How to use this Page

Amos N. Guiora is a Professor of Law at the S. J. Quinney College of Law, University of Utah, where he teaches criminal law, global perspectives on counterterrorism, religion and terrorism, and national security law. He served for nineteen years in the Israel Defense Forces.  Recently he testified before the House of Representatives Homeland Security Subcommitee about the importance of sharing information in preventing terrorism.  You can watch the video here and download the transcript here.

On May 15, 2008 I testified before the House Of Representatives Homeland Security Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment. The Subcommittee, chaired by Congresswoman Jane Harman (D-Cal) was particularly interested in the subject of resilience—that is whether government and business alike are prepared for a terrorist attack on two different levels: preparing for an attack and ensuring continuity in the aftermath of the attack.

The two issues—before and after—are the essence of counter-terrorism preparation. For them to be truly implementable, government must engage in information sharing on all three levels (state, local and federal) and also with the business community. While the idea of information sharing with the business community raises important –and legitimate—questions within the law enforcement community, it is an absolute requirement.

During the course of my testimony, the Members of the Subcommittee were particularly interested in the difference between the American and Israeli cultures—in particular how Israelis respond to terrorism and understand that attacks are, in a sense, inevitable and how that understanding enables society to more quickly “rebound” in the aftermath of an attack. Furthermore, Members inquired as to the nature of the information sharing relationships and whether this did not raise important legal and constitutional issues.

To ensure a resilient homeland in a post-9/11 society, the United States must have a homeland security strategy that (1) understands the threat, (2) effectively counters the threat while preserving American values, (3) establishes a system of accountability, and (4) creates public-private and federal-state partnerships facilitating intelligence sharing and the continuity of society in the aftermath of an attack.

It is necessary to work with clear definitions of the terms and concepts that frame this strategy for resiliency. As I have previously articulated, “one of the greatest hindrances to a cogent discussion of terrorism and counterterrorism has been that the terms lack clear, universal definitions.” For this reason, I provide clear, concrete definitions of terrorism, counterterrorism, homeland security, effectiveness, accountability, and resiliency—the key terms in articulating the strategy for a resilient homeland. In addition to these definitions, I include two critical matrices for: Determining Effectiveness and Implementing Accountability.

The central focus of this testimony examines the dire consequences of the break-down in communications following both 9/11 and Hurricane Katrina, which suggests that in order to realize resiliency in the future, it is paramount that there is clear cooperation and coordination between the public sector and the private sector. Effective resiliency will ultimately be tied to establishing public-private partnerships.

In establishing these partnerships, they must be based upon three critical components: (1) clearly defined roles and responsibilities; (2) articulating a coordinated prevention-response plan; and (3) repeated training and/or simulation exercises using the prevention-response plan against realistic disaster/terror scenarios. By strategically strengthening security, sharing intelligence, and creating plans for post-attack procedures (such as evacuation plans, transportation plans, establishing places of refuge, and having basic supplies available to aid first-responders) private partners become the key to a secure and resilient homeland.

The importance of information before, during and after a disaster or attack is vital to resilience. Information sharing is, perhaps, the single most important aspect of successful resilience. Information sharing requires government agencies (federal, state and local) to share information both amongst themselves and with the private sector. Furthermore, it requires that the private sector—subject to existing legal and constitutional limits—share information with the public sector. Successful information sharing requires cooperation and coordination both internally (within sectors) and cross sectors (between public-private entities).

The lessons of 9/11 and Katrina speak for themselves. Resilience in the aftermath of either disaster or attack requires federal, state and local government agencies to understand that information sharing is vital to the nation’s homeland security. That information sharing process must include the private sector. Otherwise, the mistakes of yesterday will inevitably re-occur.

ShareThis

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, he criticizes proposals for the states to administer private sector retirement savings plans. Read his past OUPblog posts here.

Legislators throughout the country are proposing that states start to administer private sector retirement savings plans. While the details of these proposals vary from state to state, they all provide that the states should embark upon the business of managing private sector individual account arrangements.

In Connecticut, for example, the state senate, before recently adjourning, passed S.B. 652 which would have created a state-sponsored “universal 401(k).” This legislation would have mandated the state’s comptroller to establish and administer a state-run “tax-qualified defined contribution retirement program” for the self-employed, the tax-exempt institutions, and the “small employers” of the Nutmeg State.

On the other side of the country, currently pending in the California legislature is AB 2940. If enacted, this legislation would authorize CalPERS, the Golden State’s public pension plan, to accept from California residents payroll deposits for state-administered individual retirement accounts. Similar legislation has been introduced in a variety of other states.

The concern animating all these proposals is well-founded. The defined contribution paradigm has worked well for many American households, in particular, middle- and upper-middle families who save and invest through 401(k) plans and IRAs as well as the employees of large employers which sponsor and typically match such employees’ 401(k) contributions. Despite this success, it is troubling that lower-income workers and smaller employers are severely underrepresented in the individual account system.

This problem, however, has deeper roots than is acknowledged by the advocates of state-administered private sector retirement plans. The current retirement savings system relies heavily on the income tax benefits of contributing to tax-qualified arrangements such as 401(k) accounts and IRAs. Those tax benefits are substantial for middle class and more affluent workers who defer significant federal income taxation through their tax deductible contributions to such accounts.

However, low income workers today do not pay significant federal income taxes. They thus have little, if any, tax motivation to make 401(k) or IRA contributions. A deductible contribution is not a meaningful incentive for someone in a low or zero tax bracket. This would remain the case even if states compete with the private sector suppliers of retirement plans. A low-income worker who derives no tax benefit from a deductible IRA contribution at his neighborhood bank will similarly derive no tax benefit from contributing to an IRA administered by his state’s comptroller.

Moreover, even if they want to make such retirement savings contributions, most low-income workers lack the discretionary income to do so.

The private market for retirement savings products is broad and deep. Today, every reader of a major newspaper or of the internet is bombarded by the advertising of the financial services industry, selling 401(k) plans and IRAs. There is no market failure requiring state-provided retirement savings for the private sector.

There is, furthermore, an unintended irony in the idea that the states should ride to the rescue of the private retirement system. The states can’t keep in order in their own pension systems. The states’ underfunding of their own pension plans is today a serious problem. There is something untoward about states which cannot solve their own pension difficulties purporting to act as the saviors of the private sector retirement system.

There is an important step the states can take if they are serious about encouraging 401(k) and IRA participation among low-income individuals. In particular, the states could, in their own income taxes, match part or all of the federal savers’ tax credit which subsidizes the retirement saving of low-income persons by providing a tax credit if a low-income worker contributes to an IRA or 401(k) account.

However, there is no compelling case for the states to enter the private retirement savings business. Let them put their own pensions on solid financial footings first.

ShareThis

I love that people send me articles about books, bookstores, book technology, and other stuff they know I might be interested in for the blog. My friend Steve sends me the best of the gazillion articles he reads about ebooks. The ALP sends me articles about comics. And sometimes my mom sends me articles about bookstores. Thanks, guys -- I read them all, though I don't always have time to talk about them.

Speaking of time, if you've got any this Saturday and Sunday, check out the Indie & Small Press Book Fair at the New York Center for Independent Publishing. As the Times notes, the sessions include musicians as well as authors and publishers, and the conversations should be as wide-ranging as the books on offer.

And speaking of a wide range of great books, check out the new project of the National Book Critics Circle: a monthly Best Recommended list, compiled from the favorites of lots of great authors and critics. It's sure to be an extremely well-curated list -- like an NBCC award shortlist for every month. We're planning on featuring a display in the bookstore, and I think the list will prove useful in lots of other venues for finding out the best books of the moment. Here's the current list:

Fiction