Companies that help protect the U.S. against attack deserve immunity from frivolous lawsuits.
I think this legislation is vital. An excellent case is made here by Benjamin Civiletti, Dick Thornburgh And William Webster. Civiletti was U.S. attorney general under President Jimmy Carter, Thornburgh was U.S. attorney general under President George H.W. Bush and Judge Webster is former director of the CIA and former director of the FBI.
Following the terrorist attacks of Sept. 11, 2001, President Bush authorized the National Security Agency to target al Qaeda communications into and out of the country. Mr. Bush concluded that this was essential for protecting the country, that using the Foreign Intelligence Surveillance Act would not permit the necessary speed and agility, and that he had the constitutional power to authorize such surveillance without court orders to defend the country.
Since the program became public in 2006, Congress has been asserting appropriate oversight. Few of those who learned the details of the program have criticized its necessity. Instead, critics argued that if the president found FISA inadequate, he should have gone to Congress and gotten the changes necessary to allow the program to proceed under court orders. That process is now underway. The administration has brought the program under FISA, and the Senate Intelligence Committee recently reported out a bill with a strong bipartisan majority of 13-2, that would make the changes to FISA needed for the program to continue. This bill is now being considered by the Senate Judiciary Committee.
Public disclosure of the NSA program also brought a flood of class-action lawsuits seeking to impose massive liability on phone companies for allegedly answering the government’s call for help. The Intelligence Committee has reviewed the program and has concluded that the companies deserve targeted protection from these suits. The protection would extend only to activities undertaken after 9/11 until the beginning of 2007, authorized by the president to defend the country from further terrorist attack, and pursuant to written assurances from the government that the activities were both authorized by the president and legal.
We agree with the committee. Dragging phone companies through protracted litigation would not only be unfair, but it would deter other companies and private citizens from responding in terrorist emergencies whenever there may be uncertainty or legal risk.
The government alone cannot protect us from the threats we face today. We must have the help of all our citizens. There will be times when the lives of thousands of Americans will depend on whether corporations such as airlines or banks are willing to lend assistance. If we do not treat companies fairly when they respond to assurances from the highest levels of the government that their help is legal and essential for saving lives, then we will be radically reducing our society’s capacity to defend itself.
This concern is particularly acute for our nation’s telecommunications companies. America’s front line of defense against terrorist attack is communications intelligence. When Americans put their loved ones on planes, send their children to school, or ride through tunnels and over bridges, they are counting on the “early warning” system of communications intelligence for their safety. Communications technology has become so complex that our country needs the voluntary cooperation of the companies. Without it, our intelligence efforts will be gravely damaged.
Whether the government has acted properly is a different question from whether a private person has acted properly in responding to the government’s call for help. From its earliest days, the common law recognized that when a public official calls on a citizen to help protect the community in an emergency, the person has a duty to help and should be immune from being hauled into court unless it was clear beyond doubt that the public official was acting illegally. Because a private person cannot have all the information necessary to assess the propriety of the government’s actions, he must be able to rely on official assurances about need and legality. Immunity is designed to avoid the burden of protracted litigation, because the prospect of such litigation itself is enough to deter citizens from providing critically needed assistance.
As the Intelligence Committee found, the companies clearly acted in “good faith.” The situation is one in which immunity has traditionally been applied, and thus protection from this litigation is justified.
First, the circumstances clearly showed that there was a bona fide threat to “national security.” We had suffered the most devastating attacks in our history, and Congress had declared the attacks “continue to pose an unusual and extraordinary threat” to the country. It would have been entirely reasonable for the companies to credit government representations that the nation faced grave and immediate threat and that their help was needed to protect American lives.
Second, the bill’s protections only apply if assistance was given in response to the president’s personal authorization, communicated in writing along with assurances of legality. That is more than is required by FISA, which contains a safe-harbor authorizing assistance based solely on a certification by the attorney general, his designee, or a host of more junior law enforcement officials that no warrant is required.
Third, the ultimate legal issue–whether the president was acting within his constitutional powers–is not the kind of question a private party can definitively determine. The companies were not in a position to say that the government was definitely wrong.
Prior to FISA’s 1978 enactment, numerous federal courts took it for granted that the president has constitutional power to conduct warrantless surveillance to protect the nation’s security. In 2002, the FISA Court of Review, while not dealing directly with the NSA program, stated that FISA could not limit the president’s constitutional powers. Given this, it cannot be said that the companies acted in bad faith in relying on the government’s assurances of legality.
For hundreds of years our legal system has operated under the premise that, in a public emergency, we want private citizens to respond to the government’s call for help unless the citizen knows for sure that the government is acting illegally. If Congress does not act now, it would be basically saying that private citizens should only help when they are absolutely certain that all the government’s actions are legal. Given the threats we face in today’s world, this would be a perilous policy.
Yesterday we drove past a huge mosque complex in Buenos Aires — a reminder of the pervasive influence of The Kingdom’s petrodollars financing the spread of radical islam throughout the world. Then we see this curious statement by King Abdullah [one of the “good guys” in the Saudi leadership]:
King Abdullah caused an uproar ahead of a visit to Britain this week by scolding his hosts about terrorism. But as long as the Saudi monarch has raised the subject, by all means let’s debate the kingdom’s role in promoting radical Islam.
In a BBC interview Monday, King Abdullah said that “most countries are not taking this issue [terrorism] too seriously, including, unfortunately, Great Britain.” The king also claimed, through a translator, that his security services had provided information that could have prevented the July 2005 bombings in London, implying that U.K. authorities chose to ignore it.
The royal musings didn’t go down well, perhaps because Saudi Arabia churns out manpower, money and spiritual inspiration for jihadis around the world. British intelligence service MI5 yesterday refuted the accusations, saying Saudi information was “clearly not relevant to those attacks.” But the Brits might as well press the king further on the subject by asking about Saudi Arabia’s efforts to export its state-sanctioned brand of radical Islam, Wahhabism, to madrassas and mosques around the world.
Britain is one of the biggest targets. Policy Exchange, a think tank, put out a report Monday that Saudi Arabia was the source of much of the extremist material found in British mosques. According to the conclusions of a year-long investigation, that material included calls for the murder of Muslim “apostates” and gays, as well as anti-Western incitement. It was either written by members of the Saudi religious establishment, or distributed by the country’s institutions, or found in Saudi-funded mosques. “The influence of Saudi Arabia is both powerful and malign,” the report concludes.
When Prime Minister Gordon Brown sits down with the 83-year-old monarch today, he can tell him how “seriously” he takes the Saudi connection to Islamic terrorism.
From Buenos Aires: Cristina Fernández Kirchner has won decisively, and her Peronist party has won control of congress. We don’t pretend to understand the politics here, nor the truth of her party’s policies. If the following commentary for the WSJ by Mary Anastasia O’Grady is accurate, her policies will definitely not work.
Aside, roughly translated into english, the everywhere-present Cristina posters say “We know what the problem is. We know how to fix it.”
Argentina held a national election yesterday to chose a new president for a four-year term. As we went to press, it was too early to call the official winner, but there was one positive development: Exit polls here in the capital were showing that porteños had voted heavily against Peronist candidate Cristina Fernández Kirchner, wife of President Nestór Kirchner.
Since 2003, the Kirchner government has steamrolled over checks and balances on executive power — and Mrs. Kirchner’s candidacy was widely viewed as the “continuity ticket.” So if this city, the cultural and business center of the country, did indeed vote against the first couple’s power grab, it would suggest the survival of Argentina’s republican spirit. This also would be good news for the continent, where many countries are engaged in an epic struggle touched off by the return of the primitive caudillo politics that the Kirchners — and their ally Hugo Chávez — represent.
Even so, the president’s wife was favored to finish in first place nationwide, and early returns late yesterday suggested that she had topped the 40% of the vote she needed to avoid a runoff election. This is bound to discourage liberal democrats here but it may turn out to be poetic justice. Beneath what seems like robust growth this year, the Kirchner government has made a mess of the economy, through a deadly combination of excessive government spending and price controls to generate a false sense of prosperity. Nothing could be more appropriate than saddling Mrs. Kirchner with the task of cleaning it up.
For starters, there is a desperate need to abandon the current system of price controls coupled with export taxes on energy and agricultural goods. It is not holding down inflation or inflationary expectations; it is instead distorting capital allocation and has seriously undermined government credibility.
Even bad economists understand that price controls cause shortages. In an effort to mitigate that problem, Mr. Kirchner’s central planners have put controls only on certain items within categories of consumer staples. These items are then singled out to go in the basket of goods used to measure inflation. But since price-controlled items tend to be of very poor quality and also sell out very quickly, most Argentines end up buying products at market prices, which are escalating. In the energy sector, where controls are more broadly imposed, shortages are cropping up.
Meanwhile, export taxes, designed to fill state coffers while discouraging producers from sending output abroad, also have lowered the incentive to produce.
Government efforts to manipulate inflation statistics have damaged public confidence. Although the official inflation rate is 9%-10%, some independent economists put the number at around twice that. The government is now exploring a “core” inflation model that would strip out excessive price increases in order to paint a more favorable picture. But this is unlikely to fool the public, and union leadership has already said it will demand 20% salary increases next year to compensate for the rising price level.
Pressure on public wages, and subsidies aimed at masking price increases in energy, are also driving market fears that the government is headed for the same fiscal and borrowing trouble that brought the country to its knees in 2001. Pablo Guidotti, an economist trained at the University of Chicago who is now at the Torcuato Di Tella University here, points out that the country’s public debt as a percent of GDP is now bigger than in 2001. Moreover, he says that its composition is not much different than it was back then, and that the 2005 debt restructuring has raised the average interest rate that the country pays.
The government is currently on track to produce a 2.5% primary budget surplus in 2008, but Mr. Guidotti points out that if it were to fall to 1.5% of GDP, borrowing requirements could quickly get back to 2000 levels, both in dollar values as well as a percent of GDP. “If refinancing rates were to increase,” he adds, “these conditions would deteriorate further.”
Why worry about a drop in the budget surplus? A better question, given the history of Argentine politics, is why not worry? This year alone, government spending is expected to increase 60% while revenues will rise by only two-thirds of that. The Peronist-controlled congress has granted the executive both “emergency powers” to rule by decree and “super-powers” over budget management. Unless the new president is overcome by a sudden urge toward spending restraint, it’s hard to see how the fiscal accounts will not deteriorate.
Export taxes, price controls, inflation worries, and the breaking of utility and debt contracts by the government back in 2002 are having a negative effect on investment. The government boasts of an investment-to-GDP rate this year close to 23%. But a recent paper by five Argentine scholars casts doubt on that. In the study, titled “Investment in Argentina,” former central-bank president Javier González Fraga and others argue that much of this “investment” is really consumer spending on things like cell phones, housing and recreational four-wheel-drive vehicles.
The authors also say that Argentina captured only 60% of what tiny Chile attracted in 2006 and 76% of what went to Colombia. No wonder the Kirchners, who made their careers denouncing the International Monetary Fund, are now flirting with it again. It holds the key to rescheduling Paris Club (bilateral) debt so as to restore government-guaranteed export financing for U.S. and European companies investing in Argentina. Look for the IMF, which is desperate for a role in the world, to find a way to salvage the pride of the political class here so it can begin calling Argentina a “client” again.
Tally all this up and what you get is an Argentina that hasn’t changed a bit since the politicians drove the country into the ground in 2001. The only question left is whether the new government will break with the past and reconcile with markets. It shouldn’t take long to answer.
Technorati Tags: Argentina
Glenn has the scoop on the Lunar Lander Prize — Armadillo Aerospace almost won it this year.
How Lawmaker Rebuilt Hometown on Earmarks — Johnstown Gets Billions With Power Broker’s Aid; FBI Questions a Contract…
Does anyone believe Murtha is not a crook?
JOHNSTOWN, Pa. — If John Murtha were a businessman, he’d be the biggest employer in this town.
The powerful U.S. congressman has used his clout on Capitol Hill to create thousands of jobs and steer billions of dollars in federal spending to help his hometown in western Pennsylvania recover from devastating floods and the flight of its steelmakers.
More is on the way. In the massive 2008 military-spending bill now before Congress — which could go to a House-Senate conference as soon as Thursday — Mr. Murtha has steered more taxpayer funds to his congressional district than any other member. The Democratic lawmaker is chairman of the House Appropriations Subcommittee on Defense, which will oversee more than $459 billion in military spending this year.
Johnstown’s good fortune has come at the expense of taxpayers everywhere else. Defense contractors have found that if they open an office here and hire the right lobbyist, they can get lucrative, no-bid contracts. Over the past decade, Concurrent Technologies Corp., a defense-research firm that employs 800 here, got hundreds of millions of dollars thanks to Rep. Murtha despite poor reviews by Pentagon auditors. The National Drug Intelligence Center, with 300 workers, got $509 million, though the White House has tried for years to shut it down as wasteful and unnecessary. Another beneficiary: MTS Technologies, run by a man who got his start some 40 years ago shining shoes at Mr. Murtha’s Johnstown Minute Car Wash.
<more>
I found this article by former FDA deputy commissioner Scott Gottleib illuminating on several points. E.g.,
1) why big pharma has little economic incentive to develop new antibiotics
2) why diagnostic companies aren’t incented to develop the rapid infectious-agent detection systems we need.
Excerpt:
…Researchers working at the Centers for Disease Control and Prevention reported this month that nearly 19,000 Americans died in 2005 from MRSA, and about 95,000 were infected. Doctors have been reporting for years that MRSA was cropping up with alarming frequency. The same is true for other bacteria. In Rochester, N.Y., doctors recently reported nine children stricken with a strain of the bacteria that causes ear infections — streptococcus pneumonia — that was resistant to all 18 antibiotics commonly used to treat the condition.
The real news isn’t that these bugs exist, but how woefully unprepared we are to deal with them. As we make progress in fields like cancer, we are taking a U-turn on bacteria. Despite advances in drug development, the bugs have increased their IQ nearly as fast as research, outwitting our medicines. Efforts have turned to preventing bacterial spread and clamping down on antibiotic prescribing.
There’s no question that poor hospital hygiene, overuse — and sometimes misuse — of antibiotics contribute to educating bugs at our expense. But preventative efforts alone won’t solve our bacterial challenges. What we need most are better diagnostic tests and new medicines.
This is high-stakes science, but the pipeline isn’t promising. Since 1998, just 10 new antibiotics have been approved by the the Food and Drug Administration, only two of which work in fundamentally new ways. Only 13 new antibiotics are in development inside big drug companies, compared to an average of 60 more than a decade ago. Since leaving the FDA this year as its deputy commissioner, I’ve advised a few biopharma firms making antibiotics and the venture investors supporting them. Regrettably, however, many big drug makers have followed the lead of Eli Lilly, a pharmaceutical company that once pioneered antibiotics, only to exit the business entirely.
The problem? There’s not a lot of payoff for developing drugs aimed at infections. First, they last only days, or at most weeks, limiting sales. And the better the drug, the more likely doctors and hospitals are to keep it on the shelf as a last resort. Most hospitals require that doctors get special approval to prescribe the best new antibiotics. In that regard, what’s good for public health isn’t necessarily good for antibiotic development.
…Most existing antibiotics are as old as the earth, screened out of nature where they resided, doing battle with bugs for centuries. We need to accelerate this evolution in our laboratories. Public policy mistakes are partly to blame for creating this inhospitable environment for new development, and it will take a concerted effort to improve it. The only sure way to stay ahead of bacterial evolution is by escalating this arms race.
Highly recommended.
I think Steyn gets is right here. Recommended…
…But the third and bigger point is that, enjoyable as they are, pop-culture metaphors aren’t really of much use, especially when you’re up against cultures where life is still defined by how you live as opposed to what you experience via media. It seems to me, for example, that when anti-war types bemoan Iraq as this generation’s Vietnam “quagmire,” older folks are thinking of the real Vietnam – the Gulf of Tonkin resolution and whatnot – but most anybody under 50 is thinking of Vietnam movies: some vague video-store mélange of “The Full Metal Deer Apocalypse.”
Take the Scott Thomas Beauchamp debacle at the New Republic, in which the magazine ran an atrocity-a-go-go Baghdad diary piece by a serving soldier about dehumanized troops desecrating graves, abusing disfigured women, etc. It smelled phony from the get-go – except to the professional media class from whose ranks the New Republic’s editors are drawn: To them, it smelled great, because it aligned reality with the movie looping endlessly through the windmills of their mind, a nonstop Coppola-Stone retrospective in which ill-educated conscripts are the dupes of a nutso officer class.
It’s the same with all those guys driving around with “9/11 Was An Inside Job” bumper stickers. That aligns reality with every conspiracy movie from the past three decades: It’s always the government who did it – sometimes it’s some supersecret agency working deep within the bureaucracy from behind an unassuming nameplate on a Washington street; and sometimes it’s the president himself – but when poor Joe Schmoe on the lam from the Feds eventually unravels it, the cunning conspiracy is always the work of a ruthlessly efficient all-powerful state. So Iraq is Vietnam. And 9/11 is the Kennedy assassination, with ever higher percentages of the American people gathering on the melted steely knoll.
There’s a kind of decadence about all this: If 9/11 was really an inside job, you wouldn’t be driving around with a bumper sticker bragging that you were on to it. Fantasy is a by-product of security: it’s the difference between hanging upside down in your dominatrix’s bondage parlor after work on Friday and enduring the real thing for years on end in Saddam’s prisons.
Michael Yon:
Iraq is looking better month by month. But at the current rate, surely we shall fail in Afghanistan…
…A great deal of flak came in for my 2006 reporting from Afghanistan. Unfortunately, that on-the-ground reporting is proving correct nearly to the letter. The following three-part report summarizing my observations and experiences in Afghanistan more than a year ago, warned of the growing threat of a narco-fueled Taliban increasingly able to challenge a national government overgrown with incompetency and choked with corruption.
I have characterized Afghanistan as little more than a hunting lodge for our special operations forces. Since the Afghan campaign has been largely a special forces war from the beginning, we have been able to transition with great secrecy from near victory, to abysmal performance, to what has now become a sustainable human-hunting resort. Our special operations forces are out there hunting Taliban and al Qaeda, outside of public view—although it appears that “the public” is hardly clamoring for news from Afghanistan—while the country devolves into the consummate narco-state.
There are many indicators that the Afghan campaign is at this date a complete failure; how much has anything changed from when The Perfect Evil was published nearly a year ago? At the time of its publication, I intended it as a warning cry that action needed to be taken, and fast, before the momentum of decline reached avalanche velocity.
As with my January 2005 warnings of looming civil war in Iraq, it appears that at least a year or longer is needed before what was initially a solvable problem metastasizes into a Stage 4 disaster. If that experience is a guide, there are 3 phases between First Warning and Hail Mary. In Iraq, it took 6 to 9 months to complete the cycle of “euphemize what can’t be ignored.” The same amount of time was needed to complete the “attack the messenger” phase. Before the “fix it before it kills us” phase can commence, a full and seemingly endless cycle of “blame everyone else” needs to be completed by all the people who could have and should have done something sooner.
The war is finally turning a positive corner here in Iraq. Although some complain that the turn around is behind schedule, if Iraq continues to progress so rapidly, I will leave here in 2008, with plans to go to Afghanistan.
Read on for Michael’s three-part report from 2006.
Transterrestrial Musings has been covering the competition closely — here’s the latest.
Update about 2:30 PM MDT]
Well, you may have heard, but there will be no winner this year. All the money remains on the table. I think that’s a good thing, actually, because there are a lot of competitors out here who look almost ready to compete, and in another year many of them should be able to.
The post briefing hasn’t occurred yet. All I know was that when the ignition was supposed to occur, I only heard a bang, followed shortly after by an announcement of a declaration of emergency to put out a fire. Apparently it was yet another hard start, and it ended Armadillo’s chances for a win this year.
Neil Milburn reportedly stated at an 11 AM briefing that prior to this weekend, they had never turned the vehicle around in the time necessary to win the prize, which kind of blows my mind. All this time I had been hearing that they were confident because they had flown the profile many times, but apparently that didn’t mean that they had flown the full profile, which requires a return in a fixed time period.
Well, lessons learned. Good luck to them (and all the others) next year.
Latest Comments
RSS