"Once the incident occurred, the system worked"

Here is Janet Napolitano explaining why Home Land Security did a good job with the Christmas bomber.

The key quote is "Now, once this incident occurred everything went like clockwork....once the incident occurred, the system worked." The incident being the guy igniting the bomb and the system being, apparently, to hope that the bomb will malfunction long enough for a passenger to ignore instructions from screaming stewardesses to remain calm, grab the guy and put the fire out with their bare hands. It is like a finely tuned machine. What made these poor backward savages think they had a chance against an advanced industrial society like ours? We have trained experts running our "the system." Why, the president of our country is even went to Harvard.

She expands on what she means by working, pointing out that the sharing of information among agencies went well.

Now again, this is problematic. Who cares if they share information after the "incident"? The point of sharing the information is to stop the incident from taking place in at all, not have a tidy record of it after it takes place. And in any case, how difficult is the information sharing after the fact? It requires no complicated inter-agency procedures to share information once it is on every TV screen.

But there is method to their incompetence, for one man's incompetence is another man's brave fight to protect the civil rights of minorities.

What normal people think of as the goal of a system to deal with terrorism--preventing it from happening--is irrelevant to someone looking at the problem from the perspective of a legal-bureaucrat (or what I sometimes refer to as an American Mandarin). They view all conflict through the lens of legality. Preventing people that you think might be terrorists from doing something entails preventing people that might not be terrorists from doing something they want to do, or, as lawyers put it, violating their rights. And as these people that might not be terrorists are disproportionately likely to be part of a minority group this violation of rights is likely to be a violation of minority rights, the worst kind.

A legal system assumes that people will violate the law and that the best we can usually hope for is to punish those who do so. The frightening thing about the secretary's statement is not that it was a careless mistake, but that it was not a mistake at all. It may well have represented her actual considered judgement.

That their solution to this problem of being afraid to violate the rights of the suspected terrorist is to subject the entire traveling public to ever more invasive searches (violations of privacy, you might say) seems contradictory, but it makes sense if you consider the second part of the lawyers' creed, never single out a minority. The imperative to not single people out if they are a member of a minority group is what explains why the same people that won't put a Nigerian on a no fly list merely because his father comes to the embassy to personally voice his concern that his son is involved with radicals and perhaps terrorist will not hesitate to pull aside a randomly selected traveler at the airport for a full body search. Investigating randomly selected people who are suspected of nothing is fair, imposing restrictions on people that you have reason to suspect of being involved in terrorism is unfair, a violation of their prime directive, so to speak.

There may even be reasons to think that she is right. Right, not in the larger sense of the best policy, but right from the point of view of the smooth operating of the system.

Suppose that he had been denied a visa? Here he is, a promising student who has never been in trouble with the law, his father a respected member of the international community, now denied the chance to pursue his dreams of furthering his education. You can see him being interviewed on CNN right now, “I used to love America and dreamed of going there one day. My Father used to tell me about working with the Americans, how hard working they were and how friendly…No, they wouldn’t even tell me why they took away my visa. I think it has something to do with my religion.”

Of course, in this case we have the fact that the Father himself was the one who put his concerns on the record, but how often is that going to happen? If you have a general rule that says we deny visas to anyone that we hear has taken up with the wrong crowd, then you are going to have stories like this. If you decide you will make an exception for rumors that come to you from highly respected family members you are going to have to make a million exceptions for equally rare circumstances, most of which you will never be able to foresee. If you empower American officials on the ground to make exceptions to these rules you are asking them to take personal responsibility for anything that goes wrong, since they won’t have the rules to hide behind. That is a position that few bureaucrats will put themselves in.

Any system that keeps this guy out will keep out thousands more that are perfectly innocent and who will be able to rightly claim to have been discriminated against because of their minority status. That is something our modern day mandarins, our jurocrats, cannot accept. Nor is it clear that it is something we want. After all, we elected the ultimate politico-lawyer to be their boss—President Obama.