Declan McCullagh on the Politicization of Security

Good essay:

Politicians of both major parties wield this as the ultimate political threat. Its invocation typically predicts that if a certain piece of legislation is passed (or not passed) Americans will die. Variations may warn that children will die or troops will die. Any version is difficult for the target to combat.

This leads me to propose McCullagh’s Law of Politics:

As the certainty that legislation violates the U.S. Constitution increases, so does the probability of predictions that severe harm or death will come to Americans if the proposal is not swiftly enacted.

McCullagh’s Law describes a promise of political violence. It goes like this: “If you, my esteemed political adversary, are insufficiently wise as to heed my advice, I will direct my staff and members of my political apparatus to unearth examples of dead {Americans|women|children|troops} so I can later accuse you of responsibility for their deaths.”

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Posted on October 22, 2007 at 1:13 PM • 40 Comments

Comments

Matt from CT • October 22, 2007 1:49 PM

Mr. McCullagh fell into the bias trap with:
“While Republicans are more likely to invoke the threat, Democrats are not immune from the temptation.”

That’s hogwash.

The current examples are from the Republicans for the same reason most of the corruption is — they are in power. Democrats do both just as well in proportion to their power.

In a subtle way, it is exactly what he his writing about — in this case, “Fear them both…but especially those dirty, no good Republicans.” Ignoring a long and equal history by both political parties of trampling over liberties in pursuit of small slices of the electoral pie.

This is issue will not be settled by partisanship of “Vote for Democrats. We’re not as bad!”

It takes broad pressure against both sides without any respect for political gamesmanship and positioning and telling them both, “No.”

When the politicians hear a weak “No” they respond instead like a good salesman with a carefully worded “Do you prefer A or B?”

Unfortunately most people instead of sticking to their principles and saying, “No” give into human nature and make a choice between the two scenarios presented in the new question.

Hmmm, suppose that’s a social engineering hack, huh?

aeschylus • October 22, 2007 2:21 PM

“As the certainty that legislation violates the U.S. Constitution increases, so does the probability of predictions that severe harm or death will come to Americans if the proposal is not swiftly enacted.”

This wording is both verbose and ambiguous with respect to the meaning of “probability of predictions”. Do you mean “predicted probability”, or “probability that predictions will be made”?

How about:

“The certainty that proposed legislation is unconsitutional increases with the number of lost American lives predicted should it fail to be enacted.”

Even then, how does one measure the certainty that legislation is unconstitutional? It’s a purely non-quantitative question, so whose certainty are we interested in?

I don’t wish to be unkind, but I can’t say this is particularly insightful in any formulation; one expects risk vs. reward arguments to be made in any debate, and that’s all this is, where the risks being weighed include both risk that life will be lost and risk that the legislation will be rejected by the courts.

Martin Budden • October 22, 2007 2:37 PM

Teenagers have long recognized that people switch off critical thinking when security is mentioned, and that predictions of severe consequences will result in people agreeing to things that they otherwise wouldn’t.

Hence the expression: “If you don’t sleep with me, then the terrorists have won.”

Joseph • October 22, 2007 2:45 PM

I think this is great. By immortalizing people’s lack of thinking regarding security as a “Law”, everyone will think about it more. By writing down a “law” about these kinds of things, it is easier to repeatedly get people to think about the argument.

What I am trying to say is, what if everytime somebody used the “people will die” argument, and someone else said “that fits McCullagh’s Law”. The more that happens, the more people will think about what is going on in the argument, and the more readily they will recognize the logical fallacies.

antibozo • October 22, 2007 2:49 PM

Joseph> what if everytime somebody used the “people will die” argument, and someone else said “that fits McCullagh’s Law”. The more that happens, the more people will think about what is going on in the argument, and the more readily they will recognize the logical fallacies.

Or, the more people will dismiss arguments simply because they fit the law, without bothering to think about anything.

FP • October 22, 2007 3:06 PM

Just yesterday I saw part of the joint house hearing on the Maher Arar case. The focus was on the practice of rendition, i.e., the shipping of suspects to foreign sites for “enhanced interrogation.”

One speaker invoked a variation of McCullagh’s Law: Since no further terrorist acts have been comitted on American soil, “quite possibly” “millions of lives” have already been saved because of rendition.

My concern with “McCullagh’s Law” is that it refers to “unconstitutional” practices, whereas politicians will always argue that their proposals are perfectly constitutional. Therefore, as it is written, politicians will never feel that this law applies to them.

They also have Attorney General Mr. Gonzales to thank for his inclusive interpretation of the constitution, which will take decades of Supreme Court work to undo.

Reader X • October 22, 2007 3:13 PM

‘what if everytime somebody used the “people will die” argument, and someone else said “that fits McCullagh’s Law”‘

Happy to do it, but I don’t know how to pronounce “McCullagh”.

‘Since no further terrorist acts have been comitted on American soil, “quite possibly” “millions of lives” have already been saved because of rendition’

Similarly to the lives saved by the tiger repellent I spray around my house in Chicago.

Reader X • October 22, 2007 3:18 PM

‘My concern with “McCullagh’s Law” is that it refers to “unconstitutional” practices, whereas politicians will always argue that their proposals are perfectly constitutional. Therefore, as it is written, politicians will never feel that this law applies to them.’

aeschylus’s reformulation above addresses this nicely, as it can be used to squish such rhetoric in a manner that’s hard for a politician to counter. Unfortunately, the prospect that unconstitutional practices will be recognized as such in the venue that matters (US courts) seems to fade further with each passing day.

Jess • October 22, 2007 3:32 PM

With respect to the Republicrats-vs-Demicans aspect of this dynamic, one of the worst (relatively) recent examples is the formation of DHS itself. As I recall, Bush wasn’t pushing this stroke of idiocy AT ALL, but didn’t feel he could very well veto it when all the Democrats and a plurality of Republicans in Congress had voted for it. Of course, the implementation of this scheme has been a FUBAR of the first order, and Bush can’t very well duck his share of the blame for that.

Trichinosis USA • October 22, 2007 3:44 PM

@Martin Budden:

“If you don’t sleep with me, then the terrorists have won.”

I thought that was Bill O’Reilly’s line, but isn’t there supposed to be a falafel in there somewhere?

Brian S • October 22, 2007 3:56 PM

I’m not sure, but isn’t this law essentially a variant of the False Dichotomy?

“The assertion that there is no alternative is an example of the false dichotomy taken to its ultimate extreme, in which the alternatives are reduced to one, the proposal of the speaker. Of course the speaker does not believe there are no alternatives othewise he would not bother to argue the point; rather he opposes the alternatives and seeks to dismiss them by denying their existence.”

http://en.wikipedia.org/wiki/False_dichotomy

In this case, they assert the choice is “our choice” or “dead people” (false dichotomy). The author essentially renamed and put in politcal phrases and implied motivations around unconstitutionality and politcal issues, but really the issue he’s pointing out is logical fallacy that is frequently used by politicians for justifying gains.

Anonymous • October 22, 2007 4:06 PM

@aeschylus, how about “The degree that proposed legislation is unconstitutional increases in direct proportion to the number of American lives predicted to be lost if it fails to pass.”

So if the predicted loss is no more than the traffic fatalities, all we’re seeing is some minor erosion of liberty, but if the prediction is cataclysmic the constitution is being trampled beyond recognition.

Straight Shooter • October 22, 2007 4:07 PM

how does one measure the certainty
that legislation is unconstitutional?

10) ACLU’s decibel level

9) EFF’s decibel level

8) Schneirosmograph

7) Reciprocal of time mainstream media spends covering the issue

6) Reciprocal of Popularity of the legislation at stock-car races

5) Reciprocal of Level of applause for its passage

4) PSI of Executive support

3) Taxpayer dollars spent implementing the program before the Legislature was aware it existed

2) Reciprocal of Minutes spent debating it in Congress

1) The number of politicians and corporate executives it immunizes from prosecution.

A little sympathetic... • October 22, 2007 4:14 PM

I do feel a bit of sympathy for our leaders during times like this. After 9/11, there was a chorus that they failed to “connect the dots.” However, had they connected the dots, the chorus would have been exactly what we hear right now, that rights are violated.

Seems they are screwed either way, so they opt for the path that forces them to defend anti-terror measures as opposed to the path that may leave them having to explain why we have thousands of terrorism victims.

Let’s try to be a bit more charitable and rational in our dialogue. I doubt any of us would want our government’s responsibility, considering the screwed if you do, screwed if you don’t mentality they face at every turn. After all, if any one of us were in charge, we’d probably be battered on blogs such as this at every turn as well.

Best regards,
ALS

aeschylus • October 22, 2007 4:24 PM

Anonymous: “So if the predicted loss is no more than the traffic fatalities, all we’re seeing is some minor erosion of liberty, but if the prediction is cataclysmic the constitution is being trampled beyond recognition.”

That makes about as much sense. And I didn’t agree with it, only tried to make it more intelligible. But yes, I seem to have turned an IF to an IFF, so what the hell, here’s another stab:

“The number of American lives predicted to be lost, should proposed U.S. legislation fail to be enacted swiftly, rises with the certainty that said legislation is unconstitutional.”

But your comment just makes it even more clear that the “law” is not useful, since we can’t conclude anything from the predicted loss of life.

ROFL at the comments from Straight Shooter and Trichinosis, by the way.

Lou Gehrig • October 22, 2007 4:29 PM

@ALS,

I agree. Those poor guys need to be loved, to know that they are special, that they really do matter. All this criticism, it has to be terrible for their self-esteem.

All these really hard decisions, these fickle critics, and all these opposing viewpoints. It’s like it’s hot everywhere they turn, and sometimes the heat is so unbearable it’s… like a kitchen.

ALS • October 22, 2007 4:37 PM

To Lou: Any idiot can see that the same people whining like little pooches at anti-terror measures are the same ones who will be whining like little pooches when something happens that they couldn’t predict. I’ll admit, i chucked at your funny post, but the fact remains I do feel a little sympathy because they are in a no-win situation. I doubt anything they do would make you happy. Insofar as your love comment goes, i couldn’t care less how much they are loved. But I will be fair when I say they are doing something stupid.

Best,
ALS

Lou Gehrig • October 22, 2007 4:59 PM

I doubt anything they do would make
you happy.

The Bill of Rights makes me happy. The ending of slavery makes me happy. Women’s suffrage makes me happy. De-segregation makes me happy. The Do Not Call list makes me happy.

Our race to the bottom since 9/11 really ticks me off.

guvn'r • October 22, 2007 5:29 PM

@Lou, nice echoes of HST!

@ALS, the current leaders have only themselves to blame for cultivating divisiveness and fingerpointing as their path to power. And we the people have only ourselves to blame for allowing that strategy to succeed.

It’s axiomatic, countries get the government they deserve.

Joe Buck • October 22, 2007 5:39 PM

McCullagh’s argument implicitly equates arguments by Bush supporters that he must be made king to keep terrorists from killing us, with arguments from progressives that we need regulation to keep pollutants from killing us, or that we need to help the poor with their medical care so they don’t die. Since McCullagh is a strong libertarian and wants the government to do nothing at all, this is a good line for him to take.

Brandioch Conner • October 22, 2007 5:52 PM

@Joe Buck
Possibly.

But there is statistical evidence showing that X people at income level Y will die from disease each year.

Statistically, an American being killed by Saddam’s chemical weapons is less likely than being killed by your own children.

I notice that statistics are usually left out of the “evil people will kill your family” discussions.

sfrs • October 22, 2007 5:59 PM

guvn’r:

the current leaders have only
themselves to blame for …

You make a lot of sense. I think you nailed it.

is that insightful? • October 22, 2007 7:38 PM

Judge Posner of the 7th Circuit made the same point in his recent book, but he used it to support the opposite conclusion.

The book is “Not a Suicide Pact” – referring to the constitution.

Frances • October 22, 2007 9:03 PM

@ Reader X

You really don’t know how to pronounce McCullagh?

McCullagh= McCullach=McCullough

“cull” as in hull “a” as in “at”

After the a and the o, the subsequent letters are silent.

aeschylus • October 22, 2007 9:49 PM

Frances: “After the a and the o, the subsequent letters are silent.”

Not really. There’s normally a soft voiced velar fricative at the end. In many similar examples, the final syllable turns toward /i/ because of the closeness and height of the velar sound, c.f. shillelagh; in other examples, the final syllable is neutralized to schwa–it’s never “a” as in “at”.

wm • October 23, 2007 8:15 AM

@ALS: “Any idiot can see that the same people whining like little pooches at anti-terror measures are the same ones who will be whining like little pooches when something happens that they couldn’t predict.”

Do you have any evidence to support this wild accusation?

Personally, I’m rather critical of the huge increase in “anti-terror” government powers we’ve had here in the UK over the last few years. And yet, in defiance of your theory, I didn’t complain that the government failed to prevent the terrorist attack on the London Underground a couple of years ago. I really don’t have a problem accepting that not all bad things can be prevented (and sometimes, the cure is worse than the disease).

Possibly you had some particular example in mind when you made your comment, but you’ve phrased it in such a way as to:
(a) apply to absolutely everyone who thinks government “anti-terror” policy goes too far at times
(b) imply that every such person is a hypocrite.

I think that’s a little unfair, if that was what you intended.

Required disclaimer:
The views expressed above are entirely those of the writer and do not represent the views, policy or understanding of any other person or official body.

Arthur • October 23, 2007 9:29 AM

The other day we had a rather larger and heated debate regarding our network. Over the past couple of months we have spent many man hours fixing and eliminating all kinds of threats. We have yet to locate the problem but we think it’s related to some spyware that one of the company’s employee’s contracted.

The meeting was more or less a vulnerability assessment of the network. There is obviously a lot more we could be doing to increase network security but budget has kept us from doing most of the things we want to have implemented. My supervisor, the head of the IT team actually recommended a network security scanner. There are so many of those out there though I wasn’t sure which one he was going to choose. I had never heard of it but he suggested the company invest in a product called “Retina???. He was pretty passionate about this application and I think his argument for it resonated with the execs. We’ll be finding out very soon if we are going to get this thing. I hope so, I miss doing meaningful work and I’m tired to trying to catch these viruses.

Nick Lancaster • October 23, 2007 10:13 AM

It’s not just the ‘you will die unless you do x’ line, it’s the added social pressure of being perceived as ‘patriotic’ or ‘supporting the troops’.

Now, I’m wondering why this even flies – aren’t we teaching our children how to recognize this kind of flim-flammery?

ARM • October 23, 2007 12:10 PM

@ Nick Lancaster

“[… A]ren’t we teaching our children how to recognize this kind of flim-flammery?”

No. We aren’t. Generally speaking, we’ve been teaching our children that they have an absolute right to be kept safe from harm, that the obligation that goes along with that right is in the hands of others, and that only those who wish to do harm have any reason to object to powers bestowed on the mandated caretakers.

It’s been rightly pointed out by “Brian S” that “McCullagh’s Law of Politics” is simply a variation on the standard false dichotomy with “some suspect policy/government powers” or “dead people” as the options. But this dichotomy is predicated on the idea that “dead Americans|women|children|troops” represents in itself a violation of the rights of Americans, which it what gives it its power.

“ALS” clumsily points out that the political class has painted itself into a corner. But there are at least three different constituencies here – those people that see the granting of civil liberties to undesirable others as a threat to their own entitlement of safety (and understand the threat of curtailing civil liberties, even if they discount it), those people that see the erosion of civil liberties for others as a threat to their own entitlement of civil liberties (and understand the threat of preserving civil liberties, even if they discount it), and those people who demand absolute entitlements to their personal civil liberties, AND absolute safety (and have no idea of the relative pros and cons of either other position).

Politicians pander to the third group in their attempts to be all things to all people, but that pandering can create impossible expectations. But it is an easy group to pander to, and the fundamental self-delusion that characterizes it makes it a more forgiving constituency than either of the other two.

jay • October 23, 2007 1:46 PM

“McCullagh’s argument implicitly equates arguments by Bush supporters that he must be made king to keep terrorists from killing us, with arguments from progressives that we need regulation to keep pollutants from killing us, or that we need to help the poor with their medical care so they don’t die. Since McCullagh is a strong libertarian and wants the government to do nothing at all, this is a good line for him to take.”

Ah yes, each ‘side’ wants the government to force others to behave the way they want them to. Same game, same mentality.

And yes, many environmental threats have been exaggerated WAY beyond the scientific validation (that’s why every public building in California warns you that it contains cancer causing materials)

Even pro freedom people have played this game “if such and such passes, we will become a police state”

Beowulf • October 23, 2007 4:04 PM

Corollary: “If the law is being defended by a security bureaucrat, then one or more of the Four Horsemen of the Infocalypse (terrorists, drug lords, kidnappers, and child pornographers) will be invoked.”

See former FBI director Louis Freeh’s panic attack over PGP, mentioned in McCullagh’s column as an example of this.

The distinction is that politicians will probably attack each other, but the security bureaucrats will attempt to panic the citizens.

Anonymous • October 23, 2007 4:06 PM

@ARM all three groups share one common perspective, the belief that they are entitled and that their entitlement trumps anything that might conflict with it. At least the first two have some inkling that external factors may be considerable. It all boils down to “it’s about ME” for all three.

Heck, our political philosophy is founded on entitlement a/k/a inalienable rights to life, liberty, and the pursuit of happiness (or at least fleeting pleasures :-).

Frances • October 23, 2007 8:04 PM

@ aeschylus

Well, where I come from, that’s how the names are pronounced. And I have a friend of long standing whose name is McCullough.

aeschylus • October 23, 2007 8:17 PM

Frances: “Well, where I come from, that’s how the names are pronounced. And I have a friend of long standing whose name is McCullough.”

I have a hard time believing you pronounce the final syllable as the “a as in ‘at'”. Say “McCull-at” pronouncing the last syllable as you would “at” (or “cat”), then take away the ‘t’. Is that really how you say it? Or do you say, “m’cull-uh”, i.e. with a schwa as in the last syllable of “patella”?

Bernd • October 25, 2007 2:39 AM

Göring: Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country.

No new “law”, I would assume.

Michael Hampton • October 27, 2007 12:39 AM

Indeed. “McCullagh’s Law” is as old as recorded history. It’s the way tyrants have almost always ascended to power.

It can’t happen here, you say, but it is happening here.

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