September 20, 2001

What was the FBI doing while the terrorists were putting the finishing touches on and executing their horrible plot to attack America?

Investigating me.

The suspicious behavior that drew the attention of the FBI was my decision to volunteer to teach two courses in a local high school. This automatically subjects me to fingerprinting and a background check.

A less rigid approach to security might have allowed me to teach on the basis of some of the following information:

• My wife has worked at the school for over a year.
• Several parents at the school have known me for many years.
• I have lived in the same house for 18 years.
• I have worked with children for many years, as a softball coach and as a volunteer in local schools.

The fact that my offer to teach forced the school to call in the FBI illustrates the harm caused by the doctrine of Feel-Goodism. Under Feel-Goodism, whenever something goes awry in society, politicians enact rigid, intrusive laws that are designed to make the public feel good. My guess is that the FBI background check is required because once upon a time in some school, a criminal was hired who did bad things to some student. The Feel-Good response was to require every teacher to go through a background check.

Feel-goodism is harmful in many respects.

1. Feel-good laws lull people into a false sense that the government will protect them. Rather than use common sense, you expect the nanny state to take care of everything.

2. Feel-good laws take resources away from other, more effective efforts to fight crime.

3. Feel-good laws produce policies that are so predictable and uniform that any criminal who is not an idiot can evade them.

The futility of feel-goodism can be found at airports. We all go through the same feel-good screening process. Amazingly enough, the hijackers were able to get past the formidable "two questions."

Going forward, we will go through an even more onerous screening process, and I predict that it will have no greater impact on our security. Even if the next round of feel-good measures brings a respite from airline hijacking, there are plenty of other ways for terrorists to wreak havoc.

Many civil libertarians share my objections to surveillance as carried out under feel-good laws. However, some go so far as to object to any surveillance. They argue that we need to reconcile our need for security with a strict view of the Constitution and the Bill of Rights. In their view, we must strengthen rather than weaken the Constitutional provisions against improper search and seizure.

Most of what I will have to say tends to have the same thrust as the strict civil libertarian view. However, I believe that we do have to take into account some changes that have taken place since the eighteenth century. In particular, we now have the phenomenon that the pundits refer to as "asymmetric threats," meaning that a single individual or small group of individuals can much more easily kill many more people than was the case three hundred years ago.

It appears to me that of all the ways to address asymmetric threats, or terrorism, surveillance is the least damaging to civil liberties. My guess is that those who oppose surveillance would have some difficulty defending their position if they were forced either to articulate an alternative strategy for reducing the threat of terrorism or to admit that they have no such strategy.

Here are some principles that I would propose for any policy of surveillance.

1. Surveillance should be governed by the Constitution.

   I would like to see a Constitutional amendment stating that personal surveillance by the government is permissible only for the purpose of preventing imminent, willful mass murder. The point is to keep the government out of the business of surveillance for child pornagraphers, drug dealers, tobacco manufacturers, air polluters, or other undesirables du jour. Those evils will have to be fought with no compromise to civil liberties.

2. Surveillance should be focused primarily on people, only secondarily on targets.

   Today's approach to surveillance is to make everyone who would teach at a school, ride on an airplane, or attend a sporting event go through the same procedure. This target-centric approach is not completely without merit, but it is at best very incomplete.

   In retrospect, we would have been better off devoting resources to surveillance of Middle Easterners who have been in this country less than five years. Going forward, we need surveillance of people at least as much as we need surveillance of targets.

3. Surveillance should not be limited to the United States.

   Suppose that we became much better at identifying and neutralizing terrorists within our country. If terrorists continue to operate freely outside our borders, then sooner or later they will come up with ways to attack us that do not require entering this country. We will need overseas surveillance as well.

4. Surveillance should be risk-based.

   I admit to having what may seem to some people a strange bias toward quantifiable rating systems. Almost a year ago, I proposed an ethical rating system comparable to International chess ratings.

   I believe that surveillance resources should be allocated on the basis of a risk-based rating system. Just as everyone who participates in the mainstream financial system earns a credit rating, everyone who participates in mainstream activities will live with a security rating. People with adverse ratings would be subject to much more surveillance than people with favorable ratings.

   People could choose to opt out of having a security rating. There might be one procedure at airports for screening people with good security ratings, another for screening people with bad security ratings, and a third procedure for people with no security ratings. The third procedure might be particularly onerous, but if you want to put up with it, go ahead.

   Security ratings, like credit ratings, might be maintained by private bureaus. They might use a mixture of information obtained from private and government sources.

5. Surveillance should be audited.

   No single branch of government should be able to undertake surveillance without checks and balances from other branches. Checks, balances, and audits must be built into any surveillance system.

I believe that it is impractical in today's world to suggest that the government will not engage in surveillance. Many of us oppose the irrational and intrusive forms of surveillance that already exist and that are under discussion. We have an obligation to propose approaches that make sense.