As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.

Over time, numerous corollaries have arisen. The gist of all of them is that the hyperbolic nature of these sorts of discussions inevitably leads to the “ultimate” hyperbolic comparison, which in sociopolitical circles means Nazism.

There are two negative outcomes that arise from this form of hyperbole. The first, obvious one is that it increases the perceived severity of the item being compared to Nazism. That’s the one almost universally intended by the person bringing swastikas into the discussion. The other, more subtle, is that it decreases the perceived severity of Nazism. Each hyperbolic comparison chips away at the enormity of Hitler’s actions in the 1930s and 1940s.

Shortly before the 2010 elections, Jon Stewart said at the Rally to Restore Sanity,

If we amplify everything, we hear nothing. Not being able to distinguish between real racists and Tea Partiers or real bigots and Juan Williams and Rick Sanchez is an insult, not only to those people but to the racists themselves who have put in the exhausting effort it takes to hate.

This is the problem we’ve had, and continue to have, with these Nazi references.

But that’s not the issue I have today. Well, it is, but not exactly. Instead, it’s Godwin’s Cousin’s Law. Or a cousin to Godwin’s Law, anyway: all political scandals, no matter how small, will inevitably be compared to Watergate. 

Like the Godwin arguments, the person attaching the “gate” suffix intends to increase the perceived severity of the activity in question. And, like the Godwin arguments, each one chips away at the enormity of President Nixon’s actions in the 1970s.

Lest I give the wrong impression, I don’t intend here to compare Watergate to Nazism. What happened in Germany in the 1930s and 1940s might be considered Watergate to the Watergate power. The comparison here is strictly that both are used as the extreme form of whatever the speaker finds distasteful.

It’s been a while since Watergate, so perhaps it’s worth examining what the scandal was all about in the first place. Like Nazism, the reason Watergate is so important is not for any single act, but rather for the collection of acts, all of which collectively served to undermine society. In the case of Watergate, they served to undermine democracy in particular.

It began with Nixon’s intent to rid the field of credible challengers, in order to gain a landslide reelection and claim a mandate. In order to accomplish this, he (or, rather, his reelection campaign staff) wanted to collect negative intelligence on potential Democratic candidates. They opted to do this by using the government’s capabilities to spy on various facets of the Democratic Party. Remember what I mentioned on Saturday? Here’s a great example of how universal wiretapping can be used to undermine our democracy.

Yes, it does undermine our democracy. The incumbent party has the power to find dirt on the competition that the challenger could not find on the incumbent party. This hurts voters’ ability to make intelligent decisions at the polling places, and significantly impacts the outcomes of the elections.

Using government to uncover the dirt was bad enough. But in those days Nixon was limited by the technology of the time. Wiretaps were harder to accomplish, and most information was stored on paper. Almost nothing existed in a digital form. So a handful of operatives were sent into the office of the Democratic National Committee’s headquarters in the Watergate Office Complex in Washington, DC, to take photos of documents on site and install bugs. Three times they went in there. It was during the third break-in that they got caught.

And the people who got caught happened to have E. Howard Hunt’s name in their (paper) address books. Hunt was a CIA operative who in 1970 went to work in the White House to stop classified (and politically damaging) information from being leaked to the press. The danger, then, was that the arrestees would be connected to the Nixon White House, and thus Nixon himself.

Which brings us to the second instance in the Watergate scandal where democracy was undermined. In order to prevent the FBI investigation from connecting the break-in to Nixon, the President ordered the CIA to block the FBI’s investigation into the break-in. Another case of using the government’s power to undermine our democracy. This wasn’t merely a bunch of people choosing not to incriminate themselves (something protected by the Constitution). It was actively using the government to keep things from ever reaching the point where anyone had to remain silent.

Things got worse for the President. Word got out that one of the arrestees was a Republican Party security aide. Further investigation uncovered money from Nixon’s reelection campaign in the bank accounts of the five arrestees, much of it ostensibly to cover campaign expenses. Since the investigation was unable to find any instance where money that went to the reelection campaign was not actually used for reelection expenses, and all transactions appeared to be on the up-and-up, this strongly suggested that the burglars were employed by the reelection campaign, though not necessarily conducting the break-in on Nixon’s orders.

It wasn’t until the Senate formed a committee to investigate the Watergate break-ins that we run into the third activity that undermined our democracy. Attorney General Richard Kleindienst was replaced by Elliott Richardson, who appointed Archibald Cox as special counsel for the Watergate investigation. During the Senate hearings, White House assistant Alexander Butterfield disclosed that Nixon had a recording system in the Oval Office that stored every in-person and telephone conversation held there. Cox subpoenaed the tapes for the investigation. Nixon refused to produce them, claiming “executive privilege”. Executive privilege, insofar as national security and ability to have frank conversations in private regarding daily matters, is perfectly legitimate. It was formally endorsed by the Supreme Court as well during the Watergate hearings. But using it to hide evidence of illegal activity is not legitimate. It undermines our democracy by preventing illegal activity from being uncovered and justice being served.

And then we come to the fourth major issue that undermined our democracy. Nixon ordered Cox to drop the subpoena. When Cox refused, Nixon ordered Attorney General Richardson to fire the special prosecutor. When Richardson refused, Nixon fired him. And his deputy. And searched for someone in the Justice Department willing to fire Cox. He found a friend in Robert Bork, who fired Cox and appointed Leon Jaworski to replace him.

How did this undermine our democracy? Because there was a clear conflict of interest here. Just as Nixon intended to find a Democratic candidate he could defeat in November, 1972, he intended to find a special prosecutor he could defeat in late 1973. In other words, he intended to prevent our democracy from working as it should, with power distributed widely enough that nobody is able to amass enough power to hold onto it without informed consent.

We were fortunate that irrefutable evidence was uncovered that Nixon had been involved in the coverup from the start, and he would have been both impeached and convicted based on that evidence. But we should not lose sight of the real issues here. Nixon repeatedly undermined our democracy, not by engaging in a mere “coverup”. Rather, it was the methods he used that were direct assaults on our democracy. It is for this reason that I get particularly upset when people use evidence of a “coverup” as reason to compare le scandale du jour to Watergate. The coverup is not the issue.

Not being able to distinguish between real threats to our democracy and relatively minor embarrassing political scandals is an insult, not only to those involved in the relatively minor scandals but to Nixon himself, who put in the exhausting effort it took to undermine our democracy.

It’s time we close the gate on the “gate” suffix, just as it’s time we stop comparing whatever we don’t like to Nazis.

Related articles

• Bernstein: This is not Watergate
• The 7 other ‘scandals’ that didn’t turn out to be Obama’s Watergate
• Obama — Far Worse Than Nixon
• Why isn’t Benghazi the Next Watergate?
• “We know a lot about President Obama, and I think the idea that he would want the IRS used for retribution — we have no evidence of any such thing.”
• Why Calls for Impeachment of Obama Are Inevitable
• Benghazi: Hillary’s Second Watergate?
• Benghazi as Watergate?
• How scandals became ‘-gates’

He’s looking at us, kid.

We learned last week, on the May 1 edition of CNN’s Out Front with Erin Burnett, that our government has been spying on all of us for years. In the relevant portion of the transcript, former FBI counterterrorism agent Tim Clemente tells us so matter-of-factly that he almost seems surprised that we didn’t already know:

BURNETT: Tim, is there any way, obviously, there is a voice mail they can try to get the phone companies to give that up at this point. It’s not a voice mail. It’s just a conversation. There’s no way they actually can find out what happened, right, unless she tells them?

CLEMENTE: “No, there is a way. We certainly have ways in national security investigations to find out exactly what was said in that conversation. It’s not necessarily something that the FBI is going to want to present in court, but it may help lead the investigation and/or lead to questioning of her. We certainly can find that out.

BURNETT: “So they can actually get that? People are saying, look, that is incredible.

CLEMENTE: “No, welcome to America. All of that stuff is being captured as we speak whether we know it or like it or not.”

At this point I don’t see any harm in discussing it, though I’ve known about this for longer than I’d care to admit. One of the difficult aspects of working in the security realm is that I hear many things from many sources, and quite a few of them involve topics I can’t (or won’t) divulge to others. So it is in this case.

But now that the cat is out of the bag, it’s worth looking at this a bit more thoroughly. 

Once you know that all of our telephone conversations are being recorded (and who knows what else is being done with them), it almost seems quaint to worry about “IMSI catchers”, which are used by the government to perform man-in-the-middle attacks on all cell phones within range. Why, in fact, would IMSI catchers be used when everything is recorded anyway?

Because IMSI catchers can be used with search warrants, which allows the evidence collected to be used in court. The sorts of collection and storage referred to by Clemente cannot. Of course, law enforcement agencies can (and do) use evidence collected through such means as a “hint” as to where to get evidence that can be used, as long as they can produce a plausible explanation for how they managed to find the evidence.

J. Edgar Hoover: a man with many skeletons in his closet.

Yes, I have information on YOU.

Yet the courtroom is one of the least interesting uses of information collected from our telephone calls, text messages, and emails (all of which are in that magical data warehouse). J. Edgar Hoover figured out a much better use: blackmail. Everyone has skeletons in their closets…something that we’d rather the world at large, or certain people in particular, not to know. What better way to build a dossier on one’s political enemies than to know everything they’ve said on any phone call, text message, or email? And, unlike Richard Nixon’s CREEP, one doesn’t need to conduct any third-rate burglaries to get the info.

There’s more that I can’t share, naturally, but here are a few tidbits that I can tell you.

I’m pretty sure that not all digital communications are tracked. Not because the government doesn’t want to, and not because it isn’t trying to, but rather because it cannot…quite. Communications that are encrypted end-to-end, with identity validation on both ends and sufficiently complex encryption, cannot be viewed by the government. There are tools available that provide this level of encryption, though the parties on both ends must use it.

At one time, Skype had such end-to-end encryption. I honestly don’t know whether it still does. At the very least, people in China must use a version designed to allow the Chinese government to monitor the communications. It’s possible that the same applies in the United States for the version supplied by Microsoft. I wish I had the confidence to say that the Microsoft version does not have a decryption backdoor, but I just don’t know. Nor would I be able to find out.

Even in cases where we use end-to-end encryption on our computers, it is not only possible, but trivial, for our government to plant spyware on all of our computers. That’s not to say that it is happening today; I have no knowledge one way or the other about that. But it’s possible. And, as Tim Clemente disclosed, as long as it’s possible it eventually becomes not only probable, but certain, that it’s happening.

It’s shameful that we have a government that blatantly violates the Bill of Rights in this way. And it’s shameful that the Supreme Court is indemnifying them from such violations, as long as they aren’t directly used in criminal proceedings. Sure, I don’t think that most of us are at risk, under our current leadership, by such practices. But that merely means that we are beholden to the benevolence of our leaders. Our Constitution was designed explicitly to not require us to be beholden to the benevolence of our leaders. In fact, it’s written more like the X-Files mantra, “Trust No One”.

Benjamin Franklin is believed to have said, “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.” When we as a nation become complicit in this sort of behavior, we are demonstrating ourselves to be worthy of neither Liberty nor Safety. And we are surely destined to get what we deserve.

Related articles

• Are all telephone calls recorded and accessible to the US government?
• The Government Knows Everything You’ve Ever Done Digitally
• Former FBI Agent Confirms the Surveillance State Is Real
• Former FBI counterterrorism agent implies that US records all US phone calls
• Former FBI Agent: All Your Communications are Recorded, Government Accessible

Facing off today: Former Governor Mark Sanford and Elizabeth Colbert Busch

Today marks the end of a campaign that was started by now-former Senator Jim DeMint (R-SC), who vacated his seat on January 1 to become president of the Heritage Foundation. The ensuing game of musical chairs put Representative Tim Scott (R-Charleston, SC) in DeMint’s old seat, leaving a vacancy in South Carolina’s First Congressional District.

The primary elections were held on March 19.

On the Democratic side, Clemson University Restoration Institute Business Development Director (there’s a mouthful) Elizabeth Colbert Busch ran against perennial candidate Ben Frasier. Colbert Busch handily defeated Frasier in the primary. Sixteen candidates ran for the Republican nomination, and none had a simple majority. The two leading candidates at that point were former Charleston County Councilman Curtis Bostic and former Governor Mark Sanford. In the April 2 runoff, Sanford received 57 percent of the votes.

Today, Colbert Busch and Sanford face off in a race that has garnered national attention for several reasons.

One is that it’s a slow election-cycle news day, automatically raising interest in an election such as this one. Another is that Colbert Busch has polled ahead of Sanford for the bulk of this election, which is news in a district that hasn’t sent a Democrat to Congress since Ronald Reagan was elected in 1980. In addition, and probably most important in making the talking heads run out of breath, is who these candidates are. Colbert Busch is the sister of faux-conservative comedian Stephen Colbert. Sanford is the man who left the governor’s mansion in disgrace after he was discovered using state funds to hide an extramarital affair he was having with Argentinian news reporter María Belén Chapur.

Colbert Busch has run a relatively bland, mild campaign. Most of her effort seems to have been focused on raising name recognition, and not through her brother. This seemed to work well until recently.

Sanford had significant negatives stemming from his affair scandal. It’s probably a combination of the affair itself (a turnoff to some), lying to the public about his whereabouts (a turnoff to others), and the use of public funds to hide the affair (a turnoff to still others). His major positives at this point are name recognition (particularly since he used to represent this district) and being the Republican nominee in a traditionally conservative district.

But Sanford has also been campaigning more negatively than his opponent. He nationalized the race by debating a cardboard cutout of House Minority Leader Nancy Pelosi (D-San Francisco, CA), when Colbert Busch refused to debate him more than once. He (or someone who really wants him to win) followed that up with a push poll insinuating that the Democrat had an abortion, did jail time, and was held in contempt of court. None of those happened, incidentally. Meanwhile, the Republican was getting into hot water over trespassing allegations made by his ex-wife, and the national Republican Party refused to provide any assistance to his campaign.

It appears that the nationalization, and maybe the push poll, have been helping the former Governor. And recent endorsements from Governor Nikki Haley and various Tea Party representatives haven’t hurt, either. While the race hasn’t been especially well polled, the overall trend appears to have moved in the past month from a three-point deficit for Sanford to a razor-thin lead.

How do you think this race will go?

Related articles

• Poll: Sanford holds slim lead in congressional race
• Look who’s back! Sanford in dead heat with Colbert Busch
• New Poll Shows Momentum For Sanford
• Sanford in dead heat with Colbert Busch in S.C. congressional race
• Colbert Busch: Elect Me, Then We’ll See
• Sanford 47, Colbert Busch 46
• The Sudden Shift in South Carolina’s Polls
• Elizabeth Colbert Busch, Mark Sanford Race Down To The Wire In South Carolina
• Somehow, Mark Sanford Is Ahead in the Polls and Could Actually Win
• Mark Sanford just might win South Carolina seat

Mark McBurney made a freedom-of-information request of the Commonwealth of Virginia. Because McBurney had moved to Rhode Island, and because Virginia law prohibits honoring such requests from nonresidents, his request was denied. He sued on the grounds that the Privileges and Immunities and Commerce Clauses of the Constitution prohibit such restrictions.

The Commonwealth argued that the purpose of the Freedom of Information Act (FOIA) is to allow citizens of a government to be aware of the activities of that government, and that Californians, who aren’t Virginians, are therefore not entitled to the information.

The Supreme Court unanimously agreed with the Commonwealth. Justice Samuel Alito issued the decision, with Justice Clarence Thomas issuing a concurring opinion. There is some interesting meat in the decision, which I discuss after the cut. 

First and foremost, the Court declared that the Privileges and Immunities Clause does not apply here because the Clause applies only to fundamental rights.

Petitioners’ sweeping claim that the Virginia FOIA violates the Privileges and Immunities Clause because it denies them the right to access public information on equal terms with Commonwealth citizens is rejected because the right to access public information is not a “fundamental” privilege or immunity of citizenship.

In making this statement, the Court has declared that access to FOIA information is not a fundamental right. Therefore, any state, or the federal government, can restrict or repeal FOIA laws at any time without fear of running afoul of the Constitution.

That’s not to say that I disagree with the Court in this regard. It seems pretty clear that the Constitution is silent on transparency in government. Case law supports the conclusion, and Alito noted,

no such right was recognized at common law or in the early Republic.

But it’s this sentence, immediately following the above quote, that does give me pause:

Nor is such a sweeping right “basic to the maintenance or well-being of the Union.”

Can a democratically-elected representative government adequately serve its purpose if it is able to hide its activities from the public? Our system of government is based on the core belief that we cannot trust any government members to do the right thing unless someone else with competing interests acts in concert, and someone else entirely is able to look over the shoulders of the first two.

What if Congress decided to stop publishing session transcripts, and ceased to allow the public to watch their votes? The Constitution does require that votes on the passed bills be published, but not on any failed bills or any procedural actions. Should the Constitution allow Congress to hide the details on all stopped actions? How are we to look over their shoulders and assess whether they are representing our intent?

The more our government hides, the less we are able to choose our representatives based on how they perform their jobs, and the more we are forced to choose them based on actions entirely unrelated to their ability to govern. To me, this is something so fundamental to our system of government that it deserves to be enshrined in the Constitution, not merely subject to the whims of legislatures. Perhaps this decision can serve as a wake up call.

Or am I merely fearing monsters under the bed?

Related articles

• Opinion recap: Only one argument needed
• US Supreme Court Rules States Can Limit Freedom Of Information Act To Its Residents
• Supreme Court Says States Can Block Out of State Use of FOIA
• Virginia can block out of state use of FOIA, Supreme Court rules
• Supreme Court Action: FOIA and a Dismissal of Certiorari in a Capital Case
• States Can Restrict FOIA Laws to Own Citizens, Court Says
• Supreme Court says Virginia can block out of state use of its FOIA
• Supreme Court FOI Decision Foolish and Shortsighted

Senators Vitter (left) and Brown

There’s been increasing talk about financial institutions that are “too big to fail”. The institutions themselves insist that the regulations in place today are sufficient (or even too much) to prevent failure. Senators Sherrod Brown (D-OH) and David Vitter (R-LA), on the other hand, recently introduced legislation designed around the belief that what we have isn’t enough.

By now you’ve probably come to recognize a theme in my political views, that many of our nation’s problems are complex and resistant to simple remedies. This is no exception; what we have here is a competing set of forces, with no easy solution. To understand why, it’s necessary to examine the competing forces at work. 

The Power of Capitalism

It is by no means universal that bigger is better in capitalism. However, in pretty much any market there are at least a few players with the goal of becoming bigger than they currently are. Growing a company will typically translate to growing a company’s owners’ personal wealth, and growing personal wealth is a dominant desire among Americans.

If a financial institution is prohibited from growing beyond a certain size, this reduces the pool of participants who subscribe to the more-is-better philosophy, and often leads to slowing innovation. It can also reduce potential economies of scale.

Note that I’m using a lot of weasel words here. This is quite intentional, because none of these factors are universally true, even though capitalism advocates will typically refer to them as such. They are often true, of course, particularly on a moderate scale. But, like classical mechanics, things that work on a moderate scale tend to break down at the extremes.

The Power of Risk Attraction

Success is a funny thing. We humans spend a great deal of time examining the behaviors associated with successes, but spend very little time comparing the successes to failures in order to find the distinguishing characteristics. Risk attraction is a characteristic common to nearly all big business successes. It’s also common to an even greater number of failed businesses, but we tend to ignore this.

In that regard, it’s much like the lottery. Every winner bought a ticket, and therefore the path to success is to buy a lottery ticket. Never mind that far more paths to failure also involve buying lottery tickets.

That said, there are intelligent ways to manage risk. For example, Michael Milken found an opportunity to take advantage of high risk premiums on low-rated bonds, relative to their real risk. The danger comes from underestimating the real risk. When that happens, the investor is caught without enough capital to cover the inevitable losses and goes bankrupt.

With those particularly attracted to risk, especially those who choose to ignore all of the losing lottery ticket buyers, things can look especially good for a while. Unlike the lottery, where most tickets are small losers and there are a few big winners, many of these higher-risk investments have small consistent wins with a few big losses. The constant stream of small wins can lead an investor to believe that the big losses won’t come at all, or that the loss will be too small to eat up all of those gains, or that the loss will come after the investor cashes out.

Many such investors do, in fact, escape tragedy, just as many people without homeowner’s insurance manage to escape the loss of their homes. What about those who don’t? As long as their loss doesn’t have a measurably negative overall impact on the rest of us, it’s really not of much concern…economically speaking. In fact, incorporation can insulate investors from corporate losses, effectively allowing employees at the top to pocket the profits while leaving shareholders with nothing. Of course, that’s one of the risks that investors explicitly take on when they buy equity. And they, too, should be prepared to lose all value in the equity. This, too, is really not of much concern — economically speaking — as long as their loss doesn’t have a measurably negative overall impact on the rest of us.

But some of those losses do have a measurably negative overall impact on the rest of us. And it’s because of this that we have…

Protection Against Societal Damage

This was the impetus for creating the Federal Deposit Insurance Company (FDIC), something I mentioned in “Cyp-​​Я-​​Us”. If our financial institutions fail, and those failures translate into loss of deposits, then depositors tend to be quick to withdraw their funds from these institutions, creating the self-fulfilling prophesies with runs on the banks. Protections against losses mitigate this.

In essence, we do this to cover cost externalities, where the financial institution’s risk isn’t borne by the depositors. In a perfect world, that risk would be borne by the bank. And the FDIC premiums are supposed to do this. As long as they do, this works. They haven’t always, though, leading to cash from the Treasury’s general fund to cover the shortfall…something commonly referred to as “bailouts”.

That’s not the only sort of bailout we’ve seen, either. Banks deposit money in other banks, for a host of reasons that I don’t have space to discuss. This can lead to smaller banks collapsing when their deposits at larger banks aren’t covered. So when one of these larger banks is failing, we see a different round of bailouts, typically cast as “one time only”.

But we’ve also seen enough “one time only” bailouts of financial institutions that the public has ceased to believe that the boy is really seeing a wolf. This is a significant issue, because it leads to recklessness on the parts of these large institutions that have been deemed “too big to fail”. If the government can be counted on to step in, then they win in cases where the risky investment pays off, and their losses are covered in cases where the risky investment doesn’t pay off.

This is a “moral hazard”, a topic I discussed about a year and a half ago in the context of health insurance. It applies here as well. Moral hazard was brought up repeatedly when the legislation that created the FDIC was being debated. The main protections against it were to regulate banks sufficiently to keep risk down, but this worked against the powers of capitalism and risk attraction.

The Balance

In essence, then, we must choose between the lower-risk, lower-reward system of a heavily-regulated financial services industry and the higher-risk, higher-reward system of a lightly-regulated financial services industry. The latter does well during good times, but causes extraordinary damage when the economy slows.

What does all of this have to do with being “too big to fail”? We cannot afford to have institutions that are both so connected that their failure will bring down the economy and sufficiently protected from loss that it virtually requires them to play the moral hazard card.

This means that we’ll hear complaints from corporate types that the regulations prevent them from being as successful as they might otherwise be. And they’ll be right, to a point. We’ll also hear complaints from many economists that we are creating moral hazards by implementing these societal protections. They’ll also be right, again to a point. But as long as our society is not willing to go through the boom-and-bust cycle that typified the half-century following the Civil War, our society must accept the regulations necessary to prevent the moral hazards that arise from the societal protections. That is, we pay the insurance premium of a less-shiny financial sector in order to avoid the extreme pain of our financial system collapsing.

The Bill

Oh, yeah…what about that Brown-Vitter bill? It requires banks with over half a trillion dollars in assets to hold a safety cushion in equity capital equal to at least 15 percent of total assets. On the surface, it seems like a fine idea. Aren’t those banks the ones that are “too big to fail”? There are some significant issues, though.

First and most importantly, it is not the value of the assets that determines the criticality of the institution. A bank with a trillion dollars in deposits, all from individual depositors, is not a risk to the economy as a whole. One with a hundred billion, all in deposits from other institutions, on the other hand, would represent a catastrophic risk to the economy, bringing down many key banks simultaneously. It is the interconnectedness, more than the volume, that is the risk. This is why Bear Stearns’s failure had an economic impact disproportionate to its asset size.

Second, it has a binary threshold. That is, having $499,999,999,999.99 in assets doesn’t require the 15 percent cushion, but adding that one extra cent makes all the difference. A graduated transition would be far more reasonable. In fact, the absence of such a transition appears to be designed to prevent any institution from amassing assets of greater than a half-trillion dollars, period. If there were something magical about that number (perhaps Reinhart & Rogoff could find the connection), then I could see putting such a ceiling in place. Absent evidence to support it, the number feels particularly arbitrary.

The bill avoids acknowledging the tradeoffs among capitalism, risk, and social protection. Instead, it proclaims the end of “too big to fail” by merely lopping off the first two words. Until we intelligently discuss those tradeoffs, we will continue as we have. To eliminate only “too big” from “too big to fail” is almost certainly going to leave us with nothing but “to fail”.

Related articles

• Too Big to Fail: Not Easily Resolved
• Banks Have Become “Too Big To Fail” Again. Uh-Oh.
• Too-Big-to-Fail Bill Pitched as Fix for Dodd-Frank Act’s Flaws — Bloomberg
• FSOC Warns On Too-Big-To-Fail Banks
• Bank regulators gain ground against too-big-to-fail bailouts
• BUSTED: Obama Lied About No More Wall St. Bailouts
• The History of US Government Corporate Bailouts
• JPMorgan Chase & Co. (JPM), Bank of America Corp (BAC), And A Key Question: Should ‘Too Big to Fail’ Be Done Away With?

In the novel Marathon Man, and its feature film adaptation, most of the players are not exactly who they seem. So, too, is it the case with the Tsarnaev brothers, who allegedly detonated bombs at the finish line of the Boston Marathon last week.

From one perspective, there is an easy story to build. It’s an easy story because it follows a well-worn narrative: The Tsarnaev brothers, both foreign Islamist extremists from a Muslim family, wanted to join the Jihad and engage in terrorism against “infidels”. They went to Russia, where they joined with an extremist organization and got trained in how to do just that. They came back, waited in their sleeper cell for the right moment, and then delivered the bombs as instructed. Dzhokhar, the younger brother, even went so far as to cynically become an American citizen on September 11.

But, as in Marathon Man, the easy story is likely to be the wrong story.

The problem here is that the narrative makes a number of assumptions. Some of them are likely to be correct, but others are likely to be wrong. The problem we have today is that we don’t know which are which. Let’s look at some of the questions, and you’ll see what I mean. 

Are the Tsarnaevs foreigners or Americans?

This is a question that presumes a binary answer. But the answer is nowhere near that simple.

Dzhokhar came to the United States in April of 2002, along with their parents. At the time, Dzhokhar was nine years old; Tamerlan, who stayed behind in Kyrgyzstan, was 15. They arrived on a visa, but their father applied for asylum, on the grounds that their Chechen ethnicity made them a target for persecution in Russia. To get an understanding of that time in history, recall that it was six months after the Tsarnaevs arrived in the United States that a group of Chechens seized a Moscow theater to demand that Russia allow Chechnya to become an independent nation.

Tamerlan followed his brother and parents to the Boston area two years later, at the age of 17.

Moving to a country at nine years old is tremendously different from moving to that same country at 17. People who moved to the United States before puberty quickly became indistinguishable from those who were born in this country. Their accents are identical, as are their cultural behaviors. When they visit other countries, they are quickly identified as “American”. This happens because our cultural behaviors develop during these key years. Those who moved here in their teens or later are distinctively “foreign”, because those cultural behaviors were already cemented by the time they arrived in the United States. Such people may be in their 50s, and have spent far more time in the United States than in any other country, but they retain identifiably foreign accents and mannerisms. They are always treated as foreigners. I’m personally acquainted with many people in both camps, and have witnessed this distinction firsthand.

That being the case, Dzhokhar is sufficiently American that anyone who would have met him would not have guessed that he was born outside the United States. He’s still technically foreign, in that he was born elsewhere, but someone would have needed information not readily apparent in a mere face-to-face conversation in order to conclude that he is a foreigner.

So is Dzhokhar foreign or American? Yes. He’s both.

Tamerlan is another story. He was nearly a legal adult when he got here. His accent and cultural behaviors were well established before he set foot on American soil. He was here legally, but he was always, in every respect, a foreigner.

A related question arises over whether they are “white”. Typically, it is attached to an accusation that liberals “wanted” the attackers to be “white”. Also implicit is that the attackers were “swarthy” types. Whether or not anyone wanted them to be “white”, one cannot be more Caucasian than being from the Caucasus mountains, where Tamerlan and Dzhokhar’s parents were born, and where the family long had lived. Of course, that’s not really the “white” to which most people refer. Rather, it’s typically shorthand for “descending from northwestern Europeans, typically of Germanic, Scandinavian, or Anglo-Saxon ethnicities”. In that regard, they’re not.

Are the Tsarnaevs white or not? Yes. They’re both.

Is the attack foreign or domestic?

This, too, presumes a binary answer. Typically, when we consider an attack to be foreign, we’re talking about foreigners who came to the United States with the express intent of attacking this country. Thus far, there has been no evidence that any of them, even Tamerlan, came to this country intending to inflict harm.

On the other hand, the attack was perpetrated by people who were born outside this country. And certainly Tamerlan, at least, was influenced by people outside the United States. In the most literal sense, then, the attack is somewhat foreign in nature. But it’s not foreign in the way that we typically think of.

Is the attack foreign or domestic. Yes. It’s both.

Were the attackers rogue individuals or Islamist militants?

Yet another question that presumes a binary answer. Thus far, the evidence points to Tamerlan as a fundamentalist Muslim, which could be construed as making him an Islamist militant. Dzhokhar, on the other hand, has given no indication of being a religious fundamentalist of any sort.

What about Tamerlan? Didn’t the Russians alert the FBI about him two years ago? They did, and even went so far as to suggest that Tamerlan was planning to go to Russia to meet up with some underground groups. This is a complicated story, with many competing motives. The FBI followed Tamerlan for some time, but were unable to find any connection, and the Russians provided no additional information when asked.

Tamerlan is also the leading suspect in a 2011 triple-homicide of Jews in Waltham, Massachusetts. He knew one of the victims personally, and the investigation at the time concluded that it was highly likely that the murderer knew one or more of the victims. The murders were most likely committed on September 11, 2011, the tenth anniversary of the big terror attack.

The bombs themselves were laid by only the two brothers, which is quite different from the usual widely coördinated attacks, such as those on July 7, 2005. And no group has come forward to claim responsibility, which is different from the norm. In other words, it looks like this was a self-service sort of attack, albeit indirectly influenced by other Islamists.

Was Tamerlan an Islamist militant or a rogue individual? Yes. He was both.

Was this a professional or amateur attack?

See the trend? Another binary question. And another answer that is hardly clear. The bombs were made of “home-brew” materials. The pressure cookers are easy to obtain from many vendors. The shrapnel almost certainly came from a hardware store. The black powder appears to have come from disassembled fireworks.

The instructions on how to build these bombs is available in many places on the Internet, though the most traffic has been generated by Islamist extremists. But there’s no indication that Tamerlan had any real experience with these bombs. His arsenal included several items that failed to detonate. At the same time, he did manage to amass quite an arsenal, and demonstrated some ability to use it.

Tamerlan, at least, gave the impression of being more sophisticated than the typical amateur, but hardly the professional sort that historically has organized coördinated terrorist attacks.

Did our anti-terror system work?

How about it? In the aftermath of the bombings, we saw the alleged perpetrators identified, chased, and captured or killed. Sounds like a success story, doesn’t it?

But first of all, the point of our anti-terror system is to prevent these attacks from occurring. Despite the PATRIOT Act and its descendants, our intelligence network had no clue that this attack was coming. The closest they got was an indication that Tamerlan might be a dangerous individual. No clue about what sort of attack was coming, or where, or when. In terms of prevention, our system failed miserably.

How about finding images of the bombers? Certainly, had this happened in 2000, we would have had to wait for a longer period of time. The FBI would still have been able to gather pictures taken by people at the finish line, but there would have been fewer of them, and they would have had to wait longer. Why? Because in 2000 people were taking photographs using film cameras. Widespread digital photography didn’t occur until the past half-decade or so. Digital photography has led to faster availability, but also a greater quantity of photos, because the marginal cost of each additional picture is near-zero. With film cameras, that marginal cost was typically about a dime. In addition, the lower cost of security cameras has led more businesses to deploy them, and the lower marginal cost of storage led them to keep more video for longer periods of time.

The images would have been available to the FBI in 2000, but there would have been fewer of them and it would have taken longer to collect and sort them.

All of this means that better technology, not a change in the law, made it easier to find images of the bombers.

OK, but once they found the images, didn’t the law make it easier identify the Tsarnaevs? The FBI had no idea who they were for some time, referring to them simply as “Black Hat” and “White Hat”. When their pictures were published, people who knew them called the FBI to identify them. This would have happened just as easily in 2000.

What about tracking them down? Once the FBI had their identities, weren’t they helped by the anti-terror laws? As it turns out, no. They responded to a robbery at a 7-Eleven, but the robbery was committed by someone else. What allowed them to track the Tsarnaevs was a stroke of fortune. When the brothers carjacked a man’s car, they told him that they were the bombers. When they let the man free, he told authorities that his car was stolen by the bombers. His vehicle had a GPS tracker, which enabled authorities to find and follow it. Did the anti-terror laws help here? No. The police already had the ability to do this in 2000.

Fine, so they didn’t help up to this point. How about nabbing Dzhokhar? Didn’t the anti-terror programs help authorities find him? Not really. A man checked under the tarp covering his boat, and when he saw Dzhokhar, he called the police. There’s no reason to believe he wouldn’t have done exactly the same thing in 2000.

The bottom line here is that the laws didn’t enable anything in this case, and they didn’t prevent the attack.

Dessert topping and floor wax

This particular attack defies the neat categorization that past attacks have had. It’s a little bit of everything. That makes it easy for many different political narratives to use it to their ends:

• Immigration foes point to the alleged perpetrators as being “foreign”. Despite both brothers being legal residents in the United States (and one even being a legal citizen), it’s being used as ammunition in opposition to immigration reform.
• Anti-Muslims point to the Muslim fundamentalist connection. Despite there being no clear target and no corresponding political messaging, it’s being used as ammunition in opposition to Muslims.
• Anti-terror hardliners point to the success in finding and nabbing the alleged perpetrators as evidence that the anti-terror laws are working. Despite nothing in the new laws or policies either preventing the attack or arresting the Tsarnaevs, it’s being used as ammunition in support of maintaining and expanding these laws.

It’s certainly convenient to put everything into neat boxes, tied up with tidy bows. It takes less mental energy. And it works well, most of the time. But in situations like this, it does a disservice to all of us, because it can lead us to learn the wrong lessons, and take actions that cost us time, money, and freedom without reducing the risk of the next Tsarnaevs attacking us.

Related articles

• Boston Bombing Suspect Influenced By Mysterious Radical
• Dzhokhar Tsarnaev In And Out Of Consciousness, Charges Pending
• Source: Suspects in Boston Marathon bombings, Dzhokhar Tsarnaev and Tamerlan Tsarnaev, motivated by religion
• Boston Marathon bombing suspect influenced by mysterious radical

The Red River, looking well-red indeed.

I wrote a couple of articles recently about water. It is no coincidence that today the Supreme Court is hearing arguments in Tarrant Regional Water District v. Hermann, a case about water, precipitated by a battle over limited water resources. As I mentioned before, the United States is consuming water from our various sources at a rate that exceeds the replenishment rate.

In this particular case, a water utility district in Tarrant County, Texas, is suing the state of Oklahoma over the rights to water from tributaries in Oklahoma that feed the Red River, which borders the two states. This happened because Oklahoma, recognizing the increasing shortage of a precious resource, passed legislation prohibiting any increases in diverting water to other states. Tarrant RWD filed suit on the grounds that the legislation violated the Constitution’s Commerce Clause.

While the battle was wending its way through the courts, the law’s sunset clause expired. In the meantime, Oklahoma passed a series of additional laws making it more difficult for other states to obtain water permits for sources within Oklahoma. At that point, Tarrant RWD amended its suit to cover the discriminatory nature of those new laws, on the same Commerce Clause grounds. 

Over time, Tarrant RWD changed its argument from a focus on the Commerce Clause to one focused on the Red River Compact, which covers Red River Basin water use among the states of Arkansas, Louisiana, Oklahoma, and Texas. The river itself flows through those four states (plus New Mexico, where it begins). The shift in focus arose because the Compact was passed by Congress, which has the authority to override the Commerce Clause.

In the Compact is the following text:

 

The Signatory States shall have equal rights to the use of runoff originating in subbasin 5 and undesignated water flowing into subbasin 5, so long as the flow of the Red River at the Arkansas-Louisiana state boundary is 3,000 cubic feet per second or more, provided no state is entitled to more than 25 percent of the water in excess of 3,000 cubic feet per second.

Subbasin 5 is the area in dispute here. Clearly, Arkansas, Oklahoma, and Texas combined cannot take so much water from the river that its flow into Louisiana is below 3,000 cubic feet per second (cfs). But what does the last clause mean? Does it mean that the three upstream states can take up to 25 percent of the water that would be in excess of 3,000 cfs at the Louisiana border, and do so from anywhere upstream? That’s Texas’s view. Oklahoma (and the Tenth Circuit Court of Appeals), views it as being water available from within the state’s own borders.

Why does this matter? After all, as long as the amount that goes to Louisiana remains above 3,000 cfs, what difference does it make?

Remember when I mentioned that water that has been used goes somewhere afterward? When you’re inland, that “somewhere” is typically into the local aquifers and surface streams. In other words, if Oklahoma keeps the water, it gets used and then flows back into the same watershed. If it goes to Tarrant, it flows into another watershed. This matters because Oklahoma’s aquifers are being drained, and sending the water to Tarrant would exacerbate this problem.

It is because of these watershed issues that western states took a different approach to water use than do the eastern ones. Eastern states are “riparian” states, whereby any water that flows on your land is yours, and yours alone to do with as you wish. If you wish to use it all, then whomever resides downstream is out of luck. Well, sort of. There’s a “reasonable use” test that is applied. As long as your use is deemed “reasonable”, downstream users get what they get.

Western states, on the other hand, are typically “prior appropriation” states, whereby water is assigned based on particular permits to those who make a “beneficial” use of it. Permitting allows for someone to obtain water from other locations, even if the water wouldn’t otherwise flow onto the permitted entity’s land. This includes obtaining water from out of state. Even so, the permits are expected to recognize the importance of watersheds, and are entitled to prohibit water from being taken out of a watershed for that first “beneficial” use.

Is it acceptable for a state to prohibit diversion to other states from the watershed? If one looked at Sporhase v. Nebraska ex rel. Douglas, it would appear that the answer is “no”. In that case, Nebraska prohibited groundwater from being sent to Colorado. But the Supreme Court’s decision was based not on the watershed issue, but rather on Nebraska’s law that specifically prohibited the transfer of water to states that didn’t allow for reciprocal transfers to Nebraska. In that case, then, Nebraska ran afoul of the Commerce Clause because the law specifically described commerce. Oklahoma made no such reference in its laws.

This, then, does seem to return to the Commerce Clause in some respects. Is this surface water an item of “commerce”? That is, can it be bought and sold? If it were bottled and shipped to stores, the answer would be an unqualified “yes”. But if it is limited to use within the watershed, then it’s no longer a commodity. That is, this water is special in that it must be used in a particular place, as opposed to generic “water”, which can be used anywhere in the world.

So what do you think? Does Texas have a right to the water? Does Oklahoma have a right to prohibit its out-of-state use? Is this water subject to “commerce”?

Related articles

• Argument preview: A Texas border water war
• US Supreme Court to hear Okla. water rights appeal
• U.S. Supreme Court to hear Oklahoma-Texas water dispute
• Thirsty states take water battle to Supreme Court
• River Guide: Tarrant Regional Water District v. Herrmann Visualized

I wrote this before Nate Silver’s statistical analysis was published yesterday.

In any case, the 46 Senators consisted of 41 Republicans and five Democrats. Let’s start by looking at the four Democrats. 

Senator Max Baucus (D-MT)

Baucus is up for reelection next year in a state in the Western Interior, a region known for its attachment to firearms. Montana ranks #3 in a 2001 Behavioral Risk Factor Surveillance System (BRFSS) survey in terms of per-capita gun ownership. It’s hardly surprising that he would be reluctant to vote in favor of any forms of gun control. After all Montana is a state whose legislature passed a bill last month nullifying any federal gun control.

While Democratic Senator Jon Tester managed to get reelected last year against challenger Denny Rehberg, Montana remains a conservative state overall. Big Sky Country has a Cook Partisan Voting Index of R+7, placing it on the right edge of states inclined to vote for a Democrat. Baucus had plenty of reason to avoid giving ammunition to his future general election opponent.

Senator Mark Begich (D-AK)

Alaska and Montana have much in common, and everything that applies to Baucus applies to Begich. Alaska is #2 in the BRFSS survey, though hasn’t yet passed any gun control nullification bills. Nonetheless, Begich has a difficult road ahead of him; Alaska’s PVI of R+12 indicates a significantly higher degree of partisanship there than Baucus sees in Montana. Only the extraordinary situation of a felony conviction led to the late Senator Ted Stevens’s defeat, by a mere one percentage point, in 2008.

Senator Heidi Heitkamp (D-ND)

See a trend yet? North Dakota has much culture in common with Alaska and Montana, and sits at #10 in the BRFSS study. Its R+10 PVI places it between the two in partisanship. Unlike Baucus and Begich, though, Heitkamp was just elected last November. She defeated Republican Rick Berg by just one percentage point.

Senator Mark Pryor (D-AR)

Pryor, like Baucus and Begich, is a Democrat in a red state who is seeking reelection in 2014. He has the largest PVI to overcome, since Arkansas is a ruby-red R+14, and the state is #6 in the BRFSS study. Nonetheless, he is in the unusual position of being a red-state Democrat who had no Republican opposition in his last election.

Senator Harry Reid (D-NV)

Wait, what? Reid isn’t up for reelection, and more importantly is the Senate Majority Leader. What’s his excuse? It’s more a procedural thing than anything else, because of his position. Nevada is well below average in gun ownership, despite the wild-west persona.

Next, let’s look at the red-state Democrats who voted in favor of cloture.

Senator Kay Hagan (D-NC)

North Carolina is a PVI R+3 state, #23 on the gun ownership survey, and Hagan beat incumbent Senator Elizabeth Dole by a sizable margin in 2008. Her risk here was fairly low.

Senator Mary Landrieu (D-LA)

This is a surprise. Louisiana is a PVI R+12 state with a particularly powerful love of firearms, as evidenced by the recent constitutional amendment banning most gun restrictions, and the state’s relatively high rank of 13 on the gun ownership survey. Landrieu is also up for reelection next year, and is considered one of the most vulnerable Senators in the 2014 election cycle. This was a seriously gutsy move on her part.

Senator Mark Udall (D-CO)

Colorado is a difficult state to handicap. Its D+1 PVI suggests that Udall isn’t risking much here, but Colorado is also a Western Interior state, and five of the six adjacent states (six of seven if you include Arizona) are solidly red. Yet Colorado is 33 on the gun ownership survey, suggesting this particular vote isn’t anywhere near as dangerous for Udall’s prospects as Landrieu’s is for hers.

What about Republicans who voted in favor of cloture? This is an interesting list, and one that hasn’t gotten much press.

Senator Susan Collins (R-ME)

No surprise here. Collins is particularly liberal by today’s Republican standards. Despite her being up for reelection next year, Maine isn’t the sort of state where the NRA can swoop in and do much damage to an incumbent Senator. The small-community feel of the state blunts large PACs’ ability to influence statewide elections. Collins is free to vote her conscience, and I expect her to continue to be rewarded for doing so.

Senator Mark Kirk (R-IL)

This is also not much of a surprise. Illinois is #44 on the gun ownership survey and a D+8 state. Kirk can ill afford to step far to the right. Even though he’s not up for reelection next year, this is a vote that could have lasting repercussions in the Land of Lincoln. Besides, he was a cosponsor of the bill.

Senator John McCain (R-AZ)

McCain’s vote is a surprise. Arizona has some of the least restrictive gun laws in the nation, which has led the Grand Canyon state to be a leading source for illegal weapons in Mexico. He is risking a primary challenge in 2016, though he will be nearly 80 years old by then and may be planning to retire.

Senator Pat Toomey (R-PA)

While Pennsylvania’s D+1 PVI and rank of 34 on the gun ownership survey suggests that a yea vote makes sense here, Toomey has built a brand of extreme conservatism. This makes him vulnerable to a primary challenge in 2016. For this reason, I would consider his yea vote nearly as surprising as McCain’s. On the other hand, he cosponsored the bill, so it’s not really a surprise in toto.

Were you similarly surprised by some of those votes? How would you calculate the effects of this particular vote on the future makeup of the Senate?

Related articles

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The subterranean world is complex in many ways. Voids, large and small, are scattered around, filled with various liquids and gases. Today, the most valuable voids are those with petroleum, whether liquid or gas. As I noted on Saturday, those filled with water are becoming increasingly valuable as well.

And it is at the intersection of the two that we find ourselves in a bit of a quandary today.

But allow me to explain how we got here. Throughout much of the 20th century, oil exploration was focused on places where there were large voids filled with petroleum. It makes sense; the most accessible oil was located in these voids. But as the 20th century drew to a close, all of those voids that were known and easy to drill had been tapped. New sources of oil from large voids required going to ever deeper parts of the ocean. Meanwhile, there is still plenty of oil under easily accessed land, trapped in voids that are too small to be efficiently acquired through conventional drilling.

Hydraulic fracturing (“fracking”) essentially breaks open the walls separating a series of nearby small voids, consolidating them into a single larger void that can then be pumped in conventional ways. It does this by drilling a hole and pumping a liquid into the hole under enough pressure to create a series of fissures among the voids.

Fracking fluids consist of water, a series of chemicals in “secret recipes” known only to the fracking companies, and some sediment. The chemicals are designed to facilitate the fracking in various ways (e.g., reducing corrosion, keeping the fluid in liquid form, suspending the sediment, encouraging propagation of the fluid), while the sediment is there to hold the new voids open after the pressure is relieved. Otherwise, the new voids would simply close back up when the fracking fluid is drawn back out.

Once the rock has been fracked, the petroleum can then be pumped out of the hole. This is what has been happening with increasing frequency over the past few years.

The first benefit we’ve gotten from fracking is low natural gas prices. Since 2008, natural gas prices have dropped by about 75 percent. Some of that drop came from the economic collapse, but prices have not risen even as the economy has recovered. Besides, natural gas production has risen about 25 percent over that same period of time, after having essentially stagnated since 1995. Clearly, fracking has had a significant impact on natural gas prices.

And as the natural gas is drawn down, oil will follow. We can expect a similar, though smaller, effect on oil prices. Why smaller? Because it is expensive to transport natural gas over long distances, since it takes up a large volume per British thermal unit (BTU), relative to liquid petroleum, and is more difficult to contain. Oil, on the other hand, is easily transported. This means that natural gas prices are more sensitive to local supply changes than are oil prices.

Of course, lower hydrocarbon prices leads to increased hydrocarbon consumption, which increases atmospheric carbon dioxide, which increases global temperatures. In this regard, fracking is not such a good thing. But there’s more to the story.

It’s possible that fracking could trigger earthquakes. If the fracked rock was under tectonic load, fracking would release that load, which is precisely how earthquakes occur. This could be beneficial in cases where the tectonic load was relatively light; fracking would then cause small quakes, precluding larger quakes on those sites later. Or they could be catastrophic if releasing the load in those areas triggers earthquakes elsewhere along the fault. Thus far, there has been no statistical correlation between fracking and earthquakes. It is possible, even likely, that we are simply seeing a lack of source data, rather than a true lack of a causal relationship.

There’s more. In a perfect world, the hole is drilled, the fluid is pumped in, the cracks are formed, all of the fluid (minus some of the sediment) is drawn back out and cleaned up, and then the oil can be pumped out of the hole.

We don’t live in a perfect world.

See, when the fracking fluid gets pumped into the rock formation, we don’t really have that much control over where the cracks form. They will show up wherever there are weaknesses in the rock. Depending on what’s nearby, that can be a problem. If a crack is formed that opens a channel to, say, a lower stratum, the oil can drain out of the small voids into the lower stratum, where it may be inaccessible. It can also rise into higher strata, even to the ground’s surface, where it can render farmland unusable. The fracking fluid can also get into those other strata.

What’s in those other strata? In some places, nothing of concern. In others, our dwindling supplies of drinking water.

On Saturday, I talked about how we’ve been drawing our aquifers down at a rate that exceeds their replenishment rates. If we simply decrease our draws, we can keep those aquifers supplying us with water indefinitely. But not if they get contaminated from other sources.

Petroleum infiltration can render aquifers unusable for drinking or irrigation. So, too, can infiltration by the chemicals used in fracking fluids. Because we can’t control where the various products go after fracking, it’s particularly hazardous to do this near aquifers. Those aquifers become unusable for eternity (or close enough to be equivalent from my perspective).

Oh, and did you notice that I mentioned that fracking fluid has water in it? It is mostly water, in fact. Fresh water, from those same sources we use for drinking water. Fracking, therefore, exacerbates our increasing water shortage both by increasing consumption and decreasing supply.

Like so many technologies, fracking has its pros and cons. If used responsibly, the pros can outweigh the cons. Businesses don’t have any incentive to use it responsibly, though; their focus is on maximizing immediate profits. If a petroleum company can make more money by irreversibly polluting a large aquifer, the company will do so. This is why fracking needs regulation. We need to balance the competing interests of the petroleum, agriculture, environmental, and public so that we can all benefit.

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Only about seven thousandths of a percent of the water on Earth is available for us to drink. Yet we must share that very same water with our crops and freshwater fish.

With something so rare, and in such high demand, you’d think we’d be more judicious in using it. But, like so many of my favorite topics, understanding where we are requires an understanding of where we’ve been and how we got here. 

Development of cities required a number of technologies in order to survive. Among them was a means of aggregating potable water year-round. This meant they initially had to be built around flowing water, in the forms of rivers, streams, and artesian wells. Over time, humans learned how to dig wells, allowing for cities to develop on top of aquifers as well. But it took the Romans, who figured out how to transport water over long distances, to really change the way cities interact with water.

A Roman aqueduct in Spain

The Roman aqueduct system brought water from far away to cities, and built splendid fountains for them. When water was particularly plentiful, it would even run in taps in people’s houses. Yes, water was shut off to the houses before it was shut off at the fountains. The Romans also built sewage systems, to carry waste out to the sea. In essence, the Romans redirected flowing water from rivers and streams into artificial streams that flowed through cities.

With the fall of the Roman Empire, water technology stagnated, particularly in terms of carting away human waste. In the 17th century, European cities constantly smelled of feces, as human waste in cesspits was carted away much as garbage is handled in modern cities. This was actually an improvement over years prior, when cities were limited in size by how quickly the waste would decompose in cesspits within the city.

Londoners had to pay fees to have their waste hauled away. They often allowed their cesspits to overflow into the gutters in order to avoid having to pay for disposal. The advent of flush toilets exacerbated this problem. The gutters flowed to the various buried tributaries in London. This would not have been a significant concern…except that most lower-class households were using those same tributaries, and the Thames itself, as sources of fresh water. Wealthier Londoners received water from more expensive pipes that brought water in from points further upstream.

Emptying cesspits

Cholera outbreaks were fairly common during the 1800s, and common wisdom considered it to be an airborne disease. And the stench from the gutters that became de-facto open sewers was unbearable to those wealthier Londoners. Many wished to address the issue, but the expense was simply too great. It took a particularly still, hot period in the summer of 1858 to tip the balance.

The City of London then consolidated all sewage systems and upgraded them to handle household wastewater, eliminating cesspits. The raw sewage was then deposited into the Thames at the eastern (downstream) end of the city. This did nothing for the Thames downstream, but freshwater sources from further upstream ended Londoners’ drinking of raw sewage. It wasn’t until the latter half of the 20th century, when wastewater treatment plants were built in London, that the eastern end of the city became desirable land.

I bring this history to bear as an explanation for how we got to this absurd situation of taking fresh water, treating it so that it can be used for drinking, and then defecating in it and sending it to the sewers. Americans use nearly 25 percent of our drinking water this way. We not only waste the water itself, but we waste the energy and materials used to bring the water up to drinking standards.

It’s the waste of the water itself that is becoming a huge problem in the United States today. All of the water we drink (aside from that produced through desalination) must begin in the form of precipitation. Seawater evaporates, forms clouds, and the clouds drop the water on the land. From there, it may be stored as ice, or as water in lakes. It seeps into the ground, where it fills aquifers, or it runs along the surface in rivers and streams. The aquifers may be underwater lakes, or they may be underwater rivers. The rivers, whether surface or subterranean, eventually flow to the seas.

Regardless of the sources, we cannot sustainably use water at a rate that exceeds the precipitation rate. More locally, we cannot draw water from rivers at a rate that exceeds the river’s flow. Similarly, we cannot sustainably draw water from aquifers at a rate that exceeds the replenishment rate. It’s easy to tell when we’ve exceeded a river’s flow. It’s not so easy to tell when we’ve exceeded an aquifer’s replenishment rate.

This is a big deal, because we have been exceeding many of our aquifers’ replenishment rates in the United States for decades. In our ignorance, we allocated groundwater rights that exceeded normal replenishment rates. It’s as if we sold the same land to multiple parties, but didn’t discover that we did it until later. Now what do we do?

It’s a difficult problem to solve. And like most difficult problems Americans have these days, our response is to do nothing. Meanwhile, the aquifers get drawn down. To make matters worse, aquifers are so large that it’s effectively impossible to find all who pump water out of them without having the legal right to do so. In other words, it’s not only land that’s been sold many times over, but there are squatters as well.

But that’s not all. Governments have tremendous incentive to oversell the available groundwater. Albuquerque, for example, wanted to boost the local economy by bringing semiconductor manufacturing to the area. But semiconductor manufacturing uses tremendous amounts of water; a single typical plant uses as much water as a small city. Albuquerque got the manufacturing, and the jobs, but at the expense of drawing down the Albuquerque Basin aquifer. Future generations may not view such decisions so kindly.

Drawing aquifers down does more than simply take water away from future generations. The water is relatively non-compressible, and therefore provides a degree of support for the land above. When the water table drops due to drawing faster than replenishment, the land above sinks. Houses get destroyed, and people get swallowed up by these sinkholes. The recent case of a Tampa man who was swallowed whole in a hole was not caused by aquifer drawdown activity, but drawdowns cause similar events.

Near the seas, problems of water overuse compound. Rivers have a delicate balance of water pressures near their mouths. Absent a downstream flow, salt water infiltrates the river. The lower the flow, the greater the brackish infiltration. This is an increasing problem for New Orleans, which uses the Mississippi River as its freshwater source. Our recent summer droughts have been severe enough that saltwater from the Gulf of Mexico is reaching the city’s water inlets.

And the same things happen with aquifers near the coasts. They are essentially underground rivers, and therefore have the same afflictions when water is drawn down. This has been happening in San Diego.

So today I will leave you with the observation that we are treating water as an inexhaustible and nearly worthless resource, because it long seemed to be inexhaustible. The way we use it at home only exacerbates this problem: we can always turn on the tap, and fresh, clean water always comes out. From the perspective of our home use, water behaves as if it were inexhaustible. But it is not only exhaustible, it is being overused by all of us. It’s another close kin of the Tragedy of the Commons. There’s more to the story, particularly in the intersection between oil and water, but that will have to wait for another day.

In the meantime, I’d be interested to hear your thoughts on what we can do to be sustainable in our water use. I have my own ideas, but I’d like to hear yours before I share mine.

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