The Oops Cost: When Government Makes Mistakes

Sometimes governments make mistakes that incur random penalties on their citizens. I like to call this the “oops cost.” I believe that the opportunities for oops costs have increased in recent years, as well as the magnitude of their costs.

For example, when Obama signed the NDAA a few months ago, he dramatically increased the oops cost of being mistaken for a terrorist.

Oops! You’re not really a terrorist! But now you’re locked up forever with no charge or trial!

From my understanding of the law, this could literally happen to any American citizen, but to the best of my knowledge, it’s no more than a hypothetical fear thus far. However, for many years many Americans have been charged with a lower oops cost of being mistaken for a terrorist: having trouble getting on a plane.

It’s called the “No Fly List.” Technically, there are three lists – the No Fly List, the Selectee List, and the Terrorist Watchlist, and they may have hundreds of thousands of people on them, or perhaps only 10,000 or so at the most serious level. Created after 9/11 and maintained by the lovable TSA, these lists regularly ensnare innocent Americans, subjecting them to additional screening and questioning and sometimes preventing them from boarding a plane altogether.

Kiernan O’Dwyer has been flagged dozens of times, despite repeated promises that he would be taken off the list. The 2007 article says “about 15,000 people per week apply for redress…¬†Soon, TSA’s no-fly list will be pared of names erroneously included, officials said.” But two years later, little had changed, as there were still “about one million names on the combined government watch list for airline travelers,” though “even the government admits that most of those people shouldn’t be on the list.” A woman with the common name of Ana Garcia has missed flights due to problems checking in and printing boarding passes. You can refer to the Wiki article for stories of many other false positives. (And we just learned about an 18-month-old baby that somehow got on the list.)

Oops! You’re not really a terrorist! But now you can’t get on an airplane!

It’s not just the TSA that subjects random Americans to oops costs. Last month, the Supreme Court ruled that “officials may strip-search people arrested for any offense, however minor, before admitting them to jails,” refusing to “second-guess the judgments of correctional officials.” The whole reason the case came before the Supreme Court was that Albert Florence had been mistakenly arrested and then strip-searched.

Oops! You weren’t supposed to be arrested! But now officers get to see you naked!

Just last week, we heard the outrageous story of a 24-year-old arrested by the Drug Enforcement Agency and apparently forgotten about for five days. The details are still emerging, and the man arguably made some poor decisions that led to his initial arrest, but nothing excuses the DEA accidentally leaving him locked in a small cell with no food or water.

Oops! You weren’t supposed to still be imprisoned! But now you have to drink your own urine to survive!

Unlike the earlier examples, that incident didn’t really stem from some new power the government has recently acquired. It’s an extremely rare accident that will hopefully never happen again, but it should still give you pause that this kind of thing is even possible. As if the creation of new oops costs wasn’t bad enough, how many old oops costs are hiding in the myriad of government bureaucracy, just waiting for another terrible accident to happen? (See Eric’s recent Classical Values post for other infuriating examples of the DEA’s “collateral damage”.)

How about the government’s right to invade houses? Eric at Classical Values does a good job keeping up with these kinds of dangerous mistakes. In March, law enforcement officials broke into the home of toast-eating 76-year-old Fred Skinner and put him in handcuffs until they noticed a piece of mail on the table and learned they were at the wrong house. The officers “left without an apology or information about how Skinner might get reimbursed for the damage,” though they did eventually give him money to fix his porch and front doors.

At least Mr. Skinner got his porch back. A few weeks ago, an Austin officer showed up at the wrong address to investigate a domestic disturbance and ended up shooting and killing the family’s dog.

Oops! We weren’t supposed to come to your house! But now your front door is broken, you’re in handcuffs, and your dog is dead!

Oops costs cannot be completely eliminated. Government actions are carried out by people, and people make mistakes. What we can do, however, is notice the costs of these mistakes when they happen (especially when they seem to increase) and work to minimize them as much as possible. (This is why many oppose the death penalty; we could never punish anyone if we were too scared of making any mistakes, but death is the ultimate oops cost.)

We should also factor in the oops cost before lending support to giving the government some new power. It is not enough to merely look at the pros and cons of the power doing what it is supposed to do; we must also consider the potential cost of the power being misapplied, because as long as there are people involved, at some point there will be mistakes.