and Countermeasure program, designed in 1970 to prevent oil discharges in waterways, also applies to milk fat spilled on farms.

The agency’s regional administrator in charge of evaluating the Hudson dredging project, Judith Enck, is another eco-warrior. Before taking on her federal post, Enck was head of a New York environmentalist lobby tasked in part with pursuing PCBs. One wonders if an activist—someone who has spun through that “revolving door” described by the New York Times—can be a judicious regulator of a multibillion-dollar project.

The regulators also have a formidable (and tax-exempt) public-relations wing. In 1966, the folksinger Pete Seeger built an antique-style sloop, the Clearwater, to ply the Hudson’s waters and draw attention to its contamination. Since then, Seeger’s environmental group, also called Clearwater, has been joined by Riverkeeper, Scenic Hudson, and the National Resources Defense Council, all of which raise funds by preaching the evils of PCBs.

Nor will GE itself be able to resist the EPA’s plans. Jack Welch, the company’s chairman and CEO from 1981 to 2001, occupied a middle ground, cleaning up the plant sites but arguing that extensive dredging would cause more harm than good. When Jeffrey Immelt, these days a top Obama economic advisor, succeeded Welsh, however, he rebranded the company with the term “ecomagination” to highlight GE’s innovations in green technology. A year later, GE signed on to the EPA’s decision to dredge the Hudson, and in 2005, it filed a consent degree in court to undertake the project. The company did quietly contest the rollout of Phase II, on the grounds that PCB resuspension in the river water during Phase I far exceeded the EPA’s own standards. But just as it pushed down its targets for PCB concentration in fish in order to compel the cleanup, the EPA reset its standards for resuspension, allowing PCB levels in river water to spike above federal safety levels during dredging.

After GE gave me a tour of the dredging operation, I found it difficult to doubt the company’s commitment to the project. Out on the Hudson, our pontoon boat passed by the long row of barges tied up and waiting for the start of Phase II. Downriver, we approached a vessel collecting core samples of sediment to be sent off for an analysis of contamination depth—one of 50,000 data points taken along the waterway. GE divers were rebuilding the pulled-up river bottom, an underwater ecosystem destroyed through the EPA’s mandate, by painstakingly restocking it with 70,000 individual plants, mainly wild celery and American pondweed harvested from local sources.

Once ashore, I looped around to the dewatering facility bordering Julie Wilson’s property. The site was empty and resembled an airless lunar base, with a manicured pile of PCB-laden sediment at the center. The facility’s main task at the time I visited was collecting and processing the rainwater that falls on the site. Not a drop here enters the earth. A sheet of plastic runs beneath the entire facility, collecting the water and feeding it through the same colossal filters used during active dredging to “polish” the water squeezed out of the dredged material.

When Phase II begins, General Electric will again employ 500 workers here and on the river. Once more, Wilson will watch as GE excavates tons of river muck, now buried under 30 years of sediment, and stages it for processing and transportation next to her residential neighborhood. “I view it as creating a new environmental disaster,” Ruggi says, and history suggests that she may be right. In one early dredging attempt, New York State created a PCB dump site at the tip of Rogers Island, just downriver of the plant. That area has now become its own toxic hazard requiring remediation.

“Government looks very good taking corporate USA to task,” Ruggi adds. “It makes great headlines. The sad part is the health of the Hudson loses out. We grow up thinking the government works for us. To come to the realization that it can work against us is shocking.”

Research for this article was supported by the Brunie Fund for New York Journalism.

James Panero is managing editor of The New Criterion. His Twitter handle is jamespanero.

http://www.city-journal.org/2011/21_2_hudson-river.html

Many links in the original piece well worth exploring.

Victims of Communism Day
Ilya Somin • May 1, 2011 10:30 am

Today is May Day. For the past several years, I have advocated that this date be transformed into Victims of Communism Day. My 2007, 2008, and 2010 posts on the subject explain the rationale for this idea. Here’s a summary from my very first post on the subject, which remains equally valid today:

May Day began as a holiday for socialists and labor union activists, not just communists. But over time, the date was taken over by the Soviet Union and other communist regimes and used as a propaganda tool to prop up their regimes. I suggest that we instead use it as a day to commemorate those regimes’ millions of victims. The authoritative Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century’s other great totalitarian tyranny. And May Day is the most fitting day to do so. I suggest that May Day be turned into Victims of Communism Day....

The main alternative to May 1 is November 7, the anniversary of the communist coup in Russia. However, choosing that date might be interpreted as focusing exclusively on the Soviet Union, while ignoring the equally horrendous communist mass murders in China, Camobodia, and elsewhere. So May 1 is the best choice.


In this post, I explained why the longstanding relative neglect of communist crimes is deplorable — not just from the standpoint of understanding the past, but also that of doing justice in the here and now and ensuring a better future. For a good summary of the extent of communist crimes, see this 2005 May Day post by political scientist Rudolph Rummel, a leading academic expert on mass murder.

Since my last May Day post, new evidence has emerged suggesting that the communist mass murders in China were on an even larger scale than previously thought, and greater than those in the Soviet Union. This strengthens the case for an international rather than Russia-centric date for Victims of Communism Day.

Much debate has focused on the question of whether communist mass murders qualify as genocide. In my view, some of them do qualify as such, but the entire distinction between genocide and mass murder has been vastly overblown. The mass murder of innocent people is equally evil regardless of whether it was committed out of racial, religious, ideological or other motives. I discussed this point in detail in this series of posts.

2011 is also the 50th anniversary of the building of the Berlin Wall, one of communism’s most notorious crimes, though ironically also one of its comparatively smaller ones. For my thoughts on the Wall, see here.

http://volokh.com/2011/05/01/victims-of-communism-day-3/

You Call This a Recovery? Obama Offers More Excuses Than Solutions
By John Lott
Published April 29, 2011 | FoxNews.com
   
Call it the "excuses recovery." President Obama  and his administration have been warning for the last week that the just announced first quarter GDP growth rate of 1.8 percent  would be weak, and they have been quick to blame it on the recent spike prices in oil. The problem is that this whole recovery has been anemic, not just one or two slow quarters of economic growth.

Seven quarters into the Obama recovery, GDP growth has averaged an annual rate of only 2.8 percent. In contrast, since 1970, the first seven quarters of previous recoveries averaged 4.6 percent. The poor growth rate is especially surprising since the preceding recession was so severe, there should have been ample room for high growth as the unemployed returned to work. For example, the Reagan recovery followed a similarly high unemployment rate and saw the economy grow at an average annual growth rate of 7 percent (see graph here ).

The slight decrease in unemployment – currently at 8.8 percent -- has been touted as good news. Yet that slight drop has largely been the result of job-seekers giving up looking for work and leaving the labor force. On top of that, the new jobs that have opened up have primarily been temporary jobs, the number of permanent jobs has actually fallen.

Given all that, Americans are understandably pessimistic about the economy. By an incredible 68 percent to 26 percent margin, The Real Clear Politics average  of polls shows that Americans think that the country is headed in the wrong direction, which is the pessimism people experienced at the depths of the recent recession. By a 56 to 40 percent difference , even the liberal Talking Points Memo average of selected surveys finds that Americans disapprove of Obama's handling of the economy.

High oil prices can only explain a small portion of the recent low GDP growth. While some companies, such as those in the transportation sector suffer, others – most notably energy producers – benefit. As workers and capital investments cannot instantly move across states and from one set of jobs to another, the resulting unemployment means that output is temporarily reduced.

Ironically, however, this problem from shifting resources is no different than what happened from Obama's stimulus spending and all his new regulations. By moving money from where companies and consumers would have spent the money to where the Obama and the Democrats wanted it spent, jobs and resources were also moved.

Take a large sector of the economy such as housing. The most recent numbers show that median house price has fallen back to where it was in April 2002. Not surprisingly, with existing housing prices so low, it doesn't pay for anyone to build new housing. But even at those low prices the seasonally adjusted annual rate of sales is back to where it was over a decade ago.

But rather than blaming high oil prices, for housing, possibly the Obama administration might want to look in the mirror and ask what impact its regulations have had. On top of previous attempts to force mortgage companies into accepting write downs on the value of mortgages, the Huffington Post recently reported on the Obama administration's new "shock and awe" approach to reviving the housing market:

"The Obama administration is seeking to force the nation's five largest mortgage firms to reduce monthly payments for as many as three million distressed homeowners in as little as six months as part of an agreement to settle accusations of improper foreclosures and violations of consumer protection laws, six people familiar with the matter said."

Would you want to make a new loan if you were one of these mortgage companies? Companies might find huge drops in the value of their loans just a year or two after they are made. Fewer loans mean a drop in the number of purchases and a drop in house prices.

At some point even Democrats are going to have concede that President Obama's "cure" has made the economy worse. How many more quarters of slow growth are Americans going to have to endure?

John R. Lott, Jr.  is a FOXNews.com  contributor. He is an economist and author of the just released revised edition of "More Guns, Less Crime."

http://www.foxnews.com/opinion/2011/04/29/recovery-obama-offers-excuses-solutions/

I see, and the courts should thus be forced to participate in discrimination by gender which it otherwise finds abhorrent, and should be forced to interject its interpretations into matters of church, which it is constitutionally prohibited from doing.

The Shot Heard Round the World
By SCOTT GOTTLIEB


By 1947, smallpox in the U.S. was rare, but when two people died from the disease in New York, officials urged residents who hadn't been vaccinated in the past 7-10 years to get the shot. Above: Morrisania Hospital in the Bronx.

A vaccine that is intended to save countless lives. Parents suspicious of the shots, terrified of what the vaccine will do to their children. The government insisting on vaccinations for the general good.

Sounds like recent history, when a British doctor's study linking autism to the three-in-one vaccine for measles, mumps and rubella panicked some parents into barring their children from being vaccinated. But long before actress Jenny McCarthy prominently stirred fears about MMR shots, the vaccination campaign to eradicate smallpox was met with similar trepidation. One significant difference: The study that caused the anti-MMR hysteria has been proved to be bogus, while the smallpox vaccine used a century ago carried genuine dangers.

When some states introduced mandatory smallpox vaccinations during the epidemic of 1898-1903, Americans resisted by the thousands. The ensuing battles produced medical conventions and case law that altered the balance between government authority and medical practice, in favor of federal control. The effects of the smallpox fight continue to this day: The Obama health-care law and the infrastructure required to administer it rely on some of these century-old precedents.

In "Pox: An American History," Michael Willrich meticulously traces the story of how the smallpox vaccine was pressed into service during a major outbreak. Sometimes the shots were physically forced on people, outraging their sense of personal freedom and—when the vaccine sickened some and killed others—galvanizing suspicion of vaccination programs. The episode, Mr. Willrich says, prompted large swaths of Americans to insist that "the liberty protected by the Constitution also encompassed the right of a free people to take care of their own bodies and children according to their own medical beliefs and consciences."

Historical records show that smallpox was a human scourge for thousands of years. The virus produces high fever, severe back pain and scarring eruptions of flat red spots on the skin that turn into pustules and then into scabs—a two-week process during which the disease is highly contagious. Smallpox can vary in its severity, with some strains killing many sufferers and others relatively few. In the late 18th century, the British scientist Edward Jenner discovered that scratching the arms of healthy children with a bit of pus from cowpox immunized them against smallpox. The revelation was jeered by skeptics, but soon many governments were encouraging smallpox shots—and cowpox-based vaccines would eventually rout the disease from the modern world.

The smallpox outbreak in the U.S. that began in 1898 was not as virulent as some earlier ones, but memories of past horrors and mounting deaths across the country stirred officials to action. Over the epidemic's five-year course, an estimated 4,000 to 5,600 Americans died from smallpox, and tens of thousands suffered from nonfatal but often disfiguring infections.

Prior to the epidemic, public heath was largely the province of state and local authorities. But many officials proved incapable, or unwilling, to intervene when faced with the epidemic itself. In some cases, money was at issue. In other cases, racism. In the South and elsewhere, Mr. Willrich says, local officials refused to invest in stopping a virus that they saw as a blight of "dark people" who who were forced to live in close quarters with poor sanitary conditions. Mostly, though, the failure was a matter of ineptitude: Many doctors and others who focused on the infectious smallpox pustules didn't understand that the virus could be easily transmitted by a cough or a sneeze. And the vaccination programs were at best haphazard.

Walter Wyman, the U.S. surgeon general for two decades beginning in 1891, "railed against the short-sightedness of local and state officials who, he believed, had allowed smallpox to rage out of control," Mr. Wallrich writes. Whatever the cause of the anemic response to the epidemic, it prompted federal intervention in public-health matters—opening a door that has never closed.

Invoking what Mr. Willrich calls "a precedent in the American legal tradition of police power, which allowed for broad governmental intrusions into everyday lives of American citizens" when the public welfare was at stake, the feds stepped in. The government deployed "virus squads" of vaccinators who fanned out across the country, aided by Texas Rangers along the Mexico border and by billyclub-swinging policemen in New York. Health officials opened "pesthouses," where the ill were sequestered; sometimes whole towns were quarantined. The vaccinators visited factories and schools and railroad stations. In some cases, people who had been exposed to the smallpox virus were vaccinated at police gunpoint.

Pox: An American History

By Michael Willrich
Penguin Press, 422 pages, $27.95

Their reluctance was understandable: The smallpox vaccine was sometimes shoddily produced. In Camden, N.J., in 1901, the deaths of nine schoolchildren were linked by newspapers to a commercially produced vaccine tainted with tetanus. (Around that time, 13 children in St. Louis died of tetanus after being vaccinated for diphtheria.) It wasn't just civil libertarians who opposed the compulsory vaccinations; many practical people did the math and preferred to take a chance with the virus, not the vaccine. It was not just a fear of death that scared people: Reports of excruciating arm soreness caused by the vaccine made manual laborers, worried about having to miss work, avoid the shots. People produced fake vaccination certificates and sometimes injured their skin to simulate the telltale scar caused by the vaccine.

The feds realized that if they were going to mandate vaccination, the government would have to ensure that the shots were safe. In 1902, President Theodore Roosevelt signed the Biologics Control Act, the first federal law to regulate drug products. It was a precursor to today's Food and Drug Administration.

This being America, the vaccine tempest also gave rise to litigation. Mr. Willrich, a history professor at Brandeis University, says that the most significant of what became a series of legal rulings was the 1905 Supreme Court decision in Jacobson v. Massachusetts. The complex opinion gave the high court's blessing to compulsory-vaccination schemes. But the justices also established a set of standards for balancing governmental power and individual rights during public emergencies. The decision was invoked in 2004 by Justice Clarence Thomas in his dissent from the court's ruling in Hamdi v. Rumsfeld, granting certain rights to U.S. citizens detained as "illegal enemy combatants."

In the end, vaccination methods were dramatically improved, the epidemic was stopped—and over the next few decades smallpox was wiped out of human circulation by concerted vaccination campaigns and the swift isolation of the infected. Today, the virus is confined to frozen storage inside a lab in Atlanta and one in Koltsovo, Russia. But the federal role in the practice of medicine remains very much alive.

—Dr. Gottlieb is a clinical assistant professor at the New York University School of Medicine and an American Enterprise Institute resident fellow.

http://online.wsj.com/article/SB10001424052748703858404576214482670405722.html

You think things would change if race were substituted for gender? Say a gent had kids by 3 women, one a full MOYCH (minority of your choice), one a half blood, and one 1/4 with funds distributed according to whoever had the least MOYCH in 'em.

Will Calls for Distribution “According to Islamic Laws and Sharia”; Pennsylvania Court Gives Twice as Much to Each Son as to Each Daughter
from The Volokh Conspiracy by Eugene Volokh

That seems to be what happened in Alkhafaji v. TIAA-CREF Individual and Instit. Services LLC, 2010 WL 1435056 (Pa. Ct. Com. Pl. Jan. 14, 2010), which is now on appeal. I’m posting about this now because the briefs were just posted on Westlaw, and confirm the details of the will, as well as giving some extra perspective on the disputes related to what Sharia law provides in such situations.

Prof. Abbass Alkhafaji died, and left a will that apparently said, in relevant part,

(4) About my pension, the beneficiaries are all my biological kids and my current wife, ... after reducing all costs associated with the house.... [The] rest of the pension, if any left, should be divided according to Islamic Laws and Sharia....

(9) In case I have additional monetary benefits from my job, such as life insurance, 401K, 403B or any other retirement funds that I am not aware of, Allah as my witness, They should be divided, after costs associated with the payment of those funds according to Islamic Laws and “Sharia.”

The trial court entered an order that concluded with, “(1) TIAA-CREF Individual and Institutional Services LLC, shall make distribution of the pension accounts of the TIAA-CREF certificates ... to the decedent’s surviving spouse, ... in accordance with decedent’s last will and testament dated July 17, 2007, and to his biological children, ... in accordance of the law of Sharia, mainly [sic], one-eighth share to the surviving spouse, ... and thereafter, the remaining balance to be divided, two shares each to the six male children, and one share each to the [two] female children.”

Now if Prof. Alkhafaji had specified in his will that he was leaving a 1/8 share to his wife, and then 1/8 to each of his sons and 1/16 to each of his daughters, that would be fine, regardless of whether his motivation was religious or secular. (This is subject to any state law that might give his wife the power to get some minimum prescribed share, but apparently this was not argued in this case, perhaps because part of the argument — which I won’t get into here — was that Prof. Alkhafaji had left his wife certain assets for the duration of her life, with only the remainder after her death to be split between the children.) People are free to discriminate based on sex, religion, race, and so on in their wills, including in their gifts to their children.

But apparently the will had no such specific provision; rather, it called for distribution under religious law. This raises two questions:

(1) May a court interpret a will — or a contract, deed, trust instrument, or what have you — that calls for the application of religious law (whether Islamic law, Jewish law, canon law, or any other religious law)? Or does the Establishment Clause preclude courts from deciding what, say, Islamic law actually requires, at least if there’s a controversy between the parties about what the “true” interpretation of the religious law should be? Here, one side argues that under Islamic law, the contested provisions of the will are invalid, and that the court erred in relying on the widow’s interpretation of Sharia law; to quote the appellee’s brief, 2011 WL 1573386:

The Court’s determination that the pension should be distributed by giving the widow one eighth of the estate, with the remainder going to the children with two parts for each male and one part for each female, was not only a violation of the terms of the MDA, but also an incorrect interpretation of Shariah law. Had the trial court consulted an expert or referenced judicial texts rather than an interested non-expert, it would have noted that the will offered by a person who is in the illness of death is invalid under Shariah law. The illness of death is defined as the illness which would most likely lead to death. In other words, had the court correctly interpreted Shariah law, it would have found paragraph four of Decedent’s most recent will to be invalid. Because Shariah law is codified in judicial texts which were referenced at the trial court level, and the trial court failed to consult those texts, it committed an error of law when it incorrectly interpreted Shariah law.

(2) May a court apply a foreign or religious legal rule that requires discrimination based on sex, religion, race, and the like, when it is doing so in the course of interpreting a will, contract, etc., on the theory that the court is simply effectuating the author’s discriminatory preferences rather than itself engaging in constitutionally suspect discrimination?

Here’s my tentative answer to question (1), based on an earlier post: I think courts must refuse to interpret religious terms of wills and other such documents, because of what I call the No Religious Decisions strand of Establishment Clause caselaw. Here’s a very brief summary of that strand: In a long line of cases (such as Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969)), the Supreme Court held that secular courts may not resolve religious questions, such as which rival church group most closely follows orthodox church teachings. Some states had rules, borrowed from English law, under which the more orthodox group would get to keep the church property, presumably on the theory that this would be more in keeping with what was intended by past donors to the church. But the Court held that such rules may not constitutionally be applied by civil courts (paragraph break added):


First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. Because of these hazards, the First Amendment enjoins the employment of organs of government for essentially religious purposes; the Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Hence, States, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.

The Georgia courts have violated the command of the First Amendment. The departure-from-doctrine element of the implied trust theory which they applied requires the civil judiciary to determine whether actions of the general church constitute such a “substantial departure” from the tenets of faith and practice existing at the time of the local churches’ affiliation that the trust in favor of the general church must be declared to have terminated. This determination has two parts. The civil court must first decide whether the challenged actions of the general church depart substantially from prior doctrine. In reaching such a decision, the court must of necessity make its own interpretation of the meaning of church doctrines. If the court should decide that a substantial departure has occurred, it must then go on to determine whether the issue on which the general church has departed holds a place of such importance in the traditional theology as to require that the trust be terminated. A civil court can make this determination only after assessing the relative significance to the religion of the tenets from which departure was found.

Thus, the departure-from-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very core of a religion — the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role.

Now one could argue that this only applies to “resolving underlying controversies over religious doctrine” when called on to do so by a special state-created legal rule, such as the preference for the more orthodox group, and that such resolution of doctrinal controversies could take place when interpreting voluntarily entered into contracts, wills, deeds, trusts, and the like. But I think the logic of the Court’s decision encompasses all civil court decisions about what is the right interpretation of legal doctrine (as opposed to questions, which arise in religious exemption schemes, about whether a claimant sincerely believes in a particular interpretation), especially given the later decision in Jones v. Wolf (1979). And that’s the view lower courts have taken: “[A] court can invoke a secular interpretation of church deeds, by-laws and canons, thereby avoiding judicial entanglement in issues of religious doctrine, polity and practice. When the application of this standard requires judicial involvement in a [religious] doctrinal question, however, it may not be relied upon.” “[P]rovisions in deeds or in denomination’s constitution for the reversion of local church property to the general church, if conditioned upon a finding of departure from doctrine, could not be civilly enforced [quoting and endorsing a concurring opinion in a different Supreme Court case].” See also this decision.

And I think this rule is right, even though it does make things difficult for religious people who want the religious terms of their wills and contracts enforced. The alternative, after all, is for courts to take sides in deciding which rival religious view — say, which understanding of Islamic law — is right and which is wrong, which would itself involve discrimination in favor of one religious subgroup (the one whose view is adopted by the civil courts as the true view of Islamic law, Jewish law, etc.) and against another religious subgroup. That strikes me as worse than civil court abstention from all attempts to decide how to interpret religious concepts.

Fortunately, religious observers who want their disputes settled according to religious law generally have a simple solution: They can provide for arbitration by some religious tribunal that they choose, and courts will generally then enforce the result of that arbitration. Civil courts will no longer be called to decide what Islamic/Jewish/etc. law “really” requires, yet religious believers can have their disputes adjudicated under religious principles. And in fact there are such arbitral bodies around, in a wide range of religions, and they are often used. And if people want their property distributed under religious law after their death, they can just set forth in secular terms their instructions (e.g., “1/8 to my wife, 1/8 to each of my sons, 1/16 to each of my daughters”) rather than incorporating the religious law by reference.

For more on related questions in the context of kosher enforcement laws — and proposed halal enforcement laws — see here and here. For the backstory on who is challenging the will and why, see this later opinion.

http://volokh.com/2011/04/29/will-calls-for-distribution-according-to-islamic-laws-and-sharia-pennsylvania-court-gives-twice-as-much-to-each-son-as-to-each-daughter/

Wow, if a Republican administration had embarked on this kind of stonewalling campaign the breast rending would be deafening. . . .

Investigators land in Arizona for "Gunwalker" probe
Posted by Sharyl Attkisson 5 comments
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(Credit: CBS)

CBS News has learned that House and Senate investigators have descended upon Arizona for their probe into the so-called "Gunwalker" scandal. They're gathering interviews from witnesses, including ATF insiders and area gun shop owners. Sources tell CBS News the congressional investigators are frustrated by what they view as across-the-board stonewalling by government agencies which have refused to provide information in the investigation. Government officials have said they won't provide information while their own investigations are ongoing.

Gunrunning scandal uncovered at the ATF

"They're investigating themselves," says one source on Capitol Hill, "and then claiming the open investigations preclude them from giving Congress information it needs for independent oversight. It's highly improper."

ATF insiders being interviewed in Arizona are among those who told CBS News that their own agency employed a controversial strategy beginning in late 2009 called "letting guns walk," to try to gather intelligence. In that strategy, used in an operation ATF called "Fast and Furious," ATF allegedly allowed thousands of assault rifles and other weapons cross the Mexican border into the hands of drug cartels. Many of the guns later turned up at Mexican crime scenes, and ATF was notified; but documents show the agency continued to encourage local gun shop owners to sell more guns to the same suspects.

Sharyl Attkisson's original "gunwalking" report
ATF agent cooperates in gunwalking investigation ATF gunwalking: Who knew, and how high up? Agent: I was ordered to let U.S. guns into Mexico
ATF gunwalking scandal: Second agent speaks out

Sources and documents indicate the prosecutor who advised the "Fast and Furious" case in Phoenix was Asst. U.S. Attorney Emory Hurley. His boss, Arizona's US Attorney Dennis Burke, was a longtime chief of staff for Homeland Security Chief Janet Napolitano when she served as Arizona governor. In brief questioning from Congress in March, Napolitano said it was "premature" to comment on details of the Fast and Furious controversies. She also said she was "not aware" that an agent under Homeland Security was on the ATF Fast and Furious task force in Phoenix. Speaking of herself in the third person, Napolitano stated that "no concerns were expressed to the Secretary."

ATF's former lead agent in Mexico, Attache Darren Gil, told CBS News in an exclusive interview that he believes senior Justice Dept. official Lanny Breuer and several of his deputies who visited Mexico amid the controversy last summer knew all about the alleged gunwalking, as did ATF's Acting Director Kenneth Melson. None of those officials would speak to CBS News. Federal agencies have refused Congressional requests to turn over documents related to the official's Mexico trips.

In another development, the Assistant Special Agent in charge of ATF's Phoenix Division, George Gillett, continues to provide information to Sen. Charles Grassley (R-Iowa) who's investigating. Of the top managers possibly implicated in the gunwalking strategy, Gillett is the only one who's hired an attorney and is voluntarily providing information to Grassley's office.

WATCH: Issa demands info on ATF "gunwalking" scandal from State Dept.
WATCH: ATF "Gunrunner" program may be years old
WATCH: Obama on "gunwalking": Serious mistake may have been made

According to interviews and documents, a number of ATF agents objected to what they saw as an unprecedented and dangerous approach to gathering intelligence. Objections also came from ATF supervisors and gun shop owners enlisted by the ATF to make the sales. Those who expressed concerns say they were punished, ostracized and even threatened with their jobs by managers.

An internal email from Feb. 3, 2011 indicates ATF officials may have improperly guided employees not to answer Congressional inquires in the gunwalking scandal.

"As always, you are in no way obligated to respond to congressional contacts or requests for information and generally, consistent with ATF policy, you should refer congressional staff who seek information from you to ATF's office of congressional affairs. You are not authorized to disclose non-public information about law enforcement matters... to anyone including congressional staff.." reads the email, in part.

When Sen. Grassley learned of the email and also of alleged retaliation attempts against whistleblowers, he fired off a letter April 8 to ATF Acting Director Melson. The letter states that it is "unlawful" for ATF to "inappropriately intimidate employees to discourage from speaking with Congress."



Read more: http://www.cbsnews.com/8301-31727_162-20057548-10391695.html#ixzz1KqaRlxe6

Are high gas prices a good thing?

That is not as dumb a question as it sounds. Examine a few revealing past remarks from President Obama and the cabinet officials who are now in charge of the nation’s energy use and oil leases on federal lands. Then decide whether the current soaring gas prices are supposed to be good or bad.

In 2008, Sen. Ken Salazar (D., Colo.) — now secretary of the interior, in charge of the leasing of federal oil lands — refused to vote for any new offshore drilling. In a Senate exchange with minority leader Mitch McConnell (R., Ky.), Salazar objected to allowing any drilling on America’s outer continental shelf — even if gas prices reached $10 a gallon. We can now see why the president appointed Salazar, inasmuch as Obama recently promised the Brazilians that he would be eager to buy their newfound offshore oil — while prohibiting similar exploration here at home.

From 2007 to 2008, Steven Chu, now secretary of energy, weighed in frequently on global warming and the desirable price of traditional energy. At one point Chu asserted, “Somehow we have to figure out how to boost the price of gasoline to the levels in Europe.” Chu also lamented, “We have lots of fossil fuel; that’s really both good and bad news. We won’t run out of energy, but there’s enough carbon in the ground to really cook us.”

In other words, $10 a gallon for gas would be desirable, while an enormous amount of recoverable American oil, gas, coal, tar sands, and oil shale should be left untapped.

During the 2008 campaign, Obama himself had strange ideas about the prospect of expensive prices for fossil-fuel-generated energy: “Under my plan of a cap-and-trade system, electricity rates would necessarily skyrocket.” Candidate Obama also elaborated on the envisioned role of his administration in ensuring such high prices: “So if somebody wants to build a coal-powered plant, they can. It’s just that it will bankrupt them.”

As for consumers’ plight in paying skyrocketing gas prices, the president, now and in the past, has sounded ambivalent. He recently told a questioner, “If you’re complaining about the price of gas and you’re only getting eight miles a gallon, you know, you might want to think about a trade-in.” Few large passenger vehicles today get only eight miles a gallon, and many squeezed Americans in recessionary times cannot so breezily think of “a trade-in.”

In 2008, Obama addressed consumer fears about climbing gas prices: “But we could save all the oil that they’re talking about getting off drilling, if everybody was just inflating their tires and getting regular tune-ups. You could actually save just as much.”

Note again the fantasy. Few of today’s cars have distributor points. New-generation spark plugs and computerized ignition usually ensure 75,000–100,000 miles without a so-called “tune-up.” There is no evidence that Americans’ tires are chronically underinflated, or if they were, that such negligence would waste more gasoline than all that could be recovered from new offshore oil drilling.

What explains the weird rhetoric from Obama and his administration? First, not long ago they considered high energy prices as not that bad. Government-sponsored mass transit and alternative-energy projects — from wind and solar to the federally subsidized Chevy Volt — pencil out only when gas gets expensive. And if you believe in man-made global warming, then the less coal, gas, or oil that Americans use, the better for the planet.

Second, a president who believes that modern cars get eight miles per gallon or need frequent tune-ups, and that proper tire inflation can substitute for drilling oil, has never run a business that hinged on having moderately priced gas to power a truck, tractor, or car fleet. In fact, most in the Obama administration came to Washington from either academia or prior state- and federal-government employment, where policy is theoretical, without grounding in real experience.

So much of this administration’s talk about energy sounds similar to a bull session in the faculty lounge, or what we would expect from lifelong bureaucrats and public functionaries who have never experienced long commutes or struggles in the harsher, profit-driven private workplace.

Now the global economy is recovering and energy use is climbing, as the U.S. dollar sinks. The oil-rich Middle East is in chaos. And more than 2 billion people in India and China are desperate for imported oil. The result is that American gas prices are astronomical, and the public is furious and starting to demand relief from the administration.

Its answer? Simple: Since reelection looms, the administration now insists that high energy prices are no longer good, but suddenly bad. And the evil oil companies are mostly to blame!

— Victor Davis Hanson is a classicist and historian at the Hoover Institution, Stanford University, and the author, most recently, of The Father of Us All: War and History, Ancient and Modern. You can reach him by e-mailing author@victorhanson.com.

http://www.nationalreview.com/articles/265809/are-sky-high-gas-prices-good-victor-davis-hanson

I too was given pause when Israeli v. Palestinian casualty rates were mentioned. Hamas, Fatah, et al practice asymmetric warfare, embed their fighting position among population centers, have well documented habits of producing very slanted media material, and have intimidated journalists to the point only stringers sympathetic to the Palestinian cause can operate in Palestinian areas. Hamas and Fatah work very hard to produce the casualties they then parade before the cameras, and yet you cite that as reason to indict Israel? Cognitive dissonance ensues.

If Palestinian apologists held Egypt and Jordan--who have harshly dealt with their Palestinian citizens--to the same standard as they do Israel, if they noted Palestinian citizens within Israel are some of the freest, most engaged in the economy non-oliogarchic Arabs in the region, and if indeed apologist could acknowledge that most the complaints they cite would evaporate if Palestinians stopped lobbing rockets and suicide bombers at Israeli citizens, then perhaps some progress as could be made. As it stands, pathologies embraced as a military tactic that then get cited as reason to indict Israel create a circular mishmash from which no winning hand can emerge on any side, at least for those who don't believe the body count is indeed the winning hand.

How Well-Trained Does A Drug-Sniffing Dog Need to Be Before a Positive Alert Creates Probable Cause?
Orin Kerr • April 26, 2011 6:02 pm

Under the automobile exception to the Fourth Amendment, the police can search a car without a warrant if they have probable cause to believe there is contraband inside it. And under Illinois v. Caballes, the use of a drug-sniffing dog to alert for the presence of drugs in a car is not a Fourth Amendment search. As a result, the police often bring out the dogs to a traffic stop and see if the dog alerts: Under the Fourth Amendment, the police can search the car if the dog’s positive alert amounts to probable cause. But this raises a question: Just how well-trained does a dog need to be before its alert will trigger probable cause? And how do you know how reliable the dog is? In just the last week, I’ve noticed an interesting split emerge on the question.

First, last Friday, the Tenth Circuit adopted the view that an up-to-date certification of the dog’s prowess at finding drugs is enough to satisfy the requisite level of reliability, at least if the certifying authority isn’t challenged. The case is United States v. Ludwig (Gorsuch, J., joined by Judge Murphy and Judge Tymkovich). From the opinion:

t surely goes without saying that a drug dog’s alert establishes probable cause only if that dog is reliable. See id. at 1283. But none of this means we mount a full-scale statistical inquisition into each dog’s history. Instead, courts typically rely on the dog’s certification as proof of its reliability. See id.; United States v. Kennedy, 131 F.3d 1371, 1378 (10th Cir.1997) (“[W]ith a canine, the reliability should come from the fact that the dog is trained and annually certified to perform a physical skill.”) (quotation omitted). After all, it is safe to assume that canine professionals are better equipped than judges to say whether an individual dog is up to snuff. And beyond this, a dog’s credentials provide a bright-line rule for when officers may rely on the dog’s alerts—a far improvement over requiring them to guess whether the dog’s performance will survive judicial scrutiny after the fact. Of course, if a credentialing organization proved to be a sham, its certification would no longer serve as proof of reliability. But the judicial task, we hold, is so limited: to assessing the reliability of the credentialing organization, not individual dogs. And in this case there is no suggestion that the California Narcotic Canine Association, the organization that credentialed the drug dog in this case, is all smoke and mirrors. [FN: This is not to say that a dog’s alerts are necessarily unreliable just because the dog lacks an acceptable certification. An uncertified dog’s accuracy could still, in theory at least, be established by examining its training history and record for reliability. Our point is that this is a needless exercise when, as here, the dog has been certified by an organization whose bona fides are unchallenged.]

The Tenth Circuit also noted that while probable cause isn’t and even shouldn’t be a numerical concept — citing some dubious scholarship along the way — even if probable cause were to be treated as a numerical concept, the evidence in that case was enough that the dog was reliable:

[T]he dog’s records—spanning some 200 pages in the record and covering 7 years’ worth of data—reveal that its alerts have identified a seizable quantity of drugs . . . 58% of the time. . . . While we hesitate to get into the business of affixing figures on probable cause, if we were pushed to do so we would hold this to be enough. After all, probable cause doesn’t require an officer’s suspicion about the presence of contraband to be “more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983); United States v. Padilla, 819 F.2d 952, 962 (10th Cir. 1987); see also United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (“[T]he requisite ‘fair probability’ is something more than a bare suspicion, but need not reach the fifty percent mark.”) . . . .

Contrast the Tenth Circuit’s analysis with a new opinion of the Florida Supreme Court, handed down last Thursday, Harris v. State. Harris specifically rejects the view that an up-to-date certification of the dog is enough:

[W]e hold that evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog‘s reliability for purposes of determining probable cause— especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.

Accordingly, we conclude that to meet its burden of establishing that the officer had a reasonable basis for believing the dog to be reliable in order to establish probable cause, the State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog‘s reliability in being able to detect the presence of illegal substances within the vehicle. To adopt the contrary view that the burden is on the defendant to present evidence of the factors other than certification and training in order to demonstrate that the dog is unreliable would be contrary to the well-established proposition that the burden is on the State to establish probable cause for a warrantless search. In addition, since all of the records and evidence are in the possession of the State, to shift the burden to the defendant to produce evidence of the dog‘s unreliability is unwarranted and unduly burdensome.

[T]he fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person. We first note that there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs. . . .

In the absence of a uniform standard, the reliability of the dog cannot be established by demonstrating only that a canine is trained and certified. “imply characterizing a dog a ‘trained‘ an ‘certified‘ imparts scant information about what the dog has been conditioned to do or not to do, or how successfully.” Matheson, 870 So. 2d at 14. In other words, whether a dog has been sufficiently trained and certified must be evaluated on a case-by-case basis. . . .

[A] necessary part of the totality of the circumstances analysis in a given case regarding the dog‘s reliability is an evaluation of the evidence concerning whether the dog in the past has falsely alerted, indicating that the dog is not well-trained, or whether the alerts indicate a dog who is alerting on a consistent basis to residual odors, which do not indicate that drugs are present in the vehicle. Accordingly, evidence of the dog‘s performance history in the field—and the significance of any incidents where the dog alerted without contraband being found—is part of a court‘s evaluation of the dog‘s reliability under a totality of the circumstances analysis.8   In particular, when assessing the factors bearing on the dog‘s reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found.

Is this dog going to sniff its way to the Supreme Court? Perhaps. Stay tuned.

http://volokh.com/2011/04/26/how-well-trained-does-a-drug-sniffing-dog-need-to-be-before-a-positive-alert-creates-probable-cause/

Trent Perrotto
Headquarters, Washington     
202-358-0321
trent.j.perrotto@nasa.gov
 
Janet Anderson
Marshall Space Flight Center, Huntsville, Ala.
256-544-6162
janet.l.anderson@nasa.gov   


Jan. 10, 2011
 
RELEASE : 11-008
 
 
NASA'S Fermi Catches Thunderstorms Hurling Antimatter Into Space
 
 
WASHINGTON -- Scientists using NASA's Fermi Gamma-ray Space Telescope have detected beams of antimatter produced above thunderstorms on Earth, a phenomenon never seen before.

Scientists think the antimatter particles were formed in a terrestrial gamma-ray flash (TGF), a brief burst produced inside thunderstorms and shown to be associated with lightning. It is estimated that about 500 TGFs occur daily worldwide, but most go undetected.

"These signals are the first direct evidence that thunderstorms make antimatter particle beams," said Michael Briggs, a member of Fermi's Gamma-ray Burst Monitor (GBM) team at the University of Alabama in Huntsville (UAH). He presented the findings Monday, during a news briefing at the American Astronomical Society meeting in Seattle.

Fermi is designed to monitor gamma rays, the highest energy form of light. When antimatter striking Fermi collides with a particle of normal matter, both particles immediately are annihilated and transformed into gamma rays. The GBM has detected gamma rays with energies of 511,000 electron volts, a signal indicating an electron has met its antimatter counterpart, a positron.

Although Fermi's GBM is designed to observe high-energy events in the universe, it's also providing valuable insights into this strange phenomenon. The GBM constantly monitors the entire celestial sky above and the Earth below. The GBM team has identified 130 TGFs since Fermi's launch in 2008.

"In orbit for less than three years, the Fermi mission has proven to be an amazing tool to probe the universe. Now we learn that it can discover mysteries much, much closer to home," said Ilana Harrus, Fermi program scientist at NASA Headquarters in Washington.

The spacecraft was located immediately above a thunderstorm for most of the observed TGFs, but in four cases, storms were far from Fermi. In addition, lightning-generated radio signals detected by a global monitoring network indicated the only lightning at the time was hundreds or more miles away. During one TGF, which occurred on Dec. 14, 2009, Fermi was located over Egypt. But the active storm was in Zambia, some 2,800 miles to the south. The distant storm was below Fermi's horizon, so any gamma rays it produced could not have been detected.

"Even though Fermi couldn't see the storm, the spacecraft nevertheless was magnetically connected to it," said Joseph Dwyer at the Florida Institute of Technology in Melbourne, Fla. "The TGF produced high-speed electrons and positrons, which then rode up Earth's magnetic field to strike the spacecraft."

The beam continued past Fermi, reached a location, known as a mirror point, where its motion was reversed, and then hit the spacecraft a second time just 23 milliseconds later. Each time, positrons in the beam collided with electrons in the spacecraft. The particles annihilated each other, emitting gamma rays detected by Fermi's GBM.

Scientists long have suspected TGFs arise from the strong electric fields near the tops of thunderstorms. Under the right conditions, they say, the field becomes strong enough that it drives an upward avalanche of electrons. Reaching speeds nearly as fast as light, the high-energy electrons give off gamma rays when they're deflected by air molecules. Normally, these gamma rays are detected as a TGF.

But the cascading electrons produce so many gamma rays that they blast electrons and positrons clear out of the atmosphere. This happens when the gamma-ray energy transforms into a pair of particles: an electron and a positron. It's these particles that reach Fermi's orbit.

The detection of positrons shows many high-energy particles are being ejected from the atmosphere. In fact, scientists now think that all TGFs emit electron/positron beams. A paper on the findings has been accepted for publication in Geophysical Research Letters.

"The Fermi results put us a step closer to understanding how TGFs work," said Steven Cummer at Duke University. "We still have to figure out what is special about these storms and the precise role lightning plays in the process."

NASA's Fermi Gamma-ray Space Telescope is an astrophysics and particle physics partnership. It is managed by NASA's Goddard Space Flight Center in Greenbelt, Md. It was developed in collaboration with the U.S. Department of Energy, with important contributions from academic institutions and partners in France, Germany, Italy, Japan, Sweden and the United States.

The GBM Instrument Operations Center is located at the National Space Science Technology Center in Huntsville, Ala. The team includes a collaboration of scientists from UAH, NASA's Marshall Space Flight Center in Huntsville, the Max Planck Institute for Extraterrestrial Physics in Germany and other institutions.

For more Fermi information, images and animations, visit:

http://www.nasa.gov/fermi