We must reject watchlists if we are a nation of laws

I favor strict national gun regulation. There are bad ways to do it, and good ways, but almost any consistent regime would be an improvement over the status quo. If you had asked me the day before yesterday, I would have said that I'd support nearly any gun control measure that was brought before the U.S. Congress.

Well, congratulations, Democrats! You've discovered a way to do it, maybe the only way, that I find stupid and unconscionable: extending the power of "terrorist watch lists" into the realm of gun control. That you should stage a theatrical stunt on the House floor over this measure, of all measures, after you've spent my entire adult life caving cravenly to one right-wing authoritarian demand after another, from illegal war to the normalization of torture, beggars the imagination.

Right off the bat, let's be clear that this measure will have almost no effect on gun violence. But unlike most gun control measures, this one is not merely feeble; it is actively malign, because it further empowers an evil institution.

The so-called "terrorist watch list" is a fundamentally broken idea that is both impossible to implement well, and a moral catastrophe for the rule of law and human equality and liberty.

There are over a million identities on the watchlist, mashed together from many sources of unknown provenance and overseen by nobody with any accountability to disinterested review. Anybody who has worked with database integrations and human organizations of any size knows with total certainty that this watchlist is full of nonsense. Ted Kennedy was on the watchlist. Bollywood movie star Shah Rukh Khan was on the watchlist. The "terrorist watchlist" is a pile of garbage wrapped in a tire fire.

It can't help but be so: the count of people worldwide who engage in non-state terrorism against civilians is miniscule. It is a numerical certainty that nearly all of the people who are on a million-member watchlist are entirely innocent and have no potential to commit a terrorist act.

And how did the data come to be such a fetid swamp of nonsense? Nobody will tell you. The contents of the watchlist are secret; the processes for getting an identity onto the watchlist are secret; the criteria for getting your identity off the watchlist are secret. Good luck if you end up on it, and you're somebody with less clout than a sitting United States Senator or an international celebrity.

Maybe it's time for a brief refresher on how a nation of laws is supposed to work. Laws must be known to the people who govern them. There must be an agreed-upon process — a due process, you might say — by which people are deprived of their rights under those laws. Once you have been convicted of a crime, the state's carceral machinery may act upon you, but until then, merely suspected persons retain their rights. And you don't lose your rights in secret, whereupon you may sue to get them back; the burden of proof is on the state to exercise this due process to take your rights away.

Making legal processes open to public inspection is the most powerful way that we know to ensure that their operation is just; that, for example, we are not merely turning people into second-class citizens for being Muslim or black or whatever the current least-favored category of citizens is. One would think that this argument, at least — that, as Black Lives Matter and related movements have made undeniably clear in recent years, the state operates in flagrantly discriminatory ways when it operates without scrutiny — would carry some currency, even in a left-of-center discourse that values civil liberties less and less as the Bush years recede into the distance.

Yet through the depressing machinery of tribalism, it has suddenly become conventional wisdom in progressive circles that all right-thinking people shall support a bill that further entrenches the influence of the racist, unaccountable, unconstitutional no-fly-list. Otherwise-intelligent people in my Twitter feed have even argued that passing this legislation is the first step towards "fixing" the watchlist:

5/ both so we can *start* regulating guns, *and* so we can start fixing the watchlist, we should absolutely pass the Democratic proposal.

— Ben Adida (@benadida) June 23, 2016

Astonishing. Astonishing. I have no way of even processing the level of wishful thinking and partisan groupthink necessary for a reasonable person to make this argument in good faith. Can you think of a single example in history where giving a Kafkaesque bureaucratic apparatus additional unaccountable power led to its reform, let alone any such apparatus connected with the security state? I doubt it; the ratchet turns in the other direction.

I have an alternate prediction. Should this legislation be passed by Democrats, we can look forward to the positions around the watchlist becoming crystallized along partisan lines. Since empowering the watchlist will count as a signature political achievement for Democrats, attained through a highly memorable media stunt, henceforth Democrats will fight any efforts that even remotely smell like dismantling the watchlist; this will, of course, include any efforts at meaningful reform. As reverence for the immaculate watchlist turns into a shibboleth of partisan identification, enterprising Democrats will eventually start to propose even more unconstitutional measures to extend its influence into other areas of public life. The extensions will come with, at best, token reforms; perhaps these reforms will moderate its effects on upper-class and upper-middle-class people with surplus time and financial resources, but leave the overall system fundamentally unaccountable and outside any recognizable form of due process for nearly everybody on it. Millions more human beings will suddenly become second-class in the eyes of state; their circle of rights will gradually shrink. The normalization of secret law in the United States will accelerate. Neither Democrats nor Republicans will have the stomach to turn this ratchet backwards.

Furthermore, having discovered again that "terrorism" is the magic word which can rally even the most spineless legislators into action and cow even the most intransigent opponents, Democrats will use this handy rhetorical cudgel to beat anybody who disagrees with them, just as Republicans did during the Bush years, until it is nearly meaningless with overuse. This will be used to pass all manner of additional legislation, equally stupid. Meanwhile, progressives like myself will be excoriated for allegedly being on the side of terrorists and right-wing loons, simply for opposing stupid and malign laws.

Mass shootings, terrorism, and Columbine

Brief followup to the last post: via cshalizi's pinboard, here's an article that taught me something new about Columbine:

[In his book Columbine, author Dave] Cullen reconstructed the shooters' state of mind based on their own extensive written and filmed records and countless interviews with friends, family, and law enforcement. He concluded that Eric Harris was a psychopath, a young man without empathy or conscience, who coldly manipulated the deeply depressed Dylan Klebold into joining his scheme.

It was clear from the boys' meticulously documented plans that Columbine was an act of non-ideological domestic terrorism. Their goal was not merely to shoot bullies. They sought to first responders and parents with a mass shooting and then blow everyone up with huge bombs. Harris hoped this spectacular televised violence would touch of some sort of revolution. The bombs failed to detonate but the intent was clear.

If this is correct, then the Columbine shootings were in fact terrorism. It was violence staged against civilians specifically to generate an emotional reaction and an attendant policy reaction. However ill-conceived, weird, and amateurish, it appears to meet the definition.

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Addendum: Incidentally this does not, of course, indicate that we should deal with terrorists of all types in the same way. The wall-to-wall media coverage of Columbine clearly played into the first half of the killers' plans. The most effective way to defeat this particular pair of terrorists would have been for the national media to ignore them entirely. The shooting should have been a purely local news story, focusing on memorializing the victims, and coverage of the killers should have been confined to wonky academic criminal science case studies.

Lectures on "aggressive policies" for detention and interrogation

I've linked previously to a bunch of lectures from the Cybersecurity and Homeland Security course I attended last quarter, but I haven't yet linked to a couple of the most important and disturbing. On November 30, the course organizers persuaded speakers from the U.S. Dept. of Defense to speak. The two principal lecturers were an historian in the employ of the Pentagon and a U.S. Army interrogator respectively.

Lecture links (as usual, you'll want WebViewer for an optimal experience, but you can also page through the slides manually):

Brian Del Monte, "Detention Operations Policy & the Global War on Terrorism":

PowerPoint slides, Windows Media video, streaming WebViewer, downloadable WebViewer archive

Christina Filarowski Sheaks, "Interrogation Policy & the Global War on Terrorism":

PowerPoint slides, Windows Media video, streaming WebViewer, downloadable WebViewer archive

By and large, the first lecture's infuriating, and the second lecture's chilling and surreal, a quality that is not mitigated by the fact that Ms. Sheaks, the United States Army field interrogator, is a soft-spoken woman wearing a low-cut dress.

I don't have a whole lot more to say --- the lectures almost speak for themselves --- except that it's worth noting how careful the speakers are to emphasize that they're speaking for the Department of Defense only, and (in Ms. Sheaks's case) addressing interrogation policy only. This leaves two elephants in the room. First, most of the recent "aggressive interrogation" incidents were allegedly performed by the CIA, which isn't part of the DoD. Second, the abuses at Abu Ghraib were not, in fact, performed as part of interrogation procedures --- they were performed, as far as we can tell, for no purpose at all.

Sensible countermeasures against mass casualty terrorism

I've pointed several times, in this forum, to a multi-institutional course about cybersecurity and homeland security that's being offered this term at UW, UC Berkeley, and UCSD. One of the things that comes up in the lectures (video and slides available online) is that there are, in fact, many simple measures that would mitigate the casualties from chemical, biological, radiological, and nuclear attacks.*

It's commonplace, especially among conservatives, to say stuff like "you won't win the war on terrorism with defense --- you have to go on offense!" This is true, as far as it goes: in an open society, it's not feasible to defend every target against terrorist attack, which means that you can only prevent mass casualty terrorist events by using a mixture of diplomacy, intelligence, law enforcement, and military action. But this can't be an excuse for neglecting defensive measures, some of which would do considerable good.

For example, taking refuge in fallout shelters, even very crude ones, considerably mitigates the damage of a nuclear attack. Nuclear explosions kill people within a certain radius through raw blast force and heat, and there's not a whole lot you can do inside that radius. However, outside that radius, you want to be insulated from radioactive fallout for about 48 hours (by then, the fatality rate from radiation poisoning has dropped dramatically --- the most dangerously radioactive elements of fallout are also those that decay most rapidly). You can avoid radiation pretty effectively by putting distance between yourself and the radioactive dust outside: either take refuge in a shelter with thick walls, or move deep into the central spaces of a large building (far from the exterior surface).

So why isn't the Dept. of Homeland Security telling people in major metropolitan areas to prepare fallout shelters, and take other defensive measures? UC Berkeley public policy prof. Steve Maurer makes a good point on the course wiki discussion for a recent lecture:

It turns out that if you do something minimal like dig a hole in the backyard and put a door on top of it, that cuts down the radioactivity pretty dramatically. That's just physics, there's not much doubt it's true. But the last time the government tried to point this out in a big way was during the Reagan Administration. The problem with this pitch -- they called it "with enough shovels" -- was two-fold. First "everyone knows" that we will all die in a nuclear war, so everyone translated "with enough shovels" as evidence that Reagan "must be senile." Second, people like to avoid thinking about nuclear war. Saying "the government should do something" does that, saying "we'll all die" does that, but saying "you are the first line of defense" asks people to think which makes them anxious. So what you end up with is physically sensible advice that people would desperately want to know in a nuclear war but will create a huge political backlash if you bring it up in advance.

Now, during the Cold War, the most credible nuclear threat was global thermonuclear war, i.e. massive numbers of fusion bombs dropped on every major population center in America. In that context, I think that "we will all die in a nuclear war" was actually not much of an exaggeration. However, in the post-Cold War, post-9/11 era, people generally believe that the most credible nuclear threat is a fission bomb (considerably less potent than a fusion bomb), stolen or manufactured by terrorist groups, and detonated in one city. In this context, American society would largely survive intact, but there would be many people in the attacked metropolitan area who have a good chance of either dying or surviving, depending on how they act. Some of those people will be downwind, in the path of the fallout plume; it's unlikely that we'll have enough road and transit capacity to quickly evacuate them all; and having plans to place people in fallout shelters would be a really good idea.

And fallout shelters are just one defensive measure among many. Biological attacks are even more subject to mitigation than nuclear attacks --- the behavior of carriers and potential victims can make all the difference in the propagation of an infection.

Why don't you and I already know about these countermeasures? Why don't we already know what to do in the event of a mass-casualty terrorist attack? Clearly, if America's political leadership were serious about defending America against terrorism, then undertaking a public education campaign would be part of their strategy, regardless of the political difficulty. Just as clearly, our leaders aren't doing this. Instead, we've gotten inscrutable color-coded "terror alerts" and vague exhortations to spy on our neighbors.

Of course, one can just add this to the long list of counterterrorism opportunities missed in the past four years. When you get down to it, our political leaders either haven't thought very seriously about counterterrorism policy, or else their thinking on the subject has been profoundly misguided, or both.

At this point, it would be incredibly easy, and appropriate, to segue into a broader rant against the ruling political party. But, I don't really have time to get into all that tonight, so for now I leave this as an exercise for the reader.

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* Incidentally, of these four weapon categories ("CBRN"), the experts who've lectured in this course think that only biological and nuclear attacks ("B" and "N") have serious potential to be "mass casualty" events. The reasons are somewhat complicated, but in a nutshell:

• It's hard for a terrorist to deliver chemical weapons in a way that causes hundreds or thousands of fatalities, as opposed to a few dozen.
• The radiological attacks that terrorists are likely to be capable of executing don't generate piles of dead bodies. Rather, they increase the victims' lifetime probability of getting cancer by a few percent. This might have considerable psychological effect, but it's not a mass casualty event.