South Capitol Street

From the files of clippings I've saved over the years, one of my favorite headlines — "Prison populations, costs climbing: $ 40b a year spent on inmates despite falling crime rate," as published in The Boston Globe on July 28, 2003.

Yes — "despite".

Not the only time I've seen a headline along these lines, though less often nowadays, its idiocy becoming too obvious to ignore.

As if to fill the void, a variation on the theme has appeared, especially in the wake of the Tucson shooting. It goes like this –  gun ownership rates climb despite falling crime rates. With any luck, this too will be consigned to the dustbin, but don't hold your breath.

Best recent example — agitprop filmmaker Michael Moore appearing on Rachel Maddow's MSNBC show Monday and saying this –

[Video clip after page break]

MOORE: Why do we, more than any other country, do this? I think it's more than just the laws. There's a reason why we want to own these guns. You pointed out last week that we're number one in gun ownership and then, Yemen … (laughs)

MADDOW: … Is a distant number two. Yes, that's right.

MOORE: … a distant number two! So why us, why do we have this? And the majority of these guns, I mean, the vast majority of these guns are owned by people who live in safe parts of town or mostly in suburbs and rural areas, places where there are very few murders. And your sane producer was saying to me backstage here that he was talking to people there (in Tucson), they said everybody's packing there, I mean, the surgeons there at the hospital, they said they have guns, everybody has a gun, yet they all said we have a very low gun murder rate here in Tucson. So why do you have a gun then? Why do you have a gun? What are you afraid of? What is that thing that we're afraid of that we want to have a gun in the house?

"Yet" taking the place of "despite" — "everybody has a gun, yet they all said we have a very low gun murder rate here in Tucson."  But how can that be, liberals insistently point out?

Here's how, as described in a National Rifle Association fact sheet from last September titled "Gun Ownership Rises to All-Time High, Violent Crime Falls to 35-Year Low" and abundantly footnoted –

Coinciding with a surge in gun purchases that began shortly after the 2008 elections, violent crime decreased six percent between 2008 and 2009, including an 8 percent decrease in murder and a nine percent decrease in robbery. Since 1991, when violent crime peaked, it has decreased 43 percent to a 35-year low. Murder has fallen 49 percent to a 45-year low. At the same time, the number of guns that Americans own has risen by about 90 million. Predictions by gun control supporters, that increasing the number of guns, particularly handguns and so-called "assault weapons," would cause crime to increase, have been profoundly lacking in clairvoyance.

As to be expected from Moore, he couldn't let the discourse pass without playing the race card –

I am loathe to bring up what is in our head because we don't like to talk about it so much. But on this particular day, on Martin Luther King Day, I think this needs to be said. That imaginary person that's going to break into your home and kill you, who does that person look like? You know, it's not freckle-faced Jimmy down the street, is it really? I mean, that's not what really, that's not what really people, we never really want to talk about the racial or the class part of this, in terms of how it's the poor or it's people of color that we imagine that we're afraid of. Why are we afraid? What is that, and it's been a fear that has existed for a very, very long time.

Who is Moore kidding?  "We don't like to talk about it so much … we never really want to talk about the racial and class part of this …" There is nothing liberals want more than to talk about "this," preferably as soon as their feet hit the floor in the morning. Given the chance, they'll weave it into chit-chat about the weather, such as when dark clouds form on the horizon … clearly the tea partiers' fault for the forecast, dontcha see?

Just out of curiosity, does Moore include Second Amendment advocate Gabrielle Giffords among those trigger-happy racists eager to execute impoverished people of color? 

NewsBusters.org – Exposing Liberal Media Bias

From the files of clippings I've saved over the years, one of my favorite headlines — "Prison populations, costs climbing: $ 40b a year spent on inmates despite falling crime rate," as published in The Boston Globe on July 28, 2003.

Yes — "despite".

Not the only time I've seen a headline along these lines, though less often nowadays, its idiocy becoming too obvious to ignore.

As if to fill the void, a variation on the theme has appeared, especially in the wake of the Tucson shooting. It goes like this –  gun ownership rates climb despite falling crime rates. With any luck, this too will be consigned to the dustbin, but don't hold your breath.

Best recent example — agitprop filmmaker Michael Moore appearing on Rachel Maddow's MSNBC show Monday and saying this –

[Video clip after page break]

MOORE: Why do we, more than any other country, do this? I think it's more than just the laws. There's a reason why we want to own these guns. You pointed out last week that we're number one in gun ownership and then, Yemen … (laughs)

MADDOW: … Is a distant number two. Yes, that's right.

MOORE: … a distant number two! So why us, why do we have this? And the majority of these guns, I mean, the vast majority of these guns are owned by people who live in safe parts of town or mostly in suburbs and rural areas, places where there are very few murders. And your sane producer was saying to me backstage here that he was talking to people there (in Tucson), they said everybody's packing there, I mean, the surgeons there at the hospital, they said they have guns, everybody has a gun, yet they all said we have a very low gun murder rate here in Tucson. So why do you have a gun then? Why do you have a gun? What are you afraid of? What is that thing that we're afraid of that we want to have a gun in the house?

"Yet" taking the place of "despite" — "everybody has a gun, yet they all said we have a very low gun murder rate here in Tucson."  But how can that be, liberals insistently point out?

Here's how, as described in a National Rifle Association fact sheet from last September titled "Gun Ownership Rises to All-Time High, Violent Crime Falls to 35-Year Low" and abundantly footnoted –

Coinciding with a surge in gun purchases that began shortly after the 2008 elections, violent crime decreased six percent between 2008 and 2009, including an 8 percent decrease in murder and a nine percent decrease in robbery. Since 1991, when violent crime peaked, it has decreased 43 percent to a 35-year low. Murder has fallen 49 percent to a 45-year low. At the same time, the number of guns that Americans own has risen by about 90 million. Predictions by gun control supporters, that increasing the number of guns, particularly handguns and so-called "assault weapons," would cause crime to increase, have been profoundly lacking in clairvoyance.

As to be expected from Moore, he couldn't let the discourse pass without playing the race card –

I am loathe to bring up what is in our head because we don't like to talk about it so much. But on this particular day, on Martin Luther King Day, I think this needs to be said. That imaginary person that's going to break into your home and kill you, who does that person look like? You know, it's not freckle-faced Jimmy down the street, is it really? I mean, that's not what really, that's not what really people, we never really want to talk about the racial or the class part of this, in terms of how it's the poor or it's people of color that we imagine that we're afraid of. Why are we afraid? What is that, and it's been a fear that has existed for a very, very long time.

Who is Moore kidding?  "We don't like to talk about it so much … we never really want to talk about the racial and class part of this …" There is nothing liberals want more than to talk about "this," preferably as soon as their feet hit the floor in the morning. Given the chance, they'll weave it into chit-chat about the weather, such as when dark clouds form on the horizon … clearly the tea partiers' fault for the forecast, dontcha see?

Just out of curiosity, does Moore include Second Amendment advocate Gabrielle Giffords among those trigger-happy racists eager to execute impoverished people of color? 

NewsBusters.org blogs

Matthew Godfrey, the mayor of Ogden, Utah, has a lofty goal. Godfrey has proposed that the town employ an unmanned blimp for surveillance and crime prevention.

“We believe it will be a deterrent to crime when it is out and about and will help us solve crimes more quickly when they do occur,” Godfrey told Reuters.

Godfrey says negotiations are currently taking place over the cost of a blimp being developed and tested by the Utah Center for Aeronautical Innovation and Design at Weber State University. Cigar-shaped, 52-feet long, helium-filled and batter-powered, the airship is equipped with two cameras, and can fly for four to six hours at a time.

“We anticipate using it mainly at night,” Godfey said. “The cameras have incredible night vision to see with tremendous clarity daytime and nighttime. It will be used like a patrol car. It will be used to go and check things out and keep things safe.”

The research team’s executive director, Bradley Stringer, told Reuters the blimp’s cost would run in the high five-figures, and said Ogden would be the first metropolitan police force to use the technology. Godfey presented his blimp idea to city council members last week, and they are expected to vote on it in the next few weeks.

Ogden may well end up claiming the first unmanned police blimp in the nation, but as TPM reported a few weeks ago, Miami’s police department is currently the front runner to become the first to use an unmanned drone in a U.S. city.

Godfrey did not immediately respond to TPM’s request for comment.

TPMMuckraker

Steve M. gives us today’s Palinology 101 lesson.  That lesson is “It doesn’t matter how many people think Sarah Palin would make a good President.”  There’s only one poll number that matters to Palin, and she’s winning it in spades:

The number that matters to her is in here, from PPP’s crosstabs (PDF):

The number that’s important to her is 78% — the percentage of conservatives who think the press treats her unfairly. That’s her ace in the hole. As long as that number is extremely high, she believes (correctly, I think) that she has a shot at the GOP presidential nomination — that number means that a large bloc of voters see her as a martyr crucified on a liberal cross (and think voting for her is the best way possible to piss liberals off).

More than 3 in 4 conservatives agree that Sarah Palin is treated unfairly, and that’s something she has masterfully cultivated for more than two years now.  It’s doubly effective:  she represents the constant victimization mentality of the Tea Party right, and all her personal foibles and failures she can lay at the feet of the unfair media.

Sarah Palin’s performance in the last week was 100% aggrieved martyr, and while it may have turned off the left and much of the center, she doesn’t care about them, nor does she need them until she wraps up the nomination.  She’s playing Peoria to Peoria.

More than anyone else with 2012 aspirations, Sarah Palin understood the lesson of 2008:  there’s no way a moderate Republican will ever make it past primary season.  The attacks from David Frum and Newt Gingrich and the like are coming from people who simply don’t understand what the 2012 GOP Presidential primary is going to be like.

The only survivor in this crucible will be the person who can forge their own reality the best.  Far and away that person is Sarah Palin.  Logic doesn’t matter.  Issues don’t matter. Her positions don’t matter.  All she has to do is keep playing the martyr and blame the media and she’ll schlep her way right into the nomination and very possibly the White House.

The closer she gets, the more she’ll be attacked from both the left and the right, and the more she’ll wave the victim flag.  That’s what she wants, and that’s what makes her exceedingly dangerous.  More and more moderates and even some Democrats will defect towards her if she gets the nomination.

If the economy is as bad as I think it will be in 2012, she has an honest chance of winning the whole ball of wax.  The only reason we’re not calling her Vice-President right now is McCain blew it with his infamous “the fundamentals of our economy are strong” speech in September 2008 when the Dow was dropping 350 points and lost the election.  Palin nearly won it for him.

Do not count out Sister Sarah of the Village Stigmata.  That martyr factor is her ticket in and she damn well knows it.

Zandar Versus The Stupid

Written by Milton Ramirez

One of the outstanding social responsibilities of the government of Rafael Correa is public safety. United Nations Special Rapporteur Philip Alston issued a report about his visit to Ecuador in June 2010 which b10.com.ec [es] quoted: “The homicide rate in Ecuador has doubled in the last 20 years. In 1990 it was 10.3 homicides per 100,000 inhabitants, in 2009 it was 18.7 and up to date the estimate suggests an increase to 20.”

Back in 2007, FLACSO [es] (Latin American Social Sciences Institute) scholar Fernando Carrion Mena, quoting a study by the Inter-American Development Bank, wrote that economic costs of criminal violence in Ecuador are quite high and that they are dramatically increasing over time.

Andrés Rodríguez from Modestamente Humano [es] writes about his experience with a street vendor selling movies while he rode a bus in Quito. He talked to the vendor who told him he was frustrated because he hadn't made a sell and thought he better get another job: stealing.

Blogger Sebas of Desde el rincón de mi vida [es] feels sad about how he's had to start the new year: his friend was killed and to make things worse the hired assassin shot his friend by mistake. He calls on everyone to show each other affection and love, but also criticizes the absence of drive from some Ecuadorians:

Resignación dicen algunos, […] resignarse ante la violencia es darles la victoria a los malos, es seguir dejando pasar, es pretender que la gente asesinada es un número más, no pienso hacer eso, resignarse jamás.

Many people have been writing letters to the President begging him to take immediate action against crime. But in a speech at one of the largest prisons in Guayaquil, he expressed that such offenders are victims of the society, and they deserve a second opportunity, as Carlos Sagnay of Desde mi trinchera [es] writes:

[Correa] visitó la Penitenciaría del Litoral, se dirigió a los delincuentes, asaltantes y asesinos, y les dijo que por culpa de asambleístas opositores están cumpliendo penas largas.

In Dialogo con Joselias [es] journalist and blogger Joselias, who writes from the Manabí province, echoes what is happening in Ecuador's main port, Guayaquil. He reports that even Intelligence Police can't get away from violence; Joselias explains that two officers were shot in southeastern Guayaquil.

Poverty, unemployment, and lack of education are factors that have led many to commit crimes and if caught serve prison terms. But in reference to the presidential visit to the coastal prison in Guayaquil, Manuel Ignacio Gomez of Hoy y Ahora [es] argues that one thing is to be concerned about their rights and rehabilitation, and another is to side with them, as if the President cared more about the welfare of the delinquents than the lives of the victims:

Muy bien que Correa se preocupe por la rehabilitación de los presos y mejorar las condiciones en las cárceles. Adelante. Tiene razón que la solución no está en encerrarlos para que se pudran, sino en convertirlos en personas útiles a la sociedad con verdaderos programas de rehabilitación. Los derechos humanos son para todos, incluyendo los presos. Pero esto de poco servirá si el Presidente no asume su papel con posturas, declaraciones y acciones prácticas, firmes y duras contra la delincuencia.

Another issue that concerns Ecuadorians is the growing number of adolescents involved in criminal offenses. The use of minors as young as 10 years old to commit offenses is also taking place; children can’t be incarcerated under these offenses.

Juancabrito in his blog [es] writes that the media invests too much time opposing the government but they forget to educate. The media, he says, needs to move from the “pseudo analysis” to a concrete reality. He is confident that President Correa, who now personally oversees public safety in Ecuador, will succeed, even with criticism from the opposition.

Global Voices in English

This video reveals how the Guardian orchestrated the public dissemination of classified US government documents. Rather than act as a passive reporter of news, the Guardian has been an active player in the one of the biggest criminal conspiracies of all time.

Here is the video:

This video comes to us by way of CiF Watch, a media monitor dedicated to tracking delegitimization of Israel in the Guardian-it has found that the Guardian’s assault on Israel is part of a much broader assault on Western democracy, as you can see from this segment.

Here is an extended version of the video:

Technorati Tag: Wikileaks and The Guardian.

Daled Amos

Evidently the letter he sent to the mosque wasn’t as threatening as it was originally made out to be. There are still questionable freedom of speech issues about this case, but anyway Harrison is free. An update on this story. “DA drops Tulsa man’s hate-crime charges,” by Jerry Wofford for the Tulsa World, January 15:

The district attorney dropped hate-crime charges against a Tulsa man Friday afternoon after a jury decided the evening before that the defendant did not need involuntary mental-health treatment.

Jesse Quinn Harrison was charged Dec. 28 with transmitting a threatening letter and with malicious intimidation or harassment.

The charges were based on a package he had sent to the Peace Academy at the Islamic Society of Tulsa. The package included a letter and a video he had made of himself smearing a Quran and an image of an Islamic religious figure with pork chops and grilling those items.

A mental-health hearing ended Thursday with a jury’s deciding that Harrison was not “in need of treatment,” according to the verdict.

Because Harrison – who had been a patient at the Tulsa Center for Behavioral Health – still faced the criminal charges, he was arrested and booked into the Tulsa Jail after the verdict. After the charges were dismissed, he was released from jail Friday, records show.

Tulsa County District Attorney Tim Harris sat in on much of Harrison’s mental-health hearing Wednesday and Thursday and said it was a kind of preview of what would be presented in a criminal case. He said he could see how the evidence would be presented and heard Harrison’s explanation of the video and letter submitted as evidence for the first time.

“After listening to him – though I don’t agree with the jury’s decision – it does give you some insight into where he was coming from,” Harris said Friday.

Harrison testified Thursday that by posting the video – which he acknowledged was “horribly offensive” – to YouTube and Facebook, he hoped to show that Islam was a peaceful religion despite a prevailing stereotype to the contrary.

“I created this horribly offensive video, yet what so many people expected was for Muslims to act violent to me,” Harrison testified. “Despite this horrible offense, they continue to be a law-abiding, peaceful people.”

Harris said that although Harrison is “going about it in a way I don’t concur with,” it would be difficult to prove that he intended violence toward anyone but possibly himself.

“The issues to be litigated in the criminal case were addressed in the mental-health case,” Harris said.

He added that before he decided to drop the charges, he spoke with Islamic Society of Tulsa leaders, two of whom testified Wednesday.

“They did not believe Mr. Harrison’s incarceration would serve long-term purposes,” Harris said….

I.e., it would reveal too much about our war against the freedom of speech, so let the poor devil go.

Jihad Watch

Every day across the country, millions of workers in low-wage jobs are being robbed of billions of dollars they are owed by their employers. A new video by Interfaith Worker Justice (IWJ) shows how the practice of wage theft is a national epidemic no one is paying attention to.

IWJ says 60 percent of nursing home workers, 100 percent of poultry plant workers and 90 percent of restaurant workers are denied their fair pay at some times.

One such worker is Ryszard Abucewicz of Chicago, who says on the video his employer refused to pay him at all for three consecutive pay periods.

Dianne Enriquez, also is in the video, is one of three San Francisco restaurant workers who did not receive overtime pay and sued their employer. They won more than $ 7,000 in back pay.

Kim Bobo, IWJ executive director and author of Wage Theft in America, says wage theft is “the crime wave no one talks about.”

It’s really all around us. There are workers who are not getting paid minimum wage, not paid overtime, [are] misclassified as independent contractors (so employers can avoid having to pay benefits), who don’t get all their tips. Some workers get laid off and don’t get their last paycheck. For some workers, they work all day and don’t get paid at all.

A new report issued earlier this week backs up IWJ’s findings. Nearly half of immigrant day laborers surveyed in New Jersey were not paid for all the work they completed, according to the report by the Seton Hall Law School’s Center for Social Justice. Some 48 percent  of the immigrant day laborers surveyed in seven New Jersey towns reported experiencing at least one instance over the past year in which they were not paid for all the work they had done, and more than half (54 percent) said they had been paid less than promised.

In addition, nearly all of the day laborers (94 percent) said they were not paid overtime, the report found.  Bryan Lonegan, Seton Hall law professor and co-author of the report, “All Work and No Pay: Day Laborers, Wage Theft, and Workplace Justice in New Jersey,” said in a statement:

Unfortunately, immigrant day laborers are just the highly visible tip of the iceberg because wage theft and labor violations happen all the time in restaurants, gas stations, home healthcare, janitorial, laundries, car washes and beauty and nail salons.

 To learn more about IWJ’s wage theft campaign, click here.

AFL-CIO NOW BLOG

(David Kopel)

The New York Times on-line “Room for Debate” feature poses this question today: “In Arizona, the shootings have led some citizens to call for more guns, not more gun control. Why is that?” Diverse answers are supplied by John Donohue (Stanford), John Lott (U. Maryland), James Alan Fox (Northeastern), Daniel Webster (Johns Hopkins Bloomberg School of Public Health), and me.

The Volokh Conspiracy

The details so far have not been made public by the government, so it’s impossible to tell whether Oklahoman Jesse Quinn Harrison really did transmit threats against Tulsa’s Islamic Peace Academy-or whether he is being held unjustly for exercising his First Amendment rights. The facts of the case that have emerged are these, according to the Tulsa World:

Jesse Quinn Harrison, 33, was charged Tuesday with one count each of transmitting a threatening letter and malicious intimidation or harassment – what Oklahoma statutes call a hate crime.

According to the charges, Harrison is accused of sending a nine-page letter to the Islamic Peace Academy in Tulsa “with the intent to intimidate.”

He also made a video that shows him “smearing pork on the Quran and an Islamic religious figure and grilling those items,” according to the charge.

The charge states that the video was made to “produce violence directed to others because of their religious beliefs.”

The video, which doesn’t show its creator’s face, intersperses images of the Sept. 11, 2001, terrorist attacks on the United States with the grilling of a Quran, a picture of an Islamic figure and two pork chops. Once the items are grilled, they are stacked on a bun and given to a dog.

The Merle Haggard songs “The Fightin’ Side of Me” and “Okie from Muskogee” play in the background.

At the end of the video, a memorial to Michele Heidenberger, a flight attendant who died when terrorists crashed her plane into the Pentagon, is shown on the screen.
…
The video and a brief anti-Islamic message were posted by Harrison’s account on several additional Facebook pages, including those of the White House and the FBI.

On a Dec. 15 Facebook entry, Harrison threatens to “march on the Tulsa Islamic Mosque” on New Year’s Eve.

Now, I have no idea what was in the letter to the Islamic Peace Academy. If it did contain threats of violence that violated the law, then it was certainly appropriate for the Tulsa police to pick him up. At my suggestion, Robert Spencer tried to contact Mr. Harrison via Facebook (Harrison’s page there is still active), to inquire about the details of the case. Spencer told Harrison that if he had indeed made a threat of violence, Spencer would not help him-but asked for the text of the letter, which Oklahoma authorities aren’t releasing. Harrison has not answered as of this writing.

I suspect that the letter was intemperate, but didn’t contain any real threats of violence. Why do I say that? Because of the way the prosecutors characterized Harrison’s online video, as intended to “produce violence directed to others because of their religious beliefs.” Watch the video for yourself.

It in no way suggests that Muslims or Islamic property should be attacked. Instead, it depicts a book and a picture of Muhammad (although it may be his son-in-law, the Shi’ite hero Ali Ibn Abi Talib) being grilled on a barbecue with a pork chop, then fed to a dog, to the tune of obstreperous, patriotic country music. Goofy, yes. Tasteless? Definitely. Constitutionally protected free speech? Absolutely.

The only way a video like Harrison’s would be illegal would be if it violated blasphemy laws-of the sort on the books in heavily subsidized U.S. ally Pakistan, where Christian Asia Bibi sits on death row, and Salmaan Taseer, the moderate governor of Punjab, one of that country’s largest states, lies dead for having suggested that the blasphemy laws be reformed. As the New York Times reported today, his murder seems to be the fruit of a conspiracy:

A follower of Dawat-e-Islami, a religious party based in Karachi, [the assassin] Mr. Qadri had joined the Special Forces branch of the Punjab police in 2002. At that time, he was declared a security risk because of his extreme religious views and sectarian activities during a routine check by his superior, according to a senior Pakistani police official.

In 2008, Mr. Qadri nonetheless managed to join the Elite Force of Punjab police, and had been assigned to guard the governor, raising alarming questions about the vetting and screening of security personnel, former police officials and associates of the former governor said.

At a market in Islamabad on Tuesday, Mr. Qadri pumped more than 20 rounds into Mr. Taseer’s back, Pakistani media reported, and yet was not fired on by any other member of the security detail, raising still more questions about whether any of the others knew of his plans in advance.

Mr. Qadri immediately surrendered, called himself a “slave of the Prophet,” and indicated that he had killed Mr. Taseer for his campaign against the blasphemy law.

Jihadwatch reported today that Taseer’s murder has been greeted by orthodox Muslim clerics with widespread approval.

If Oklahoma’s standard of evidence for “intent to intimidate” (how it characterized Harrison’s letter) is as arbitrary as its criterion for “produc[ing] violence directed to others because of their religious beliefs,” then the whole case against Harrison is a crock-a chilling American instance of the kind of prosecution that happens all the time in Europe, where when Westerners criticize Muslims, the latter call the cops.

I encourage readers to contact Tim Harris, District Attorney for the Country of Tulsa and ask him to release the text of Harrison’s letter to the press-just to let us know whether he made a real, illegal threat against the safety of Muslim citizens, or whether anti-blasphemy laws are now in effect in Oklahoma. It would be really helpful to know that.

Jihad Watch

LISTEN TO THE DANA PRETZER SHOW TONIGHT AT 9 PM ETON SCARED MONKEYS RADIO

Tonight Dana welcomes special guests:

• Donna Simpson –   Most of us have New Year’s resolutions to lose weight, not Donna. She stated she her goal was  to weigh 1000 lbs. Listen to her reasons why …
• Blink from Blink on Crime – Its a Year in Review and What Lies Ahead  in 2011 
• Robin Sax –   more of a Year in review and what lies ahead for Dr Conrad Murra. 

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Scared Monkeys

(Orin Kerr)

Last week, the Eleventh Circuit decided an important case, United States v. Rodriguez, on the computer crime statute known as the Computer Fraud and Abuse Act, 18 U.S.C. 1030. The decision by Judge Pryor touches on the same issue that was in play in the Lori Drew case: When does violating express conditions on computer use constitute a crime? The court’s conclusion seems right on its specific facts, but I worry that it will be construed as adopting a very broad theory that would be very troubling. So I wanted to introduce the legal issue, then talk about the Rodriguez case, and then return to the legal issue and talk about how it might apply going forward.

I. The Prohibition on Unauthorized Access

First, some context. Federal law makes it a crime to “exceed authorized access” to a “protected computer” and thereby obtain “information.” 18 U.S.C. 1030(a)(2)(C). Essentially everything on the planet Earth that contains a microchip is a “protected computer”; any data at all counts as “information”; and merely reading information counts as “obtaining” it. As a result, whenever you’re using a computer, the line between computer use that is legal and computer use that can have you arrested and thrown in jail hinges almost entirely on what makes computer use “exceed authorized access.”

The phrase “exceed authorized access” is a defined phrase, but unfortunately the definition is almost entirely circular. According to 18 U.S.C. 1030(e)(6), “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter.” That’s not a very helpful definition, if you think about it. Entitlement and authorization mean the same thing. As a result, the definition just says that you exceed authorized access when you have authorization but then you, well, exceed it, by doing something you’re not authorized to do. The missing aspect of the definition is what principle governs authorization (or entitlement, if you prefer). Is it just the computer owner’s say so? Does it require the computer owner to put up some sort of password gate that limits authorization? How do you know what you’re entitled to do for purposes of the criminal law?

This is a really hard question, I think. To see why it’s hard, consider the following eight scenarios. Specifically, consider which of the people in these scenarios “exceeded authorized access” to a computer in violation of federal law:

1) A government employee who has access to a sensitive national security database that he is only permitted to use for official reasons instead uses the database in order to collect private data and sell it to the Chinese government.
2) An Social Security Administration employee who has access to a Social Security database that he is only permitted to use for official reasons instead uses the database just to check out private information on friends and others for purely personal reasons.
3) An associate of a consulting company who is told that he can only access his employer’s computer files for work-related reasons instead looks through the employer’s files because he is thinking of leaving to start a competitor business and is looking for ideas of future clients and services.
4) A city employee who is told that he can only access the city’s computer for work-related reasons instead spends five minutes a day surfing the Internet for pornography.
5) A mother who signs up for a MySpace account that the Terms of Service condition on being entirely truthful in setting up a profile instead lies on the profile and uses the MySpace account anyway.
6) A law student who is forbidden by law school policy to access the law school network during class decides to do so anyway to check his e-mail during a particularly boring lecture.
7) The New York Times reports that there is a website set up at www.dontvisitthiswebsite.com that has some incredible pictures posted. But there’s a catch: The Terms of Service of the website clearly and unambiguously say that no one is allowed to visit the website. A reader of the Times wants to see the pictures anyway and visits the website from his home Internet connection.
The Volokh Conspiracy announces a new rule that you are only allowed to the visit the blog is your goal in doing so is to further libertarianism. Someone visits the blog to post comments criticizing libertarianism.

So which of these eight scenarios violate the federal criminal law prohibiting exceeding authorized access to a computer? In my experience, almost everyone says that the first scenario does. Most say that the second does, too. Scenarios #3, #4, and #5 draw a mixed reaction. Finally, most people think #6 isn’t a crime, and pretty much everyone agrees it would be utterly ridiculous for #7 or #8 to be a crime.

The problem is that the statute doesn’t provide an obvious way to get to these intuitive results. The intuitive results are based on intuitions of harm. We instinctively think that harmful things should be a crime, while entirely innocuous things shouldn’t be. But the prohibition on unauthorized access does not include a harm element. The statute prohibits exceeding authorized access in the model of a trespass statute, not exceeding authorized access in a way that is likely to cause a lot of harm. (Harm matters to get to the felony provisions, but not the misdemeanor provisions.) All eight scenarios listed above are variations on the same basic theme: In each case, the person was told by the owner/operator of the computer that they were not permitted to use the computer in that way or for that reason — but they did so anyway. All of which raises a profoundly important question: What principle governs when the announced restrictions on using a computer triggers criminal liability?

II. United States v. Rodriguez

The new case, United States v. Rodriguez, involved Scenario #2. Rodriguez was a Social Security Administration employee who used the SSA computers for purely personal reasons. The opinion explains:

From 1995 to 2009, Roberto Rodriguez worked as a TeleService representative for the Social Security Administration. Rodriguez’s duties included answering questions of the general public about social security benefits over the telephone. As a part of his duties, Rodriguez had access to Administration databases that contained sensitive personal information, including any person’s social security number, address, date of birth, father’s name, mother’s maiden name, amount and type of social security benefit received, and annual income.

The Administration established a policy that prohibits an employee from obtaining information from its databases without a business reason. The Administration informed its TeleService employees about its policy through mandatory training sessions, notices posted in the office, and a banner that appeared on every computer screen daily. The Administration also required TeleService employees annually to sign acknowledgment forms after receiving the policies in writing. The Administration warned employees that they faced criminal penalties if they violated policies on unauthorized use of databases. From 2006 to 2008, Rodriguez refused to sign the acknowledgment forms. He asked a supervisor rhetorically, “Why give the government rope to hang me?” To monitor access and prevent unauthorized use, the Administration issued unique personal identification numbers and passwords to each TeleService employee and reviewed usage of the databases.

In August 2008, the Administration flagged Rodriguez’s personal identification number for suspicious activity. Administration records established that Rodriguez had accessed the personal records of 17 different individuals for nonbusiness reasons. The Administration informed Rodriguez that it was conducting a criminal investigation into his use of the databases, but Rodriguez continued his unauthorized use. None of the 17 victims knew that Rodriguez had obtained their personal information without authorization until investigators informed them of his actions.

Based on his conduct, Rodriguez was charged with 17 counts of unauthorized access, convicted, and sentenced to serve a year in prison. On appeal, he argued that his conduct did not exceed authorized access. In an opinion by Judge Pryor, the Eleventh Circuit treated that argument as almost frivolous:

The policy of the Administration is that use of databases to obtain personal information is authorized only when done for business reasons. Rodriguez conceded at trial that his access of the victims’ personal information was not in furtherance of his duties as a TeleService representative and that “he did access things that were unauthorized.” In the light of this record, the plain language of the Act forecloses any argument that Rodriguez did not exceed his authorized access.

In a subsequent part of the opinion, Judge Pryor made clear that “Rodriguez exceeded his authorized access and violated the Act” because “he obtained personal information for a nonbusiness reason.” Rodriguez tried to argue that he should not be held liable because his violation of SSA policy did not cause a greater harm or have a greater scheme to cause harm. But Judge Pryor properly noted that the basic prohibition on unauthorized access did not require a harm:

The misdemeanor penalty provision of the Act under which Rodriguez was convicted does not contain any language regarding purposes for committing the offense. See id. § 1030(c)(2)(A). Rodriguez’s argument would eviscerate the distinction between these misdemeanor and felony provisions. That Rodriguez did not use the information to defraud anyone or gain financially is irrelevant.

III. Commentary: What Are The Limits of Rodriguez?

Just based on its facts, the result in Rodriguez seems sound. In a sense, it is unremarkable. Indeed, the First Circuit noted the same conclusion in dicta in an early case with almost identical facts. See United States v. Czubinski, 106 F.3d 1069 (1st Cir. 1997) (noting, in an unauthorized access prosecution of an IRS employee who accessed the IRS database for personal reasons, that the defendant “unquestionably exceeded authorized access” by using the sensitive database for personal reasons). See also Commonwealth v. McFadden, 850 A.2d 1290 (Pa Super. Ct. 2004) (interpreting a state unauthorized access statute to punish use of a sensitive police computer system for personal reasons). And I suspect most people will say that based on the facts of Rodriguez, the result was correct. Rodriguez seems like a really bad guy, and his conduct was a pretty serious privacy violation.

What troubles me is that the Eleventh Circuit’s rationale seems broader than the facts of this one case. The rationale of the opinion suggests that the issue was trivially easy: There was a policy on access; the defendant violated it after being told not to; and therefore he exceeded authorized access. Pretty straightforward. The clarity of the rationale seems to support the view that accessing an employer’s computer for “a nonbusiness reason” after being told not to do so is a crime not just in this case, but for any limitation imposed and for any nonbusiness reason. In other words, while the rationale covers scenario #2, it also seems to cover scenario #3 and #4. And I suspect some readers will read the opinion to support even more of the scenarios — maybe #5, maybe even #6 and #7.

In a recent article, I tried to offer a way out of this mess: constitutional vagueness doctrine, the doctrine used in the Lori Drew case. In my essay, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 Minn. L. Rev. 1561 (2010), I argued that defense attorneys should challenge readings of the unauthorized access as unconstitutionally vague in order to force the courts to adopt narrow interpretations. My view is that the requirements of vagueness doctrine should force courts to say that only certain kinds of restrictions on computer use in certain kinds of contexts can constitutionally be used to trigger the criminal prohibition on unauthorized access.

I don’t think such an argument would have worked for the defendant in the Rodriguez case, to be clear. Those facts strike me as pretty close to the core of the prohibition. But I’m worried about the next case. And I don’t think these are idle concerns. Scenarios #3, #4, and #5 are based on real criminal cases charged in the last two years. Scenario #3 is based on United States v. Nosal, 2009 WL 981336 (N.D. Cal. 2009); Scenario #4 is based on State v. Wolf, 2009 WL 1152185 (Ohio App. 2009); and Scenario #5 is based on the Lori Drew case. State and federal prosecutors have shown that they’re willing to take favorable precedents like Rodriguez and run with them through the different scenarios. Given that, it’s troubling to me when a court endorses the government’s theory in a case like this without any apparent realization of where the government is going next or the broader possible impact of the decision. To be clear, I’m not blaming the panel: This was a very strong panel; the opinion was authored by an excellent judge; and the facts of this case were pretty egregious. But I think the issue is a bit more complicated than the opinion suggests, and it’s frustrating when defense attorneys don’t successfully bring out these complications in ways that judges can factor in to their decisions.

Finally, if vagueness doctrine doesn’t help cure some of the problems with Section 1030, it would be nice if Congress revisited the statute to explain just what it wanted to criminalize. But then I wouldn’t hold my breath expecting that to happen any time soon.

For more on the overbreadth concerns raised by the Computer Fraud and Abuse Act, see my article Cybercrime’s Scope: Interpreting ‘Access’ and ‘Authorization’ in Computer Misuse Statutes published in the NYU Law Review in 2003.

The Volokh Conspiracy

(Orin Kerr)

Last week, the Eleventh Circuit decided an important case, United States v. Rodriguez, on the computer crime statute known as the Computer Fraud and Abuse Act, 18 U.S.C. 1030. The decision by Judge Pryor touches on the same issue that was in play in the Lori Drew case: When does violating express conditions on computer use constitute a crime? The court’s conclusion seems right on its specific facts, but I worry that it will be construed as adopting a very broad theory that would be very troubling. So I wanted to introduce the legal issue, then talk about the Rodriguez case, and then return to the legal issue and talk about how it might apply going forward.

I. The Prohibition on Unauthorized Access

First, some context. Federal law makes it a crime to “exceed authorized access” to a “protected computer” and thereby obtain “information.” 18 U.S.C. 1030(a)(2)(C). Essentially everything on the planet Earth that contains a microchip is a “protected computer”; any data at all counts as “information”; and merely reading information counts as “obtaining” it. As a result, whenever you’re using a computer, the line between computer use that is legal and computer use that can have you arrested and thrown in jail hinges almost entirely on what makes computer use “exceed authorized access.”

The phrase “exceed authorized access” is a defined phrase, but unfortunately the definition is almost entirely circular. According to 18 U.S.C. 1030(e)(6), “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter.” That’s not a very helpful definition, if you think about it. Entitlement and authorization mean the same thing. As a result, the definition just says that you exceed authorized access when you have authorization but then you, well, exceed it, by doing something you’re not authorized to do. The missing aspect of the definition is what principle governs authorization (or entitlement, if you prefer). Is it just the computer owner’s say so? Does it require the computer owner to put up some sort of password gate that limits authorization? How do you know what you’re entitled to do for purposes of the criminal law?

This is a really hard question, I think. To see why it’s hard, consider the following eight scenarios. Specifically, consider which of the people in these scenarios “exceeded authorized access” to a computer in violation of federal law:

1) A government employee who has access to a sensitive national security database that he is only permitted to use for official reasons instead uses the database in order to collect private data and sell it to the Chinese government.
2) An Social Security Administration employee who has access to a Social Security database that he is only permitted to use for official reasons instead uses the database just to check out private information on friends and others for purely personal reasons.
3) An associate of a consulting company who is told that he can only access his employer’s computer files for work-related reasons instead looks through the employer’s files because he is thinking of leaving to start a competitor business and is looking for ideas of future clients and services.
4) A city employee who is told that he can only access the city’s computer for work-related reasons instead spends five minutes a day surfing the Internet for pornography.
5) A mother who signs up for a MySpace account that the Terms of Service condition on being entirely truthful in setting up a profile instead lies on the profile and uses the MySpace account anyway.
6) A law student who is forbidden by law school policy to access the law school network during class decides to do so anyway to check his e-mail during a particularly boring lecture.
7) The New York Times reports that there is a website set up at www.dontvisitthiswebsite.com that has some incredible pictures posted. But there’s a catch: The Terms of Service of the website clearly and unambiguously say that no one is allowed to visit the website. A reader of the Times wants to see the pictures anyway and visits the website from his home Internet connection.
The Volokh Conspiracy announces a new rule that you are only allowed to the visit the blog is your goal in doing so is to further libertarianism. Someone visits the blog to post comments criticizing libertarianism.

So which of these eight scenarios violate the federal criminal law prohibiting exceeding authorized access to a computer? In my experience, almost everyone says that the first scenario does. Most say that the second does, too. Scenarios #3, #4, and #5 draw a mixed reaction. Finally, most people think #6 isn’t a crime, and pretty much everyone agrees it would be utterly ridiculous for #7 or #8 to be a crime.

The problem is that the statute doesn’t provide an obvious way to get to these intuitive results. The intuitive results are based on intuitions of harm. We instinctively think that harmful things should be a crime, while entirely innocuous things shouldn’t be. But the prohibition on unauthorized access does not include a harm element. The statute prohibits exceeding authorized access in the model of a trespass statute, not exceeding authorized access in a way that is likely to cause a lot of harm. (Harm matters to get to the felony provisions, but not the misdemeanor provisions.) All eight scenarios listed above are variations on the same basic theme: In each case, the person was told by the owner/operator of the computer that they were not permitted to use the computer in that way or for that reason — but they did so anyway. All of which raises a profoundly important question: What principle governs when the announced restrictions on using a computer triggers criminal liability?

II. United States v. Rodriguez

The new case, United States v. Rodriguez, involved Scenario #2. Rodriguez was a Social Security Administration employee who used the SSA computers for purely personal reasons. The opinion explains:

From 1995 to 2009, Roberto Rodriguez worked as a TeleService representative for the Social Security Administration. Rodriguez’s duties included answering questions of the general public about social security benefits over the telephone. As a part of his duties, Rodriguez had access to Administration databases that contained sensitive personal information, including any person’s social security number, address, date of birth, father’s name, mother’s maiden name, amount and type of social security benefit received, and annual income.

The Administration established a policy that prohibits an employee from obtaining information from its databases without a business reason. The Administration informed its TeleService employees about its policy through mandatory training sessions, notices posted in the office, and a banner that appeared on every computer screen daily. The Administration also required TeleService employees annually to sign acknowledgment forms after receiving the policies in writing. The Administration warned employees that they faced criminal penalties if they violated policies on unauthorized use of databases. From 2006 to 2008, Rodriguez refused to sign the acknowledgment forms. He asked a supervisor rhetorically, “Why give the government rope to hang me?” To monitor access and prevent unauthorized use, the Administration issued unique personal identification numbers and passwords to each TeleService employee and reviewed usage of the databases.

In August 2008, the Administration flagged Rodriguez’s personal identification number for suspicious activity. Administration records established that Rodriguez had accessed the personal records of 17 different individuals for nonbusiness reasons. The Administration informed Rodriguez that it was conducting a criminal investigation into his use of the databases, but Rodriguez continued his unauthorized use. None of the 17 victims knew that Rodriguez had obtained their personal information without authorization until investigators informed them of his actions.

Based on his conduct, Rodriguez was charged with 17 counts of unauthorized access, convicted, and sentenced to serve a year in prison. On appeal, he argued that his conduct did not exceed authorized access. In an opinion by Judge Pryor, the Eleventh Circuit treated that argument as almost frivolous:

The policy of the Administration is that use of databases to obtain personal information is authorized only when done for business reasons. Rodriguez conceded at trial that his access of the victims’ personal information was not in furtherance of his duties as a TeleService representative and that “he did access things that were unauthorized.” In the light of this record, the plain language of the Act forecloses any argument that Rodriguez did not exceed his authorized access.

In a subsequent part of the opinion, Judge Pryor made clear that “Rodriguez exceeded his authorized access and violated the Act” because “he obtained personal information for a nonbusiness reason.” Rodriguez tried to argue that he should not be held liable because his violation of SSA policy did not cause a greater harm or have a greater scheme to cause harm. But Judge Pryor properly noted that the basic prohibition on unauthorized access did not require a harm:

The misdemeanor penalty provision of the Act under which Rodriguez was convicted does not contain any language regarding purposes for committing the offense. See id. § 1030(c)(2)(A). Rodriguez’s argument would eviscerate the distinction between these misdemeanor and felony provisions. That Rodriguez did not use the information to defraud anyone or gain financially is irrelevant.

III. Commentary: What Are The Limits of Rodriguez?

Just based on its facts, the result in Rodriguez seems sound. In a sense, it is unremarkable. Indeed, the First Circuit noted the same conclusion in dicta in an early case with almost identical facts. See United States v. Czubinski, 106 F.3d 1069 (1st Cir. 1997) (noting, in an unauthorized access prosecution of an IRS employee who accessed the IRS database for personal reasons, that the defendant “unquestionably exceeded authorized access” by using the sensitive database for personal reasons). See also Commonwealth v. McFadden, 850 A.2d 1290 (Pa Super. Ct. 2004) (interpreting a state unauthorized access statute to punish use of a sensitive police computer system for personal reasons). And I suspect most people will say that based on the facts of Rodriguez, the result was correct. Rodriguez seems like a really bad guy, and his conduct was a pretty serious privacy violation.

What troubles me is that the Eleventh Circuit’s rationale seems broader than the facts of this one case. The rationale of the opinion suggests that the issue was trivially easy: There was a policy on access; the defendant violated it after being told not to; and therefore he exceeded authorized access. Pretty straightforward. The clarity of the rationale seems to support the view that accessing an employer’s computer for “a nonbusiness reason” after being told not to do so is a crime not just in this case, but for any limitation imposed and for any nonbusiness reason. In other words, while the rationale covers scenario #2, it also seems to cover scenario #3 and #4. And I suspect some readers will read the opinion to support even more of the scenarios — maybe #5, maybe even #6 and #7.

In a recent article, I tried to offer a way out of this mess: constitutional vagueness doctrine, the doctrine used in the Lori Drew case. In my essay, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 Minn. L. Rev. 1561 (2010), I argued that defense attorneys should challenge readings of the unauthorized access as unconstitutionally vague in order to force the courts to adopt narrow interpretations. My view is that the requirements of vagueness doctrine should force courts to say that only certain kinds of restrictions on computer use in certain kinds of contexts can constitutionally be used to trigger the criminal prohibition on unauthorized access.

I don’t think such an argument would have worked for the defendant in the Rodriguez case, to be clear. Those facts strike me as pretty close to the core of the prohibition. But I’m worried about the next case. And I don’t think these are idle concerns. Scenarios #3, #4, and #5 are based on real criminal cases charged in the last two years. Scenario #3 is based on United States v. Nosal, 2009 WL 981336 (N.D. Cal. 2009); Scenario #4 is based on State v. Wolf, 2009 WL 1152185 (Ohio App. 2009); and Scenario #5 is based on the Lori Drew case. State and federal prosecutors have shown that they’re willing to take favorable precedents like Rodriguez and run with them through the different scenarios. Given that, it’s troubling to me when a court endorses the government’s theory in a case like this without any apparent realization of where the government is going next or the broader possible impact of the decision. To be clear, I’m not blaming the panel: This was a very strong panel; the opinion was authored by an excellent judge; and the facts of this case were pretty egregious. But I think the issue is a bit more complicated than the opinion suggests, and it’s frustrating when defense attorneys don’t successfully bring out these complications in ways that judges can factor in to their decisions.

Finally, if vagueness doctrine doesn’t help cure some of the problems with Section 1030, it would be nice if Congress revisited the statute to explain just what it wanted to criminalize. But then I wouldn’t hold my breath expecting that to happen any time soon.

For more on the overbreadth concerns raised by the Computer Fraud and Abuse Act, see my article Cybercrime’s Scope: Interpreting ‘Access’ and ‘Authorization’ in Computer Misuse Statutes published in the NYU Law Review in 2003.

The Volokh Conspiracy

A couple of readers e-mailed after my interview with Kamala Harris last week asking why I hadn’t asked her about a scandal at the San Francisco police crime lab, an issue during this year’s campaign.

I did ask her, though the answer wasn’t in the story because she didn’t say much that was new. But while elections tend to wipe the slate clean, it’s a lingering issue and probably should have been in the story. 

The issue, as Harris put it, was "a tech in the drug lab who was sniffing what she should have been measuring" — a situation that could jeopardize convictions in cases she worked on — and the question of whether Harris should have known about the situation.

Her response:

"As the chief elected law enforcement officer of my city, I will take responsibility for whatever happens in law enforcement — but the crime lab is run by the police department, which I don’t run," she said. In her view, the basic failing was the police department’s. She’s denied having any knowledge of a report on problems at the lab that its author said had been given to her office.

"We had a policy, but it was not a written policy and the failure of my office was not to have a written policy on that issue," she said of the complaint that she hadn’t turned over information on drug lab employees’ criminal backgrounds to defense lawyers.

One mitigating factor here, she said: Unlike in other lab scandals, there’s no evidence — not yet at least — that any innocent people were convicted because of technicians’ misconduct.

Ben Smith’s Blog

By Barry Rubin

Some of my readers are always bothered when I say that mistakes in Western Middle East policy are caused by stupidity and ignorance—abetted by ideology—and want to argue that the shortcomings are due to deliberate sabotage or evil intentions (often against Israel).

I can certainly understand why people think such things. But almost forty years of studying the Middle East and Western policy toward it have shown me hundreds of times that foolishness, misunderstanding, wishful thinking, and naivete are powerful forces in international affairs. As the great statesman Charles Maurice de Talleyrand put it almost two centuries ago, “This is worse than a crime, it’s a blunder.”

Remember that we are dealing here with people (policymakers, journalists, academics) trying to function across cultural, experiential, historical, linguistic, and usually religious lines. And what is their biggest handicap at present? Why, the very denial that such lines exist! Once you accept the assumption that everyone is basically alike in their thoughts, dreams, goals, and world view, you have no hope whatsoever of understanding anyone who has a different standpoint.

True, sometimes these decisionmakers and opinionmakers (especially the academics and European journalists) have taken up partisan positions. Yet this is far less true for politicians and policymakers who must keep in mind both their own personal and their country’s national interests. We tend to focus on extreme exceptions—who certainly exist—but they are a minority.

Ideology, of course, is also a powerful deceiver. It sets up preconceptions that often dominate even when the facts go against them. Central here is the sad reality that we are living at a time when ideology rather than pragmatism dominates the Western intellectual and political debate to a greater extent than has happened within living memory.

The academic world has broken down to an astonishing extent in terms of its ability to tell truth from falsehood. The mass media has followed this pattern, albeit to a lesser extent and with more exceptions. Thus, the Western world has been deprived of its two greatest sources for “reality checks.” That’s devastating.

“Since the masses are always eager to believe something,” said Talleyrand, “for their benefit nothing is so easy to arrange as facts.”

But what’s even worse is the domination of governments by forces that cannot even acknowledge that the great struggle of the time is between revolutionary Islamism and other radical forces-as in not only North Korea, Venezuela, etc., but in the West as well!—and traditional liberal, Enlightenment, democratic, freedom of speech, Western civilization, and family values.

In Talleyrand’s words, “To succeed in the world, it is much more necessary to possess the penetration to discern who is a fool, than to discover who is a clever man.”

Of course, a number of Western governments do things that favor the wrong side in terms of domestic policies. It is easier to believe that on domestic affairs there is a hidden agenda, that is an ideologically dicated series of goals concealed because the public would reject them if it understood what was really going on.

Yet when it comes to foreign policy, especially in the Middle East, many Western leaders think they are buying peace and stability when they are actually undermining it precisely because they don’t understand their enemies. Often, they no longer seem to understand the foundations of statecraft either. Perhaps this is symbolized by people being able to obtain a degree in “conflict resolution” but not learning about the uses of force, deterrence, and credibility.

Having said all this, though, I want to stress an often-ignored factor in such matters: the power of alternative explanations. These explanations may transgress logic and reality but that doesn’t mean people don’t believe them, especially when they match up with their prejudices.

Let me give two examples. Consider the Tea Party movement. Whatever one thinks of it, how can anybody not understand that it is motivated by a very simple platform: less government, lower taxes, less regulation? Their argument is that this would preserve freedom and allow the economy to grow much faster and more certainly.

Again, one could debate these ideas. But that’s the point: the avoidance of a debate by the movement’s enemies. Instead, the bulk of the establishment, mass media, and academia says it is mystified: what can these people possibly want? They must be just a group of racists and extremists. This alternative explanation probably satisfies at least 40 percent of the American public, maybe more, as being true.

International affairs, of course, are far more arcane. But consider this little case study. The Obama Administration has messed up on Israel-Palestinian issues for two years, a story I can tell—and have in previous articles—in great detail. Recently, it proposed a three-month freeze of construction on West Bank settlements. If it had gotten precisely what it wanted this would have led to no gain at all for anyone.

The Administration reportedly promised Israel a great deal if it agreed to the proposal. The Israeli government responded cooperatively. Yet what was the U.S. government offering? Apparently, the Administration was so incompetent as to contradict itself to the point where Israel couldn’t figure out the supposed deal. Then the Palestinian Authority demanded more, and even if it was given concessions wanted to sabotage talks.

In short, the Obama Administration became increasingly entangled in seeking a goal that wasn’t worthwhile, offering more and more but in a confused, contradictory manner, and having to deal with a Palestinian leadership that refused to cooperate and an Israeli government coalition that conceivably might splinter over the issue.

So the Administration abandoned the whole mess. Yet to read the explanations available to average Americans or even opinionmakers one would never know any of this clearly. The alternative explanations, mostly just blame Israel, for Washington’s failure.

Indeed, after two years in which Israel has offered to negotiate with the Palestinians every day and the Palestinians have refused to negotiate with Israel almost every day, the ruling establishment, mass media, and academia generally persist in saying that the deadlock is Israel’s fault.

Now, if people are unable to understand the simplest points—due to preconceived ideology, failure to look at the facts, or inability to understand them—we are not dealing with a conspiracy but with what might be called intellectually structured blindness.

What is the way out?

First, keep explaining the truth since there’s a large portion of people open-minded enough to be persuaded if they only are allowed to see the ridiculous flaws in what they’ve been told. In other words, use the free marketplace of ideas to the greatest extent possible.

Second, let events (and the behavior of their enemies) teach people that their ideas, policies, and programs just don’t work; make them look like idiots; and lead to a loss of prestige and power. That has been clearly happening to an extent.

Third, develop and put into place a counter-elite that has a far better level of understanding about how the world works.

Having seen so many different and changing eras already, I’m confident that this combination will work. Hopefully, it will work faster so that fewer people will die and suffer, while the damage done already will be easier to reverse.

Or, to quote Talleyrand once again, “The art of statesmanship is to foresee the inevitable and to expedite its occurrence.”

Barry Rubin is director of the Global Research in International Affairs (GLORIA) Center Middle East Review of International Affairs (MERIA) Journal. His latest books are Lebanon: Liberation, Conflict, and Crisis (Palgrave Macmillan), Conflict and Insurgency in the Contemporary Middle Eastand editor of the (seventh edition) (Viking-Penguin), The Israel-Arab Reader the paperback edition of The Truth About Syria(Palgrave-Macmillan), A Chronological History of Terrorism (Sharpe), and The Long War for Freedom: The Arab Struggle for Democracy in the Middle East (Wiley).  

Please email me at [email protected] to be put onto my mailing list.
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